• Selected
• Entire List

Abstract:
A survey of about 300 films involving significant lawyer roles reveals that from 1930 to 1970, more than two-third of the lawyers were good human beings and competent, ethical professionals. Since 1970, however, just the reverse is true: about two-thirds of the lawyers in film have been bad human beings and/or bad professionals. This article links the phenomenon of negative lawyer portrayals in film with the sharply declining public perception of the ethics of lawyers. The films accurately reflect the stunning drop in the public's image of the profession. The article speculates on the causes for this abrupt decline and suggests that negative film portrayals may be cause as well as effect. It draws on insights from cognitive psychology (the cultivation effect) to establish that the public may be learning that lawyers are bad from watching them in the movies.

Abstract:
This article addresses a puzzle: lawyers are the most distrusted and despised of all American professions, whereas the public has a much higher opinion of judges. Yet Americans believe strongly in the adversary system in which all the important procedural decisions during civil or criminal trials are made by lawyers. Even though people crave a justice system that discovers what really happened, they accept one that delivers only trial truth and procedural justice, not factual truth or substantive justice. This article explores various reasons why people might favor the adversary system despite their distrust of lawyers and their craving for truth, such as a belief in personal autonomy, a distrust of government officials, and a lack of knowledge about alternatives. However, the article suggests another possible reason: the influence of popular cultural portrayals of the trial process. Dating back to the days of history's greatest teacher of trial tactics - Perry Mason - media consumers have been taught that the adversary system delivers the truth. We can count on a great lawyer's cross-examination to reveal the identity of the real killer. Even though we hate and distrust lawyers, we want a good one by our side when we're in trouble or an aggressive one prosecuting the crooks. Countless films and television shows since Perry Mason's day have conveyed the same basic message, although in more sophisticated form. According to "cultivation theory," people often extract information and form opinions based on fictitious stories told by pop culture media. Perhaps we derive our bone-deep belief in the adversary system from Perry Mason and the other great lawyers we've watched over the years.

public perception of lawyers and judges, pop culture media

Abstract:
Movies often provide a window through which we can observe human behavior and legal institutions as they existed when the film was made. However, this is not true of the subjects of marital disintegration and divorce. Hollywood's rigid system of self-censorship, embodied in the Hays Code and the Production Code Administration, nearly blotted divorce themes right off the screen. What little was said of the subject during the middle third of the twentieth century was wildly wrong. The Code was written by and administered by staunch Catholics, largely to stave off boycott threats by the Catholic Legion of Decency. As a result, it reflected Catholic moral teachings, particularly the prohibition of divorce.

This article surveys films about divorce from the pre-Code era (1930-34), the Code era (1934-68), and the immediate post-Code era (1968-1980s). It discovers that divorce themes were candidly portrayed during the pre-Code era but were thoroughly suppressed during the Code era. In the post-Code era, the subject crept back to the screen in a series of memorable films about divorce in the late 1970's and early 1980's. The article then analyzes Kramer vs. Kramer (1979) in detail, finding it to be one of the few classic treatments in film of divorce and family law.

Abstract:
Most American lawyers now practice in law firms, ranging from small partnerships to immense multi-national megafirms. In the movies, lawyers in solo practice have often been presented favorably, but when lawyers band together into law firms, the firms are almost always portrayed unfavorably. Recent films involving larger law firms, such as "The Firm," "The Devil's Advocate," or "Philadelphia" been venomously negative. Professor Asimow traces the history of law firms in film, concentrating particularly on Orson Welles' noir masterpiece "The Lady from Shanghai," which he believes invented the idea that law firms are an embodiment of evil. Asimow believes that the explanation for the rash of harshly negative big-firm movies lies both in the public's evident distaste for lawyers in general and law firms in particular and in the traditional anti-business theme in film narrative. He sketches the history of the big law firm and contends that the world of big firm law practice has swung sharply in the direction of a business model rather than the traditional professionalism model. Finally, Asimow contends that in several respects the depiction in contemporary films of large firm life and law practice is fundamentally on target. In particular, the treatment in the movies of lawyer life style, billing improprieties, and hardball litigation tactics appears to be essentially correct.

