LEGAL ETHICS & PROFESSIONAL RESPONSIBILITY eJOURNAL

"Serfdom Without Overlords: Lawyers and the Fight Against Class Inequality" Free Download
University of Louisville Law Review, Vol. 54, No. 269, 2016
U Denver Legal Studies Research Paper No. 16-26

ELI WALD, University of Denver Sturm College of Law
Email:

Lawyers are not very engaged in the public discourse about class inequality in America, reflecting a belief that class inequality is primarily an economic and political problem rather than a legal one. Because lawyers are not commonly perceived to be a cause of the class problem, some believe that lawyers should not be part of the solution. This article challenges the legal profession’s passive stance on class inequality, arguing that all lawyers have an important role to play in the fight against inequality.

The article first identifies a class challenge for lawyers, the rise of an increasingly segregated and stratified legal profession, based on attorneys’ socioeconomic status, showing that the well-documented and growing opportunity gap among our kids will result in a growing opportunity gap among our lawyers. It then disproves an enticing retort dismissing the growing opportunity gaps among our kids and lawyers as somebody else’s problems, asserting that lawyers in their (neglected) role as public citizens have a special duty to address inequalities affecting our kids, and that lawyers as officers of the legal system must combat inequality within the profession.

The rest of the article explores the means by which law schools, law firms, lawyers and the organized bar can and should help fight class inequality. Its main claim is that all lawyers must take part in a capital campaign designed to narrow our kids’ and lawyers’ opportunity gaps, a campaign involving no expenditure of economic capital. Rather, American lawyers, the affluent as well as the less prosperous, possess ample social and cultural capital — connections, relationships, and ties, as well as knowledge, information, and experience — which are the very assets that explain the opportunity gaps.

Law schools amplify lawyers’ opportunity gap by using admission, teaching and grading policies that privilege the affluent at the expense of the less fortunate, and can become part of the solution by replacing these criteria with policies that give everybody an equal opportunity to be admitted and excel based on merit considerations. Law firms systematically, if implicitly, trade in and rely on their lawyers’ social, cultural, and identity capital to make hiring and promotion decisions. They can become part of the solution by transparently acknowledging the role of social, cultural, and identity capital in their practices and providing all lawyers equal opportunities to acquire the requisite capital needed for success within their ranks. Lawyers, in turn, must lend their social and cultural capital assets to help build the capital endowments of the underprivileged. Finally, the organized bar must act as an intermediary connecting lawyers with disadvantaged kids and lawyers, and support the roles of lawyers as public citizens and officers of the legal system. In sum, the legal profession can and should play a meaningful role in narrowing the opportunity gap afflicting our kids and our lawyers.

"Racial Discrimination and Jury Selection" Free Download
Washington University in St. Louis Legal Studies Research Paper No. 16-07-08

PETER A. JOY, Washington University in Saint Louis - School of Law
Email:
KEVIN C. MCMUNIGAL, Case Western Reserve University School of Law
Email:

In an effort to eliminate a long history of racial discrimination in jury selection, the U.S. Supreme Court held in Batson v. Kentucky, 476 U.S. 79 (1986), that jurors cannot be excluded on the basis of race through a prosecutor’s use of peremptory challenges. Despite that ruling, racial discrimination in jury selection has remained a persistent problem. In May 2016, the U.S. Supreme Court decided yet another case, Foster v. Chatman, finding that prosecutors’ use of peremptory challenges to exclude all eligible potential African American jurors to achieve an all-white jury in Georgia violated Batson. That jury sentenced 18-year-old Timothy Foster, an African American man, to death for the murder of an elderly white woman. Nearly 30 years later, the Court concluded that the prosecutors were motivated in substantial part by race when they struck two potential jurors from the jury. Emphasizing the seriousness of racial discrimination in jury selection, the Court admonished: “Two peremptory strikes on the basis of race are two more than the Constitution allows.? The Supreme Court may have granted Foster a new trial based on Batson, but that is unlikely to stop racial discrimination in jury selection. Since the Court decided Batson 40 years ago, issues of racially motivated use of peremptory challenges frequently arise. In that time, several cases have reached the Court, and countless more have gone to state and federal courts of appeals. In view of the intractable problem presented by the use of peremptory challenges, commentators have recommended a variety of solutions to eliminate racial discrimination in jury selection and achieve more inclusive and representative juries. In this ethics column, we explore the problems with Batson as a constitutional rule as well as the legal ethics of racial discrimination in jury selection. We also consider alternatives to peremptory challenges, and conclude by endorsing alternatives to the current system of peremptory challenges as the best alternatives to curb racial discrimination in jury selection.

