Now showing items 1-20 of 4361

    • Confined to a Narrative: Approaching Rape Shield Laws Through Legal Narratology

      Swiss, Kathryn C. (Washington University Open Scholarship, 2014-01-01)
    • An Argument for Incentivizing Voluntary Regulation of the Fashion and Modeling Industries

      Tschannen, Allison Clyne (Washington University Open Scholarship, 2014-01-01)
    • Holding the Bench Accountable: Judges Qua Representatives

      Warren, John L., III (Washington University Open Scholarship, 2014-01-01)
    • Reconstructing Constitutional Punishment

      Barrozo, Paulo (Washington University Open Scholarship, 2014-01-01)
      Constitutional orders punish—and they punish abundantly. However, analysis of the constitutionality of punishment tends to be reactive, focusing on constitutional violations. Considered in this light, the approach to constitutional punishment rests on conditions of unconstitutionality rather than proactively on the constitutional foundations of punishment as a legitimate liberal-democratic practice. Reactive approaches are predominantly informed by moral theories about the conditions under which punishment is legitimate. In contrast, proactive approaches call for a political theory of punishment as a legitimate practice of polities. This Article integrates the reactive and proactive approaches by bridging the divide between moral and political theories of punishment
    • Do Criminal Background Checks in Hiring Punish?

      Lee, Michael A. C. (Washington University Open Scholarship, 2017-01-01)
      Criminal background checks in the hiring process make it more difficult for former offenders to obtain employment at their market skill level. As a result, many former offenders end up underemployed or unemployed altogether. This obstacle to finding gainful employment is a harm, and this harm directly follows from a former offender’s criminal conviction. The harm can therefore be thought of as part of the punishment imposed on criminal offenders. However, unlike the formal punishment that a criminal offender receives through his sentence, the harm that follows the offender as he seeks employment after he has completed his formal sentence has no basis in punishment theory.1 Criminal background checks in hiring is a policy that aims at furthering employer interests, not punishing criminal offenders. For this reason, the punitive effect of criminal background checks often goes overlooked even though there are simple, straightforward ways to reform the process without abridging the purpose of protecting employers.
    • The Mismeasurement of Legal Pragmatism

      Lind, Douglas (Washington University Open Scholarship, 2012-01-01)
    • Rationality, Legitimacy, & The Law

      Epstein, Daniel Z. (Washington University Open Scholarship, 2014-11-30)
      American legal realism was committed to examining legal reasoning in terms of the actual experiences of judges. Because the realist project sought to use social science tools to examine human nature, the contemporary rise of cognitive neuroscience provides an occasion for re-examining legal realism’s foundational critique of the law. Realism’s attempt to examine “the actual facts of judicial behavior” and to pursue a “scientific description and prediction of judicial behavior” appears to be a suitable vehicle for considering the relevance of cognitive neuroscience for legal theory. Cognitive neuroscience has provided convincing evidence for rejecting the traditional bifurcation between “reason” and “emotion.” Moreover, cognitive neuroscience has revealed key heuristic biases in human reasoning. As such, the dominant form of legal reasoning might rely on a flawed conception of rationality. Therefore this flawed understanding may have implications for the legitimacy of judicial decisions. Rule-based reasoning has informed the image of rational adjudication that undergirds our conception of the rule of law, but rule-based reasoning does not appear to be a complete description of how judges decide cases. Furthermore, the received view of legal rationality does not appear capable of accounting for alternative theories of adjudication.
    • United States v. Leveto

      Steward, Jennifer (DigitalCommons@NYLS, 2009-01-01)
    • Relating Kant's Theory of Reflective Judgment to the Law

      Makkreel, Rudolf A. (Washington University Open Scholarship, 2013-01-01)
    • Monopolist, Aristocrat, or Entrepreneur?: A Comparative Perspective on the Future of Multidisciplinary Partnerships in the United States, France, Germany, and the United Kingdom After the Disintegration of Andersen Legal

