Legal Profession Commons^™

Redesigning Restorative Justice For Criminal Justice Reform, Matthew D. Kim

Tennessee Law Review

Considering the racial disparities in the criminal justice system and the pressing need for reform, this article presents the optimal design for restorative justice that is capable of drawing the necessary public support to transform the criminal justice system. Restorative justice is a growing alternative to the criminal justice system designed to allow offenders, victims, and members of the community resolve crimes without resorting to the criminal justice system. Public support for restorative justice programs is vital to their success, and many programs fail because of inconsistent public support. As such, proponents of restorative justice emphasize the need to "start …

Reconciling Legal And Technical Approaches To Algorithmic Bias, Alice Xiang

Tennessee Law Review

In recent years, there has been a proliferation of papers in the algorithmic fairness literature proposing various technical definitions of algorithmic bias and methods to mitigate bias. Whether these algorithmic bias mitigation methods would be permissible from a legal perspective is a complex but increasingly pressing question at a time when there are growing concerns about the potential for algorithmic decision-making to exacerbate societal inequities. In particular, there is a tension around the use of protected class variables: most algorithmic bias mitigation techniques utilize these variables or proxies, but anti-discrimination doctrine has a strong preference for decisions that are blind …

Practical Abolition: Universal Representation As An Alternative To Immigration Detention, Matthew Boaz

Tennessee Law Review

No abstract provided.

A Reexamination Of The Parens Patriae Power, Esther K. Hong

Tennessee Law Review

Juvenile law scholars are coalescing around the idea that the originating theory of the juvenile system-the theory of the state's parens patriae power-is a largely obsolete relic of the past. This theory holds that when children commit offenses or crimes, the state as a super-parent should respond in a manner that cares, treats, and advances the best interest of the youth. Rather than live up to its ideals, however, these benevolent aims often masked abuse and limited minors' constitutional rights. The new consensus in current juvenile law scholarship is that juvenile law policy and advocacy ought to rely on a …

Joking, Exaggerating Or Contracting?, William A. Drennan

Tennessee Law Review

We love the funny, and that's no exaggeration. In a joke, a duck is the funniest animal, you'll get more laughs in a red room than a blue room, 103 characters is the optimal length for a joke, and we know all this statistically because scholarly researchers often study humor. Litigators, courts, and commentators also focus on the funny when deciding whether promissory language created a binding contract. They frequently debate and decide enforceability based on whether a party was joking.

This Article asserts, for the first time, that in many of these cases the focus should be on whether …

The New Due Process: Fairness In A Fee-Driven State, Glenn H. Reynolds, Penny J. White

Tennessee Law Review

No abstract provided.

The Simultaneity Puzzle: Lawyers Working At Multiple Law Firms, Paul R. Tremblay

Tennessee Law Review

No abstract provided.

Annual Index Volume 88

Tennessee Law Review

No abstract provided.

Covid's Constitutional Conundrum: Assessing Individual Rights In Public Health Emergencies, James G. Hodge Jr., Jennifer L. Piatt, Emily Carey, Hanna N. Reinke

Tennessee Law Review

Considerable legal challenges alleging infringements of constitutional rights have arisen against governments imposing social distancing or other restrictive measures to quell the COVID-19 pandemic. Courts assess these claims largely under two approaches. Consistent with constitutional re-balancing, judges weigh the application of rights against governments' compelling interests to protect public health and safety in emergencies. Alternatively, a minority of courts temporarily set aside existing rights to effectuate emergency responses. Both approaches insufficiently account for the flexible nature of rights and freedoms in exigencies pursuant to the Constitution's cohesive design. In public health emergencies, courts should engage in guided assessments focused on …

Becoming Global Lawyers? A Comparative Study Of Civic Professionalism, John Bliss

Sturm College of Law: Faculty Scholarship

Through their professional education and training, new lawyers are generally encouraged to adopt a civic vision of professional identity. This article explores convergences and diverges in how new lawyers entering an increasingly globalized legal profession conceive of their civic roles in different national contexts. In particular, I examine corporate lawyers-in-training in the U.S. and China, drawing on interviews and a cross-cultural identity mapping method to compare their accounts of the lived experiences of civic professionalism. I find that professional identity formation in the U.S. sample is largely marked by role distancing and a sense of constrained public-interest expression. In contrast, …

Ordinary Clients, Overreaching Lawyers, And The Failure To Implement Adequate Client Protection Measures, Leslie C. Levin

American University Law Review

Every year, thousands of individual clients are victimized by overreaching lawyers who overcharge clients, refuse to return unearned fees, or steal their money. For more than forty years, the American Bar Association (ABA) has considered, and often proposed, client protection measures aimed at protecting clients from overreaching lawyers. These measures include requirements that lawyers use written fee agreements in their dealings with clients and rules relating to fee arbitration, client protection funds, insurance payee notification, and random audits of trust accounts. This Article examines what happened to these ABA recommendations when the states considered them and assesses the current state …

The Role Of Lawyers And Law Schools In Fostering Civil Public Debate, Jennifer K. Robbennolt, Vikram D. Amar

Connecticut Law Review

Partisanship can make policy discussion and civil debate difficult. Partisan differences in how facts and policies are understood contribute to the escalation of conflict and a lack of cooperation. Lawyers are not immune from these human tendencies. But good lawyers have, and good law schools teach, values, knowledge, and skills that can aid in fostering and modeling more productive debate and resolution of conflict.