"The Downside of Disruption: The Risks Associated with Transformational Change in the Delivery of Legal Services" Free Download
2 New York Law School IMPACT 113 (2016

RAYMOND H. BRESCIA, Albany Law School
Email:

Change is coming to the legal profession. New forms of communicating, researching, advertising, finding clients, serving clients, and preparing documents are transforming the way legal services are delivered in the 21st century. The advent of new technologies, like the internet, machine learning, and mobile communications have put the legal profession on the cusp of what business theorist Clayton Christensen calls “disruptive innovation?: transformative shifts in a market for a product or service that threaten the business models, and even the very existence, of incumbent actors within that market. In the legal profession, these technology-enabled changes are streamlining all aspects of the delivery of legal services and changing the ways that lawyers identify, market to, and secure clients; conduct legal research; prepare court documents; compile and review discovery; collaborate with other lawyers, clients and experts; and prepare contracts, patent applications and other legal documents. These changes are not without their risks. This Article explores some of the risks associated with the disruption in the legal industry and identifies some of the potential downsides of this disruption.

"When the Arbitrator Creates the Conflict: Understanding Arbitrator Ethics through the IBA Guidelines on Conflict of Interest and Published Challenges" Free Download
McGill Journal of Dispute Resolution, Vol. 2, No. 1, 2016

JAMES NG, New York University (NYU), School of Law, Students
Email:

Arbitrator ethics is one of the most underdeveloped areas in international arbitration. Arbitrators are generally required to meet a baseline level of neutrality by disclosing any potential ethical conflicts and remaining independent and impartial throughout the arbitral process. Unfortunately, not all arbitral practice has met these ethical requirements. The “Application Lists? of the International Bar Association (IBA) Guidelines on Conflict of Interest in International Arbitration provide a theoretical basis for considering such ethical conflicts. This paper takes the “Application Lists? one step further: by matching them with published records of arbitrator challenges from the London Court of International Arbitration (LCIA) and the International Centre for Settlement of Investment Disputes (ICSID), the author will provide a practical scheme to gauge whether an ethical conflict merits disclosure or disqualification.

"Disruptions' Function: A Defense of (Some) Form Objections under the Federal Rules of Civil Procedure" 
12 Seton Hall Cir. Rev. 161 (2016)

AMIR SHACHMUROVE, U.S. District Court - Middle District of Louisiana
Email:

Originally seen as a sharp and efficient instrument for the discovery of truth and the sifting of facts, the effectiveness of the oral deposition authorized by Federal Rule of Civil Procedure 30 and governed by sundry other provisions, observers would later conclude, had been dulled by the Rules’ middle-age. Repeated objections, often lengthy and suggestive, had apparently rendered depositions increasingly long and unproductive, and exchanges akin to the ones excerpted throughout this piece are no longer unusual. True, many depositions smoothly transpired. Still, pesky objections of dubious need and value, their exclamation inconsistent with the collegiality implicitly favored by the Rules’ discovery provisions, seemed to muck up the efficient functioning of the Rules’ pretrial-discovery system with maddening regularity. Wholly unexpectedly, discovery had transformed litigation into “ordeal,? efficiency, justice, and promptness, the fixed stars in the Rules’ overarching cosmography, often unrealizable due to such interruptions’ apparent prevalence.

