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Chapman Dialogue And Law Review Symposium Keynote Address: Ex Ante Versus Ex Post Approaches To Financial Regulation, Steven L. Schwarcz 2011 Duke Law School

Chapman Dialogue And Law Review Symposium Keynote Address: Ex Ante Versus Ex Post Approaches To Financial Regulation, Steven L. Schwarcz

Faculty Scholarship

Ideal financial regulation would work ex ante, to prevent financial failures. Once a failure occurs, there may already be economic damage, and it may be difficult to stop the failure from spreading and becoming systemic. The reality, though, is that preventing financial failures should be only one role for regulators. Even an optimal prophylactic regulatory regime cannot anticipate and prevent every failure. This paper, which formed my Chapman Dialogue Address at Chapman University School of Law and the keynote speech at Chapman Law Review’s 2011 Symposium on the Future of Financial Regulation, attempts to contrast fundamental differences between ex ante …


The Canadian Criminal Jury, Neil Vidmar, Regina Schuller 2011 Duke Law School

The Canadian Criminal Jury, Neil Vidmar, Regina Schuller

Faculty Scholarship

The Canadian criminal jury system has some unique characteristics. In contrast to American law, that gives precedent to free speech over fair trial, and English law, that favors fair trial over free speech, Canadian law occupies a middle ground balancing these competing values .Jury selection procedure in most trials is similar to that of England: jurors are assumed to be “impartial between the Queen and the accused” and are selected without a voir dire. However, in cases involving exceptional pretrial publicity or involving accused persons from racial or ethnic minority groups, jurors are vetted by a “challenge for cause” process …


The Federal Common Law Crime Of Corruption, Lisa Kern Griffin 2011 Duke Law School

The Federal Common Law Crime Of Corruption, Lisa Kern Griffin

Faculty Scholarship

This contribution to the North Carolina Law Review’s 2010 symposium, Adaptation and Resiliency in Legal Systems, considers the compatibility between the common law nature of honest services fraud and the dynamic quality of public integrity offenses. Corruption enforcement became a focal point of recent debates about over- criminalization because it typifies expansive legislative mandates for prosecutors and implicit delegations to courts. Federal prosecutions of political corruption have relied primarily on an open-textured provision: 18 U.S.C. § 1346, the honest services extension of the mail fraud statute. Section 1346 raises notice concerns because it contains few self-limiting terms, but it has …


The Loophole That Would Not Die: A Case Study In The Difficulty Of Greening The Internal Revenue Code, Lawrence A. Zelenak 2011 Duke Law School

The Loophole That Would Not Die: A Case Study In The Difficulty Of Greening The Internal Revenue Code, Lawrence A. Zelenak

Faculty Scholarship

Congress and the Treasury have commissioned the National Academy of Sciences (NAS) “to undertake a comprehensive review of the Internal Revenue Code of 1986 to identify the types of and specific tax provisions that have the largest effects on carbon and other greenhouse gas emissions and to estimate the magnitude of those effects.” The hope of the proponents of the NAS carbon audit is that Congress, once informed of the results of the audit, will respond by “greening” the Internal Revenue Code. This Essay cautions that a more environmentally friendly Code will not necessarily follow from the legislative consciousness-raising of …


Defining International Law Librarianship In An Age Of Multiplicity, Knowledge, And Open Access To Law, Richard A. Danner 2011 Duke Law School

Defining International Law Librarianship In An Age Of Multiplicity, Knowledge, And Open Access To Law, Richard A. Danner

Faculty Scholarship

Many law librarians are experts in international law and legal research. The concept of ‘international law librarianship’, however, encompasses something more than a field of study in which a group of experts practise their profession. In the broader sense, the idea suggests a common calling, similar interests, and goals shared by librarians with a range of specialties beyond international law, working in all types of law libraries. What commonalities create and sustain the concept of international law librarianship? This paper suggests that they can be found in: law librarians’ common need to respond to the ‘multiplicity’ of information sources facing …


Brief Of Amica Curiae, Deborah A. Demott In Support Of The Petitioner, Maples V. Thomas, Deborah A. DeMott 2011 Duke Law School

Brief Of Amica Curiae, Deborah A. Demott In Support Of The Petitioner, Maples V. Thomas, Deborah A. Demott

Faculty Scholarship

No abstract provided.


Public Funding Of Judicial Campaigns: The North Carolina Experience And The Activism Of The Supreme Court, Paul D. Carrington 2011 Duke Law School

Public Funding Of Judicial Campaigns: The North Carolina Experience And The Activism Of The Supreme Court, Paul D. Carrington

Faculty Scholarship

In recent years, the problem of selecting judges to sit on the highest state courts has become a national crisis. North Carolina remains among the states whose constitutions require competitive elections of all its judges. Presently, all candidates for its judicial offices must first compete for election in a non-partisan primary, a system motivated by the desire to maximize the power of the state’s citizen-voters to choose their judges and hold them accountable for their fidelity to the law. Some observers have continued to celebrate such judicial elections as an honorable democratic empowerment, while others have not. The disagreement has …


