Touro College - Jacob D. Fuchsberg Law Center has posted a nice bibliography about legal education reform, with embedded links. It collects lots of useful stuff if you're into that topic. (h/t: Faculty Lounge)
Illinois Supreme Court Justice Lloyd Karmeier took a rare step last week when he rejected a request to recuse himself from the court’s review of the long running legal battle over “light” cigarette labeling — he explained why.
In a 16-page order filed Wednesday, the same day the court announced it would again hear arguments in Sharon Price v. Philip Morris, Karmeier discussed the reasoning behind his refusal and addressed the plaintiffs’ allegations he voted to overturn the $10.1 billion verdict against the tobacco company in 2005, the year after it funneled donations to his campaign for the high court.
In regards to the plaintiffs’ allegation the cigarette maker “was responsible for ‘bankrolling’ my election to this office 10 years ago,” Karmeier said campaign records show his 2004 campaign “received no money whatever from [Philip Morris], its affiliates, or any of its employees.”
While they tried to link Philip Morris to the political action committees of the Illinois Chamber, the Chicagoland Chamber and Illinois Civil Justice League’s JUSTPAC, Karmeier contends the records just don’t support the plaintiffs’ claims.
“According to the materials presented in connection with this matter, neither movant nor any of its affiliates contributed any money to either JUSTPAC or the Chicagoland Chamber PAC in 2003 or 2004,” the order states. “In 2004, Altria Corporate Services, an affiliate of respondent, apparently did contribute $20,000 to the Illinois Chamber PAC.”
Even if Illinois Chamber PAC’s donated the entire $20,000 to his campaign, Karmeier said he wouldn’t have known about it and it would have represented “only 0.4 percent of the total $4.8 million raised in support of my campaign.”
There is a widely held belief that legal negotiations are confidential in that communications made during those discussions may not be introduced in subsequent legal proceedings. However, this first major analysis of the primary vehicle responsible for providing this protection – Federal Rule 408 and related state laws – demonstrates how this is no longer true. Rather, relatively few legal negotiations today are covered by the rules, and the federal and state courts have carved out significant exceptions that render the rule a virtual nullity. This is especially problematic modern legal negotiation emphasizes significant disclosure of sensitive information. This article explains how we got to this point, and offers a theoretical framework for regulating alternative dispute resolution processes like legal negotiation that ultimately resolves the problem by shifting the Rule 408 categorical analysis to a simple two-part test: whether the settlement discussion evidence is necessary to prevent undue hardship, and whether it is otherwise unavailable. While current Rule 408 analysis generally leads to the admission of legal negotiation evidence, the proposed analysis provides a principled and pragmatic approach for balancing the fundamental tension between the confidentiality needs of legal negotiation the information needs of public adjudication.
(This post, by Amy Salyzyn, is an abbreviated version of a longer article with the same title that appears in Vol 42:4 Hofstra Law Review. Full citations appear in the original article)
Broadly speaking, positivist accounts of legal ethics share a view that the law owes its normative content to its ability to solve coordination problems and settle moral controversies. This view of the law, in turn, informs a particular view of the lawyer as governed in her actions by the legal entitlements at issue, as opposed to, for example, considerations of morality or justice writ at large.
Because the positivist account grounds a theory of legal ethics in respect for the law, it seems safe to assume that the law governing lawyers is properly viewed as playing a central role in this account. Stated otherwise, the same "fidelity to law" (to use Brad Wendel’s term) that lawyers must exhibit when, for example, interpreting tax codes to advise clients on structuring financial transactions is presumably also required when a lawyer is interpreting how the rules of professional conduct apply to her situation.
What has not been given much attention to date is how the law governing lawyers is different from other types of law. The law governing lawyers does not simply have the status of law (and therefore, assumes a central role in the positivist account), it also addresses the same subject matter — the proper bounds of lawyer behavior — that legal ethics theory itself purports to address. As a consequence, two of the "typical" questions or challenges lobbied at positivist accounts of law — what to do when: (1) following the law leads to unpalatable outcomes; or (2) the law at issue contains moral or discretionary terms — give rise to some outstanding questions in the case of positivist legal ethics theory.