Lawyers are trained and socialized to internalize and safeguard the foundational tenets of our constitutional democracy, to uphold the law even when it does not reflect their own individual preferences. The professional rules of conduct encourage …

A Podcast Of One’S Own, Leah M. Litman, Melissa Murray, Katherine Shaw

Michigan Journal of Gender & Law

In this short Essay, we discuss the lack of racial and gender diversity on and around the Supreme Court. As we note, the ranks of the Court’s Justices and its clerks historically have been dominated by white men. But this homogeneity is not limited to the Court’s members or its clerks. As we explain, much of the Court’s broader ecosystem suffers from this same lack of diversity. The advocates who argue before the Court are primarily white men; the experts cited in the Court’s opinions, as well as the experts on whom Court commentators rely in interpreting those opinions, are …

Random Thoughts On Access To Justice In Idaho, Anne-Marie Fulfer

Articles

No abstract provided.

Is The Legal Profession Too Independent?, Limor Zer-Gutman, Eli Wald

Marquette Law Review

Faced with mounting pressure to permit national law practice and increase

access to legal services for those who cannot afford to pay for them and

critiques about growing inequality and its failure to lead the battles for greater

gender and racial justice, the legal profession’s response has been to resist

reform proposals by invoking its independence. Lawyers and lawyers alone,

asserts the profession, ought to determine the pace and details of nationalizing

law practice, set the conditions under which nonlawyers and artificial

intelligence can offer legal services, and respond to growing inequality among

lawyers and concerns about the role lawyers …

Race, Rules, And Disregarded Reality, Marsha Griggs

All Faculty Scholarship

Exploring issues of racial bias and social injustice in the law school classroom is a modern imperative. Yet, important conversations about systemic inequality in the law and legal profession are too often dissociated from core doctrinal courses and woodenly siloed to the periphery of the curriculum. This dissociation creates a paradigm of irrelevancy-by-omission that disregards the realities of the lived experiences of our students and the clients they will ultimately serve. Using Evidence as a launch pad, Professor Deborah Merritt has paved a pathway to incorporate these disregarded realities in doctrinal teaching. This important pathway leads to safe spaces necessary …

Tele-Lawyering And The Virtual Learning Experience: Finding The Silver Lining For Remote Hybrid Externships & Law Clinics After The Pandemic, Lucy J. Johnston-Walsh, Alison Lintal

Faculty Scholarly Works

The COVID-19 pandemic has rocked the world in innumerable ways. This Article argues that the COVID-19 pandemic has a silver lining for law students in experiential learning programs. The pandemic has forced law schools across the country to fully utilize remote learning technology. The pandemic similarly forced courts to accept virtual tools in an environment that had previously relied primarily on in-person appearances. The lessons that law faculty and judges have learned from the pandemic will be permanent and may change the methods of operation going forward. Law schools that embrace the lessons they learned can help their law students …

Inclusivity In Admissions And Retention Of Diverse Students: Leadership Determines Dei Success, Danielle M. Conway, Bekah Saidman-Krauss, Rebecca Schreiber

Faculty Scholarly Works

Penn State Dickinson Law has been leading with an Antiracist admissions philosophy and corresponding plans for implementation before the COVID-19 pandemic of 2020. Arguably, this approach to diversity, equity, and inclusion (DEI)was not identified explicitly as a vision priority for the law school until July 2019, when Dickinson Law welcomed Danielle M. Conway as the first Black Dean and first woman Dean in the law school’s 186-year history. Dean Conway outlined four vision priorities to accomplish within her first five years at Dickinson Law. Vision priority number two calls upon the law school’s administrators to move the needle substantially on …

Law Talk In A Brief Advice Clinic, Linda F. Smith

Utah Law Faculty Scholarship

Over three decades ago, Sarat and Felstiner published a ground-breaking ethnographic study of divorce client-lawyer conversations. They concluded that lawyers portrayed "a chaotic 'anti-system' in which [clients] cannot rely on the technical proficiency, or good faith, of judges and rival lawyers" but need to rely on their own lawyers' insider status to achieve reasonable outcomes.1 Although lawyers initially described the law and procedure to their clients, they rarely referenced that rational description when explaining what had occurred or would occur in their clients' cases. This law talk may have gradually and ultimately persuaded the clients to reach reasonable settlements, but …

Asylum Attorney Burnout (Model Survey And Additional Survey Responses), Lindsay M. Harris, Hillary A. Mellinger

Journal Articles

No abstract provided.