Tuesday, February 13, 2007

Top Ten - Legal Ethics & Professional Responsibility, Feb. 13, 2007

There's been a lot of turnover, particularly in the second five since the last time I posted.  I've justAlaby downloaded Differentiating Gatekeepers by Arthur Laby (Rutgers-Camden, right), because it looks like it may be relevant both to my inquiry into the differences between lawyer-like methods of rule-following versus the orientation to rule-following we might find in an entrepreneur, as well as to my previous work on lawyers as rationalizers.  Professor Laby's abstract follows the break.

And here are the top ten papers in the SSRN Legal Ethics & Professional Responsibility Journal as measured by downloads in the last sixty days.

1.  How an Instrumental View of Law Corrodes the Rule of Law, Brian Z. Tamanaha, St. John's University - School of Law

2   Young Associates in Trouble, David T. Zaring, William D. Henderson, Washington & Lee University - School of Law, Indiana University School of Law - Indianapolis.

3   An RSVP to Professor Wexler's Warm TJ Invitation: Unable to Join You, Already (Somewhat Similarly) Engaged, Mae C. Quinn, University of Tennessee - College of Law

4   The View from the Trenches:  A Report on the Breakout Sessions at the 2005 National Conference on Appellate Justice, Arthur D. Hellman, University of Pittsburgh School of Law.

The Hypocrisy of the Milberg Indictment: The Need for a Coherent Framework on Paying for Cooperation in Litigation Bruce H. Kobayashi, Larry E. Ribstein, George Mason University School of Law, University of Illinois College of Law

Take Back the Night: Why an Association of Regional Law Schools Will Return Core Values to Legal Education and Provide an Alternative to Tiered Rankings Jon Garon, Hamline University School of Law

Differentiating Gatekeepers Arthur B. Laby, Rutgers University School of Law - Camden

Critical Legal Ethics Paul R. Tremblay, Boston College - Law School

The Scarlet Gene: Behavioral Genetics, Criminal Law, and Racial and Ethnic Stigma Karen H. Rothenberg, Alice Wang, University of Maryland School of Law, Public Defender Service for the District of Columbia - Appellate Division

10 The Changing Social Role of Urban Law Schools Joyce Sterling, Ronit Dinovitzer, Bryant G. Garth, Bryant G. Garth, University of Denver - Sturm College of Law, University of Toronto, American Bar Foundation, Southwestern Law School

[Jeff Lipshaw]

Here is Professor Laby's abstract:

The emphasis on gatekeepers to control corporate misconduct has depended on a rational actor model. A gatekeeper prevents wrongdoing because expected liability or reputational harm from failing to prevent misconduct exceeds the gain in fees. This model, however, fails to distinguish among gatekeepers or account for how gatekeepers with different incentives respond to legal controls. This Article distinguishes between gatekeepers that are supposed to be independent, such as auditors and analysts, from those that are supposed to be dependent, such as lawyers and underwriters. The Article then addresses why gatekeepers have not been more effective monitors and points out failures of conventional analysis. Advances in behavioral and social psychology suggest that dependent gatekeepers perform their responsibilities under the yoke of unconscious bias. Independent agents, therefore, are better gatekeepers than dependent ones. Concern about bias is exacerbated by indeterminacy in corporate and securities law, which facilitates self-serving interpretations of the law and gives wide berth to insist the principal's conduct is appropriate. Differences among gatekeepers, viewed through a social psychology prism, help explain recent reforms and suggest the potential need for additional reforms. One such proposal is to marry the suggestion for lawyer certifications of financial statements with the "reporting up" requirement of Sarbanes-Oxley and require, instead, that a lawyer certify annually that the lawyer is not aware of evidence of a material violation, or has made the required report under the SEC's lawyer rules. The prospect of making a false filing would likely have deterrent effects that are absent under current rules. The hope is that the Article raises for further consideration whether insights from behavioral psychology, married with a deeper understanding of the structure of gatekeeper relationships, can help tailor reform.


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