With respect to the first query, a number of other commentators have already observed that positivist legal ethics theory doesn’t seem to have a clear answer to the question of what should happen in circumstances where strict adherence to the law governing lawyers might result in a significant injustice (see, for example, discussion in Andrew B. Ayers, “What if Legal Ethics Can’t Be Reduced to a Maxim?” and David Luban, “Misplaced Fidelity”). Is there an escape valve? If there is one, in what circumstances des it come into play?
(Cross posted, with some changes, from The Faculty Lounge)
John E. Cook served as John Brown's advance man and spy in Harper's Ferry, and he was initially one of only seven raiders who was not either killed or captured when the insurrection failed. He managed to reach Chambersburg, Pennsylvania, where he was apprehended by bounty hunters. Returned to Virginia for trial, Cook was represented by the Copperhead Democrat Daniel Voorhees, who claimed that Cook had been duped by John Brown, and thus based his defense on a ringing affirmation of slavery.
Voorhees's trial work was highly professional from the perspective of advocacy, although shameful in its premise. But Voorhees was not Cook's first lawyer. When he was captured in Pennsylvania, Cook had been briefly represented by Alexander McClure, an ardent abolitionist who took a very different approach to the case. McClure was far more principled than Voorhees concerning human rights, but with much less adherence to legal ethics.
Story at Philly.com about the federal efforts to catch a suspected crooked state court judge through the use of a phantom arrest and staged criminal case. Query: is it ethical for a federal lawyer to participate in that? (h/t: How Appealing)
Interesting interview at Vox with Robin Feldman about the US Supreme Court's efforts to rein in the Federal Circuit. Here is Feldman's recent essay.The expansion of patent rights under the Federal Circuit strikes me as a case of unconscious institutional bias -- that is, the Federal Circuit increased its own importance through its rulings. I don't doubt the good faith of the judges, but we're all human.
I find this story interesting, from Cincinnati.com about Ohio's law to eradicate falsehoods during political campaigns, because it highlights the different regimes we have for truth-telling. Short version of the issue: politicians have some license to lie during campaigns, don't they? And public interest groups too, right? I'm not defending that; I'm just trying to describe it accurately.
You sometimes see stories like this WaPo story (also Independent), about lawyers who are killed because of their support of human rights or the rule of law. Is there an organization like Amnesty International that writes letters and creates publicity for lawyers? (I should note that I saw one blog post saying she was not killed, but I have decided to rely upon the WaPo story.)
In a new and provocative book, Rob Vischer has challenged the neutral partisan conception of the lawyer and the legal profession’s reductive presumption that all clients wish to pursue atomistic self-interest irrespective of the consequences to others. Vischer’s use of the teachings of Martin Luther King, Jr. and of Christian theology as a foundation for an alternative, and richly relational, account of law practice is both inspiring and effective.
To debunk the presumption that clients seek narrow self-interest, which the book argues is a powerful component of the neutral partisan conception, Vischer compellingly asserts that clients are relational beings often interested in pursuing objectives that take into account the impact of their conduct on other parties and the community. The book’s main contribution is its development of a practical relational account of law practice pursuant to which lawyers can both represent clients loyally and follow a relational ethic. Based on Dr. King’s teachings regarding human dignity, agape, personalism, justice and Christian realism, Vischer puts forward a vision of law practice that calls upon lawyers to treat clients and themselves as subjects in a partnership and to offer counseling to clients that does not shy away from engaging the hard moral dimensions of the clients’ conduct.
The book’s relational framework could gain even greater traction if it offered reasons for practicing relationally not embedded in Christian theology. For example, Vischer’s anthroreligious belief that we are all created as relational human beings leads him to indicate that if institutional, competitive and ideological barriers to relational practice were removed, lawyers and clients would inevitably act more relationally. The cultural dominance of atomistic individualism, however, suggests that even with barriers removed, lawyers and clients will need some additional persuasion before adopting relational perspectives. Similarly, the book’s grounding of relationality in agapic love neglects the potential application of more open-textured concepts, such as mutual benefit, that might conceivably appeal more broadly to lawyers who do not share Vischer’s theological convictions.
