Introducing a Dose of Reality:  Broadening the Perspective of Legal Ethics to Include Social Science Research

Andrew M. Perlman, A Behavioral Theory of Legal Ethics, 90 Ind. L.J. (forthcoming 2014), available at SSRN.

Andy Perlman’s timing couldn’t be better. His new article, A Behavioral Theory of Legal Ethics, comes out just as negative reports of lawyers’ conduct are front page news again, this time as part of the GM story. The company’s lawyers failed to save their business and engineering colleagues from disastrous decisions; in fact, their conduct may have hindered GM from addressing problems systemically. While corporation counsel generally are not the sole check on ethical and competent decision making by company insiders, they certainly are positioned structurally to a framework that is intended to lead to good decision making. But it is not just corporate lawyers who are an issue for ethical conduct, of course. Prosecutors’ failure to reveal exculpatory evidence is a continuing concern, tax lawyers’ gaming the tax shelter system is the topic of a new book by Mitt Regan and Tanina Rostain (Confidence Games), and there are many more examples.

What makes Perlman’s article so timely is not simply the focus on lawyers’ failed judgments but his connection of these to a fundamental problem with the theory underlying legal ethics. This connection provides a larger context for considering ethical failures, moving beyond the particular characteristics of an individual to a general framework that spans lawyers’ individual differences and practice settings. According to Perlman, the theoretical foundation of legal ethics assumes that lawyers “are simultaneously capable of partisanship on behalf of clients while remaining sufficiently objective to ensure that their own conduct is ethical.”(p.6) In fact, the Model Rules of Professional Conduct obligate both partisanship (“in the sense of being aligned with a particular side of a matter” (p.6)) (see, for example, Model Rules of Professional Conduct 1.2) and the ability to consider the consequences of being a partisan in the context of obligations owed to non-clients (see, for example, Model Rules of Professional Conduct, Preamble and Scope (“Virtually all difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the legal system and to the lawyer’s own interest in remaining an ethical person while earning a satisfactory living.“). Nevertheless, this tension has not been adequately explored, according to Perlman: “Rarely,” he writes, do legal ethicists “discuss[] … whether this assumption relies on an accurate model of human behavior.” (p.11) It is just such a disconnect that has been identified as underlying the failings of GM’s lawyers according to a New York Times report, which commented that It is not clear whether any of G.M.’s lawyers even recognized there was an issue with how they were representing the company. Nor is it clear that they considered whether they needed to take action to protect it from greater harm.”1 Continue reading "Introducing a Dose of Reality:  Broadening the Perspective of Legal Ethics to Include Social Science Research"

 
 

Patterns and Practices

These days, I think a lot about police torture.

To be more precise, these days I am wrestling with problems of how to “prove” police torture occurred. And that’s why I recently read Kim D. Chanbonpin’s article “Truth Stories: Credibility Determinations at the Illinois Torture Inquiry and Relief Commission.”

The question at the heart of the problem I am struggling with is straightforward enough: How can one evaluate a claim of police torture when the only source of the claim is the alleged victim and when the police and prosecutors categorically deny that anything occurred? Continue reading "Patterns and Practices"

 
 

Meaning, Intention, and Mental States

Lawrence B. Solum, Artificial Meaning, 89 Wash. L. Rev. 69 (2014), available at SSRN.

This is a provocative and important essay that has implications Solum doesn’t spell out for some positions on meaning, communication, statutory interpretation, and the understanding—sometimes called the “construction”—of statutory texts. Solum is interested in communicative content, principally of directives. Most of his examples are of legal directives, or as he prefers to describe them, legal rules.

Solum begins with an important distinction between communicative content, the kind of meaning he is interested in discussing, and legal meaning, the legal contribution a text makes in its particular legal system. It is not uncommon for discussion of statutory interpretation to conflate the two or to focus entirely on the latter, but this is a mistake. In some legal systems, such as in the United States, the communicative content of a statute can cause it to fail to make any legal contribution (because, for example, the statute is unconstitutional). So getting clear on communicative content is a prolegomena to getting clear on much of statutory interpretation. Solum aims to make a significant contribution to this task by illuminating the lack of connection between communicative content, intention, and the mental states of individual legislators. Continue reading "Meaning, Intention, and Mental States"

 
 

From Crowd-Sourcing to Crowd-Enforcing: An Empirical analysis of Threadless’s Community IP Norms

Empirical studies of creative communities continue to provide scholars and policymakers with useful evidence for assessing intellectual property regimes. In Seven Commandments, we find yet another excellent example of the type of evidence we need to know and, perhaps even more importantly, robust methods for gathering it.

