The Law and Ethics Collection focuses on academic theses concerned by ethical aspects in law.

Recent Submissions

  • Racial Antagonism, Sexual Betrayal, Graft, and More: Rethinking and Remedying the Universe of Defense Counsel Failings

    Johnson, Sheri Lynn (Washington University Open Scholarship, 2019-01-01)
    What should happen if a lawyer sleeps during parts of the trial—or is sleeping with the prosecutor? If defense counsel was mentally ill or intoxicated during the trial, should a court measure her performance by the deferential standards that apply to most ineffective assistance of counsel claims? Or should that court, after ascertaining those facts, simply grant the defendant a new trial? What about defendants represented by lawyers who aim to profit by securing media rights to their client’s case? Or defendants represented by lawyers seeking employment with the district attorney’s office? No one doubts that lawyers should refrain from the use of racial slurs, from sleeping during trial, from “sleeping with the enemy,” from representing clients while mentally ill, from intoxication in the courtroom, or from securing illicit gains through the travails of their clients. Such prohibitions are generally imposed by rules of professional ethics, but those rules do not address the consequences for the criminal defendant whose lawyer ignored them. Cases raising these and similar questions are rife in the lower courts. To date, the Supreme Court has not considered the appropriate remedies for any of these transgressions. Its precedents do, however, establish three categories of counsel failure, each with a different standard for judging whether the failure harmed the defendant enough to demand a new trial: the truant, the torn, and the terrible. Under claims governed by United States v. Cronic, a defendant who proves that his lawyer was “truant,” that is, absent or constructively absent, need show no more. This is the most defendant friendly, but least common, category. A slightly larger category, defendants with “torn” lawyers, must, pursuant to Cuyler v. Sullivan, show the existence of a conflict of interest, and show that the existing conflict “adversely affected” the lawyer’s performance. But by far the largest category of counsel failure claims, those involving present, presumptively loyal, but just plain terrible lawyers, are governed by the harsh standard of Strickland v. Washington, which requires proof that trial counsel was incompetent, and proof of “prejudice”—a “reasonable likelihood” that competent representation would have resulted in a different verdict. This article aims to rethink the categories of counsel failure; no article to date does so.
  • Is China Stealing our Tech? A Look into the Role of Intellectual Property Rights in US-China Trade relations

    Chester, Ryan (OpenCommons@UConn, 2020-05-01)
    This thesis aims to further the current scholarship on Intellectual Property Rights (IPR) and their effects on international trade and the US-China trade relationship more specifically. The main analysis of this thesis is a quantitative cross-country analysis of over 100 countries to see how IPR plays a role in international trade, while analyzing how the Sino-US trade relationship fits into larger trends. This thesis aims to answer the questions as follows: What are the current policies surrounding Intellectual Property Rights between China and the US? Does increasing the strength of IPR laws influence imports? Does the strength of a country’s legal environment influence imports? What is significant about this relationship in terms of current Sino-US trade relations? I argue that China’s IPR strength has increased over time which has a partial effect on the increase in international trade with the US. My results show that on average both an increase in the strength of a country’s IPR laws and legal environment is associated with an increase in imports.
  • @USA vs. @realDonaldTrump: The Decline of Democracy in 280 Characters or Less

    Edwards, Bryn (Scholarship @ Claremont, 2020-01-01)
    From threats, to hate speech, to potential criminal statements, Donald Trump has made use of Twitter like no president or world leader before him. His presidency and communication strategy have been defined by his “tweetstorms” and a consequent slew of legal issues. The prolific rate of his tweeting has made large-scale analyses difficult as they quickly become dated. Nevertheless, this thesis has aimed for a more holistic analysis by uniquely linking trends in his tweeting to its perceived social consequences, situating this work in a long line of analyses of presidential rhetoric and media strategies. Moreover, it assesses Trump’s use of Twitter as an abuse of power and argues that it is degrading the fabric of our democracy. It focuses on three distinct aspects of his tweeting: the devaluation of truth, its rhetoric altering reality and degrading rule of law. Drawing on public opinion polls, psychology studies, and tweet-by-tweet analyses of rhetorical and legal implications, the findings of this work suggest that Trump’s tweeting is damaging our democracy on a variety of levels. This is the realization of thousands of years of worries — from Socrates to the Framers — of a populist demagogue who would incite the masses with fiery rhetoric. This thesis recommends improved civic education and social media literacy programs, and advocates holding social media platforms accountable for the information, or misinformation allowed on platforms that may have damaging effects on individuals or a society.
  • The Road to Human Emancipation - The Moral and Political Foundations of Markets