The doctrinal literature on ineffective assistance of counsel typically begins with the 1932 Supreme Court case of Powell v. Alabama. This symposium contribution goes back farther, locating the IAC doctrine’s origins in a series of state cases from the 1880s through the 1920s. At common law, the traditional agency rule held that counsel incompetence was never grounds for a new trial. Between the 1880s and the 1920s, state appellate judges chipped away at that rule, developing a more flexible doctrine that allowed appellate courts to reverse criminal convictions in cases where, because of egregious attorney ineptitude, there was reason to think the verdict might have been different with a competent lawyer. In 1932, the Supreme Court drew upon this line of state cases when it ratified the emerging doctrine in Powell. The persistence of similar complaints of unfair trials across very different time periods, and despite much ostensible doctrinal change, suggests that the inequities of the American criminal justice system are structurally embedded in the adversary process more than they are a function of the specifics of the current iteration of right-to-counsel doctrine. As such, this history lends support to arguments for criminal justice reform that emphasize the need for systemic legislative and policy change rather than merely doctrinal tinkering.
The Alternative Business Structures Working Group of the Professional Regulation Committee provided Convocation with Alternative Business Structures and the Legal Profession in Ontario: A Discussion Paper, and through the paper, is seeking comments from the professions, the public, and other interested parties on the subject of ABS. The deadline for submissions is December 31, 2014. The Law Society has not yet decided whether ABS should be permitted in Ontario. Based on input received, the Working Group’s dialogue with lawyers and paralegals will continue and will help it determine what actions to take, if any, on the issue. Further research on the legal services marketplace may be required. Discussion paper. Full report. More information
(Cross posted from The Faculty Lounge, with some additions and changes)
As reported by Inside Higher Ed, Assistant Professor Steve Cicala, an economist at the University of Chicago, has decided to boycott the University of Illinois over the trustees’ recent decision against hiring Prof. Steven Salaita. In a letter to Chancellor Phyllis Wise, Cicala explained that he would not be presenting a previously scheduled talk at the university’s Chicago campus because she had failed to resist the “influence of donors on faculty speech.”
Perhaps because he is an economist, Cicala seems fixated on the presumed impact of money on Wise’s (and the trustees’) decision. He made nine references to donors, donations, contributions, or funds in his eight paragraph letter, although with no actual specifics. In support of his claim that Wise had simply caved in to financial pressure, Cicala linked to a packet of Wise’s emails that had been released pursuant to the Illinois FOIA.
Being a law professor rather than an economist, I thought I would take a look at the empirical evidence, instead of relying on assumptions or modeling.
The NYT has a front page report this morning that Maurice Greenberg, the former AIG CEO, has a class action against the US -- arising from the allegedly "onerous nature of the US rescue" of the company -- that is scheduled to go trial next week and which is funded in part by wealthy Wall St. friends, who will get a "cut of any damages."
Yet the Chamber of Commerce and others are fighting to prevent individuals and "small plaintiffs" with claims against companies from selling an interest in their claims. These are claims they might not be able to fund on their own because of the cost or because of a need for cash in their personal lives (rent, doctors, food).
Story at Law Firm Risk Management Blog. Former Director of the FBI, Robert Mueller, now at WilmerHale has been tapped to head up the investigation but that firm previously represented the NFL on some matters. I see the issue as one about public confidence in the results of the investigation rather than an ethics breach.
Here's an eye-opening chart that maps public perceptions of various professions on a scatter plot of perceived competence vs. perceived warmth/trustworthiness. Lawyers are way off the curve, but at least they think we're competent, so we have that going for us, which is nice. The result brings to mind Veblen's comment about lawyers, pointing out our barbarian astuteness but tracing that to our ability to pull off or prevent chicanery as the matter may require:
“Employments fall into a hierarchical gradation of reputability. Those which have to do immediately with ownership on a large scale are the most reputable of economic employments proper. Next to these in good repute come those employments that are immediately subservient to ownership and financiering,—such as banking and the law. Banking employments also carry a suggestion of large ownership, and this fact is doubtless accountable for a share of the prestige that attaches to the business. The profession of the law does not imply large ownership; but since no taint of usefulness, for other than the competitive purpose, attaches to the lawyer's trade, it grades high in the conventional scheme. The lawyer is exclusively occupied with the details of predatory fraud, either in achieving or in checkmating chicane, and success in the profession is therefore accepted as marking a large endowment of that barbarian astuteness which has always commanded men's respect and fear.”