In response to this perception, Rules 26, 30, and 32 would be repeatedly redrafted. One command, however, remained mostly unchanged, the Rules’ drafters first adopting and later haphazardly refining an older classification system. Some objections were deemed too valuable for waiver to ever be appropriate. But those “relat[ing] to the manner of taking the deposition, the form of a question or answer, the oath or affirmation, a party’s conduct, or other matters that might have been corrected at that time? were made so if “not timely made during the deposition,? an unadulterated codification of the so-called “contemporaneous objection rule.? With time, however, one major change came. Today, objections must be “stated concisely in a nonargumentative and nonsuggestive manner? and may not include an instruction to the deponent not to answer if unnecessary “to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).? The contemporaneous objection rule had been borrowed from an older era, but this manner prong was newer still, crafted so as to address concerns once deemed unpersuasive. More amendments, at least partly relevant, would come in the winter of 2015.

With only these express provisions and apparent ills as touchstones, a growing cavalcade of opinions has inconsistently adjudged the permissible content of an objection to a question’s form. Many courts have insisted that the Rules, expressly and implicitly, condone the use of such phrases as “objection to form? or “objection, form? and nothing more. To them, such “simple form objections,? the phrase used in this article, are alone suitable. Other jurists have demurred. Because the Rules clearly encourage and arguably compel that a proper objection divulge its precise ground, this coterie has asseverated, a simple form objection will never suffice. Instead, a “precise form objection,? this article’s contrasting term, must be used, its foundation -- “asked and answered,? “ambiguous,? “argumentative,? “compound,? and more -- immediately adduced. At present, precedent evinces a loud discord over which type -- a simple or a precise form objection -- best fits with the Rules’ text and design. Delving into the Rules’ language, specific context, and broader design, both before and after the amendments that became effective on December 1, 2015, this article takes a side, explicating why the Rules compel the use of precise form objections over their plainer kin.

In the process, it shows how all rules must be construed, explicating an approach used by multiple courts -- and ready for practitioners' application.

^top

About this eJournal

This eJournal distributes working and accepted paper abstracts related to the legal profession. Coverage includes scholarship on the law governing lawyers, as well as theoretical or interdisciplinary approaches to normative questions related to lawyers and the legal profession.

Editor: W. Bradley Wendel, Cornell University

Submissions

To submit your research to SSRN, sign in to the SSRN User HeadQuarters, click the My Papers link on left menu and then the Start New Submission button at top of page.

Distribution Services

If your organization is interested in increasing readership for its research by starting a Research Paper Series, or sponsoring a Subject Matter eJournal, please email: RPS@SSRN.com

Distributed by

Legal Scholarship Network (LSN), a division of Social Science Electronic Publishing (SSEP) and Social Science Research Network (SSRN)

Directors

LSN SUBJECT MATTER EJOURNALS

BERNARD S. BLACK
Northwestern University - Pritzker School of Law, Northwestern University - Kellogg School of Management, European Corporate Governance Institute (ECGI)
Email: bblack@northwestern.edu

RONALD J. GILSON
Stanford Law School, Columbia Law School, European Corporate Governance Institute (ECGI)
Email: rgilson@leland.stanford.edu

Please contact us at the above addresses with your comments, questions or suggestions for LSN-Sub.

Advisory Board

Legal Ethics & Professional Responsibility eJournal

STEPHEN GILLERS
Vice Dean and Professor of Law, New York University School of Law

DAVID J. LUBAN
Georgetown University Law Center

RONALD DANIEL ROTUNDA
Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, Chapman University, The Dale E. Fowler School of Law

WILLIAM H. SIMON
Arthur Levitt Professor of Law, Columbia University - Law School, William W. and Gertrude H. Saunders Professor of Law, Stanford University - Stanford Law School

DAVID B. WILKINS
Harvard University - Center on the Legal Profession

CHARLES W. WOLFRAM
Charles Frank Reavis Sr. Professor Emeritus, Cornell Law School