    Shi, William (Scholarship @ Claremont, 2020-01-01)
    The thesis aims to provide both a real public ideology and the legal and socioeconomic structures to realize Karl Marx’s ideal of human emancipation. Marx argues that in capitalist society, the legal and political superstructure forces the ruling class to represent its interest as the public interest, which legitimizes the massive inequality in resources and social power. To demonstrate how to realize the substantive public interest, the two parts of the thesis have two goals. The first part aims to formulate a rightful candidate to the public ideology of human emancipation, which represents the substantive public interest rather than the hypocrisy of the ruling class. The second part aims to formulate the legal and socioeconomic structures of the Social Economy, which is the social system that corresponds to the public ideology and restores the equality of both resources and social power. The first part is the philosophical analysis, and the second part can be viewed as a set of proposals informed by both normative and empirical research to transform the economy and society.
  • The Authority of Law: Essays on Law and Morality

    Raz, Joseph (Scholarship Archive, 2009-01-01)
    This classic collection of essays, first published in 1979, has had an enduring influence on philosophical work on the nature of law and its relation to morality. Raz begins by presenting an analysis of the concept of authority and what is involved in law's claim to moral authority. He then develops a detailed explanation of the nature of law and legal systems, presenting a seminal argument for legal positivism. Within this framework Raz then examines the areas of legal thought that have been viewed as impregnated with moral values – namely the social functions of law, the ideal of the rule of law, and the adjudicative role of the courts. The final part of the book is given to understanding the proper moral attitude of a citizen towards the law. Raz examines whether the citizen is under a moral obligation to obey the law and whether there is a right to dissent. Two appendices, added for the revised edition, develop Raz's views on the nature of law, offering a further dialogue with the work of Hans Kelsen, and a reply to Robert Alexy's criticisms of legal positivism. This revised edition makes accessible one of the classic works of modern legal philosophy, and represents an ideal companion to Raz's new collection, Between Authority and Interpretation.
  • Connecting the Chains: Emotional Quotation, Ethics, and Legal Profession Ethics

    Aditia Arief Firmanto; Rissa Afni Martinouva (Universitas Ahmad Dahlan, 2020-02-01)
    <p class="Judul"><strong>Introduction to The Problem:</strong> Emotional intelligence is in the form of feelings and emotions, and contains the direction and intensity of one’s judgment or expression of feelings expressed on the object of attitude. Emotional intelligence or Emotional Quotient (EQ) is essential. Intellectual Intelligence (IQ) cannot run properly without the participation of an emotional appreciation of the ethics of law school students. Ethics also has a massive role in determining the good and bad of human behavior, behavior, or actions. While a legal profession is a job carried out by a group of people who have the legal expertise to support their lives. Students who graduate can choose their major according to the skills taught in Higher Education. From the previous three concepts arise one main problem on how the connection between EQ-IQ, ethics, and legal profession ethics.</p><p class="Judul"><strong>Purpose/Objective Study:</strong> The objective of this study is to find out the correlation of emotional intelligence toward the ethics of law faculty students at Universitas Malahayati and the correlation of students’ ethics toward the legal profession.</p><p class="Judul"><strong>Design/Methodology/Approach:</strong> In gathering data, the researchers used quantitative (questionnaire) and qualitative methods supported by interviews. To analyze the data, the researcher used quantitative descriptive with the Linkert Scale approach, and the results of the scale are accumulated with the <em>regress linear</em> technique.</p><p><strong>Findings:</strong> The results of this study show that there was a significant correlation of emotional intelligence to the ethics of law school students at Universitas Malahayati. Based on the results of the hypothesis test, the value of r is 0.854 with P = 0.000 where (p <0.01). It indicates that there is a correlation between emotional intelligence and the ethics of law faculty students at Universitas Malahayati. This finding suggests that the higher the emotional intelligence, the higher the ethics, conversely the lower the emotional intelligence possessed by individuals, the lower the ethics of law school students. Additionally, the correlation of emotional intelligence toward ethics by 0.854 means that emotional intelligence has a contribution of 85.4% as a variable that affects the ethics of law school students. The remaining 14.6% of emotional intelligence is influenced by other factors. The correlation between ethics and the legal profession is that by implement ethics in the legal profession, the legal service will gain the society’s trust. People tend to lean to excellent and professional legal practitioners who have embodied the ethics in their service and their personalities.</p>
  • The Field of Forensic Medicine. Ethics and the Science of Philosophy by Forensic Medical Specialists