Credit: Susan Fiske, Princeton University, Woodrow Wilson School of Public and International Affairs
For nearly eighty years, courts have offered stirring rhetoric about how prosecutors must not strike foul blows in pursuit of convictions. Yet while appellate courts are often quick to condemn prosecutorial trial misconduct, they rarely provide any meaningful remedy. Instead, courts routinely affirm convictions, relying on defense counsel's failure to object or concluding that the misconduct was merely harmless error. Jerome Frank summed up the consequences of this dichotomy best when he noted that the courts' attitude of helpless piety in prosecutorial misconduct cases breeds a deplorably cynical attitude toward the judiciary.
Cognitive bias research illuminates the reasons for, and solutions to, the gap between rhetoric and reality in prosecutorial misconduct cases. This article is the first to explore theories of cognition that help explain the frequency of prosecutorial misconduct and the ways that it likely affects jurors and reviewing judges more than they realize. As a result, the article advocates for sweeping changes to the doctrine of harmless error and modest changes to the doctrine of plain error as applied in prosecutorial misconduct cases. These solutions will help courts abandon their attitude of helpless piety, clarify the currently ambiguous law on what behavior constitutes prosecutorial misconduct, encourage defense counsel to raise timely objections to misconduct, and reverse convictions when misconduct may well have affected the outcome of the case but affirm when the misconduct was trivial.
The suggestion in this ABA Journal article is that the firm was afraid of losing clients. Quinn Emanuel has stepped in. Quinn, of course, is successful and not afraid to signal their aggressive litigation skills.
I recall that during the prosecution of George Zimmerman for the homicide of Trayvon Martin, the Florida prosecutors filed a probably cause affidavit that omitted exculpatory and explanatory facts. At the time I wondered if Florida procedure and ethics rules permitted that -- a question I never learned the answer to. It seemed to me that the Florida prosecutor knew that the "murder two" charges she wanted to pursue were not obtainable from a grand jury becuase they just weren't warranted.
Now comes a Washington Post article about the grand jury investigation into the homicide of Michael Brown in Ferguson, Missouri, reporting that the grand jury is receiving all the information that investigators have received and that the process is "atypical." Our readers know that the ethics rules sometimes permit and sometimes forbid lawyers from offering just their side of the story. Here's what a local criminal defense lawyer has to say:
Susan W. McGraugh, a criminal-defense lawyer and a professor at the Saint Louis University School of Law, said that the approach is allowed under the law and that prosecutors sometimes use it in high-profile cases.
“The prosecutor may want cover, which they can get by sharing the responsibility with the grand jury,” McGraugh said. “So when the public reacts to what does or does not happen, they can go back to the fact that the grand jury played a large role in the decision. They can say, ‘We let these jurors, who are your peers, hear what witnesses had to say. This was their decision.’ ”
Bronston v. United States, 409 U.S. 352, 353 (1973) is a case in which a witness gave a non-responsive answer, thereby evading the truthful answer. The issue in Bronston was "whether a witness may be convicted of perjury for an answer, under oath, that is literally true but not responsive to the question asked and arguably misleading by negative implication."
Bronston was involved in bankruptcy proceedings. Attorneys for his creditors were examining him, under oath, regarding his assets in various countries. During this examination,the following exchange took place:
Q. Do you have any bank accounts in Swiss banks, Mr. Bronston?
A. No, sir.
Q. Have you ever?
A. The company had an account there for about six months, in Zurich.
The whole truth was that Bronston avoided answering was that he had had a large personal bank account in Switzerland for five years.
Bronston was convicted of perjury, and his conviction was affirmed on appeal. In an opinion by Chief Justice Burger, the Supreme Court reversed, holding that if a witness gives a non-responsive answer, it’s the cross-examiner’s responsibility to ask follow-up questions to clarify the answer.
