Tuesday, April 15, 2014

Dru Stevenson on being Against Confidentiality

Two points to make about confidentiality, just as all us ethics profs are about to (spoiler alert) examine on it. One is that I note that there is an interesting article in the current Litigation magazine (the ABA's journal by the Section on Litgation) on whether confidentiality and privilege survive death. It's not yet posted on their website, so look for it in print or anticipate it online. It notes that the successor law firm to Lizzie Borden's counsel circa 1892 is still safeguarding its (really, her) records. I foresee a poem about the privilege here, but what rhymes with "privilege"? One point six does not quite rhyme with ax.

The more accessible point is that Drury D. Stevenson (South Texas, Law) has posted to SSRN an article that, to me, follows in the tradition of the late Fred Zacahrias. Dru's title is Against Confidentiality and his abstract is:

Confidentiality rules form an important part of the ethical codes for lawyers, as a modern, expansive extension of the traditional attorney-client privilege doctrine. The legal academy, judiciary, and practitioners generally agree on the conventional wisdom that strict confidentiality rules are necessary to foster client-lawyer communication, thereby providing lawyers with information they need for effective representation. Yet this premise is demonstrably false – clients withhold information or lie to their lawyers despite the confidentiality rules, and the rules are mostly redundant with other ethical rules, evidentiary doctrines, and effective market mechanisms for protecting client privacy interests. At the same time, the confidentiality rules impose significant social costs – direct externalities, lemons effects, and even serious harm to third parties.

This Article argues that the lawyer confidentiality rules are ripe for repeal, revision, or rejection in the form of civil disobedience in certain cases. Using analytical tools from economics, including the Coase Theorem, this Article goes beyond previous criticisms of the rules to provide an extensive analysis of the social costs – and illusory benefits – of the ethical rules that compel lawyers to conceal client secrets. The rules undermine public trust in the legal system, and overall transparency and cooperation in society. In extreme instances, the rules facilitate wrongful convictions of innocent third parties and other serious harms. In relation to the other ethical rules, the confidentiality rules are generally in tension with, or redundant of, other rules designed to protect clients and third parties. The Article concludes with specific normative proposals for revising the rules, or challenging the existing rules as a way to force reforms.

[Alan Childress]

April 15, 2014 in Abstracts Highlights - Academic Articles on the Legal Profession, Privilege | Permalink | Comments (0) | TrackBack (0)

Friday, November 15, 2013

Konefsky and Sullivan on Placing the Big Changes to Legal Practice and Legal Education into a Broader Context of the Profession

Alfred Konefsky (SUNY University at Buffalo, Law) and Barry Sullivan (Loyola-Chicago, Law) have posted to SSRN their fascinating paper, "In This, the Winter of Our Discontent: Legal Practice, Legal Education, and the Culture of Distrust." It will be published in Buffalo Law Review. Its abstract:

This essay seeks to situate the challenges facing legal education within the broader context of professional culture — a context that seems to us to have been neglected in the present debates. In a sense, the “market reformers” have been swept up, consciously or not, in a wider movement that elevates markets over other forms of social analysis and therefore asserts and takes for granted what is in fact deeply contested. More specifically, they have pushed to the side the public-serving dimension of the lawyer’s role because it allegedly conflicts with the psychology of classical economic liberalism. Our aim, then, is to restore the concept of the public domain to a discussion now dominated by mere considerations of costs and a belief in the inevitable triumph of a narrowed sense of professional culture. Before we can begin to reform the infrastructures of legal education, we need to identify the function of the legal profession in a democratic society and the role that a legal education might play in preparing men and women for service in a profession so conceived. In that sense, cost is not an independent variable, and any judgment about the cost-effectiveness of legal education necessarily depends on a decision concerning the purposes to be served by a legal education.

In Part I, we discuss, in a general way, some of the changes that have occurred in society, the profession, and legal education in the past 40 years or so. We are particularly interested in the growing tendency to re-conceptualize many social phenomena in market terms and the effects of this trend on legal education and the practice of law. In Part II, we continue our discussion of those themes, as they relate to the current debate over the future of legal education, by considering the analyses of Thomas D. Morgan and Brian Z. Tamanaha, both of whom approach the problem from the vantage point of economic analysis. Notwithstanding the similarities in their methodologies, their respective prescriptions point in somewhat different directions. We suggest that a broader view is necessary and that the work of these commentators and others suffers from a failure to give sufficient attention to the public dimension and significance of the legal profession. In Part III, we endeavor to reframe the problem in a way that may be useful in developing a forward-looking approach to accomplishing the reforms that are necessary.