The Anticipation Misconception, Colin P. Marks 2011 St. Mary's University School of Law

The Anticipation Misconception, Colin P. Marks

Faculty Articles

Many commentators and courts have cited to the Supreme Court decision of Hickman v. Taylor as the genesis of the work product doctrine and the requirement that, to be afforded protection, the material in question must be generated “in anticipation of litigation.” The oft quoted policy justification for the protection afforded is that attorneys should be allowed a “zone of privacy” within which to prepare their case for the client. This justification supports limiting protection only to work generated “in anticipation of litigation,” because, presumably, outside of this context there is no need for the “zone of privacy.” However, a …


Texas Annual Survey: Securities Regulation, George Lee Flint Jr 2011 St. Mary's University School of Law

Texas Annual Survey: Securities Regulation, George Lee Flint Jr

Faculty Articles

Securities law opinions under Texas law during this period can be divided into two groups. The first group deals with various fraudulent schemes targeted by the Board. The "free lunch" scam, aimed at senior investors, surfaced in Head v. State where the scammer lost the appeal because the evidence clearly confirmed his failure to inform investors. In Navarro v. Grant Thornton, LLP investors failed in their aiding and abetting lawsuit against the accountants because, absent contact between the accountants and investors, the accountants had no duty to whistleblow to regulators or investors.

The second group involves incompetent lawyers. In S&D …


Malpractice Liability Related To Foreign Outsourcing Of Legal Services, Vincent R. Johnson, STephen C. Loomis 2011 St. Mary's University School of Law

Malpractice Liability Related To Foreign Outsourcing Of Legal Services, Vincent R. Johnson, Stephen C. Loomis

Faculty Articles

The outsourcing of client-related tasks to service providers in other countries is likely to generate malpractice claims against American law firms. This Article discusses the wide range of theories under which an outsourcing American law firm may be liable for its own negligence or for the actions of outsourcing providers. These theories include negligence by the outsourcing law firm, vicarious liability for the conduct of independent contractors, and vicarious liability for the conduct of business partners.


Professional Responsibility For The Pro Se Attorney., Margaret Raymond 2011 St. Mary's University

Professional Responsibility For The Pro Se Attorney., Margaret Raymond

St. Mary's Journal on Legal Malpractice & Ethics

This Article considers how pro se lawyers should be treated under the law of professional responsibility. While courts have addressed whether various aspects of the law of lawyering should be applied to lawyers acting pro se, they have not done so systematically. The Article first demonstrates that the law is not consistent in its treatment of pro se lawyers. It then argues that a purpose-based approach to the issue provides a consistent, rational, and reproducible way to analyze the question. It concludes that whether a particular rule of professional responsibility should apply to a pro se lawyer should be driven …


Legal Malpractice Litigation And The Duty To Report Misconduct., Vincent R. Johnson 2011 St. Mary's University

Legal Malpractice Litigation And The Duty To Report Misconduct., Vincent R. Johnson

St. Mary's Journal on Legal Malpractice & Ethics

Lawyers participating in legal malpractice litigation sometimes encounter evidence of serious disciplinary rule violations. Whether, and how soon, those lawyers are required to report this information to grievance authorities is a question that has received little attention from courts and scholars, despite the fact that most states have mandatory reporting rules. The dilemma for lawyers serving as testifying experts is particularly troublesome because nonreporting may result not only in discipline, but testimonial impeachment. The better view is that an expert in a pending case ordinarily has no mandatory obligation to report misconduct. This conclusion is supported by an analysis of …


An Article We Wrote To Ourselves In The Future: Early 21st Century Views On Ethics And The Internet., David Hricik, Prashant Patel, Natasha Chrispin 2011 St. Mary's University

An Article We Wrote To Ourselves In The Future: Early 21st Century Views On Ethics And The Internet., David Hricik, Prashant Patel, Natasha Chrispin

St. Mary's Journal on Legal Malpractice & Ethics

Written from the viewpoint of the year 2050, this Article discusses the clash between legal ethics and the technological revolution of the early twenty-first century. As a result of ethics rules being applied to new technologies in ways never contemplated under traditional circumstances, lawyers had to be overly cautious when they used the Internet to correspond with or seek out clients, or otherwise promote their legal services. The lesson learned is that the legal community should reflect on the harm caused by over zealous regulation and take a more reasoned approach to the use of technology for the benefit of …


Probing The Legitimacy Of Mandatory Mediation: New Roles For Judges, Mediators, And Lawyers., Tracy Walters McCormack, Susan Schultz, James McCormack 2011 St. Mary's University

Probing The Legitimacy Of Mandatory Mediation: New Roles For Judges, Mediators, And Lawyers., Tracy Walters Mccormack, Susan Schultz, James Mccormack

St. Mary's Journal on Legal Malpractice & Ethics

This Article probes the fundamental assumptions behind the use of mandatory or court-ordered mediation. The authors question the predominant use of standing rules or judicial practices referring cases to mediation. These referrals are inconsistent with the traditional roles of judges and courts, exclude the public from the justice system, and allow repeat players to develop a private justice system with little to no oversight. The Article questions why judges allow and encourage mandatory mediation and calls for all participants to take a more active role in the process. Based on surveys of judges, mediators, and lawyers, the Article exposes troublesome …


