"A Matter of Trial and Error, or Betting on Appeals" Free Download
Notre Dame Law Review Online, Forthcoming

RADEK GORAL, Stanford University, School of Law, Students

In civil litigation, the function of the appellate review is to correct errors made by the court below and enforce uniform application of law. To make sure that the judgment was fair, the appellate panel is asked by the losing party to second-guess the trial judge and jury. Some, though, try to get to the table in between those two guesses, placing an outside bet on the appellate outcome before the wheel of justice finally stops. They are called appellate funders.

How does one gamble on a pending appeal for money? What kinds of cases are suitable for such bets? And why should anyone only get involved once relatively little remains to be done? Despite the rapidly growing practice where legal claims get funded by third parties, and concurrent surge of scholarly interest in the phenomenon, the strategy of appellate financiers has not been explored in the literature.

Sampling from the actual portfolio of a leading third-party litigation financier, this paper demonstrates that making systematic bets on pending appeals is a viable business model applicable to a wide range of cases. “Appellate investments� may include both consumer and commercial cases, including also public-interest actions where prevailing plaintiffs are permitted attorney’s fees – even if they themselves do not seek monetary relief. Additionally, the analyzed sample indicates that appellate funders buy both from plaintiffs and plaintiff attorneys, often in the same case.

The overview of the business strategy of appellate financing contributes to a larger theme: the role and impact of external money in litigation. In particular, the paper challenges the assertion that third-party funders necessarily bring about more litigation; after all, appellate funders support prevailing plaintiffs hoping to withstand procedural onslaught of losing defendants vying for a rematch. Therefore, and contrary to popular belief, the paper argues that in a dispute funders can generally play either offense or defense, as long as the risks and rewards are right.

"Playing Fair: When Advocates' Immunity is Out of Court" Free Download
3 Journal of Civil Litigation and Practice 60 (2014)

LINDA RUTH HALLER, Melbourne Law School

Advocates’ immunity provides blanket immunity from all civil liability to Australian lawyers for their work in court as well as some work out of court. While rationales for the immunity once included the need to support the lawyer’s primary duty to the court, the Australian High Court has said the sole rationale for the immunity now is to ensure finality in litigation and protect judicial decision-making from collateral attack. This article explains how there appears to have been a lack of attention to the way in which the test for applying the immunity to out-of-court work developed and describes a “lack of fit� between the rationale and test that appears to be increasing in some parts of Australia.

"Professional Formation with Emerging Adult Law Students in the 21-29 Age Group: Engaging Students to Take Ownership of Their Own Professional Development Toward Both Excellence and Meaningful Employment" Free Download
Journal of the Professional Lawyer (2015 Forthcoming)

NEIL W. HAMILTON, University of St. Thomas School of Law (Minnesota)

Four factors have converged that require law faculty to add an additional foundational learning outcome, focused on helping each law student to take ownership over her own professional development, to the traditional emphasis of legal education on technical competencies such as doctrinal knowledge, legal analysis, and legal research and writing.

First, we have a new understanding of the importance of the development of each student toward an internalized ethic of responsibility and service to others, plus an internalized commitment to professional development toward excellence. Second, there are both new data to consider on the developmental stages of students who are emerging adults in the 21-29 age group and new data that a substantial proportion of law students are at an earlier stage of taking ownership over their own professional development than where the faculty and the profession want them to be. Third, we have a new understanding of curriculum that is effective in helping each student take ownership of her own professional development. Fourth, both potential applicants (in deciding which institution to attend) and the federal government (concerned about student loan repayment) are increasingly emphasizing gainful employment outcomes.

Taken together, the four factors are impelling law schools and the legal profession to define a professional formation learning outcome where each student takes ownership over creating and implementing a written plan to use her time in law school most effectively for her own professional development toward both excellence at the competencies needed to serve others well and, ultimately, meaningful employment.

Recent empirical research on emerging adults in the 18-29 age range indicates their dominant motivation is to achieve self-sufficiency, which in turn has two principal sub-elements: (1) accepting responsibility for yourself; and (2) becoming financially independent. Legal educators (both faculty and staff) must help each student to understand that in order to achieve self-sufficiency, the student must take ownership to create and implement a written plan for his professional development toward excellence at the competencies needed to serve others well (this is the key learning outcome) across the whole arc of his or her studies, career, and life. This paper analyzes new assessment data demonstrating the effectiveness of a new curriculum designed to help each student take ownership over her professional development.

"The Death and Rebirth of Codes of Legal Ethics: How Neuroscientific Evidence of Intuition and Emotion in Moral Decision Making Should Impact the Regulation of the Practice of Law" Free Download
Georgetown Journal of Legal Ethics, Vol. 28, 2015

ERIC C. CHAFFEE, University of Toledo - College of Law

The only constant in the regulation of legal ethics in the United States has been change. With the adoption of the Model Rules of Professional Conduct, the legal profession as a whole has arrived at a rationalist model for the regulation of the practice of law because the Model Rules are rules of reason. The problem is that recent evidence from the field of moral cognitive neuroscience suggests that individuals commonly resort to irrational thinking when making moral decisions by drawing upon intuition and emotion when faced with ethical dilemmas. This evidence validates various theories and models about moral decision making from other disciplines, and it complicates the regulation of legal ethics because rational rules are currently being used to govern what is at least in part irrational thinking.

This article argues that the legal profession should begin taking a dual process approach to regulating legal ethics because it better conforms to how people make moral decisions through a mix of both intuition and reason. This article concludes that an approach that is similar to the Model Code of Professional Responsibility is the best model for regulating the practice of law because such an approach entails both ethical standards and rules for purposes of regulating ethical behavior. Such an approach is superior because it appeals to irrational, intuitive thinking through standards and rational thinking through rules. In essence, it offers a dual process model for formulating and enforcing codes of legal ethics that mirrors how individuals think in making moral decisions.

This approach is superior to either rationalist or intuitionist approaches because it sets basic rules for lawyers while using standards to fill in the gaps and ambiguities that invariability exist in and among rules. Clients and others dealing with lawyers are better protected because this dual process approach provides a comprehensive system of regulation. In addition, society is likely to be more comfortable with such an approach because a system of regulation can be created that engages and satisfies society’s collective intuitions and reasoning about what is permissible in the practice of law. Under a dual process approach, clear mandates should trump intuition and emotion, and the specificity of rules should be honored above broad standards and norms. In addition, a system employing a dual process approach to regulating the practice of law should also be updated regularly to reflect evolving intuitions regarding what is just. The time has come to conform legal ethics to scientific reality and to offer a system of professional regulation that is state of the art.


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


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Advisory Board

Legal Ethics & Professional Responsibility eJournal

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

Georgetown University Law Center

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

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

Harvard University - Center on the Legal Profession

Charles Frank Reavis Sr. Professor Emeritus, Cornell Law School