Private Attorneys Research Articles

The Power of Insults

Insults work on both a structural level and a personal level. This Article argues that the economic and political power elite has effectively hurled insults at civil rights activists, plaintiffs, and their lawyers to undermine civil rights reform. It has long been understood that the civil rights community must engage in cultural, political, and legal work to attain effective reforms. But insufficient attention has been paid to how the power elite uses the cultural tool of insults to undermine these reforms. Limitations on effective civil rights reform range from constraints on the private attorney general model of enforcement to the ban on the Legal Services Corporation’s use of class action lawsuits. Insults have played an important and previously unrecognized role in the creation of these limitations. After discussing the undertheorized phenomenon of the power of public insults, this Article presents a case study of defense pleadings filed in accessibility cases brought under the Americans with Disabilities Act. These pleadings reflect how defendants can use insults as part of their litigation strategy to make it difficult for plaintiffs to attain effective relief under a statute designed to create structural reform. Rather than worrying about whether civil rights activists should go high when the power elite goes low, this Article argues that it is crucial that civil rights statutes be constructed with a stronger foundation. Then, plaintiffs will be better able to withstand the barrage of insults they typically encounter when seeking effective relief. Straw houses are too easy to blow down.

A Decade of Transgender Rights Developments in Pakistan (2009-2019)

The past decade has witnessed a multitude of noteworthy transgender rights developments in Pakistan. The spur for these developments can be immediately traced to 2009 and a petition filed by a private attorney in the Supreme Court of Pakistan. Over the course of several years of Supreme Court hearings and orders on transgender rights and welfare resulting from this petition, several provincial and federal government departments were forced to be in dialogue with the Supreme Court and civil society activists alike on how government could improve the social, political, and economic position of transgender individuals in Pakistan. Ultimately, this dialogue contributed to the passage, in 2018, of the wide-reaching and groundbreaking Transgender Persons (Protections of Rights) Act. This article surveys the above transgender rights developments, as well as recent governmental failures to adhere to the terms of the 2018 Act.

Sustainable Obligations in (Dutch) Property Law

Private law does not operate in isolation. Throughout history, private lawyers have been aware of the limits of their field. In property law, this traditionally means referring to public law – especially public law limitations to property rights. The juxtaposition so created is that private law stands for freedom and autonomy and it is public law, in the form of constitutional law or administrative law, that forms most restrictions. With the exception of the doctrine of abuse of rights, for example, the ideas surrounding the right of ownership are virtually limitless. The owner is the person that can dispose over his property in the most absolute manner. In this contribution, I will first explore the theoretical foundations of property law and their importance (section 2). I will then turn to property and human flourishing (section 3), obligations in property law (section 4) and deal with the Dutch qualitative obligation (section 5).

New Battles and Battlegrounds for Mandatory Arbitration After Epic, New Prime, and Lamps Plus

The Supreme Court’s recent decisions interpreting the Federal Arbitration Act (FAA) in the employment context generally prioritize arbitration over workers’ labor law rights. The majority in Epic Systems upheld mandatory individual employment arbitration agreements despite their conflict with the labor law right to act in concert. The same majority in Lamps Plus presumed that the parties intend individual arbitration absent reference to group arbitration. However, in a rare unanimous decision, the Supreme Court in New Prime exempted transportation workers from FAA coverage, even where the workers are independent contractors rather than employees. These decisions resolved some disputes about the breadth of the FAA but other questions remain unresolved. For example, do the confidentiality provisions so often associated with arbitration provisions unlawfully interfere with employees’ federal labor law rights? Are state laws on employment arbitration subject to preemption? Some state courts and legislatures continue to seek ways to protect workers who are disadvantaged by mandatory individual arbitration provisions, and others outline procedures for arbitration even for those transportation workers who are categorically exempt under the FAA. State laws regulating employment arbitration may fail in the face of preemption arguments, as the Court’s slim conservative majority appears intent on upholding individual arbitration provisions at all costs. Nevertheless, California persists in allowing representative suits under its Private Attorney General’s Act (PAGA) and state courts continue to consider traditional contract defenses such as lack of mutual assent and unconscionability as arguments to bypass onerous arbitration provisions. The Court’s New Prime decision will reinvigorate the battle over what it means to be “engaged in interstate commerce” to qualify for the FAA’s transportation worker exemption, with workers for Uber and Lyft leading the charge as they seek to avoid mandatory individual arbitration. In contrast, businesses will undoubtedly argue that even transportation workers who are exempt under the FAA still must arbitrate under state law provisions that do not exempt transportation workers. The authors recommend that Congress amend the FAA to exclude all workers affecting interstate commerce, and clarify the role of state law regulating employment arbitration. State legislation should provide guidance on what makes arbitration truly voluntary and fair, as well as afford employees a real choice on collective action and forum, and whether to maintain confidentiality about the dispute.