Definitely worth a read, especially for its taking the costs meme from Tamanaha's Failing Law Schools and others to a different level. [Alan Childress]

November 15, 2013 in Abstracts Highlights - Academic Articles on the Legal Profession, Law & Society | Permalink | Comments (0) | TrackBack (0)

Thursday, September 5, 2013

Bruce Green on the Lawyer's Independence

Recently posted to SSRN is a new paper by Bruce Green (Fordham), entitled Lawyers’ Professional Independence: Overrated or Undervalued? It is an article for the Akron Law Review. Here is a summary:

This article explores the concept of lawyers’ "professional independence" in the literature of the U.S. legal profession. It begins with some reflections on the conventional meanings of professional independence, which encompasses both the bar’s collective independence to regulate its members and individual lawyers’ independence in the context of professional representations, including independence from clients, on one hand, and independence from third parties, on the other. The article suggests that the professional conduct rules are overly preoccupied with protecting lawyers’ professional independence from the corrupting influences of other professionals. The article then turns to an aspect of professional independence that has largely dropped out of lawyers’ discourse but that deserves more attention, namely, lawyers’ independence from the courts. This includes: (1) freedom to criticize judges; (2) freedom to disobey arguably unlawful court orders; and (3) freedom to resolve certain ethical dilemmas for oneself, as a matter of professional conscience. The article maintains that as the bar has become strongly identified and allied with the judiciary, motivated by the interests in securing judicial protection from other government regulation and in securing the bar’s own institutional influence over individual lawyers, the bar has ignored this understanding and redefined professional independence consistently with a strong judicial role in regulating lawyers.

[Alan Childress]

September 5, 2013 in Abstracts Highlights - Academic Articles on the Legal Profession, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Monday, August 26, 2013

Dinovitzer, Garth & Sterling Question (Empirically) Current Meme of Buyers' Remorse in Going to Law School

New at SSRN is Buyers' Remorse? An Empirical Assessment of the Desirability of a Legal Career by acclaimed law-and-society scholars Ronit Dinovitzer (Toronto), Bryant Garth (now at UC Irvine, in addition to ABF and Southwestern), and Joyce Sterling (Denver). Their abstract:

The literature attacking the value of legal education relies as a rule on the idea that individuals attend non-elite law schools because of optimism bias -- thinking they will get the lucrative corporate jobs deemed necessary to pay off educational debt. They presumably would then get buyers' remorse when their optimism proves unjustified. Drawing on the first two waves of the only longitudinal data on lawyer careers, the After the J.D. Study, the authors examine whether those who began their careers in the year 2000 -- with substantial debt even if not as high as today's graduates -- showed evidence of buyers' remorse about their decision to get a law degree. The evidence indicates that law graduates beyond the most elite were able to pay down their debt at the same rate or better than most elite law graduates. In addition, after seven years of practice the great majority of these lawyers were still satisfied with their decision to become lawyers. In fact, there is no statistically significant difference in reported satisfaction with the decision to become a lawyer when we compare graduates from the higher and lower ranked law schools. And while there is some suggestion that lawyers who reported still owing more than $100,000 after seven years of practice were either ambivalent or dissatisfied with their decision to invest in a legal career, multivariate models show that percent of debt remaining seven-eight years into one's career has no significant relationship with career satisfaction. Thus, in contrast to the dominant story, most respondents irrespective of debt are extremely or moderately satisfied with their decision to become a lawyer. There is no indication in our data that these law graduates feel they made a mistake by choosing to go to law school. The data also show that those most likely to favor eliminating the third year of law school were elite law graduates and attorneys in large corporate law firms -- again a contrast to the dominant story.

