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Abstract:
This article explores the background principles of consistency and proportionality in legal rules and remedies. It identifies the relative strength of the interests of individuals and the public as the key to justifying the remedies available in different areas of law. Understanding the normative guidance of particular legal rules reveals the strength of society's judgment of the interests at stake in different remedies. For example, the principle of consistency generally means that a legal doctrine applying an objective measure of one's interest must apply a like-kind measure to all interests considered, absent some explicit and justifiable basis for different formulations. The article examines the need for consistency in legal disputes and explores the role of the principle of proportionality as a guard against destructive consistency. The natural hierarchy of legal norms inheres in remedies accorded various types of interests - from contract to criminal remedies. It also assesses measurements presented in the current tort reform debate as an application of the norms of consistency and proportionality and examines the failure of arguments advanced in the tort reform debate to include the public interest. The article concludes that identification of individual and collective interests are integral considerations in the debate on tort reform.

tort reform

Abstract:
This Article examines the modern system of unilateral private ordering facilitated by form contracts in the context of standard form contracts for renting a car. Modern law accepts the presumption of a free market and free bargain in the setting of form contracting despite the lack of bargaining power on the consumer side of the deal. The article assesses the importance of defaults and presumptions in contract law, and presents the results of an empirical review of standard agreement forms of ten leading rental car companies, noting examples of significant alterations to common law defaults. The article also explores the doctrine of unconscionability as it applies to form contracting and examines the historical basis for a lenient standard for contract formation assent. It questions whether extension of the lenient, hands-off approach for bilateral transactions makes sense in the context of unilateral private ordering. Ignoring the issue of bargaining power in most situations, Article 2A provides scant protection for consumers in the context of leasing personal property. Ultimately, the article questions whether the system of constrained judicial oversight that insulates bargaining from governmental control in private ordering historically should extend to the context of standardized consumer contracts that emphatically dispense with the bilateral approach to consensual transactions.

contract, form contract, article 2A, UCC, unconscionable, adhesion, unilateral private ordering, efficient inertia

Abstract:
This Article examines the incentive systems of the common law and modern rules of lawyer discipline, which combine to form a dual system of lawyer regulation in this country. The Article considers discontinuities between this dual system of regulation created by the common law, which influenced the 1908 Canons of Professional Ethics, and the current disciplinary rules, presented by the Model Rules of Professional Conduct. While the Model Rules form the basis of lawyer discipline in most states, the approach presented in the Canons continues to have force because the common law applies to lawyers through contract and tort law. Like the common law, the Canons rely on indeterminate, general rules and a strong background requirement of reasonable conduct. The result was a sense of uncertainty for lawyers - like the uncertainty applicable to everyone in a common law system. The Model Rules seem to present greater certainty from the lawyer's perspective, with clearer standards and a presumption that no sanctions are possible absent a violation of a clear standard. Thus, the rules enhance due process for lawyers charged with misconduct. The Rules thus seem to lessen the indeterminacy of the common law to lawyers and reduce the likelihood of sanctions in uncertain circumstances. This approach may have costs, however, both in reduced public confidence in the system of justice and by creating an unfounded perception by lawyers that they are free from sanctions absent the certainty of the Model Rule standards. The net result of the dual system may be greater indeterminacy associated with divergent expectations and standards.

Abstract:
The lawyer's role as a "public citizen" also involves a duty to "seek improvement of the law." Changing technology has changed the way lawyers practice law. As public citizens lawyers have an affirmative commitment to the social goal of a just society. Ethical issues arise in the use of technology in society, and lawyers play a central role in social ordering. The idea that advocates in an adversary system have special responsibilities is not new.

technology, ethics, lawyer duty