    Université Paris-Sud 11 - Faculté de médecine (UP11 UFR Médecine); Université Paris Sud - Paris XI; Emmanuel Hirsch; Michard, Jean-François (HAL CCSD, 2014-12-12)
    The expert report composed by a forensic pathologist often plays a key role in many criminal trials in order to either free or convict the defendant. By unearthing useful facts for the inquiry, the forensic pathologist has a duty to be neutral, use up-to-date scientific knowledge and data and to search for the truth in underlying events. But is the usual position of axiological neutrality relevant? Can values be evacuated from the expertise? Can the truth be achieved? What is actually science in the field of forensics? Is the forensic pathologist not using other tools to reach a conclusion? To address these issues, this work proposes to investigate the relationship between facts and values in the field of forensic expertise, as well as to examine the way the forensic scientists draw conclusions and in turn how these are stated.
  • Droit de la santé et médecine légale

    La Harpe, Romano; Ummel, Marinette; Dumoulin, Jean-François (Médecine & Hygiène (Chêne-Bourg), 2014)
    Succédant aux trois éditions de Médecin et droit médical, ce nouveau manuel Droit de la santé et médecine légale offre un vaste panorama de ces deux domaines, en intégrant les développements les plus récents de la législation et de la jurisprudence, notamment en matière de protection de l’adulte. Rédigé par des juristes et des médecins, issus de la pratique comme du monde académique, ce recueil de textes aborde les thèmes classiques du droit de la santé – consentement éclairé, secret médical ou responsabilité médicale – et les thèmes plus pointus de la biomédecine, tels que l’analyse génétique, la procréation médicalement assistée ou encore l’assistance au décès. Les principaux thèmes de la médecine légale traditionnelle - levée de corps, autopsie, toxicologie, analyses d'ADN, capacité et aptitude à la conduite, constats de lésions traumatiques - y sont aussi présentés de manière claire et compréhensible, même pour les profanes. En faisant référence à une situation clinique suivie d’un exposé juridique chaque fois que le sujet s’y prête, cet ouvrage est conçu par son ancrage dans la réalité quotidienne comme un outil directement utilisable tant pour les praticiens du droit que pour les professionnels de la santé. 840 pages
  • Ordo rationis y vida moral. Un espacio insospechado de racionalidad práctica en S. Tomás de Aquino

    Panero, Marco (2020)
    The article seeks to explore the meaning and function of ordo rationis within Thomas Aquinas’ moral doctrine. Abundant and converging signs invite to recognize such notion, being a general principle that structures the Thomistic ethics in its totality. Conversely, the device of ordo rationis develops a rich heuristic function, since it allows a detailed and homogeneous understanding of numerous major themes of Thomistic ethics, including: the configuration of human acts and their moral specification, the classification of virtues on the basis of their mode of regulation, and the articulation of the precepts of the natural law in relation to virtuous excellence.
  • Global Networks and the Legal Profession

