Academic Lawyers Research Articles

Concerning Choice

In this issue celebrating Sir Ivor Richardson's career, the author considers the various role of lawyers and the choices they have to make in playing those roles. The first choice for a lawyer relates to the statement of the question to be addressed: what is the question? The second choice concerns the material considered by lawyers in playing their different roles. The third choice is about the principles and values which influence developments in the law and social policy. The fourth choice is about answers, which is held by legislators and their advisers. The fifth choice is the process governing the application of substantive law, including sanctions for its breach. The author concludes by emphasising the role of the academic lawyer, as they have advantages in all of the above areas.

American Legal Ethics

The ethics of American lawyers come from the English gentleman-lawyer of the nineteenth century, with the steady addition of an elitist Jeffersonian gloss. But they have, within the last century, been separated, so that regulation claims to operate without conscience. The result is that the law of lawyers is now the principal, if not only, feature of the official codes, and ethics as ethics is spread over insignificant consensus statements by bar associations and promising scholarship from academic lawyers, some small part of which deserves to be called ethics and even, from small beginnings, to be called religious ethics.

Sarat's When the State Kills and the Transformation of Death Penalty Scholarship

A major thrust of sociolegal empirical scholarship on the American death penalty has been concerned with marshaling support for its abolition by documenting the gap between the ideals of constitutional and just punishment and the realities of its implementation. This body of work has examined how contemporary death penalty practices and procedures fall short on any number of considerations relevant to policy: how modem sentencing schemes fail to adequately guide juries to fair and proportionate outcomes, how the juror-screening process in capital cases biases juries, how various decision-making points are influenced by racial characteristics of the defendants and victims, and how society's evolving standards of decency may be offended by the punishment. Thus, much of the research on capital punishment conducted over the past several decades falls squarely into the realm of applied social research, where the hypotheses tested are as much derived from real world impetuses as from basic theoretical considerations. Indeed, the collaboration of academic scholars and lawyers in the challenges to the death penalty that culminated in the 1972 landmark case Furman v. Georgia (408 U.S. 238) stands as one of the most influential and notable of such collaborative efforts in recent history. In the years leading up to Furman, NAACP Legal Defense Fund attorneys worked side by side with social scientists to mount an empirical case against the constitutionality of capital punishment by documenting its long history of biased and

An Introduction to the International Criminal Court. By William A. Schabas. [Cambridge: Cambridge University Press. 2000. xvi, 552, (Appendices) 16, (Bibliography) 39 and (Index) 17 pp. Paperback £39.95. ISBN 0–521–78790–4.

Not everyone will agree with the author’s claim that the International Criminal Court (ICC) is “perhaps the most innovative and exciting development in international law since the creation of the United Nations,” (p. 20) yet the current degree of interest from academic international lawyers is undeniable. Much of this interest has been channelled into detailed and sophisticated analyses of specific provisions or themes in the ICC’s Statute. Schabas has a different aim in mind. As he states, “[t]he goal of this work is … to provide a succinct and coherent introduction to the legal issues involved in the creation and operation of the ICC, and one that is accessible to non-specialists.” (p. viii) With minor qualifications, this goal is achieved and this work is an excellent introduction to the ICC.

Jurists and Judges: An Essay on Influence

Jurists and Judges examines the nature of academic influence,and particularly the influence of juristic commentary on judicial decision-making. Focusing on three legal systems, its author argues that inter-jurisdictional comparisons of juristic influence are often simplistic and inattentive to problems of incommensurability. The centrepiece of the study is a detailed chapter offering a nuanced history of juristic influence in England. All academic lawyers who reflect upon the history and objectives of their profession — who, in other words, wonder what it is that they are about — will profit from reading this most informative and engaging book.