Story at WSJ about the en banc hearing on Barry Bonds's conviction for perjury for a wandering and possibly evasive answer. (More at LA Times.) Judge Fletcher noted the prevalence of wandering answers in civil discovery and commented,"“half the bar and maybe all of the bar is in big trouble.” Here's a funny exchange from the hearing:
During a hearing, an 11-judge panel of the U.S. 9th Circuit Court of Appeals hammered a lawyer for the government with questions about how an evasive but truthful answer could amount to felony obstruction of justice.
Judge Jacqueline H. Nguyen asked Assistant U.S. Atty. Merry Jean Chan whether an evasive answer could be "cured" if the respondent later gave a direct answer.
"Cure is a different word than I would use," Chan said.
"Did you just give an evasive answer?" asked Judge N. Randy Smith.
Chief Judge Alex Kozinski warned: "The U.S. attorney is watching."
A profile of Tom Kline is at Philly.com. (he donated $50 million to Drexel.) I found it interesting that his firm has gotten ahead of the curve and can be very picky about which cases to take on. The first place I worked, Khourie & Crew, had some funny stories about how they blew the money from their first big win and then "spent" the second big win in being picky about taking on new matters.
Law Firms Face New Competition — Their Own Clients
Law firms are contending with growing competition from their own clients.
Many companies are cutting back on their use of outside law firms, and having staff attorneys handle midlevel deals or contracts, reports WSJ's Jennifer Smith:
This year corporations are shifting an estimated $1.1 billion that they used to spend on outside lawyers to their own internal legal budgets, according to a new data analysis. That migration cements a trend that took off during the recession, when general counsels were under pressure to rein in costs, and spiked in 2012, when companies redirected $5.8 billion in legal spending in-house.
About 58% of larger companies are sending more legal work to their own law departments this year, compared with 50% in 2013, according to the analysis by BTI Consulting Group Inc.
It is cheaper, some general counsels say—and often more efficient.
I heard arguments in the NY Court of Appeals last week. The courthouse is beautiful. Inside, portraits of former judges cover the walls. Overwhelmingly, they are white men, many with whiskers. That will change. Today, there are four women on the court, a majority, and two women of color (both Cuomo appointees). Governor Cuomo will fill two vacancies this year and if as expected he is relected he will appoint a chief judge next year.
The entering class at NYU School of Law this year is more than 1/3 students of color and 47% women. When I entered, decades ago, women made up fewer than 10 percent of the class and if there were as many as five students of color I'd be surprised. We were all named Dave, or Bill, or Mark, or Susan. Today, my classes are filled with JDs (and LLMs) with non-Western names and I have to ask for the pronounciations, which I do because when I call on these students I want to say their names correctly. Respect demands it.
Inevitably, these changes will change the profession. They are already doing so. Gender and ethnic diversity means diversity in life experience and diversity in perspective.
Which brings me to Justice Sotomayor.
Maybe this is your experience, too: As women and minorities increased their presence in law schools -- among faculty and students -- discussions at faculty meetings, on student-faculty committees, and in classes changed. The same happened at bar groups. New views were voiced, views that might not have been spoken, or even thought of, in rooms of white men.
Sometimes the discussions were civil and easy but often, there was an edge, a challenge. I suspect that many white men rolled their eyes in the early and middle years, exchanged glances and smiles, thinking the newcomers were not being "reasonable" or did not "understand," or even that the women were not behaving like women should. And they were right, if "reasonable" meant no change and if to "understand" meant to accept the prevailing ideas.
The newcomers did not back down and their numbers increased.
It seems to me that this dynamic is now happening at the Supreme Court. We have a critical mass -- three women -- who are willing to and do speak with a choice of words and a directness that more aggressively challenges their colleagues. They speak in dissents and at public events. The addition of Justices Sotomayor and Kagan seems to have energized Justice Ginsburg and strengthened her formidable voice.
I can only imagine what the conferences are like today. I'd bet not so staid as they once were. Perhaps more personal. Perhaps more "attitude." Less deference. Even contentious. This is what happened elsewhere in the profession. And it has been beneficial.