The article reports on a study of Threadless, an online community that crowd-sources t-shirt designs. As with many such communities, it uses a combination of collaborative and competitive elements, allowing users to work together on certain projects while also competing with each other for approval, funding, and ultimately production and distribution of the designed apparel. The authors of the paper seek to study the IP norms of the Threadless community in order to understand what makes it succeed in terms of incentives to create. In particular, they note that because formal enforcement of copyright law is generally difficult if not impossible on such sites, normative systems are presumed to play the major role in protecting the investment of creators. Continue reading "From Crowd-Sourcing to Crowd-Enforcing: An Empirical analysis of Threadless’s Community IP Norms"

 
 

Recognition Without Consent

Erez Aloni, Deprivative Recognition, 61 UCLA L. Rev. 1276 (2014).

Relationship recognition has been at the center of reform efforts in family law for the last two decades. Scholars and advocates alike have focused intently on the need to provide recognition and support for a variety of relationships that the law has traditionally ignored. These include the relationships of not only same-sex couples, but also of cohabiting couples, nonmonogamous groupings, and friends. The reform proposals have assumed that legal recognition brings with it economic benefits.

In a fascinating new article, Erez Aloni questions this assumption by highlighting the interplay between two considerations: first, it is sometimes the case that nonrecognition of relationships can have financial benefits for their members; second, the state sometimes recognizes relationships in the absence of a request by either party—what Aloni labels “purely ascriptive recognition”—for the limited purpose of determining eligibility for particular benefits. In most cases of purely ascriptive recognition, if the combined income exceeds a certain amount, then the individuals become ineligible for the benefit in question. When the two considerations are brought together, we are left with forms of legal recognition that cause financial harm. Continue reading "Recognition Without Consent"

 
 

Getting Specific About the Financial Security Aspects of Health Insurance

Allison K. Hoffman, Health Care Spending and Financial Security After the Affordable Care Act, N.C.L. Rev. (forthcoming), available at SSRN.

Too often, discussions about health insurance coverage are one-dimensional, and focus solely on whether someone has coverage (good) or not (bad). Having health insurance coverage is undeniably a good thing and an important policy goal. However, as Professor Hoffman’s article points out, simply focusing on health insurance coverage, without examining the type of protection it provides, gives us an incomplete picture of an individual’s protection against health-related financial risks.

One of the primary goals of health insurance, after all, is to protect individuals from the financial insecurity that can result from medical spending. What is perhaps less obvious to the casual observer is that health insurance can provide very different levels of protection against financial insecurity depending on the plan’s premiums, cost-sharing structure, and coverage terms. In her article, Professor Hoffman first provides a taxonomy of the types of financial risk health insurance could attempt to reduce. She then uses stylized examples of three health insurance consumers to examine how various forms of post-ACA coverage provide financial security. Her examination leads to some surprising results. Continue reading "Getting Specific About the Financial Security Aspects of Health Insurance"

 
 

Empiricism and Equality: Studying Fathers’ Rights

Kelly A. Behre, Digging Beneath the Equality Language: The Influence of the Fathers’ Rights Movement on Intimate Partner Violence Public Policy Debates and Family Law Reform, 21 Wm. & Mary J.  Women & L. (forthcoming 2014), available at SSRN.

The fathers’ rights movement relies on the rhetoric of equality. Men, it seems, are discriminated against because the law has come under the sway of feminists. Feminists have prevailed upon the law to intrude in areas where the government has no business, such as the home. Moreover, feminists have convinced policy makers that there is an epidemic of domestic violence perpetrated by men upon women and that adult intimate partner violence should be considered in issues of custody of children. The correct view according to the fathers’ rights movement, is that true equality means gender-neutrality.

While discussions, critiques, and analysis of the equality rhetoric of the international fathers’ rights movements are not novel, Kelly Behre’s article, Digging Beneath the Equality Language: The Influence of the Fathers’ Rights Movement on Intimate Partner Violence Public Policy Debates and Family Law Reform, does – – – as the title promises – – – “dig beneath.” The article’s first section is an excellent overview of the equality narratives of the fathers’ rights movement, including the appeal to civil rights movements and the use of both discrimination and gender-neutral tropes. But the real contribution of Behre’s article is her exploration of the relationship between empiricism and equality. Continue reading "Empiricism and Equality: Studying Fathers’ Rights"

 
 

Don’t Restrict My E-book

Angela Daly, E-Book Monopolies and the Law, 18 Media & Arts L. Rev. 350 (2013), available at SSRN.

It’s still fashionable to point to the “cloud” as the solution to all sorts of problems in technology. But can such a shift disturb the carefully worked out compromises between different interests, which are embedded in legislation on topics such as competition and intellectual property?