From Chaos to Continuity: The Evolution of Louisiana's Judicial System, 1712-1862

From Chaos to Continuity: The Evolution of Louisiana's Judicial System, 1712-1862. By Mark F. Fernandez. (Baton Rouge: Louisiana State University Press, 2001. Pp. xviii, 135. Appendix, bibliography, index. Cloth, $29.95.) Louisiana has always been the odd state out in American law. The other forty-nine are squarely in the English common law tradition, but Louisiana is the only state with a legal system based in part on civil law, the Romanderived legal tradition of continental Europe. The standard explanation for Louisiana's unique status is that New Orleans, before the Louisiana Purchase, was the only city in the French or Spanish parts of what would eventually be the United States big enough to a significant number of lawyers trained in civil law. After all the other French and Spanish territories were acquired by the United States, American lawyers trained in the common law moved in, and they had no competition. But in New Orleans, American common lawyers encountered a bloc of civil lawyers, mostly trained in France, with a stake in holding on to the legal system they knew. And so, the conventional story goes, Louisiana's early nineteenthcentury legal system became a mixture of the common law and the civil law, reflecting a political compromise between the old French lawyers and the new Anglo-American lawyers. And so things remained ever since. One consequence, as Mark Fernandez points out in the introduction to his new study of Louisiana's legal system, From Chaos to Continuity, is that mainstream American lawyers and legal historians pay little attention to Louisiana. The state has its local academic lawyers, who, as Fernandez notes, publish specialized studies of the fine points of civil law in legal publications (xiv). Louisiana also has its local historians, who, Fernandez again comments, time perhaps a bit uncharitably, have reveled in the minutiae of its uniqueness (xii). But most American lawyers and legal historians treat Louisiana almost as a foreign country, a jurisdiction requiring arcane expertise to understand, and in any event a state not offering anything to the main story of American legal development. The thesis of From Chaos to Continuity is that mainstream view is a mistake. The legal system of early nineteenth-century Louisiana, Fernandez contends, was not really so different from that of any other state at the time. In comparison to other southern states of the period, he argues, this investigation of Louisiana shows it to be a representative model of an Anglo-American common law jurisdiction sharing remarkably similar experiences with its neighbors (xiii). This is a provocative thesis, and one that is likely to generate some controversy among Louisiana historians. Fernandez allows himself a short space to prove his thesis-only a bit more than one hundred pages. Chapter one is a perfunctory discussion of the period before the Louisiana Purchase based entirely on a few secondary sources, with little connection to the rest of the book. Readers primarily interested in French and Spanish colonization will be disappointed and may think the subtitle's promise of 1712-1862 something of a bait and switch, as the rest of the book only covers the last third of that span. …

The Debate on the Norman Conquest (review)

