Table of Contents

The Continuing Duty in Reality: A Preliminary Empirical Look

David M. Siegel, New England Law | Boston
Tigran Eldred, New England Law | Boston


Donald J. Kochan, Chapman University, The Dale E. Fowler School of Law

Our Hidden Value

Kevin H. Michels, The College of New Jersey

Constitutional Fragments – On the Interaction of Constitutionalization and Fragmentation in International Law

Anne Peters, Max-Planck-Institute for Comparative Public Law and International Law, University of Basel - Faculty of Law

Race, Class, and Access to Civil Justice

Sara Sternberg Greene, Duke University School of Law


"The Continuing Duty in Reality: A Preliminary Empirical Look" Free Download

DAVID M. SIEGEL, New England Law | Boston
TIGRAN ELDRED, New England Law | Boston

The continuing duty of criminal defense counsel to their former clients, even when those former clients bring post-conviction actions alleging ineffective assistance of counsel, has existed as a national practice standard in capital cases since at least 1987. In addition to its inclusion in the ABA’s Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases since 1989, duties to former clients exist in all state ethics rules (as well as the ABA Model Rules of Professional Conduct). The duty has been further operationalized in non-capital litigation (as well as capital litigation) through a 2010 ABA formal ethics opinion concerning disclosures by trial counsel to prosecutors in ineffective assistance of counsel (IAC) claims, case law and scholarship. There are no empirical data concerning its operation in practice, and these are difficult to obtain because much of the continuing duty operates through informal practices. This paper describes the results of a brief survey intended to develop these data.

"Keepings" Free Download
NYU Environmental Law Journal, (2015) Forthcoming

DONALD J. KOCHAN, Chapman University, The Dale E. Fowler School of Law

Individuals usually prefer to keep what they own. Property law develops around that assumption. Alternatively stated, we prefer to choose whether and how to part with what we own. As with the affection and attachment we have for our memories captured in the lyrics of the George Gershwin classic, so too do most individuals adopt a “they can’t take that away from me? approach to property ownership.

We often focus on the means of acquisition or transfer in property law. We less often look at the legal rules that support one’s ability to keep what she owns. Yet, it is precisely the ability to keep property that motivates its acquisition and that serves as a necessary element in offering any property up in a transaction as well – the property’s value is directly correlated with the buyer’s confidence in the seller’s authority to transfer (which can only exist if the owner also has the authority to keep it, i.e. not transfer) and with the buyer’s own confidence in his ability keep the property once he acquires it in the transfer.

This Article will catalog and evaluate a variety of doctrines, assumptions, presumptions, principles, and guidelines that exist for the purposes of aiding owners in keeping their property. I use “keepings? and “keepings rules? as terms that will refer collectively to these parts of the substantive law and legal infrastructure. Included is an analysis of these keepings rules within a Hohfeldian framework of immunities. In conclusion, the Article explains why these keepings rules are a necessary and vital component of an effectively operating property system.

"Our Hidden Value" Free Download
University of Louisville Law Review, Vol. 53, No. 1, 2014

KEVIN H. MICHELS, The College of New Jersey

What makes us valuable as lawyers? Lawyers often locate their value in the knowledge of the law and the procedural means by which that knowledge is deployed, what I will term “praxis? capacities. That understanding overlooks a critically important capacity that we cultivate through education and experience — the capacity for “normative reasoning.? Our normative capacities enable us to engage in the most difficult practical challenge imaginable — to argue, reason, and deliberate about how competing interests and claims can be ordered amid profound disagreement in the ever-varied circumstances that life offers. Questions about fairness, justice, and how to govern our society lie somewhere near the center of the human experience, and our capacity to reason in this deeply contested domain should be recognized, valued, and nurtured. I argue that our normative reasoning capacities allow us not only to perform critically important work for clients, but also to lead others and effect change in the world.

Part II will distinguish between our praxis and normative reasoning capacities, and sketch a description of the latter — the capacity to “reason? in a domain marked by disagreement on basic questions of fairness, value, and justice. Our normative reasoning capacities draw on moral intuition, narrative, experience and theory to reason and deliberate about questions of value, fairness, and justice in concrete, practical settings.

Part III will make the case for the value of normative reasoning by offering three examples of how lawyers effect change through the exercise of their normative capacities — through and beyond the traditional practice role. First, it will examine the critical role that normative reasoning plays in achieving justice for clients and in engaging with clients in deliberation about the most important questions in the representation. Second, I will argue that our normative reasoning capacity makes lawyers valuable as leaders, both in forging the ethos or vision that instills purpose and commitment, and in creating the ethical environment in which others do their best work. Third, I will argue that our normative reasoning capacities can empower us to effect change on a still wider canvas — as innovators, and not only in the provision of legal services, but in the creation of new services, enterprises, structures and institutions and even products that can change the world, incrementally or otherwise.

Part IV explores why normative reasoning has struggled to find a place in our self-understanding, observing that normative reasoning does not differentiate lawyers from laypersons, and thus it may not offer the prize of status and prestige. On the contrary, I conclude, normative reasoning invites us to share in the deepest questions of our community rather than isolating us on an island of technical expertise.