Check it out. [Alan Childress]

August 26, 2013 in Abstracts Highlights - Academic Articles on the Legal Profession, Law & Society | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 2, 2013

Right to Counsel 50 Years After Gideon Examined in new Yale LJ Symposium

The Yale Law Journal's final issue of the academic year, June 2013, is a thorough and compelling Symposium: "The Gideon Effect - Rights, Justice, and Lawyers Fifty Years After Gideon v. Wainwright." I recommend its over 600 pages of articles from 25 leading voices, including Mike's GULC colleagues Paul Butler and Neal Kumar Katyal, and mine at Tulane, Pamela Metzger. Topics range from  122.8.Cover_Symposium issue 8 interior Q final (3) civil counsel to immigration, from Guantanamo to the El Paso PD Office to international law and the EU -- in addition to detailed examinations of the central mission of providing counsel in indigent criminal defense representations. In addition to the print issue's availability from the Journal and from libraries, the Kindle at Amazon, Nook at B&N, and Apple (direct from iBooks) versions are already available for a nominal download cost (ebooks created through my Quid Pro project). It really is a law review issue that reads more like an extensive and worthwhile new book on this important subject, and IMO it is accessible to nonlawyers and others interested in the state of this fundamential right. [Alan Childress]

July 2, 2013 in Abstracts Highlights - Academic Articles on the Legal Profession, Pro Bono, The Practice | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 20, 2013

Lisa Dolak on Civil Litigation Failure and Ethics Lapses, Especially in IP Cases

Recently posted on SSRN is an article by Syracuse's Lisa Dolak called Trial Lawyers in Trouble: Litigation Misconduct and Its Ethics Fallout. Its abstract is:

Misconduct in civil litigation is not a new phenomenon. Nor is it confined to particular types of cases. Because of their characteristic intensity, however, intellectual property cases may be more likely to inspire bad behavior than other types of cases. In patent cases, in particular, often much is at stake for both counsel and client. The potential outcomes range from a judgment for the patent owner, potentially including trebled lost profits, a permanently enjoined infringer and even an attorney fees award, to a ruling that the asserted patent is partly or entirely invalid, or even unenforceable, with the patent owner ordered to pay the infringement defendant’s attorney fees. And the complexity and potential intensity only increase when multiple patents and/or multiple accused products are involved. The associated pressures seem, on occasion, to lead litigants and trial lawyers to succumb to the temptation to step outside the bounds of vigorous advocacy.

Where to draw the line can be a challenging question. And the stakes are high. Courts have the power to impose a wide variety of sanctions on parties and their counsel. The lawyers involved risk injury to their reputations and even, potentially, bar discipline. Following an overview of the key sanctions regimes available to the federal courts, this paper draws on some recent IP decisions examining litigation conduct to illustrate the range of conduct with which courts must contend and the application of various sanctions frameworks.

[Alan Childress]

March 20, 2013 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack (0)

Monday, March 11, 2013

Nominations for Prestigious Prize in Professional Responsibility Scholarship

Word from our long-time reader Sam Levine at Touro:

Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility

Submissions and nominations of articles are now being accepted for the fourth annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility. To honor Fred's memory, the committee 6a00d8341bf68d53ef0128756f5389970c-800wiwill select from among articles in the field of Professional Responsibility with a publication date of 2013. The prize will be awarded at the 2014 AALS Annual Meeting in New York. Please send submissions and nominations to Professor Samuel Levine at Touro Law Center: slevine@tourolaw.edu

The deadline for submissions and nominations is September 1, 2013.

Fred is shown right; we miss him. [Alan Childress]

March 11, 2013 in Abstracts Highlights - Academic Articles on the Legal Profession, Childress | Permalink | Comments (0) | TrackBack (0)

Saturday, October 27, 2012

Rebecca Aviel Earns Zacharias Prize

Touro Law Center's Samuel Levine let us know that the recipient of this year's Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility is Rebecca Aviel, for The Boundary Claim's Caveat: Lawyers and Confidentiality Exceptionalism. The award will be presented at the Section Lunch of the AALS Section on Professional Responsibility, which will take place on Saturday, January 5, at 12:30 pm, at the Palace Cafe on Canal Street.

Get the molten chocolate dessert, Sam! [Alan Childress]

October 27, 2012 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack (0)

Sunday, March 4, 2012

Fraidin on How We Talk About Child Welfare and the Lawyer's Role

Matthew I. Fraidin, a visiting associate professor at Georgetown Law, has posted to SSRN his 2012 essay, "Changing the Narrative of Child Welfare." Its abstract:

In child welfare, the difference we can make as lawyers for parents, children, and the state, and as judges, is to prevent children from entering foster care unnecessarily. And we can end a child’s stay in foster care as quickly as possible. To do that, we have to fight against a powerful narrative of child welfare and against the accepted “top-down” paradigm of legal services.