Angela Daly, a research fellow at the Swinburne Institute of Technology (Australia) who is also about to complete a doctorate at the European University Institute (Florence, Italy), suggests that these clouds may bring little but rain. In her article, “E-book monopolies and the law”, published in the consistently topical Melbourne-based Media and Arts Law Review, she considers two particular features of e-book platforms and content: digital rights management, and competition. Continue reading "Don’t Restrict My E-book"

 
 

What Can Be Learned From the Wrongfully Accused?

Daniel Gilveber & Amy Farrell, Not Guilty: Are the Acquitted Innocent (2012).

One of the most frequently asked questions of criminal defense lawyers is some variation of “How can you represent someone you know is guilty?” Law students ask this question often as they explore vicariously the possibility of representing the criminally accused. I respond carefully. I try to take them back to my own experience and the immense pride (and yes, sometimes trepidation) I felt in assisting some of the most powerless and forgotten members of our society. I tell them the truth. The hardest cases were not those in which I thought that my client was guilty. Hardest were those cases in which I believed or suspected that my client was innocent. Those are the cases over which I lost the most sleep and worried that my own limitations and competencies as a lawyer would unfairly determine my client’s liberty. I worked tirelessly for acquittals in those cases (and others) but recall to this day that even acquittals could not make innocent criminal defendants “whole.” Acquittals were viewed by defense and prosecution attorneys alike as lucky windfalls. The acquitted defendant somehow evaded the “true verdict” of guilt. Rarely could acquitted defendants return to their former lives without the stain of having been accused. In other words, a defendant who was found “not guilty” was perceived as not entirely “innocent” either.

A close examination of verdicts of acquittal has been long overdue. This is precisely what Daniel Givelber and Amy Farrell bring to us in their new book Not Guilty: Are the Acquitted Innocent? In particular, they study the relationship between the acquittals and actual innocence. They begin with the notion that acquittals, like comedian Rodney Dangerfield, “get no respect.” Practitioners, scholars and the general public tend to assume that acquittals are based on misinformed or nullifying jurors or systemic failures allowing the guilty to go free. The authors observe that the law itself harbors a similar bias insofar as evidence of prior acquittals can be admitted in the adjudication of a new offense or to enhance a sentence in a new offense. Givelber and Farrell acknowledge that they can’t directly disprove these assumptions. (For instance how do we know whether an acquitting jury has nullified or genuinely believes that the defendant is not guilty of the charge?). Instead they analyze data from four hundred trials to determine how and whether the evidence in acquitted cases differs from or resembles the evidence in conviction cases. Continue reading "What Can Be Learned From the Wrongfully Accused?"

 
 

A New Theory of Insider Trading Law

Sung Hui Kim of the UCLA School of Law has developed a bold new theory of insider trading that is well worth reading. In The Last Temptation of Congress: Legislator Insider Trading and the Fiduciary Norm Against Corruption, Kim lays the foundation of her new theory, which she expands in Insider Trading as Private Corruption.

In arguing that members of Congress are fiduciaries for purposes of insider trading law, Kim joins a number of others scholars who have argued for the imposition of fiduciary duties on government officials. See, e.g., Evan Fox-Decent, Sovereignty’s Promise: The State as Fiduciary (2011); Ethan J. Leib et al., A Fiduciary Theory of Judging, 101 Calif. L. Rev. (2013); D. Theodore Rave, Politicians as Fiduciaries, 126 Harv. L. Rev. 671 (2013); Evan J. Criddle, Fiduciary Administration: Rethinking Popular Representation in Agency Rulemaking, 88 Tex. L. Rev. 441 (2010). I come to this literature as a skeptical reader. Having written extensively on fiduciary law, I am wary of scholarship that purports to extend fiduciary analysis into new domains, stretching the fiduciary concept beyond its analytical boundaries. In Last Temptation, therefore, I prepared myself for an arduous slog when I read that Professor Kim was arguing that the “majority view”—that “members of Congress are fiduciaries to no one” (P. 849)—was wrong (P. 852). Continue reading "A New Theory of Insider Trading Law"

 
 

Coming to a Better Understanding of Remedies

Samuel L. Bray, The Myth of the Mild Declaratory Judgment, 63 Duke L. J. 1091 (2014).

Remedies is a vital, yet sometimes overlooked, area of study and scholarship. So often with law, we gravitate toward the substantive fields—constitutional law, property, contracts, torts, and the like. In academic writing and course offerings, there is less of a tendency to step back and consider the commonalities between these subjects.

Remedies is trans-substantive almost by definition. It looks across all areas of law and asks, once a liability or right has been established, now what? Is the victim, be she of trespass or breach of contract or malpractice, entitled to damages? If so, how much? Should she receive an injunction or declaratory relief or both? The goal of the field is to better understand how it is that our legal system can and should make aggrieved parties whole. Sam Bray’s The Myth of the Mild Declaratory Judgment deftly brings us closer to that goal. Continue reading "Coming to a Better Understanding of Remedies"