Abstract:
The adversary system is the nearly unquestioned ideology that animates civil and criminal justice in the U.S. Under the adversary system, lawyers control the trial. Judge have little to do except rule on legal issues and evidentiary objections and pound their gavels. The objective of the adversary system is to provide procedural justice and to find "trial truth." The goal is not to provide substantive justice or to discover the real truth about what happened.

This paper asks why the U.S. is committed to the adversary ideology. To some extent the commitment arises out of ignorance of alternatives and reliance on tradition. It also derives from broadly shared commitment to individual autonomy and laissez faire capitalism. Distrust of judges and other bureaucrats is certainly a major factor. Often, distrust of American judges is entirely warranted.

This paper suggests an additional reason for our commitment to the adversarial ideology: constant exposure to popular culture models. To some degree, we all sit at the feet of our master trial practice teacher, the immortal Perry Mason. Mason trained us to believe that only lawyer cross-examination could discover the truth. Countless TV series and films have reinforced this message. The model requires lawyers to be in control and judges to get out of the way. A lifetime of pop culture conditioning in the glories of the adversary system makes it impossible for most Americans to consider alternatives.

adversary system, popular culture, judicial system, trial courts

Abstract:
This article concerns a classic puzzle in legal ethics: what should a criminal defense lawyer do when the lawyer is certain that the client is factually guilty (usually because the client confessed to the lawyer), but the client insists on an all-out defense? Legal ethicists have struggled with this problem since the Courvoisier case in 1840, but it remains unresolved. This article draws a distinction between strong and weak adversarialism and explains how these two normative positions guide a lawyer's tactical decisionmaking. The article suggests that lawyers should have discretion to choose between the strong and weak positions, depending on context and their personal conscience. Both popular culture and great literature provide interesting perspectives on the strong vs. weak adversarialism dilemma. According to numerous films, television shows and novels, the right answer to the lawyer's dilemma is no adversarialism at all. The good lawyer should betray evil clients to insure that the truth is discovered. Pop culture's no-adversarialism model is a universe few lawyers would care to inhabit but which reflects popular views on the relationship of lawyering to truth. Literature casts doubt on whether a lawyer can know with certainty whether a client is telling the truth. It presents numerous models of successful strong adversarialists and unsuccessful weak adversarialists. Few literary lawyers manage to be both skilled advocates and decent human beings.

Courvoisier and Westerfield cases, legal ethics, legal defense, lawyering

Abstract:
This article reports a survey of first year law students (1Ls) on their first day of class in the United States, England, Scotland, Germany, Australia, and Argentina. The survey asked about the 1L's opinions of the prestige and honor of lawyers and whether lawyers deserve their incomes. It revealed that 1Ls had quite low opinions about whether lawyers were honorable, sometimes lower than the opinions held by the general public.

The survey also inquired about the sources of information students found helpful in forming their opinions. The 1Ls reported that the news, discussions with friends, and lawyers in the family were helpful. Surprisingly high numbers reported that popular culture sources had been helpful.

Numerous studies have shown that people's opinions are influenced by fictitious pop culture they have consumed (so-called media effects). In some countries (particularly the U. S. Germany, and Argentina), the 1L's opinions of lawyers' prestige, honor, and deserts were positively correlated to the amount of legal film and television shows they had consumed. In Scotland, they were negatively correlated. These relationships could suggest the presence of a media effect (meaning that the 1L's opinions were influenced by pop culture they had consumed).

*************
This is a preprint of an article whose final and definitive form has been published in the International Journal of the Legal Profession(c)(2005) Copyright Taylor & Francis.

student views of lawyers, popular culture

Abstract:
12 Angry Men is the iconic jury film but this article contends that it should not be viewed as a tribute to the jury system. Quite the contrary, the jury in the film erred badly by acquitting the defendant, even though the probability that he killed his father approaches 100%. The circumstantial evidence against him was overwhelming. Even if all of the eye witness testimony is discredited, the circumstantial evidence is far more than enough to satisfy the reasonable doubt standard.

Abstract:
Local government planning and zoning decisions are inherently political struggles, but courts have traditionally assumed that both procedural and substantive due process apply to such decisions. This article argues that due process does not work well when applied to applications for land use permission because participants play according to political rather than legal rules. Moreover, when courts apply due process norms concerning impartiality of decisionmakers, they can tie local planning agencies in knots. Finally, for a variety of reasons, the U.S. Supreme Court will probably decide that procedural due process is inapplicable to most or all applications for local land use permission. Judicial review of land use decisions under substantive due process is out of step with the rational basis standard used to review other economic decisions. Instead, the article recommends that, instead of due process review in state or federal courts, a better solution is state court judicial review of the land use decisions under state substantive and procedural law. This issue of Zoning and Planning Law Report also includes a rebuttal to Asimow's article by Edward J. Sullivan.