In this essay, Professor Fraidin suggests that we can achieve our goals of limiting entries to foster care and speeding exits from it by looking for the strengths of the people involved in our cases, rather than their weaknesses. We can look for what they can do, rather than what they can’t. We can focus on their abilities, not the shortcomings over which we often obsess — like drug addiction, impatience, illiteracy, poverty. We can start from a premise that families involved with child welfare are bundles of assets, rather than collections of problems. If we can do all this, we can help families build, rather than watch them fall.

[Alan Childress]

March 4, 2012 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack (0)

Monday, January 30, 2012

Weisselberg and Li on the White Collar Defense Bar in BigLaw and How it Has Changed

Charles Weisselberg and Su Li (Cal., Berkeley Law [and its great Center for Study of Law & Society]) have posted to SSRN their study of the transformation of the white collar defense bar. Its title is Big Law's Sixth Amendment: The Rise of Corporate White-Collar Practices in Large U.S. Law Firms and its abtract is:

Over the last three decades, corporate white-collar criminal defense and investigations practices have become established within the nation’s largest law firms. It did not used to be this way. White-collar work was not considered a legal specialty. And, historically, lawyers in the leading civil firms avoided criminal matters. But several developments occurred at once: firms grew dramatically, the norms within the firms changed, and new federal crimes and prosecution policies created enormous business opportunities for the large firms. Using a unique data set, this Article profiles the Big Law partners now in the white-collar practice area, most of whom are male former federal prosecutors. With additional data and a case study, the Article explores the movement of partners from government and from other firms, the profitability of corporate white-collar work, and the prosecution policies that facilitate and are in turn affected by the growth of this lucrative practice within Big Law. These developments have important implications for the prosecution function, the wider criminal defense bar, the law firms, and women in public and private white-collar practices.

[Alan Childress]

January 30, 2012 in Abstracts Highlights - Academic Articles on the Legal Profession, Law & Society, Law Firms | Permalink | Comments (0) | TrackBack (0)

Sunday, January 29, 2012

Gallagher on the IP Bar, its Practices, and the Effect on Real Copyright and Trademark Law

You may not catch it from the title, but William T. Gallagher's (Golden Gate U. Law) new paper posted to SSRN is firmly about the legal profession, the bar, and the practice of IP law. Using an empirical/interviewing methodology, Gallagher explores the construction of copyright/trademark law through day-to-day practice, cease and desist letters, and the stuff that never makes it to courts. A teacher of both Professional Responsibility/lawyer regulation as well as IP law, he has spent years collecting the data for this revealing study. His abstract:

    In recent years, as Congress has created new intellectual property (IP) rights and courts have often interpreted those rights broadly, legal scholars have frequently decried the expanded scope of protection afforded IP owners in most substantive areas of IP law. According to this critique, the over-expansion of IP rights throughout the past two decades harms competition, chills free speech, and diminishes the public domain as increasingly broad areas of social life are brought within the scope of strong IP protection. While this over-expansion theory reflects an important — indeed, foundational — policy debate concerning the proper balance between IP owners’ rights and the public’s rights of access to the information, ideas, and expressions that IP protects, it is incomplete precisely because it focuses largely on what Congress or the courts do. In reality, most enforcement of IP rights takes place not in court, but in the everyday practices of IP owners and their lawyers. “Cease and desist” letters, phone calls, and negotiations with alleged infringers constitute the bulk of IP enforcement efforts in trademark and copyright practice. To be sure, these efforts take place in the “shadow” of IP law and are therefore influenced by it. But it is in these everyday practices — and not in trial or appellate courts — that most IP rights are asserted, resisted, and negotiated. Thus, if we want to know whether IP rights are over-enforced or over-extended, we need to know how, why, and to what effect these rights are exercised in daily life. To date, however, IP scholarship has focused virtually no attention on this critical arena of everyday practice. Most IP scholarship is primarily doctrinal, focusing on published appellate cases. Even the growing empirical scholarship on IP focuses largely on published or, at least, filed cases. As in every other area of civil justice, however, most IP disputes do not result in litigation, and most litigation settles well before trial. Certainly, published appellate decisions and even filed cases represent only a small percentage of IP disputes. Thus, in order to more fully understand whether IP rights affect competition, chill free speech, diminish the public domain, or impede creativity, it is necessary to explore how IP claims are made and resolved in private negotiation rather than in litigation, which is the focus of this Article. It presents findings from a qualitative empirical study of the trademark and copyright disputing process outside of court, based on original data derived from semi-structured interviews with experienced IP attorneys who advise clients on how to enforce their rights. This research is one of the first studies to examine how trademark and copyright claims are actually enforced in practice.