Reviews 219 Gudridr's powers of lactation (smuggling in the theme of milk again) is linked to a contemporary social mission to foster a virile younger generation (witness the 'Karitane' movement in N e w Zealand). The book is rounded off with an Epilogue, glancing at postcolonial treatments of the story in late twentieth-century British and American literature. Here Vinland is shown evolving from a robustly physical to a metaphorical location. The schema ofnecessity excludes Canadian contributions, such as Farley Mowat's The curse of the Viking grave, not to mention his insouciant 'historical' reconstruction Westviking: the ancient Norse in Greenland and North America. That is perhaps a pity considering that the only known N e w World Viking site is on Canadian territory. At all stages Barnes's discussion is elaborately documented, drawing on a great mass of material, but thanks to an diverting prose style and a series of well-chosen and often entertaining quotations it never sinks under its own weight. The book is handsomely produced, with attractive readable fonts, high-quality paper, and elegant binding. Very few misprints appear. One might harbour niggling doubts as to how far the literature dissected in this monograph deserves such dedicated scholarly attention, but there is no doubting Barnes's verve in communicating it to us. Russell Poole School ofEnglish and Media Studies Massey University Chibnall, Marjorie, The Debate on the Norman Conquest (Issues in Historiography), Manchester, Manchester University Press, 1999; cloth; pp. viii, 168; R R P £45.00; ISBN 0719049121. The Norman Conquest of 1066 has been a fecund source of historical interpretations for a 1000 years, each generation seeing it through eyes of their own constitutional, social and cultural preoccupations. 'Few subjects', writes Marjorie Chibnall in this collection of historiographical summaries and reflections, 'provide a more significant touchstone ofthe way historians in every generation have interpreted the world in which they live.' Chibnall's elegant, but regrettably short, chapter on the medieval historians surveys their chronicles which were accumulated accounts of dispossession and legal restraints, the sufferings ofthe poor, and debasement ofthe native language 220 Reviews because 'children in their schools...are compelled since the coming of the Normans to abandon their own tongue.' The priest Robert Mannyng's Chronicle (1338) alleged that William 'sette the Inglis to be thralle.' These historians, lacing their chronicles with accusations that the Normans were guilty of 'unbearable tyranny, injustice and oppression' in England and Wales, saw the Conquest as a 'Norman Yoke' imposed upon freeborn English people. Seventeenth-century historians picked up the subversive implications of these medieval chronicles in the decades before the Civil War, when historical precedents were so politically explosive that even London's venerable Society ofAntiquaries was closed by the government. Contemporary academic lawyers made several penetrating studies, especially Matthew Hale, whose History ofthe Common Law argued that because William had formally claimed the English throne his conquest secured him only thoserightshis predecessor had enjoyed, implying that any changes were illicit. Thus, Henry Spelman's argument that the Normans had introduced tenurial feuds formed the basis of legal challenges during the 1630s, and tenurial abolition by the Long Parliament. Equally explosive was the view that oppressive Norman 'feudalism' had subverted ancient Saxon liberties, the 'Norman yoke' so hated by Civil War radicals. Hale's work also implied that the conquest was not entirely imposition, but involved some adaptation of existing Anglo-Saxon law. A century later Wright developed the idea, arguing that post-Conquest feudal tenures were merely an adaptation of existing English law: the crucial implication was that England was not the monarch's demesne, which in turn implied the freedom and consent of the commune consilium - the underlying premise of the protest of Magna Carta. These highly significant historical questions encouraged the systematic publication of official records, .notably Rymer's Foedera, Madox's Formulare Anglicanum, Abraham Farley's Domesday volumes and the Rolls Series, which in turn stimulated nineteenth-century constitutional and institutional scholarship, as well as the popular historical novels of Kingsley, Scott and Disraeli. As Maitland observed, the word 'feudalism covers a multitude of ignorances', and it became clear to those w h o worked in archives that the term required...

Monitoring Directors in Public Companies under Israeli Law: Comparative Perspectives

“The directors of such [i.e., public] companies . . . being the managers rather of other people’s money than of their own, it cannot well be expected, that they should watch over it with the same anxious vigilance with which the partners in a private co-partnery frequently watch over their own . . . Without an exclusive privilege they have commonly mismanaged the trade. With an exclusive privilege they have both mismanaged and confined it”. Directors may be tempted to act out of an egoistic compulsion.Whereas ordinary people may only be inclined to misbehave, company directors are constantly in the position to make profits at the expense of others since they always deal with “other people’s money”. Designing the proper legal rules that will restrain directors from exploiting others unfairly, on the one hand, yet encourage them to harness their entrepreneurial spirit and seize the opportunities that come their way for the benefit of their company, on the other, is a challenge for any legal system.The Israeli new Companies Law prescribes an assortment of remedies to combat selfdealing by directors. Some are prophylactic, i.e. meant to prevent a breach of the loyalty duty in the first place. Others operate ex post. Not one of those promises to bring the ultimate cure. Indeed, each is substantially deficient and flawed. Yet, the combination of them all should make it possible to place the directors of Israeli public companies on the right side of the angels. The paper recommends that a court be established, with expertise in the highly specialized fields of company and securities law, to decide cases qualitatively and timely and provide the certainty so necessary to attract enterprises and investors alike.Academic lawyers should play a very important role in the development of Israeli law. Israel is too small for the legal system to develop on the basis of judge-made law alone. In addition, it is almost impossible for a court of law to engage in serious comparative study when solving a case at hand. The academic lawyers can provide the new legislative basis with the support of legal literature that would carefully, conscientiously, and modestly, being aware of its own fallibility, analyze theories and solutions advanced in Israel and in other jurisdictions. Extensive theoretical and empirical studies, devoted to all aspects of business organization, are published as a matter of course in every developed country. There is need to tailor to the Israeli measure the best legal rules that would check abuse yet enhance business and bring to bear the entrepreneurial spirit which provides the drive for success. Since this field is very dynamic every rule designed will then serve as a new starting point for further debate and refinement.