Yes, civility and courtesy are virtues but not if they are used to silence others.
Justice Sotomayor, most prominently, has been speaking publicly in ways that until recently (and for many, still) would have been seen as "unJustice like." In her speeches, she is introducing a new voice in new venues. This is of course deliberate and it can change the conversation and the identity of the people who join it.
The precedent for Justice Sotomayor's public voice is, of course, the speeches of Justice Scalia. He has now found his match. Hearing or reading his opinions, it is possible to hear the echo of former captains of the bar who, faced with newcomers, seemed inclined to protest "but that's not the way it is" when what they really meant was "that's not the way it's been." They were clueless and now they are gone.
Other legal institutions, public and private, have altered dramatically over the decades as women and lawyers of color populated their ranks. Willingness to question, to challenge, the premises that the white male stewards of the profession could for decades assume were true because, after all, everyone (meaning all of them) agreed that they were true, is the great gift that the diversity in the profession has brought and will bring to law.
(Cross-posted, with some additions, from The Faculty Lounge)
The trustees of the University of Illinois have voted 8-1 against providing Steven Salaita a tenured appointment in the department of American Indian Studies. As I have written before (here and here), I think that was the wrong decision – it was bad for the university, and bad for academic freedom – although not necessarily a breach of contract or a violation of Salaita’s constitutional rights. In this post, I am going to focus on some of the responses to the decision, which have been, shall we say, infected by stereotypes.
There has been an unseemly rush to attribute the trustees’ decision to the influence of so-called “wealthy donors.” For example, Maria LaHood, Salaita’s attorney from the Center for Constitutional Rights, stated that the decision had been prompted by “the whims of wealthy donors,” and that claim was repeated in CCR’s subsequent press release. Likewise, Corey Robin, a prominent Salaita supporter and an important political science scholar, says that “our principles proved in the end not to be enough to match the donors’ purse strings.” In fact, nearly every statement in support of Salaita assumes that only financial pressure can explain the decision to rescind his appointment. There has been virtually no recognition that the trustees might actually have been repelled by Salaita’s scurrilous tweets, or that they might have acted out of a sense of their own principles (even if they were misguided). While it is understandable that Salaita’s attorneys would try to spin the case as a battle between outside influence and scholarly values – that’s what good lawyers do – it is disappointing that academic observers, including many who should know better, have adopted the same hackneyed narrative. There is an important distinction between advocacy and intellectual discourse, which has been sadly missing in much of this discussion.
A very senior and respected in-house lawyer who worked for the Times newspaper has lost his appeal against a Solicitors' Disciplinary Tribunal decision suspending him from practice for misleading the court and behaving without integrity. The story is a brilliant case study in zeal vs court duties and what's even better for educator is it can be watched on video (about half way through the afternoon session). There are also transcripts and witness statements as well as the SDT hearing and now the court decision).
It raises matters of privilege, confidentiality, conflict of interest, the role of in-house lawyer, litigation tactics and trial decisions. The cross examination in the hearing is toe-curling and dramatic.
I've blogged a few times on the case. Most recently here.
The ABA Standing Committee on Ethics and Professional Responsibility has issued Formal Opinion 467, addressing the managerial and supervisory responsibilities of prosecutors. The Opinion offers this summary:
Model Rules 5.1 and 5.3 require lawyers with managerial authority and supervisory lawyers, including prosecutors, to make “reasonable efforts to ensure” that all lawyers and nonlawyers in their offices conform to the Model Rules. Prosecutors with managerial authority must adopt reasonable policies and procedures to achieve these goals. Prosecutors with direct supervisory authority must make reasonable efforts to ensure that the lawyers and nonlawyers they supervise comply with the Rules. Where prosecutors have both managerial and direct supervisory authority, they may, depending on the circumstances, be required to fulfill both sets of obligations. The particular measures that managerial and supervisory prosecutors must implement to comply with these rules will depend on a variety of factors, including the size and structure of their offices.