[Alan Childress]

January 29, 2012 in Abstracts Highlights - Academic Articles on the Legal Profession, Law & Society | Permalink | Comments (0) | TrackBack (0)

Hatfield on the History of Tax Lawyer Ethics

Michael Hatfield of Texas Tech has published to SSRN his study of the tax legal profession, in a historical context: "Legal Ethics and Federal Taxes, 1945-1965:  Patriotism, Duties and Advice." Its abstract:

Legal Ethics and Federal Taxes, 1945-1965: Patriotism, Duties and Advice provides a timely historical review of legal ethics and federal taxes. Focusing on the first two decades of the modern income tax (1945-1965), the Article reviews the ethics literature of the tax bar, which was mostly written by very prominent tax lawyers (a founder of Paul, Weiss; partners at Sullivan & Cromwell, Willkie Farr, etc.), tax professors (including the dean at Harvard Law School), and government officials (including key advisors to FDR, JFK, and LBJ). This seemingly forgotten literature provides a remarkable contrast to today’s anti-tax climate, especially given that the highest marginal individual tax rate during 1945-1965 was 94%. The writers of this period emphasized the patriotic duty to support the federal government by paying taxes, describing taxes, for example, as the price to maintain capitalism (Merle Miller) and a “blessing” (Erwin Griswold). Several stressed the ethical duty of lawyers to improve their clients’ respect for the tax system (Norris Darrell, e.g.). “Ethics” for these writers was not an issue of the ABA canons but rather a more general, philosophical reflection. For example, in 1949, the tax committee of the ABA issued a report on the importance of natural law jurisprudence in tax. In 1952, the discussion at the Tax Law Review banquet (which was nominally dedicated to discussing “Ethical Problems of Tax Practitioners”) developed into a debate over whether or not Americans were more degenerate then than in the past (Edmond Cahn) or merely more self-conscious (Thomas Tarleau). But the ethics writers were also concerned with specific issues that endure to this day, such as when to disclose an arguable but uncertain tax position – some (Randolph Paul, e.g.) arguing almost any position the government was likely to question should be disclosed, others (Boris Bittker, e.g.) arguing against disclosure so long as the position was reasonable. There was wide disagreement as to whether or not tax lawyers owed a special duty to the system, but wide agreement that this theoretical debate was nearly moot given that conservative tax advice was usually not only the most ethical but the most practical. This pragmatic attitude – emphasizing that good tax practice, good tax ethics, and good tax advice tended to converge – reflected the “real world” orientation of these professionally accomplished writers, even though, by today’s standards, many of their statements seem idealistic. The salvaging of this forgotten literature is timely not only in its relevance to contemporary debates, but also its relevance to the increasing historical research of the income tax as its 100th anniversary approaches.

[Alan Childress]

January 29, 2012 in Abstracts Highlights - Academic Articles on the Legal Profession, Ethics, Law & Business | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 8, 2011

Michael Cassidy Wins Fred Zacharias Award

Breaking news shared by Touro Law Center's Samuel J. Levine, announcing the second recipient of this scholarship award in our field:

The winner of the second annual Fred C. Zacharias Memorial Prize for
Scholarship in Professional Responsibility is Michael Cassidy, for Plea
Bargaining, Discovery and the Intractable Problem of Impeachment Disclosures.

The Prize will be presented at the Section Lunch of the AALS Section on
Professional Responsibility, which will take place on Friday, January 6,
2012, at 12:30 p.m., at American University Law School.

More on Prof. R. Michael Cassidy of Boston College here. His paper is on SSRN here.

A great way to remember Fred, who is missed. [Alan Childress]

November 8, 2011 in Abstracts Highlights - Academic Articles on the Legal Profession, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 6, 2011

Gallagher on Lawyer Roles and Ethics in IP Practice

Posted by Alan Childress

I received an interesting reprint yesterday in the mail, intersecting legal ethics and IP practice -- particularly discovery methods in the wake of Qualcomm -- using an empirical research approach and lawyer interviews. William Gallagher (law, Golden Gate U) published in John Marshall's IP law review (also on SSRN) an article entitled IP Legal Ethics in the Everyday Practice of Law: An Empirical Perspective on Patent Litigators. Its abstract:

This article presents preliminary findings from a qualitative empirical study of patent litigators. Part of a larger and ongoing project studying intellectual property lawyers in patent, trademark, and copyright enforcement and litigation actions, this article focuses on ethical decision-making by patent litigators in the pretrial discovery process. The article is based on data from in-depth, semi-structured interviews with fifty-five patent litigators and from a detailed case study of the infamous Qualcomm patent sanctions case. The article critically examines how patent litigators perceive of and respond to ethical issues that arise in the discovery process. It also analyzes the structural and cultural factors that influence ethical decision-making, as patent litigators navigate the multiple and often conflicting demands made throughout the discovery process by clients, firms, colleagues, and ethical rules. A significant finding from this study is that the threat of Qualcomm-like discovery sanctions is largely irrelevant to the everyday practice of patent litigators and has had little effect on their ethical decision-making. To-date there are few empirical studies of intellectual property lawyers or of legal ethics “in action.” This study begins to fill that gap.

April 6, 2011 in Abstracts Highlights - Academic Articles on the Legal Profession, The Practice | Permalink | Comments (0) | TrackBack (0)

Thursday, March 3, 2011

Hillman on Law Firm Risk Management in an Era of Breakups and Lawyer Mobility

Posted by Jeff Lipshaw

Robert Hillman (UC Davis) has posted "Law Firm Risk Management in an Era of Breakups and Lawyer Mobility: Limitations and Opportunities" on SSRN.  Here is the abstract:

To say that law firms and lawyers are restricted by the norm of client choice does not mean they are not without options in structuring their relationships in ways that may affect their positions as opposing parties should litigation or disputes develop because of breakups and lawyer mobility. This article explores risk management opportunities with a particular emphasis on avoiding litigation or, if that is not possible, affecting the outcome of litigation. It discusses the role of the partnership agreement and limitations on law firm partnership agreements, including difficulties of negotiating and amending agreements, centralized management as an agreement substitute, past practices as agreement waivers, and challenges to enforcement of agreements. Particular attention is given to five issues that often are inadequately addressed in law firm partnership agreements; these include intellectual property rights, departure process, partner removals and dequitizations, winding up, and dispute resolution.

March 3, 2011 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack (0)

Monday, February 14, 2011

Metaphors, Models, and Meaning in Contract Law

Posted by Jeff Lipshaw

For those of you out in the practice world who are curious about how academic legal theory and first year contract law pedagogy might be combined with real world intuitions and experience, I've posted a new article, Metaphors, Models, and Meaning in Contract Law , on SSRN. 

Figure4
The gist of it is this:  the dominant metaphor for contract in practice and the academy is "contract as model."  One upshot of this metaphor is an article of faith (among lawyers at least) about the rational linkage between what is going on before the fact in the creation of the contract, and what gets litigated after the fact.  Sometimes the metaphor is appropriate, and sometimes it is not.  I've played with my intuition and admitted casual empiricism that the contract, even in a heavily negotiated deal, is as often the "thing" that Arthur Leff conceptualized in his iconic 1964 American University Law Review article as it is a model or map of the transaction .  I've proposed an alternative metaphor of "journey" in which the objectification of an agreement in the contract (a milestone, metaphorically speaking) is often as important as the content itself.  The piece contains illustrations I use in class (see Wood v. Lucy, Lady Duff-Gordon, above, but you have to read the article to get the context), as well as a discussion of how I use the fundamentals of metaphor theory to explain hard cases in which the parties assert, and judges must choose between, competing legal "algorithms".

The abstract:

Why does there seem to be such a wide gap between the subject matter of the usual first-year contracts course and what practitioners (particularly transactional lawyers) actually experience? My claim is that it is the result of a powerful theoretical system whose hallmark is a closed linguistic system—in the coinage of one noted scholar, “an epistemic trap.” The subject matter of contract law requires dealing with legal truth not just as a coherent body of doctrine, but also correspondent in some way to actual self-legislation of the parties. I propose escaping the trap with a turn to metaphor theory. The underlying metaphor common to prevailing conceptions of contract law, and which demands some form of correspondent truth from the contract (and contract law), is “contract as model of the transaction.” I suggest alternative metaphors of categories as containers, ideas (including “the meeting of the minds”) as objects, and the transaction life cycle as a journey. The goal is to focus on the “subjective to objective” process of the transactional life cycle, and to consider the perspectives of the participants in or observers of the transactional life cycle, and the models and metaphors that shape the conceptual frames from within which those participants and observers perceive and make use of the legal doctrine.