"Constitutional Fragments – On the Interaction of Constitutionalization and Fragmentation in International Law" Free Download
Centre for Global Constitutionalism, University of St. Andrews, Working Paper No. 2 (2015)

ANNE PETERS, Max-Planck-Institute for Comparative Public Law and International Law, University of Basel - Faculty of Law

This contribution suggests that a constitutional perspective allows for a more adequate description of the international order as it stands, exactly because of the latter’s fragmented character. Beyond that heuristic insight, this paper makes four points: First, the constitutionalization of international law is a broad and deep phenomenon which historically started before fragmentation (section 2) has been discussed as a problem. Second, fragmentation and constitutionalization are mutually reinforcing and to some extent even mutually constitutive: On the one hand, constitutionalization phenomena within international law have exacerbated fragmentation, because they have from the outset on taken place at multiple sites, and have produced only constitutional fragments (section 3). On the other hand, fragmentation in turn has triggered new forms of constitutionalization in international law; the processes of fragmentation are themselves being ‘constitutionalized’. Put differently, constitutionalization (as a process) and global constitutionalism (as an intellectual framework) is profoundly shaping how law-appliers deal with fragmentation, notably because the current ‘second stage’-fragmentation debate which concentrates on principles, procedures, and institutions for coordinating, harmonising, and integrating various international regimes, is explicitly or implicitly guided by genuine constitutionalist considerations (section 4).

Thirdly, the discourses of fragmentation and constitutionalization are largely motivated by a common root concern, namely the concern about the legitimacy of international law. Both phenomena also share the merit of promoting contestation and politization within the international legal process; they are kindred-spirited. Importantly, constitutionalism is not a reconciliatory strategy responding to fragmentation but a critical discourse (section 5).

My conclusion is that global constitutionalism is a useful analytic lens for understanding how international law evolves and works, as long as it is understood as ‘thin’ (contending itself with procedures as opposed to substance), and inevitably multi-level (necessarily involving domestic constitutional law). Even if a global constitutionalism of this type stays (partly) outside the picture of international law proper, it will always be reproduced in the fragments of the international legal order (section 6).

"Race, Class, and Access to Civil Justice" Free Download

SARA STERNBERG GREENE, Duke University School of Law

After many years of inattention, policymakers are now focused on troubling statistics indicating that members of poor and minority groups are less likely than their higher-income counterparts to seek help when they experience a civil justice problem. Indeed, roughly three-quarters of the poor do not seek legal help when they experience a civil justice problem, and inaction is even more pronounced among poor blacks. Past work on access to civil justice largely relies on unconfirmed assumptions about the behavior patterns and needs of those experiencing civil justice problems. At a time when increased attention and resources are being devoted to questions of racial and socioeconomic access to civil justice, it is critical to understand the underlying causes of the disparities in justice utilization.

This Article uses original, empirical data to provide novel explanations for these puzzling inaction statistics. The data reveal previously undetected connections that are crucial for creating effective access to justice policy. The Article shows how negative past experiences with, and perceptions of, the criminal justice system play a crucial role in decision-making about seeking help for civil justice problems. Further, this Article is the first to explore racial differences in civil justice utilization among the poor, and to explain how degree of trust is a key explanation for these racial differences. Based on the findings, the Article proposes a paradigm shift in how to shape access to justice policy.


About this eJournal

This eJournal distributes working and accepted paper abstracts concerning the interaction of formal and informal order. Topics include social and group norms, conventions, customs, customary law, folk law, legal pluralism, private organizational rules, civil society, self-enforcing contracts, informal sanctions (such as gossip, shame, and guilt), self-help (including feuds), and the origins of law and legal institutions.


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Advisory Board

Law, Norms & Informal Order eJournal

Wilson-Dickinson Professor of Law, University of Chicago Law School

Australian Research Council Federation Fellow, Australian National University - Regulatory Institutions Network (RegNet), Research School of Social Sciences, Australian National University (ANU) - Regulatory Institutions Network (RegNet)

Walter E. Meyer Professor of Property and Urban Law, Yale Law School

Marion Butler McLean Professor in the History of Ideas, Wellesley College - Department of Anthropology

Elizabeth K. Dollard Professor of Law & Professor of Psychology, Yale University - Law School, Harvard University - Edmond J. Safra Center for Ethics

Dean, University of Virginia School of Law

L.S. Rockefeller University Professor of Politics and Human Values, Princeton University - Department of Politics

Kirkland and Ellis Professor of Law, University of Chicago - Law School

Dan and Catherine M. Dalton Professor, Indiana University - Kelley School of Business - Department of Business Economics & Public Policy

Samuel A. Blank Professor of Law, Business, and Public Policy, University of Pennsylvania Law School, University of Pennsylvania Wharton School - Business Economics and Public Policy Department

Director, John M. Olin Center for Law, Economics, and Business, Samuel R. Rosenthal Professor of Law and Economics, Harvard Law School, National Bureau of Economic Research (NBER)

Swanlund Chair, Director, Illinois Program in Law and Economics, University of Illinois College of Law

Ford Foundation Professor of Comparative and Foreign Law, Yale Law School