    Terry, Laurel S. (Dickinson Law IDEAS, 2019-01-01)
    The importance of networks and the power of exponential growth within networks have become much more apparent to the world as a result of the COVID-19 pandemic. This Article addresses the topic of global legal profession networks. The introductory section provides information about our global economy and society that helps explain why global legal profession networks are valuable. It argues that global networks are beneficial for clients, lawyers, and other legal services stakeholders. After introducing some of the scientific literature about networks in general and legal profession networks specifically, Section II identifies ways in which lawyers participate in global legal profession networks. The Article identifies global network opportunities for law firms, as well as global network opportunities for individual lawyers. This section also addresses the growth prospects for global legal profession networks. It concludes that despite recent events, these kinds of global networks already are important and are likely to grow in importance. The final section of the Article urges individual lawyers and the organizations for which they work to recognize the global networks to which they already are connected and to consider joining additional global networks. It also explains why the “take-aways” from this Article apply to lawyers and organizations outside of the United States, as well as lawyers and organizations within the United States. (A subsequent article focuses on a subset of global legal profession networks, which are the global networks lawyer regulation stakeholders. This related "networks" article is Laurel S. Terry, Lawyer Regulation Stakeholder Networks and the Global Diffusion of Ideas, 33(3) Georgetown J. Legal Ethics __ (2020), available in June or July 2020 at https://works.bepress.com/laurel_terry.
  • In Defense of Scholars' Briefs: A Response to Richard Fallon

    Frost, Amanda (Digital Commons @ American University Washington College of Law, 2013-01-01)
    In a thoughtful and provocative essay, Richard Fallon criticizes law professors for lightly signing onto 'scholars’ briefs,' that is, amicus briefs filed on behalf of a group of law professors claiming expertise in the subject area. Fallon argues that law professors are constrained by the moral and ethical obligations of their profession from joining scholars’ briefs without first satisfying standards similar to those governing the production of scholarship, and thus he believes that law professors should abstain from adding their names to such briefs more often than they do now. This response begins by describing the benefits of scholars’ briefs to both the bench and the legal academy, and then explains why scholars’ briefs may permissibly make arguments in the form of advocacy, rather than scholarship. Although I agree with Fallon that authors and signatories of scholars’ briefs must satisfy different standards than those that apply to practicing lawyers writing amicus briefs - such as being experts in the subject area and sincerely believing in the result the brief advocates - I do not believe that such briefs must adhere to the norms that apply to legal scholarship. I argue that the realities of litigation, in which a judge’s decision is inevitably influenced by both precedent and politics, coupled with the adversarial context in which such briefs are filed, justifies their departure from the pure standards of scholarship.
  • Literature Review: How U.S. Government Documents Are Addressing the Increasing National Security Implications of Artificial Intelligence

    Chapman, Bert (Purdue University, 2020-06-17)
    This article emphasizes the increasing importance of artificial intelligence (AI) in military and national security policy making. It seeks to inform interested individuals about the proliferation of publicly accessible U.S. government and military literature on this multifaceted topic. An additional objective of this endeavor is encouraging greater public awareness of and participation in emerging public policy debate on AI's moral and national security implications..
  • Legaliteit en legitimiteit

    Cliteur, Paul; Ellian, Afshin (Leiden University Press, 2016)
    "Legaliteit en legitimiteit" takes one of the central problems of law and jurisprudence as its point of departure: what is the law? Adopting an intermediate position between legal positivism and natural law, this book reflects on the concept of ‘liberal democracy’ or ‘constitutional democracy’. In five chapters the book analyses: (i) the idea of higher law, (ii) liberal democracy as a legitimate model for the state, (iii) the separation of church and state or secularism as essential for the democratic state, (iv) the universality of higher law principles, (v) the history of modern political thought. This interdisciplinary approach to jurisprudence is relevant for legal scholars, philosophers, political theorists, public intellectuals, historians, and politicians.
  • Right to Be Present

    Digital Commons @ Touro Law Center, 1992-01-01
  • Right to Counsel

    Digital Commons @ Touro Law Center, 1992-01-01
  • Ineffective Assistance of Counsel

    Digital Commons @ Touro Law Center, 1992-01-01
  • Freedom of Speech and the Press

    Digital Commons @ Touro Law Center, 1992-01-01
  • Freedom of Speech and the Press

    Digital Commons @ Touro Law Center, 1992-01-01
  • Self-Incrimination

    Digital Commons @ Touro Law Center, 1992-01-01
  • Right to Counsel

    Digital Commons @ Touro Law Center, 1992-01-01

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