Below is an email I received from UC-Berkeley Chancellor Nicholas Dirks. I found it interesting because he contrasts free speech and politcal advocacy (was that just a careless rhetorical flourish or did he seriously mean it?) and he makes the argument -- similar to one that lawyers will find familiar -- that free speech must yield to "civility."
(Small nit: Dirks says that the Founders made freedom of speech the first amendment because of its central importance. But I seem to recall that 12 amendments were sent to the states and the first two were rejected -- which is why the third amendment, protecting free speech, became the first. Or am I wrong about that?)
Dear Campus Community,
This Fall marks the 50th anniversary of the Free Speech Movement, which made the right to free expression of ideas a signature issue for our campus, and indeed for universities around the world.
Free speech is the cornerstone of our nation and society – which is precisely why the founders of the country made it the First Amendment to the Constitution. For a half century now, our University has been a symbol and embodiment of that ideal
As we honor this turning point in our history, it is important that we recognize the broader social context required in order for free speech to thrive. For free speech to have meaning it must not just be tolerated, it must also be heard, listened to, engaged and debated. Yet this is easier said than done, for the boundaries between protected and unprotected speech, between free speech and political advocacy, between the campus and the classroom, between debate and demagoguery, between freedom and responsibility, have never been fully settled. As a consequence, when issues are inherently divisive, controversial and capable of arousing strong feelings, the commitment to free speech and expression can lead to division and divisiveness that undermine a community’s foundation. This fall, like every fall, there will be no shortage of issues to animate and engage us all. Our capacity to maintain that delicate balance between communal interests and free expression, between openness of thought and the requirements and disciplines of academic knowledge, will be tested anew.
Specifically, we can only exercise our right to free speech insofar as we feel safe and respected in doing so, and this in turn requires that people treat each other with civility. Simply put, courteousness and respect in words and deeds are basic preconditions to any meaningful exchange of ideas. In this sense, free speech and civility are two sides of a single coin – the coin of open, democratic society.
Insofar as we wish to honor the ideal of Free Speech, therefore, we should do so by exercising it graciously. This is true not just of political speech on Sproul Plaza, but also in our everyday interactions with each other – in the classroom, in the office, and in the lab.
Article by Nick Robinson, Fellow, Harvard Law School, Program on the Legal Profession
Abstract With multiple countries now allowing for non-lawyer ownership of legal services, and other jurisdictions considering a similar shift, the legal profession is in the midst of a global regulatory moment. Where non-lawyer ownership has been allowed, personal injury firms have listed on stock exchanges, major insurance companies have bought law firms, and brands best known for their grocery stores have started offering legal services.
While there has been much debate over the merits of non-lawyer ownership, with some claiming it will increase access to justice and others that it will undermine lawyers’ professionalism, most of this debate has been theoretical, making claims with little or no empirical support. This paper uses qualitative case studies and other empirical research to explore non-lawyer ownership in civil legal services for poor and moderate-income populations in England and Australia, which now allow for non-lawyer ownership, and in the U.S., where parallels to such ownership have developed in online and administrative law legal services. It finds that the access to justice benefits of non-lawyer ownership, and perhaps deregulation more generally, have likely been oversold with respect to legal services for poor and moderate-income populations. It also argues that non-lawyer ownership raises a unique set of professionalism concerns that have been under-appreciated in the literature. Given its foothold in key jurisdictions, non-lawyer ownership will likely continue to spread, including in the United States, but these conclusions point towards the need to carefully regulate reforms like non-lawyer ownership and to better equip regulators to predict how the economics and normative commitments of the profession will interact with the wider market.
It's an interesting opinion on the sufficiency of the allegations (which the firm denied). Here's the opening of the opinion:
FUENTES, Circuit Judge.
This putative class action lawsuit alleges that BASF Catalysts LLC and Cahill Gordon & Reindel conspired to prevent thousands of asbestos-injury victims from obtaining fair tort recoveries for their injuries. Decades ago, BASF’s predecessor, Engelhard Corp, discovered that its talc products contained disease-causing asbestos. Plaintiffs allege that, rather than confront the consequences of this discovery, Engelhard, with the help of its attorneys from Cahill, elected to pursue a strategy of denial and deceit. According to the complaint, Engelhard and Cahill collected the tests and reports that documented the presence of asbestos in Engelhard talc and they destroyed or hid them; when new plaintiffs focused on Engelhard’s talc as a possible cause of their disease, Engelhard represented that its talc did not contain asbestos and that no tests had ever said otherwise.