Land use, local government planning, zoning laws, due process, land use decisions

Abstract:
The Administrative Procedure Act controls the procedures of almost all federal government administrative agencies and it has achieved nearly constitutional status. The APA regulates all federal agency rulemaking and all judicial review of agency action and all government information (with narrowly drawn exceptions in each case).

However, only a small portion of agency adjudication is subject to the adjudication provisions of the APA. This article refers to these as Type A adjudications. Type A adjudications are the cases in which administrative law judges (ALJs) ordinarily preside - primarily benefits cases involving Social Security, Medicare, and Black Lung. In addition, Type A adjudication covers a wide array of regulatory adjudication, such as that conducted by the FTC, NLRB, SEC, and FERC. The APA provides significant protections to litigants in Type A adjudication. These include detailed provisions relating to the merit selection, independence, compensation, freedom from performance evaluation, and tenure of ALJs.

Numerous statutes that call for evidentiary hearings as part of regulatory or benefit programs that are not governed by the APA's adjudication provisions. The article refers to these as Type B adjudications. Presiding officers (POs) rather than ALJs conduct these hearings. Type B adjudication is distinguished from true informal adjudication, meaning schemes in which no statute requires an evidentiary hearing.

Type B adjudication includes such important federal regulatory and benefactory programs as deportation, patent claims, federal personnel cases, veterans' benefits, security clearances, tax collection due process hearings, and many others. There are probably as many or more Type B adjudications as Type A adjudications each year. Because of agency opposition to the statutory provisions protecting the independence of ALJs, Congress has repeatedly authorized new forms of Type B adjudication but rarely authorizes new forms of Type A adjudication.

This article contends that it would be in the public interest to extend certain APA provisions that prescribe fundamental norms of fair adjudicatory procedure to Type B adjudication. The article does not propose that the APA's specific provisions relating to the selection, compensation and tenure of ALJs be extended to POs in Type B adjudication since it is not politically feasible to do so.

Thus the article contends that such basic adjudicatory norms as separation of functions, prohibition of ex parte contact, impartiality of decisionmaker, exclusive record, notice, hearing, and findings requirements be applied to Type B adjudication. It contends that this fundamental reform can be achieved at little cost and without disruption of Type B adjudicatory schemes.

Administrative law, administrative adjudication, administrative hearings, administrative law judges

Abstract:
The California Law Revision Commission has been working for ten years on administrative law reform. This work resulted in one solid success--enactment in 1995 of a new Administrative Procedure Act for adjudication. The new APA modernized California's APA by providing an administrative law bill of rights for litigants before agencies not covered by prior law. It also introduced some important reforms such as informal hearings and alternate dispute resolution. The Law Revision Commission also suffered two ignominious failures: its judicial review reform bill was killed in a state senate committee and a modest set of rulemaking reforms passed the legislature but was vetoed by the governor.

This article analyzes the politics of state administrative procedure law reform in California, identifying the relevant players and pointing out the pitfalls that any state administrative law reform is likely to encounter. Reformers must enlist a powerful political patron to back the project and must be prepared to compromise until virtually all serious opposition is neutralized. They must articulate a powerful intellectual case for reform, in order to counter the cliche "if it ain't broke don't fix it." In particular, there must be some benefit in the reform package for state agencies so that they have a reason to buy in. For example, a provision for informal hearings or a provision that allows an agency to adopt precedent decisions without going through rulemaking might be attractive to agencies.

Agencies will staunchly resist reforms that increase their costs (for example, by required rulemaking) or reduce their autonomy or power (for example, by stripping them of their administrative law judges or diminishing their ability to overturn ALJ findings). Similarly, the private sector will resist reforms that diminish procedural or judicial review protections. Many people will mistrust and misunderstand any reform effort. In the nature of the political process, it is easy to kill legislation (especially when generous campaign contributors are trying to kill it) and hard to pass it. Therefore, reformers must be as inclusive as possible during the drafting of legislation so that all major players can have input into the process. It will often be necessary in this process to scale back ambitious reform proposals and make timely compromises. Failure to recognize these realities of political life doomed the Law Revision Commission's judicial review bill.