Biotechnology international conference. Biotech research proves a draw in Canada.

TORONTO, CANADADespite protests from Greenpeace members, some of whom dressed up as "corn fakes" to show their opposition to genetically modified organisms, more than 500 industrial and academic researchers, lawyers, and business people from about 25 countries gathered here from 5 to 8 June for the third biennial Agricultural Biotechnology International Conference. Highlights of the meeting included reports of progress toward making plants that resist nematode pests or stresses such as salt, frost, and drought.

When Europeans Complain: The Work of the European Ombudsman

The office of European Ombudsman was created by the Treaty of Maastricht. The first Ombudsman, Jacob Söderman, began work in September 1995. To judge by the number of requests for materials and interviews that the office receives, particularly from students, academic lawyers are well aware of the existence of the European Ombudsman. There is also a growing body of literature about the office. Many practising lawyers, however, remain uncertain about the scope and functions of the work of the European Ombudsman. This is partly because the concept of an ombudsman is not always well understood, even by specialists in public law. This article will explain what an ombudsman is, the relationship between the European Parliament and the European Ombudsman, and the nature of the latter’s work. The aim is to persuade colleagues working in the field of European public law that the office of the European Ombudsman is well worth monitoring.

When Europeans Complain: The Work of the European Ombudsman

The office of European Ombudsman was created by the Treaty of Maastricht. The first Ombudsman, Jacob Söderman, began work in September 1995. To judge by the number of requests for materials and interviews that the office receives, particularly from students, academic lawyers are well aware of the existence of the European Ombudsman. There is also a growing body of literature about the office. Many practising lawyers, however, remain uncertain about the scope and functions of the work of the European Ombudsman. This is partly because the concept of an ombudsman is not always well understood, even by specialists in public law. This article will explain what an ombudsman is, the relationship between the European Parliament and the European Ombudsman, and the nature of the latter’s work. The aim is to persuade colleagues working in the field of European public law that the office of the European Ombudsman is well worth monitoring.

Journal Publishing, Journal Reputation, and the United Kingdom's Research Assessment Exercise

Many academic lawyers believe that the Research Assessment Exercise has encouraged writing for academic journals, often at the expense of other forms of scholarly discourse. Moreover, it is widely perceived that the reputation of the journal in which research is published affects how that research is assessed in connection with the RAE. In this article, the authors report data gathered from a large‐scale study measuring the perceptions of academic lawyers concerning the journal publishing process, how the RAE has affected journal quality generally, and how specific journals rank in terms of academic quality and their perceived importance to the RAE process.

The Legal Aspects of Undercover Police Operations in England and Wales

This paper analyses the judicial contribution to the English law relating to undercover police operations. The analysis is undertaken from the perspective of an academic lawyer specialising in criminal evidence and procedure. It is demonstrated that judicial attention has largely been focused on two issues: First, the extent to which the use of undercover police operations may lead to the exclusion of prosecution evidence, or even to a complete stay of the proceedings; and, secondly, the extent to which sensitive information about undercover operations may justifiably be withheld from the defence. In examining these issues, the paper endeavours to show that there has been a tendency on the part of the English courts to advocate the use of ‘balancing tests' to resolve issues, without articulating clearly the considerations to be taken into account in performing these tests. An examination is also undertaken of the legal position in the USA and Canada and of the significance of the Human Rights Act 1998. A number of proposals for reform of the law are made. The paper was originally presented at a conference on ‘Developments in Contemporary Policing: Intelligence-led Operations and Inter-agency Co-operation’, University of Kent at Canterbury, 18th April, 1997.