Ethically Handling The Receipt Of Possibly Privileged Information., James M. Fischer 2011 St. Mary's University

Ethically Handling The Receipt Of Possibly Privileged Information., James M. Fischer

St. Mary's Journal on Legal Malpractice & Ethics

Inadvertently sent e-mails that contain privileged information, material negligently included in a discovery response, or employer's documents taken by a whistle-blower all share a common theme-the materials were not intended to be disclosed to the opposing party. This Article makes two contentions. First, all unintended disclosures should be treated under a single standard that asks whether the privilege holder exercised reasonable care in maintaining the confidentiality of the materials. Second, with respect to the receiving lawyer's professional obligations, a lawyer who receives materials that may be privileged should be allowed to read the materials: (1) to determine whether the materials …


Practical Ethics For The Professional Prosecutor., Enrico B. Valdez 2011 St. Mary's University

Practical Ethics For The Professional Prosecutor., Enrico B. Valdez

St. Mary's Journal on Legal Malpractice & Ethics

In Brady v. Maryland, the United States Supreme Court held that the prosecution's withholding of material exculpatory evidence violated the defendant's due process rights regardless of the absence of bad faith. The implications of this duty can be seen in the case of John Thompson, a man who was convicted of murder in Louisiana in 1985 after the prosecution failed to turn over exculpatory evidence. Thompson was able to get his conviction reversed and subsequently sued the district attorney's office. This Article analyzes Brady and the decisions that followed it to outline the obligations of prosecutors who are in possession …


Shifting The Burden Of Proof On Causation In Legal Malpractice Actions., Jeffrie D. Boysen 2011 St. Mary's University

Shifting The Burden Of Proof On Causation In Legal Malpractice Actions., Jeffrie D. Boysen

St. Mary's Journal on Legal Malpractice & Ethics

Legal malpractice suits, like any negligence claim, require the plaintiff to meet all of the elements of the malpractice claim. Texas malpractice claims are based on professional negligence. In Texas, the elements a plaintiff must prove in a legal malpractice claim are: "(1) the attorney owed the plaintiff a duty; (2) the attorney breached that duty; (3) the breach proximately caused the plaintiffs injuries; and (4) damages occurred." Most jurisdictions, including Texas, place the burden on the plaintiff to meet all elements of the claim, including causation. However, a significant minority of jurisdictions allow the burden to shift to the …


Choosing Your Child's Race, Dov Fox 2011 University of California, Hastings College of the Law

Choosing Your Child's Race, Dov Fox

Hastings Journal on Gender and the Law

Assisted reproduction has answered many couples' hopes of conceiving a child. In assisted reproduction, the appearance of racial salience matters, and adjusting the prominence of race in decision making frameworks can shape social meaning. There is a spectrum of salience-varying approaches that sperm banks could adopt to manage information about donor race, each of which sends a different message about the social meaning of donor catalog and website design. This Article considers four such approaches: race-indifferent, race-sensitive, race-attentive, and raceexclusive. Although civil rights scholarship reveals that race-based classification is not a necessary condition of wrongful discrimination, we should remain diligent …


Who Cares About The Rights Of Indigenous Children - Infanticide In Brazilian Indian Tribes, Aquila Mazzinghy Alvarenga 2011 University of California, Hastings College of the Law

Who Cares About The Rights Of Indigenous Children - Infanticide In Brazilian Indian Tribes, Aquila Mazzinghy Alvarenga

Hastings Journal on Gender and the Law

In some parts of this world, children are abandoned or even buried alive when their tribes-their own families-consider them dangerous to the well-being of the group. Scholars and advocates have largely framed the discourse on infanticide in indigenous tribes as a conflict between the rights of indigenous peoples to preserve and practice their cultures, and internationally-recognized individual rights that forbid infanticide. This Article examines infanticide in indigenous tribes in Brazil and argues that cultural diversity cannot be invoked to justify indigenous infanticide because life is the sine qua non condition for the existence of culture. Rather, the right to life …


Polarized Circuits: Party Affiliation Of Appointing Presidents, Ideology, And Circuit Court Voting In Race And Gender Civil Rights Cases, Christopher Smith 2011 University of California, Hastings College of the Law

Polarized Circuits: Party Affiliation Of Appointing Presidents, Ideology, And Circuit Court Voting In Race And Gender Civil Rights Cases, Christopher Smith

Hastings Journal on Gender and the Law

The legitimacy of the American federal judiciary stems from its role as the non-political branch of government. Federal judges must decide cases independent of political leanings. However, Federal judges receive lifetime appointments from Presidents of different parties, and different political eras. This Article explores whether the ideology of the appointing president affects the decision making of judges within the United States Circuit Courts of Appeals. An analysis of the decisions by Republican- and Democrat-appointed judges in gender discrimination and race discrimination cases shows politics does creep into judicial decision making. Furthermore, this Article reveals the changing landscape of judicial ideology …


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