February 14, 2011 in Abstracts Highlights - Academic Articles on the Legal Profession, Law & Business, Law & Society, Lipshaw, Teaching & Curriculum, The Practice | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 15, 2010

Godsoe on Ethically Representing Children and Parents

Cynthia Godsoe (Brooklyn Law School) posted to SSRN an article that will appear in the Georgetown Journal of Legal Ethics this spring. It is All in the Family: Towards a New Representational Model for Parents and Children. Its abstract:

The presumption that parents act in their children’s interests governs both daily life and legal doctrine. This Article demonstrates that this presumption, while usually correct, is problematic when unquestioned because it masks any conflict between parents and children, and is at odds with the individualistic framework of the ethical rules governing attorneys. This harms families and puts attorneys at risk. This Article explores this representation problem in the previously largely ignored context of special education for children with disabilities. The Supreme Court, in Winkelman v. Parma City School District, recently established that parents and children each have substantive yet “intertwined” rights to a child’s appropriate education. Nonetheless, courts and attorneys continue to assume that parents speak for children, even in cases with a high risk of conflict.

To best serve families and protect attorneys, this Article proposes a novel reconception of representation in education cases. Family representation posits the family as the client, with the attorney owing duties to each member individually and as part of the group. A family representation framework brings four real-world benefits: (1) it recognizes the interconnected nature of the relationships and rights of parents and children; (2) it engages both parties in the process, particularly important for children who have previously been overlooked; (3) it is economical, increasing the number of represented parties but not the number of attorneys; and (4) it brings attorney practice into accord with ethical standards. This model has ramifications beyond the educational sphere as it could also be fruitfully applied in torts and benefits actions by a parent and child against the state or other third party. Ultimately, reconceiving the attorney’s role as representing the family while respecting the voices of each member harmonizes the competing principles of individual autonomy and family unity to the benefit of parents, children and attorneys.

Cynthia starts teaching Professional Responsibility next term! Thanks for reading us (well, Mike), Cynthia. [Alan Childress]

December 15, 2010 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack (0)

Thursday, July 22, 2010

Webley on the Different Styles and Attitudes of UK Lawyers vs. Mediators in Divorce Disputes

Posted by Alan Childress

Lisa Webley is a Reader at the law school of Westminster and a research fellow at the University of London Institute of Advanced Legal Studies (where she also got her PhD); she was just now at Stanford attending the international conference on the legal profession (and I will try to horse-and-hound her into blogging on it). She has published her law-and-society dissertation on the different approaches solicitors versus mediators take toward divorce and custody matters. Their practical and conceptual styles are indeed different, as revealed by the grounded theory study of their ideologies, training, backgrounds, ethics, and professional messages. So finds Lisa in Adversarialism and Consensus? The Professions’ Construction of Solicitor and Family Mediator Identity and Role. Her abstract: Webley Cover resz

This study considers the messages that the Law Society of England and Wales and the UK College of Family Mediators transmit to their members about the professional approach they should adopt in divorce matters.  The study employs a grounded theory method to analyse the training, accreditation, best practice statements and codes of conduct generated by the two professional bodies.  It examines the extent to which the training, accreditation and codes of conduct of family solicitors and family mediators privilege adversarial or consensus based approaches to divorce for their clients, in the light of statements made around the time of the passage of the Family Law Bill, which suggested a dichotomy in professional approach by these two professional groups.   It considers further the nature of professional identity for each of the professional groupings, as constructed through the messages delivered by the professional bodies.

I finally tout a book on-topic to this blog! I helped Lisa publish this as part of the new Dissertation Series of ebooks which I wrote about in Publish Your Dissertation as a Digital Book. Comparative LP expert John Flood (Westminster; U of Miami Law) read that post and commented, and then told Lisa about the series (thanks John!), and she and I worked hard to get this out fast (the tables were a coding nightmare). It is available on Amazon for Kindle and its free apps (and so iPad and BlackBerrys too); on Smashwords in nine different formats (even just PDF, though a pretty one with links, and view online); is featured on the Quid Pro website; and will soon be on Apple iTunes, Barnes & Noble for Nook, and Sony ebookstore.

