Good Lawyering Research Articles

Plagiarism Pedagogy: Why Teaching Plagiarism Should be a Fundamental Part of Legal Education

Plagiarism is essential to good lawyering. The better part of litigation is copying forms and models, and transactional practice is mostly cut and paste. If lawyers aren't plagiarizing, they're committing malpractice. This article argues that law schools should stop punishing plagiarism and start teaching it.

'I'm Blending': 'Cultural Compassion' Taught as a Critical Pedagogy

'I'm Blending': 'Cultural Compassion' Taught as a Critical Pedagogy

Russian Law and Globalization

The Faculty of Law of the University of Helsinki is committed to diverse and internationally collaborative approaches to studying various legal systems in the context of comparative law, and UHLS and the Law Faculty of the National Research University, Higher School of Economics have developed an ongoing program to undertake this effort. The original annual conference series on the Development of Russian Law was launched in 2008 as an initiative to further knowledge and critical thinking about Russian law during its period of transition and modernization. The conference is held annually and brings together legal practitioners and scholars from Russia, Finland and elsewhere to discuss important matters of Russian law, legal reform, and legal practice. Prior years’ Conference themes have included discussions of legal reforms, the justice system, the Russian legal profession, human rights, civil and business law, legal policy, rule-of-law and market economy. This year’s program was designed to attract law faculty, scholars from different disciplines, and also practicing lawyers, to address a wide range of topics grouped around the general theme of how the phenomenon and challenges of globalization affect Russian legal system development. The call for papers included: (i) Relationships between Russian domestic and international law, (ii) The impacts of international legal institutions on the development of Russian law(s), (iii) Globalization in the field of business law, (iv) Global law & Russian legal theory, (v) Regional models of legal cooperation and Russia’s participation, (vi) Transnational legal problems in areas such as constitutionalism and rule-of-law, (vii) Theoretical and applied implications of the concept of global transplants, and (viii) A global human rights agenda, including Russia’s place in this agenda. This was a very ambitious and multi-faceted undertaking. Through a process of careful evaluation, the Conference organizers produced a very diverse and challenging program, consisting of 8 Sessions, (7 panels and one round-table devoted to specific Session themes), along with a general Round-table discussion on the subject of Russian-Finnish legal cooperation partnering.1 The two-day Symposium, October 6–7, was preceded by a Wednesday afternoon PhD student seminar. At this seminar, there were presentations by Dr. Ari Hirvonen (University of Helsinki) on Finnish doctoral education in law and Dr. Svetlana Vasilieva (Higher School of Economics, Moscow, Russia) on Russian PhD education in law, followed by presentations by PhD students of their works-in-progress.2 Professor Pia Letto-Vanamo, Director of the Doctoral School at the University of Helsinki, then delivered the Keynote Lecture – Methodological Challenges of Legal Research, followed by a Reception for participants. In this lecture, she highlighted how global agenda influences national legal issues and what it is to practice good lawyering.

The 'Reason-Giving' Lawyer

Whether as a matter of duty or utility, lawyers give reasons for their actions all the time. In the various venues in which legal skills must be employed, reason-giving is required in some, expected in others, desired in many, and useful in most. This Essay underscores the pervasiveness of reason-giving in the practice of law and the consequent necessity of lawyers developing a skill at giving reasons. This Essay examines reason-giving as an innate human characteristic related directly to our need for answers and our constant yearning to understand the answer to the question “why.” It briefly surveys the scholarship on reason-giving, including an analysis of its presence in law and legal institutions. Understanding then that reason-giving is a skill required for effective lawyering, the Essay proceeds to emphasize the pedagogical importance of (a) teaching an understanding of reason-giving’s prevalence in law; and, (b) nurturing the discrete habit and skill of reason-giving in legal education as a foundational trait of good lawyering. The Essay concludes with a case study equating the law school exam taking process with administrative law decisionmaking and law school grading with the process of judicial review of agency action. Agency is to student as judge is to law professor. Greater recognition of the role of the reason-giving lawyer – along with recognition and strengthening of the parts of legal education that help inculcate the reason-giving skill – should improve our understanding of when, how, and under what conditions reason-giving must occur for the effective functioning of the legal system and for effective lawyering.