Russian Peasant Wills in the Decisions of the Ruling Senate, 1861–1906

This article investigates the law of testation as it applied to the peasantry of late Imperial Russia. After a summary of the main features of the written law of wills, there follows an outline of the special position of the villagers. They had distinctive rights over property, granted as part of the emancipation legislation 1861, and also access to a simplified procedure for making a will. The investigation then turns to the case law of the high court or ‘Ruling Senate’. It emerges that Senate decisions generally emphasised and reinforced the distinctiveness of the peasantry's legal position. However, it is also clear that the ambiguity inherent in the status of the post-emancipation peasants meant that their use of wills became a cause of controversy in the village, in the courts, and amongst academic lawyers. While comparative jurists will be interested in the description of tsarist laws on inheritance, wills, the peasant estate, and the court system per se, the subject is also of wider historical relevance on several counts.

The legal and risk management conundrum of telemedicine.

A store-and-forward teledermatology service was established between two general practices and the department of plastic surgery at Derriford Hospital in Plymouth. An academic lawyer and an expert in risk management made an assessment of the service. They looked at the following issues: medicolegal problems; security; confidentiality; and risk. None of them was considered insoluble and there is no reason why such issues should prevent the National Health Service from developing telemedicine services. All organizations considering telemedicine need to ensure that the proposed telemedicine service satisfies the issues raised in this study.

The Perceptions of Academic Lawyers Concerning the Effects of the United Kingdom's Research Assessment Exercise

In this article, the authors analyse quantitative and qualitative data compiled from a large‐scale postal survey of legal academics concerning the United Kingdom's Research Assessment Exercise. The purpose of the study was to measure the attitudes of academic lawyers affected by the RAE rating process and institutional responses to that process. The study reveals that a substantial number of respondents lack faith in the objectivity of the rating process, believe institutional responses to the RAE have caused damage to academic working environments, and perceive that the RAE has failed to improve the quality of legal research.

The renascence of uniform law: European contract law and its components

The general theme of this conference - legal change and legal scholarship across Europe - reflects a growing interest of British academic lawyers in the increasing European dimension of law. Indeed, the new dynamics of the unification movement is one of the most salient features of the legal development of the recent past. It has many aspects, including EC legislation and the drafting of restatements and of general principles of law, which I will shed some light upon in the first part of my paper. I will then venture an explanation for the renascence and the new appeal of the unification movement (section II) before turning to a more specific discussion of the hamonisation of private law in Europe (section III), the significance of general principles of law for its unification (section IV), and the restatements of contract law and their role in the process of integration (section V). For the sake of clarity, I should like to premise that harmonisation and unification, although technically having different meanings, will be used interchangeably here.

What's a Lawyer Doing in a Nice Place Like This? Lawyers and Ethical Life

Ethics now enjoys a place in the academic lawyer's landscape that was scarcely conceivable 15 to 20 years ago. This article considers how the role of ethics in teaching, research and practice has grown and some of the intellectual fall out from that growth-in law, jurisprudence, legal practice, applied philosophy in general, and legal ethics in particular. The observations made are based primarily on the Australian legal academy, though it is unclear as to whether there is any fundamental difference between that and the British equivalent.

Games lawyers play?

The aim of this paper is twofold. Firstly to review the book by Douglas Baird, Robert Gertner and Randal Picker on the use of Game Theory in Law,' and secondly to present some of the basic concepts from game theory in order to argue that these concepts can be of use to both practising and academic lawyers. Whereas game theory does not hold the complete answer to most, if any of the questions which are raised in law, it can provide additional insights to guide evaluations of the working of the legal system as well as informing the debates about legal reforms. Until GTL, lawyers wondering about the usefulness of game theory in a legal context but unfamiliar with its jargon and concepts had few sources to turn to.2 This book is therefore both timely and important. Game theory offers guidance on how to make decisions consistent with a set of objectives when no individual through their own actions solely determines the resultant outcomes. Individuals face a particular problem in decision making when they alone cannot control the outcome of their actions and when this outcome depends on the actions of others. In such cases, in order to evaluate the available options, each individual must attempt to identify and predict the actions of all other relevant individuals. This is particularly important in situations where there are potential conflicts of interest between these individuals. The law of tort provides some simple examples. Both the probability of an accident happening and the extent of the damage caused depend in many cases on both the injurer and injured. The optimal action of both those who may