July 22, 2010 in Abstracts Highlights - Academic Articles on the Legal Profession, Comparative Professions, Law & Society, The Practice, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 9, 2010

Agarwal & Simonson on Public Interest Lawyering and Instruction

Posted by Alan Childress

From the Harvard Program for the Legal Professon, Nisha Agarwal and Jocelyn Simonson have published to SSRN their article, Thinking Like a Public Interest Lawyer: Theory, Practice and Pedagogy, which will also be in New York University Review of Law & Social Change, vol. 34, 2010. Here is the abstract:

In educating future public interest lawyers, law schools must cultivate in students the combination of intellectual, emotional, and normative thinking required for the complex world of practice. This article presents one such method for teaching critical public interest lawyering: the integration of social theory and public interest practice introduced by the Harvard Law School Summer Theory Institute. The theory-practice method of the Institute, in which law students engage with social theories while participating in full-time summer internships with public interest organizations, demonstrates the benefits of creating a space for students to draw connections between abstract conceptions of justice and on-the-ground efforts to lawyer for social change.

This article begins by using the theories of Pierre Bourdieu to explore a dichotomy between theory and practice in public interest law that can often inhibit efforts to pursue social justice lawyering. Then, drawing upon the discussions the Summer Theory Institute’s students had about three theorists – Michel Foucault, Friedrich Hayek, and David Couzens Hoy – this article demonstrates how theoretical reflection placed in the practice setting can cultivate in law students the kind of normative thinking necessary to make them inspired, self-reflective, and critically engaged public interest lawyers and agents of social change.

June 9, 2010 in Abstracts Highlights - Academic Articles on the Legal Profession, Straddling the Fence, The Practice | Permalink | Comments (0) | TrackBack (0)

Thursday, May 13, 2010

Kadish & Kadish on Honoring Law By Breaking It: Bringing Back Discretion to Disobey

Posted by Alan Childress

That may be a bit of an exaggeration about the Kadish argument, since they say "rule departures" rather than "violations" or "breaking the law," but it is an intriguing argument nonetheless.  Admittedly not so much a legal ethics argument as an ethics one [on the concept of law and the philosophy of law-deviations and Kadish cover 10 civil disobedience], but I felt it appropriate to blog on it here because it is part of a larger project I am working on--more on that soon--that certainly does include works on legal ethics and the legal profession.

Mortimer and Sanford Kadish first published their classic study of rule departures within law in 1973, by Stanford U. Press, and I am republishing it as a digital book with permission (and I made new covers, left). Here is the Amazon site featuring it and allowing its download. It is in the form of a Kindle book but is also fully compatible with free ereader apps on PC and laptops, Mac, iPhone, BlackBerry, and iPad. (Weirdly, Kindle books read better on the iPad than iBooks do, since their own iBooks makes you strip the linking of footnotes and other necessities of law books.)  It's my first follow-up after bringing back Warren & Brandeis, The Right to Privacy (both digital ebook, and in paper, right) last month, with blogging hereDiscretion to Disobey is  ThumbTRTP part of a series I want to do, Classics of Law & Society, so feel free to write me if you want to digitize your own classic work and believe you hold at least its digital rights (this means you, Nell Harper Lee, though Ronald Dworkin should still ask too, or for that matter anyone with a timeless book--so in fact I am working on some legal history and judicial biography works, and others that should be available for downloads.)  

The Kadish book is certainly a recognized classic:  people were arguing about it from when it first came out.  One reviewer wrote that "the paradoxical idea that a citizen or official may lawfully break the law" surely "will raise the hackles" of a positivist.  (I'd also gladly publish Hart's rejoinder, The Concept of Law 2:  Positive Vibes.)  Both citizens and government actors, the book argues, have the power and the right to deviate from law in certain contexts and yet not act illegally in a sense, because law itself contains strands of adaptations to its own departures that the authors weave into a sustained jurisprudential whole. Mortimer Kadish (1916-2010) was a much-published philosophy professor at Case Western, while his brother Sanford became dean at Berkeley's law school and remains an accomplished professor and scholar there.  This book is truly a joint product of the fields of philosophy and law.  I hope it's of interest to some of our readers (I bet Patrick S. O'Donnell has read it, and may have even assigned it to his classes).  If you have a similar classic that needs to be easily read again, or a new manuscript (including Patrick), let me know....

UPDATE:  Kadish and Kadish is now available in 8 other formats, including PDF and ePub, at Smashwords.  It is featured with reviews and its history, at quidprobooks.com, with other new ebooks.

May 13, 2010 in Abstracts Highlights - Academic Articles on the Legal Profession, Law & Society, Web/Tech, Weblogs | Permalink | Comments (1) | TrackBack (0)