The article surveys existing Pennsylvania administrative law which is relatively primitive. The waves of reform marked by the 1961 and 1981 Model State Administrative Procedure Acts have largely passed Pennsylvania by. The lack of statutory law has forced Pennsylvania courts to reform administrative procedure by applying the state constitution. These decisions seem ill-informed and they unduly constrain the legislature. On the other hand, Pennsylvania's system of uniform administrative procedural rules is a significant innovation. Pennsylvania administrative law needs updating, but the process of achieving reform will be tedious and difficult. The California experience should prove valuable to Pennsylvania as it undertakes this process.

Abstract:
Federal and state administrative adjudication in the United States fits comfortably into a procedural template involving some variation of an adversarial trial-type hearing conducted by a neutral decisionmaker and often controlled by an Administrative Procedure Act. Although the European Union (EU) engages in a huge array of administrative adjudication, there is no such procedural template like those in the US or, for that matter, the UK or the EU member states. Instead, adjudicatory proceedings in each regulatory sector are different from the others. The procedure for investigation and hearing is inquisitorial rather than adversarial, so that the hearing (if there is one) is viewed as part of the investigation rather than as a separate phase from the investigation. In a fascinating and unexpected common-law process, the EU courts have imposed some due process-like norms on this structure. This article (written as part of the ABA Administrative Law Section's European Union project) introduces the reader to the world of EU administrative adjudication. It focuses on six regulatory sectors in which adjudication occurs at the EU level rather than the member state level: competition, trade regulation, trademarks, food safety, pharmaceutical licensing, and state aids.

European Union, Administrative Law

Abstract:
Every agency produces "guidance documents" such as interpretive rules and policy statements. These documents are very important to the public and to the agency and its staff. It should be possible to issue them with no prior notice and comment procedure. Section 553 of the federal APA provides an exception from rulemaking procedure for guidance documents but this provision has proved to be extremely difficult to apply and is problematic in many respects.

Most states adopted the 1961 Model State APA which provided no guidance document exception. Surprisingly, the states have moved strongly in the direction of federal law. Either through legislative amendments to the state APA or through creative court decisions, a majority of the states and almost all of the most populous states now permit at least some guidance documents to be issued without prior procedures.

California is the primary exception; by statute, California explicitly requires prior notice and comment for the issuance of virtually all guidance documents and the courts have enforced this provision rigorously. The result is disastrous - agencies employ all sorts of suboptimal avoidance devices and many agencies flout the law. The legislature recently passed a statute to partially correct the problem but unfortunately Governor Gray Davis vetoed it.

The article concludes with a proposal for a safe harbor provision similar to that in the vetoed California legislation. The safe harbor would improve the law both in jurisdictions with guidance document exceptions (like the federal government) and in jurisdictions providing no such exceptions. The safe harbor provides that clearly identified guidance documents can be issued without prior procedure, but the agency must provide an opportunity for post-adoption comment. Private parties are not bound by the documents but would be entitled to rely on them and courts are prohibited from paying them any deference until the post-adoption process is complete and the document is adopted in final form.

Abstract:
From Perry Mason and The Defenders in the 1960’s to L. A. Law in the 80’s, The Practice and Ally McBeal in the 90’s, to Boston Legal, Shark, and Law & Order today, the television industry has generated an endless stream of dramatic series involving law and lawyers. As a result, most members of the public receive most of their information (and misinformation) about what lawyers and judges do and how legal institutions function from absorbing pop culture representations on television. This book features 36 chapters about legal television, both domestic and foreign, written by 40 different authors. In addition, it contains celebrity introductions by Sam Waterston and James Woods, two of the premiere actors portraying lawyers in contemporary television.