      Daly, Mary C. (Washington University Open Scholarship, 2002-01-01)
      Part II provides a snapshot of the history of multidisciplinary partnerships in France, Germany, and the United Kingdom and the responses of the organized bars at the national and international level. Part III explores how the structure, culture, and ethics of the legal professions in Western Europe contributed to the rapid growth of MDPs. Part IV examines the economic threat that the Big Five’s legal networks posed to U.K. and Western European law firms prior to the criminal conviction of Andersen and the consequent disintegration of Andersen Legal, its law firm network. Part V offers some preliminary reflections on how Andersen’s demise will shape the future of MDPs in the United States, the United Kingdom, and Western Europe. The Conclusion connects that future to deeply embedded competing models of the legal profession.
    • The Impact of the Honour of the Crown on the Ethical Obligations of Government Lawyers: A Duty of Honourable Dealing

      Martin, Andrew Flavelle; Telfer, Candice (Schulich Law Scholars, 2018-10-01)
      The honour of the Crown is recognized as a Canadian constitutional principle that is essential to reconciliation between Indigenous and non-Indigenous Canadians. As part of the process of reconciliation, this article argues that the honour of the Crown imposes a special ethical obligation on government lawyers in specific circumstances, which we call the duty of honourable dealing. We situate this duty in the divided literature and case law about whether government lawyers have special ethical obligations and in the two dimensions in which the honour of the Crown applies: the Crown as an institution and the Crown as a collection ofpublic servants in the performance of defined duties. This duty applies when government lawyers are engaging directly with Indigenous peoples and their representatives in negotiation contexts. It requires that engagement in negotiation processes be meaningful, with a candid exchange ofpositions and views that are carefully and respectfully considered.
    • The Forms and Limits of Judicial Inquiry: Judges as Inquiry Commissioners in Canada and Australia

      Hoole, Grant R (Schulich Law Scholars, 2014-10-01)
      In both Canada and Australia the conduct ofpublic inquiries draws heavily from the expertise of the legal profession, with judges frequently serving as commissioners and inquiry hearings often reproducing the popular imagery of a courtroom. Despite this affinity between public inquiries and the legal profession, however, jurisprudential and academic authorities repeatedly stress that public inquiries are non-adjudicative. Indeed, the received wisdom is that the investigative focus of public inquiries justifies their divergence from the procedural and substantive commitments of adjudication. This paper challenges that assumption. It argues that the service of judges as inquiry commissioners should be premised on their fidelity to the basic value ofadjudication, a commitment necessary both to honour the due process rights of inquiry participants and the constitutional principle of separation of powers. Drawing from constitutional jurisprudence, practical examples of judicial service on inquiry commissions in Canada and Australia, and an understanding of adjudicative processes from the perspectives of their participants, I propose an analytic method to resolve the unique dilemmas faced byjudges as inquiry commissioners. This method speaks directly to the ethics of judges, reinforcing a connection between their skills, procedural methods, and commitment to honour the basic principles of a just legal system.
    • Law's Ambition and the Reconstruction of Role Morality in Canada

      Tanovich, David M (Schulich Law Scholars, 2005-10-01)
      There is a growing disconnect and alienation between lawyers and the legal profession in Canada. One cause, which is the focus ofthe article, is philosophical in nature. There appears to be a disconnect between the role lawyers want to pursue (i.e., a facilitator of justice) and the role that they perceive the profession demands they play (i.e., a hired gun). The article argues that this perception is a mistaken one. Over the last fifteen years, we have been engaged in a process of role morality reconstruction. Under this reconstructed institutional role, an ethic of client-centred zealous advocacy has slowly begun to be replaced with a justice-seeking ethic that seeks to give effect to law's ambition. Part I of the article provides the basic foundations of this reconstruction thesis. In the first section, role morality is defined and defended as a beacon of ethical reflection. The next section attempts to trace the evolution ofour understanding of the public interest. The final section of Part I provides the evidence of this reconstructed role morality by exploring statements from leading members of the profession, recent ethics jurisprudence and by examining equality and harm prevention principles in our codes of conduct. Like any large bureaucratic institution, the profession will inevitably be slow to respond to its new identity and the changing set of norms and values that go with that identity. The required institutional changes are beyond the scope of this article. However, Part II does address how lawyers can on an individual level give effect to this evolving role morality by adopting a pervasive justice-seeking ethic and by engaging in identity lawyering that is consistent with the interests ofjustice.
    • Roleplays As Rehearsals for “Doing the Right Thing”—Adding Practice in Professional Values to Moldovan and United States Legal Education