As pleaded, this lawsuit concerns years of purported deceit by Engelhard and Cahill. This action is not itself an asbestos injury case, but rather an action about Engelhard and Cahill’s conduct when they confronted asbestos injury cases in state courts around the country. The alleged scheme outlived most of the original plaintiffs, whose diseases have since taken their lives. It did not last forever. Spurred by recent testimony that Engelhard’s talc contained asbestos and that the company knew it, survivors and successors of the original asbestos-injury suits have brought new claims against Cahill and BASF, Engelhard’s successor. The crux of their complaint is that BASF and Cahill defrauded them in their initial lawsuits and caused them to settle or dismiss claims that they would otherwise have pursued.
The District Court dismissed plaintiffs’ complaint in its entirety. Analyzing the claims individually, the District Court determined that each was inadequately pled or barred by law. Analyzing the various declarations and injunctions requested by plaintiffs—ranging from an injunction against the future invocation of res judicata based on past state court judgments to a declaration that BASF and Cahill committed fraud—the District Court dismissed them as beyond its power to grant. The Court did, however, reject defendants’ argument that the Rooker-Feldman doctrine deprived it of jurisdiction. Plaintiffs have appealed the dismissal of three claims: fraud, fraudulent concealment, and violation of the New Jersey Racketeer Influenced and Corrupt Organizations Act. Plaintiffs also defend their requested relief.
We conclude that the District Court erred when it dismissed the fraud and fraudulent concealment claims. The Amended Class Action Complaint properly alleges the elements of fraud and fraudulent concealment—namely that BASF and Cahill lied about and destroyed the asbestos evidence to plaintiffs’ detriment. Neither the New Jersey litigation privilege nor pleading requirements stand in the way of these claims.
The District Court did not err in dismissing the New Jersey RICO claim. Plaintiffs, obliged to plead an injury to their business or property, have not done so. They have alleged an injury to the prosecution of their earlier lawsuits which, under New Jersey law, does not constitute an injury to their property.
Lastly, the District Court correctly discerned that it could not grant plaintiffs all of their requested relief. To the extent that plaintiffs attempt to have the District Court decide, at this point, the statute of limitations, laches, and preclusion issues that will likely arise in future cases, plaintiffs fail to present at Court with a whole or ripe controversy. Plaintiffs may, however, seek injunctive and declaratory relief aimed at resolving the claims alleged.
Accordingly, we reverse in part, affirm in part, and remand for further proceedings.
The number of amicus curiae briefs filed at the Supreme Court is at an all-time high. Most observers, and even some of the Justices, believe that the best of these briefs are filed to supplement the Court’s understanding of facts. Supreme Court decisions quite often turn on generalized facts about the way the world works (Do violent video games harm children? Is a partial birth abortion ever medically necessary?) and to answer these questions the Justices are hungry for more information than the parties and the record can provide. The consensus is that amicus briefs helpfully add factual expertise to the Court’s decision-making.
The goal of this article is to chip away at that conventional wisdom. The trouble with amicus facts, I argue, is that today anyone can claim to be a factual expert. With the Internet, factual information is easily found and cheaply manufactured. Moreover, the amicus curiae has evolved significantly from its origin as an impartial “friend of the court.” Facts submitted by amici are now funneled through the screen of advocacy. The result is that the Court is inundated with eleventh-hour, untested, advocacy-motivated claims of factual expertise. And the Justices are listening. This article looks at the instances in recent years when a Supreme Court Justice cites an amicus for a statement of fact. It describes the way the brief, rather than the underlying factual source, is cited as authority and the failure of the parties to act as an adequate check. I challenge this process as potentially infecting the Supreme Court’s decisions with unreliable evidence, and I make suggestions for ways to reform it. It is time to rethink the expertise-providing role of the Supreme Court amicus and to refashion this old tool for the new purpose to which it is currently being used.
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