The Legal Academic of Max Weber’s Tragic Modernity

The essay examines two ideal types of legal thinking that Max Weber develops in relation to continental and English law respectively. By focusing on the differences in the training of lawyers, two corresponding roles can be distinguished for the university jurist: the academic lawyer and the legal academic. The former is a thematic variation of the practitioner and defines the university jurist’s action in relation to the legal profession: her research mainly supports good lawyering or social reform, her educational functions centre on vocational preparation, etcetera. By contrast, the primary affiliations of the legal academic are not legal practitioners but her university colleagues in the humanities and the social sciences with whom she shares a common calling: in an immediate way, to contribute to a better understanding of the social and political world and to further the edification of future professionals. The non-instrumental ethos that the role of the legal academic represents marks the possibility of a radically critical position that is available to the discipline of law if it is understood as a human science.

Auctioning the United Homes Portfolio: A Legal Case Study

The legal case study patterned on ones used in business schools and other professional education suggests itself as appropriate course materials for legal education. Legal case studies fill a gap mentioned by both the MacCrate Report and the Carnegie Foundation criticism of legal education. Especially for educating law students who will practice transactional law, legal case studies offer real life perspectives on the lawyer as advisor and lawyer as problem solver. This legal case study is designed to provide students with an understanding of the decision to use a private auction to sell a large portfolio of houses owned by a national builder. While information about the business circumstances of the seller are provided and are an integral part of the decision making, the principle focus will be the legal issue involved in this decision. Auctions are becoming increasingly popular in the United States as well as around the world for selling all types of distressed and non distressed properties. However, little research exists on the legal aspects of such sales and the comparison with other methods of sale, including traditional sales and sales pursuant to foreclosure. This research study investigates the use of auctions to sell a large portfolio by United Homes, Inc. It consisted of 320 properties distributed around suburban Chicago (Illinois), Scottsdale (suburban Phoenix, Az), and suburban Grand Rapids (Michigan). By the beginning of the study, United Homes had begun to default on two mortgages and other secured and unsecured debts. In anticipation of lenders’ foreclosing, United Homes filed for Federal bankruptcy protection. The bankruptcy court’s subsequent approval of sales of the real estate by private auction is the basis for a study of excellent negotiating and good lawyering on the part of attorneys for the debtor, the mortgagees, the representative of the official unsecured creditors committee and the bankruptcy judge. The story of how the decision to sell the real estate using an auction was reached and the bankruptcy court’s approval process provides a valuable legal case study to add to the literature in the field.

Apologies and Good Lawyering

In everyday life, apologies are common. For example, if one shopper bumps into another in a crowded grocery store, apologies abound. Or if a child on the playground accidentally crashes into another child, the crashing child will apologize. If the crashing child does not apologize, a teacher, playground monitor, or parent will instruct the child to apologize, because apologizing for hurting someone is the 'right' thing to do. This apology norm largely disappears if the crashing child grows up and becomes a lawyer, however. Despite empirical research showing that apologies have value in settlement, facilitate cost-effective dispute resolution, and are important to injured parties, it appears that lawyers do not regularly either suggest that a client ask for or suggest that a client offer an apology as part of a conflict resolution. Why does the instinct to facilitate dispute resolution with a sincere apology disappear when students enter law school or when law students become lawyers? Some suggest that lawyers – and consequently the clients they advise – disavow apologies as a matter of defense because apologies are viewed as costly admissions of liability. Others suggest that attorneys for injured parties have no obvious incentives to suggest apologies since quick dispute resolution results in smaller legal fees. Still others suggest that those who become lawyers tend to be logical and analytical, and tend to eschew conduct viewed as purely emotive, such as apologizing. This paper shows that a good lawyer must recognize the value of apologies in conflict resolution, litigation, and settlement, and this paper provides guidance for offering apologies.

Due Processes of Governance: Terror, the Rule of Law, and the Limits of Institutional Design

The George W. Bush administration was more aggressive than most in asserting independent executive competence pursuant to the president's joint roles as commander in chief of the armed forces and as head of the executive branch. One of its legacies is that the rule of law is an unsettled matter, both intellectually and practically. While constitutional reform to provide a framework for law‐based governance under emergency conditions may be required, it is unlikely to occur. Analysis should consider how to improve the design and operation of microstructures within the executive branch. This article surveys options for instituting design changes but concludes that no such option is compelling, given the requirements of good lawyering about contentious issues within the executive branch. It recommends systematic deliberation about “best practices” in executive branch lawyering—with the ambition of articulating a practical theory on the due processes of governance that encompasses the special circumstances of emergency conditions.