The book covers the Judge Judy phenomenon (including her foreign counterparts) as well as shows that are not primarily about lawyers but feature important lawyer characters (such as The Simpsons or The West Wing). It also contains chapters about the production of dramatic legal shows, including writing and technical advising, and about legal ethics on television. The book concentrates on the personal and professional character of the lawyers -- which runs the gamut from fearless champions of the innocent to the sort of unethical or personally dysfunctional lawyers that the public loves to hate.

lawyers, popular culture, portrayal of lawyers on televsion, criminal law, legal ethics

Abstract:
This forthcoming book explores the interface between two subjects of enormous importance to everyone - law and popular culture. It can be used in teaching either undergraduate or graduate courses and raises issues of interest to instructors in film studies, American studies, history, law, and many other disciplines. A teachers' manual is available to assist prospective teachers.

Law and popular culture pervade our lives. Students need to learn a lot more about both of them and how they influence each other. The book bridges the gap between the study of law and popular culture. It will expose students of popular culture to the study of law and law students to the study of popular culture.

Each chapter takes a particular legally themed film or television show, such as Philadelphia or Dead Man Walking, treating it as both a cultural text and a legal text. The book is written in plain English, without theoretical jargon, and it can be taught by anyone who enjoys pop culture and is interested in law.

Popular culture, film, television, law and humanities

Abstract:
This volume is intended as a handbook to assist government and private counsel engaged in federal administrative adjudication. It covers all of the major issues relating to formal and informal adjudication, including the right to a hearing under due process and the Administrative Procedure Act (APA), as well as the requirements relating to the pre-hearing, hearing, and post-hearing phases. It also covers the APA's provisions relating to the integrity of the decisionmaking process. The book considers the statutory protections for the independence of administrative law judges under the APA and the right to attorneys' fees under the Equal Access to Justice Act.

Abstract:
This casebook is intended to be used as a supplement by teachers of administrative law at California law schools in conjunction with one of the regular administrative law casebooks. The vast majority of students at California law schools will practice in that state. California administrative law varies dramatically from federal law and the law of other states. Its law relating to rulemaking, adjudication, and judicial review is skewed in the direction of protecting private interests and contains many statutory provisions and case law doctrines of great value to private practitioners. The authors believe that a study of California administrative law will add significant value to a course which otherwise dwells on federal law. This book (and the accompanying teacher's manual) is designed to make it easy for instructors to supplement the basic course with whatever amount of California material they find interesting and helpful.

Abstract:
Interim-final rules are binding norms federal agencies adopt and make immediately effective without inviting prior public comment on a rulemaking proposal. The Administrative Procedure Act ordinarily requires the use of notice and comment procedures to adopt legislative rules, but agencies justify omitting the pre-adoption comment period by invoking the impracticability or public interest prongs of the APA's good cause exception to this requirement. An agency following this route may invite post-adoption comment on the rule, and then readopt it in final form after taking account of the public comments. Agencies use this methodology between 300 and 400 times each year. The paper makes an empirical examination of the frequency of use of interim-final rules and inquires why they are so commonly used. It analyzes legal problems arising out of their use (particularly problems arising out of the conjunction of the APA and other statutes constraining rulemaking procedure like the Regulatory Flexibility Act) and makes some policy recommendations. The article updates a consultant's report to the former Administrative Conference of the United States, that led to the adoption of ACUS Recommendation 95-4.

Abstract:
The bill of rights in the recently adopted South African Constitution is enforced by a Constitutional Court that takes the rights very seriously and is reluctant to limit them. Section 33 concerning administrative justice, provides that "everyone has the right to administrative action that is lawful, reasonable, and procedurally fair," and that everyone whose rights have been adversely affected by administrative action has a right to be given written reasons. However, these rights must be implemented through national legislation within three years of adoption of the constitution. During the three-year period Section 24 of the Interim Constitution (adopted in 1994) provides for self-executing rights to lawful, reasonable and fair administrative action and to a statement of written reasons. Should legislation implementing Section 33 not be enacted in time, these free-standing, self-executing rights will become part of the permanent constitution. The article argues that it is imperative that Parliament adopt an administrative justice act to implement and appropriately limit the Section 33 rights. The broad, free- standing rights provided in the interim and final constitutions are overbroad and uncertain. Absent statutory definition, due process claims have the potential to inundate the Constitutional Court, and to stifle government action in the post-apartheid era. Action is needed to protect the Court's ability to reach other, tremendously important constitutional matters. The article concludes with proposals for adjudication, rulemaking, and judicial review provisions in an administrative justice act. Despite the many urgent demands on its time and energy, Parliament should not neglect the need for an administrative justice act.