      Juergens, Ann; McCaffrey, Angela (Washington University Open Scholarship, 2008-01-01)
      This Essay explores lessons learned from Moldovan law students for U.S. legal education. Following this Introduction, Part I establishes context for the exchange with Moldovan law schools including some Moldovan political history. It describes the interactive exercises prepared for the exchange and how the students transformed them into a dialogue about professional values. Part II lays out research and commentary that critique legal education in the United States. In particular, the Essay notes the call for increased attention to values and to the development of responsible professional identities in law graduates. If U.S. law schools’ signature pedagogy is the case dialogue method, and if that method is well designed to teach legal analysis and doctrine, need anything be added in the first year to begin to integrate the values of the profession? Part III proposes that the answer to that question is yes, and that simple interactive exercises are a straightforward way to add values and skills exploration in first-year courses. The addition of brief roleplays does not require fund-raising or additional teachers or infrastructure. It requires only a few sheets of paper and a willingness to set aside some coverage of doctrine in exchange for discussion of values and for practice in implementing them. This section also analyzes the benefits that would be gained by the addition of short simulations into first-year courses. Part IV sketches specific steps for implementing roleplays in the first-year curriculum and provides a sample for experimentation. The Essay concludes by encouraging the use of roleplays from the first year of law school so as to include rehearsals in implementing core professional values to the traditional teaching of legal analysis.
    • U.S. Legal Ethics: The Coming of Age of Global and Comparative Perspectives

      Terry, Laurel S. (Washington University Open Scholarship, 2005-01-01)
      This Article reviews the influence of comparative law during the past 100 years on the field of U.S. legal ethics. It begins by defining the field of legal ethics and then divides the last 100 years into three distinct comparative legal ethics eras. The first era consists of the time period between 1904 and 1973, during which there was both domestic and comparative legal ethics scholarship, although a relatively small amount compared to later years. The second time period, which dates from 1974, when legal ethics became a required course, to 1997, represents the coming of age of domestic legal ethics scholarship. This time period also included a significant amount of legal ethics scholarship employing a comparative or global perspective. The Article continues by analyzing the time period from 1998 to the present and offers the thesis that in 1998, there was a fundamental transformation or “sea change” that occurred with respect to the use of global and comparative perspectives to discuss U.S. legal ethics issues. The Article cites several post-1998 examples to demonstrate the coming of age of these perspectives. The final section of the Article identifies various factors that contributed to, and have helped sustain, these heightened comparative and global perspectives.
    • Solicitation of Public and Private Litigation Under the First Amendment

      Simet, Donald P. (Washington University Open Scholarship, 1978-01-01)
      After presenting the solicitation cases, the Article will analyze the nearest precedents bearing on each.
    • Value Pluralism in Legal Ethics

      Wendel, W. Bradley (Washington University Open Scholarship, 2000-01-01)
      My claim in this Article is that the foundational normative values of lawyering are substantively plural and, in many cases, incommensurable. By plural I mean that the ends served by the practice of lawyering are fundamentally diverse, and are therefore valued in different ways. Lawyers promote multiple worthwhile goals, including not only preserving individual liberty, speaking truth to power, showing mercy, and resisting oppression, but also enhancing order and stability in opposition to the “ill-considered passions” of democracy, aligning individual action with the public good, and shaping disputes for resolution by particular institutions such as courts and agencies. The claim of incommensurability should not be confused with the familiar argument that in a multicultural, diverse society, the lawyer and client may disagree about justice and the lawyer may face a choice between following her own moral principles or those of her client. Instead, my argument is that the lawyer seeking to act ethically must take account of different value claims that may not be comparable with one another in an impersonally rational, mathematical, or algorithmic manner.