The Legal Academic of Max Weber's Tragic Modernity

The essay examines two ideal types of legal thinking that Max Weber develops in relation to continental and English law respectively. By focusing on the differences in the training of lawyers, two corresponding roles can be distinguished for the university jurist: the academic lawyer and the legal academic. The former is a thematic variation of the practitioner and defines the university jurist’s action in relation to the legal profession: her research mainly supports good lawyering or social reform, her educational functions centre on vocational preparation, etcetera. By contrast, the primary affiliations of the legal academic are not legal practitioners but her university colleagues in the humanities and the social sciences with whom she shares a common calling: in an immediate way, to contribute to a better understanding of the social and political world and to further the edification of future professionals. The non-instrumental ethos that the role of the legal academic represents marks the possibilit...

Moral Engagement without the 'Moral Law': A Post-Canons View of Attorneys' Moral Accountability

Several years ago in my Professional Responsibility class, I wanted to see how far I could push my students in their embrace of the notion that the moral evaluation of conduct depends on the professional role one occupies. I asked students to imagine that they were medical researchers in Nazi Germany, and that the authorities brought them to a concentration camp, inviting them to experiment on live human subjects. Would they, as scientists, proceed with the experiments? The first three students I called on answered that they would do the experiments if it would advance the research. One explained that morality is constructed by society, and in that particular society, the experiments would not be considered immoral. Another asked, If those inmates are going to die anyway, why not have them contribute to the greater good? The third insisted that the job of the researcher is to expand scientific knowledge, and the job of the government is to define the limits of that research. Absent government prohibition, the researcher has no moral reason not to proceed. These students, I am confident, did not believe what they were saying. They were engaging my question according to the rules of good lawyering, as they perceived them - figuring out a way around any and all obstacles standing between the actor and a given course of conduct. Indeed, much of the blame for their answers belongs with the messages they receive about the values of the legal profession. Much of the law school experience sends the message, subtly but unmistakably, that cleverness is valued over wisdom, and that the law is simply a problem to be solved, rather than an inescapably moral endeavor. In comparison to the era when the American Bar Association, via the 1908 Canons of Professional Ethics, could confidently instruct lawyers to impress upon the client and his undertaking exact compliance with the strictest principles of moral law, today we are more skeptical about the existence of any moral law, much less that it could or should be impressed upon the client. Recognizing the variability of moral convictions and complexity of moral analysis has understandably made lawyers reluctant to judge their clients by moral standards not reflected in positive law. But this reluctance to judge seems also to have brought a reluctance to engage the client on moral terms. The resulting technocratic view of law is evidenced far beyond the walls of my classroom. A refusal to acknowledge the moral dimension of legal practice has contributed to several of the leading lawyer-fueled scandals of recent years, as well as to the broader malaise that has afflicted the profession for some time. Nevertheless, the prospect of putting morality onto the table of legal representation is unsettling to many. This essay looks to reframe our conception of morality's relevance to professionalism, using the Canons' espousal of moral accountability as an insightful point of entry. This essay was written as a contribution to the ABA's commemoration of the 100th anniversary of the Canons of Professional Ethics.

The Religious Lawyering Critique

One might think about the relationship between law practice and religion in different ways, depending on how one views either the professional norms or religious belief and observance. Some of the most recent academic literature on “religious lawyering” is premised on a highly critical view of the profession's norms and a claim that religious convictions that bear on the practice of law are incompatible with, and preferable to, aspects of the professional norms. My purpose here is to identify, and raise some questions about, both this critique and this suggestion, and to show how they are in tension with other insights of the religious lawyering literature.A conception of the relevance of religion to lawyers' work need not begin with a critical view of professional norms and professionalism. On the contrary, one might start with the premise that the legal profession's expectations for law practice are socially and morally laudable, and perceive lawyers' religious convictions as providing support for good lawyering. This was the understanding expressed by Henry A. Boardman, a Presbyterian Minister, in an 1849 oration that was surely among the earliest recorded reflections on the relevance of religion to the work of U.S. lawyers.

Emotional intelligence and legal education.