Using and Misusing History

Using and Misusing History Suzanna Sherry (bio) Laura Kalman. The Strange Career of Legal Liberalism. New Haven: Yale University Press, 1996. viii + 375 pp. Notes and index. $40.00. Since Alfred Kelly coined the term “law-office history” in 1965, not much has been added—except ever-multiplying examples—to the perennial complaints about how lawyers and legal academics use history. Laura Kalman’s engaging new book about legal scholarship is thus a welcome contribution to the field. Kalman begins by tracing the history of legal scholarship since the realists. The central conundrum the realists and their successors bequeathed to “legal liberals”—those who trust the courts to implement large-scale social reform—was how to keep their faith after the death of Earl Warren and subsequent attacks from both the Left and the Right. The first four chapters of the book are an accessible and enjoyable romp through legal realism, the legal process school, the “law and” movement, hermeneutics, and the various other scholarly fads that have entranced law professors over the years. Kalman provides nice insights into the relationships between law and other disciplines and tries, although not always successfully, to relate the various movements to legal liberalism and its travails. She is occasionally too glib, especially when attributing malevolent motives to legal liberals: she claims, for example, that the crisis of legal liberalism in the 1980s might have been triggered partly by the fear of “male academic lawyers . . . that the entrance of women and people of color into their ranks challenged their control of the law schools” (p. 94). This part of the book accomplishes several important goals. It provides an interesting and substantial history of modern legal scholarship. (I am perhaps not in the best position to assess this particular contribution, as it left me feeling a bit voyeuristic: I should disclose that my own work is mentioned quite prominently, to somewhat mixed reviews from Kalman.) Kalman is very good at this sort of history, and readers will come away with a deep understanding of the content and derivation of, and interrelationships between, the most important modern legal theories. Even more important, however, is that Kalman’s discussion of the ebb and [End Page 337] flow of legal liberalism provides a new and persuasive way to explain why lawyers do history the way they do (that is, according to most historians, badly). Kalman shows how legal liberalism—buffeted from both sides of the political spectrum and riven by internal division—was, by the mid-1980s, “dead, a historical relic” (p. 131). And so legal liberals turned to history for their salvation. What they found there was civic republicanism. Kalman does a wonderful job of explaining how civic republicanism satisfied all the needs of legal liberals. It enabled them to fend off attacks from originalists on the right by providing “alternative interpretations of the Founding” (p. 139). It complemented the growing interest in communitarianism that legal liberals were borrowing from political theorists. It promised to reduce the increasing polarization of the legal academy by allowing a synthesis between individual rights and community bonds, especially once republicanism was purged of its less desirable attributes such as sexism, authoritarianism, and racism. Kalman charmingly describes this purging as an attempt “to create a kinder, gentler republicanism” (p. 160). The synthesis between individuals and community in turn offered a way out of the countermajoritarian dilemma that had haunted legal liberals since the Warren Court. It is no wonder the neorepublicans “possessed a missionary spirit” (p. 155). But a religious mission is not the same as a historical one, and therein lies the key to the sometimes strained relationships between lawyers and historians. As Kalman puts it, “historians . . . favor context, change, and explanation,” and lawyers “value text, continuity, and prescription” (p. 180). Historians “delight in recreating the past in all its strangeness” (p. 186). For lawyers, however—especially neorepublicans on a mission—history is to be mined for its usefulness, not explored for its own sake. Legal liberals needed republicanism as a tool in their war against conservative originalists, and could not afford the ambiguities, contradictions, and occasional distasteful results inherent in a truly historical approach to the Founders’ thought. So, Kalman...