The traditional knowledge-based law school curriculum is slowly giving way to one that increasingly exposes students to various lawyering skills. Nonetheless, legal educators are generally averse — or at best ill equipped — to support that training with the empathic and psychological skills good lawyering demands. The author discusses how emotional intelligence is essential to good lawyering and argues that it can and should be cultivated in law school. The article draws upon three examples of popular culture to explore both the absence and possibilities of interpersonal intelligence in the practice of law. The author also describes her own law school's current project of re-imagining legal education and explains how the development of emotional skills might be incorporated into that vision.

(Er)Race-ing an Ethic of Justice

For several years, I have pursued a project devoted to the study of race, lawyers, and ethics in the American criminal justice system. Building on the evolving jurisprudence of Critical Race Theory, the project spans a series of case studies investigating the rhetoric of race, or race-talk, in the prosecution and defense of racially motivated violence. The first work of the series examines the rhetoric of race in cases of black-on-white racially motivated violence, highlighting the self-subordinating, racialized defense of Damian Williams and Henry Watson on charges of beating Reginald Denny and others during the 1992 South Central Los Angeles riots. The next work inspects racial rhetoric in cases of white-on-black racially incited violence, extrapolating other-subordinating, racialized defense strategies from the criminal and civil trials of the United Klans of America and several Ku Klux Klan members in the 1981 lynching of Michael Donald in Mobile, Alabama. A third work analyzes the discursive and symbolic meaning of race in double trials involving successive state criminal and federal civil rights prosecutions, citing the trials of Lemrick Nelson and Charles Price arising out of four days of interracial violence in the Crown Heights section of Brooklyn, New York in 199L. A forthcoming work explores the federal criminal prosecution of five white New York City police officers on charges of physically and sexually assaulting Abner Louima, a young Haitian immigrant, at a Brooklyn station house in 1997. The purpose of this ongoing project is to understand the meaning of racial identity, racialized narrative, and race-neutral representation in law, lawyering, and ethics. To that end, the case studies serve as a means to develop working hypotheses regarding the sociolegal experience of subordination: specifically, the subordinating discourse and imagery of race trials, the nature of client and community harm caused by such subordination, the colorcoded partisanship of purportedly race-neutral ethics regimes that countenance such subordination, and the legitimacy of alternative race-conscious ethical regulation. The process of reworking these hypotheses, one hopes, will not only reveal the sociolegal structures of racial violence in American history, but also reconstruct dominant visions of racial dignity and community in American law. The reconstructive nature of this project derives in part from the teachings of Critical Race Theory and the emerging voices of color in Asian-Pacific and LatCrit scholarship. Unlike traditional canons of colorblind or color-coded representation, the vision of practice underlying this growing jurisprudential movement implies an ethic of good lawyering based on a color-conscious, contextual approach to civil and criminal advocacy. Still formative, the approach strives to accommodate the identity interests of client dignity and community integrity and, at the same time, to heed the injunction of effective representation. The centrality of context to this approach lends added significance to the celebrated publication of William Simon's The Practice of Justice: A Theory of Lawyers' Ethics. Together with the new wave quartet of Robert Gordon, David Luban, Deborah Rhode, and David Wilkins, Simon stands among the preeminent scholars in legal ethics, singular in his deft integration of critical theory into the study of the legal profession. Simon's trenchant critique of the profession and its jurisprudential underpinnings gives direction to second wave projects like the one at hand. Indeed, The Practice of Justice provides a normative framework for designing race-conscious, community regarding duties of legal representation. Instead of simply rehearsing Simon's critique and casting objections against it, this essay endeavors to put Simon's book to work in the service of fashioning an ethic of representation in race cases. The essay is divided into four parts. Part I outlines Simon's jurisprudential critique and revision of liberal ethics regimes. Part II describes a postliberal vision of ethics tied to race-consciousness and racial community. Part III contemplates the practicalities of institutionalizing a race-conscious, community ethic of representation. Part IV parses and responds to theoretical objections to a race-conscious regulatory regime.

Emotional intelligence and legal education.

The traditional knowledge-based law school curriculum is slowly giving way to one that increasingly exposes students to various lawyering skills. Nonetheless, legal educators are generally averse — or at best ill equipped — to support that training with the empathic and psychological skills good lawyering demands. The author discusses how emotional intelligence is essential to good lawyering and argues that it can and should be cultivated in law school. The article draws upon three examples of popular culture to explore both the absence and possibilities of interpersonal intelligence in the practice of law. The author also describes her own law school's current project of re-imagining legal education and explains how the development of emotional skills might be incorporated into that vision.