Nature versus Nurture: A Comparison of Russian Law Graduates Destined for State Service and for Private Practice

This article explores the mind‐set of Russian law students on the cusp of graduation. Drawing on a 2016 survey, the analysis finds that, despite having taken different paths to their degrees, the respondents share a confidence in the Russian courts that distinguishes them from Russians without legal education. Within the sample, a natural division is evident between those who plan to go into state service and those who plan to go into private practice. Aspiring state lawyers are more likely to support the policies of the Putin regime, even when they preference politics over the letter of the law. This strongly suggests that the tendency of judges and state lawyers within the criminal justice system to work as a team to ensure convictions is not solely the result of workplace incentives, as had previously been assumed, but is an element of a worldview that these lawyers share that predates their legal education. Aspiring private lawyers, by contrast, are consistently more skeptical of the state. To the extent that they are later coopted by the state, as studies of criminal defense lawyers suggest, such behavior would likely be the result of a desire to endear themselves to investigators and prosecutors in order to ensure further appointments to represent indigent clients.

The New Qui Tam: A Model for the Enforcement of Group Rights in a Hostile Era

The present Administration has made clear it has no interest in enforcing statutes designed to protect workers, consumers, voters and others. And, as we have chronicled in prior work, the ability of private litigants to enforce these laws has been undercut by developments in the case law concerning class actions – particularly class-banning arbitration clauses. As these critical enforcement methods recede, will alternative methods of prosecuting claims arise? How might they work? Are they politically and fiscally sustainable? We focus here on a promising approach just now coming into view: qui tam legislation authorizing private citizens to bring representative claims on behalf of consumers, workers, and others. Progressive advocates have recently begun working with legislators in a handful of states to provide a qui tam mechanism for enforcing state statutory rights. The form these new laws might take remains uncertain and their enforceability is sure to be hotly contested by corporate interests and others. This article examines the legal and policy challenges that will face “new qui tam” legislation, and considers arguments for and against enlarging the role of citizens in prosecuting claims – an inquiry that requires us to determine the legitimacy and limits of the private attorney general model in its starkest form.

„Non procul ex proprio stipite poma cadunt”, avagy a „két Kolosváry” élete az egyetemtörténet tükrében

Non procul ex proprio stipite poma cadunt, or the Life of the „two Kolosvárys” in the Mirror of the Univerity History. In my study, I intend to introduce the history of the Faculty. The study outlines the life’s work of father and son, who are closely related to the legal history embedded in the history of the University. They both were closely connected with the city, and in addition to their teaching activities they also played an active role in the social life of Cluj-Napoca: they were chief editors of the papers and presidents of scientific and civil associations. Alexander Kolosváry has played a prominent role in the life of the University and within the Faculty of Law. He was four times the dean of the Faculty and once held the post of rector. In addition, he coproduced the Hungarian translation of Tripartitum and Corpus Juris Hungarici with Professor Clement Óvári. Valentine Kolosváry was considered one of the biggest private lawyers of the century at the time. Valentine Kolosváry was a worthy successor to his father, not only as a head of department at the University but also in the patronage of the Reformed Church of John Calvin and Church Districts and its rights.

Crime Victims and Their Unmet Civil Legal Needs: Pro Bono Service Provision Among Private Attorneys

Crime victims often experience a host of negative consequences. In relation to these consequences, crime victims may also find themselves in need of assistance from the criminal justice system and civil legal service providers. Despite this need, crime victims often lack access to civil legal services. One way to potentially improve the availability and accessibility of civil legal services for crime victims is to increase the provision and availability of pro bono services; however, the way that attorneys perceive pro bono service for crime victims may be an impediment to service provision. Despite this, little is known about how private attorneys view pro bono work with crime victims. We examine how private attorneys view pro bono work with crime victims, the barriers to this service and what may incentivize them to engage in this work by utilizing data from a project assessing the civil legal needs of crime victims in the state of Georgia (USA). We find that a relatively small proportion of private attorneys in Georgia engage in pro bono work with crime victims. Barriers and incentives to pro bono service engagement and implications are discussed.

Taking justice to people in crisis: Mobile legal clinics

Mobile legal clinics can be used to provide better access to justice in many different ways. The Nepal projects discussed and evaluated here used law students and private lawyer volunteers to conduct legal education programs, give counsel and advice, and provide legal representation. Mobile legal clinics like these can be replicated for people in personal crises or natural disasters anywhere. The goal of this article is to provide information the reader can use to create mobile clinics to meet the needs of people in crisis in any situation. Assessing these programs is also discussed.

Greenprint for a Climate Justice Clinic: law schools' most significant access to justice challenge

Seeking climate justice is not straightforward. Larger private law firm engagement with climate defence is often conflicted out because the short-term profit interests of their large corporate clients often dominate the thinking of both lawyer and client. Even those few private lawyers who do want to take action are intimidated by the need for considerable funding for disbursements and likely defendant arguments about the supposed need for security for costs. So far, no one in Australia has been able to locate a wealthy benefactor, foundation or not-for-profit prepared to meet these costs.Some law schools are nevertheless in a position to fill this access to justice void and assist in the effort to combat climate change by designing and developing a climate defence or climate justice clinic. There are potential causes of action in the areas of nuisance, negligence and public trust, as well as specific statutory and general regulatory arguments that can be developed in some jurisdictions.This paper discusses and proposes a greenprint for such a clinic, not just to assist access to justice and climate defence, but to play a part in strengthening the political and social consciousness of the law students who pass through it. The discussion draws on the clinic design principles set out in Australian Clinical Legal Education and proposes a specific partnership model that leverages existing private lawyer goodwill and harnesses law school alumni beneficence.

The Influence of Type of Defense Counsel on Prosecutorial and Judicial Decision Making in Domestic Violence Cases

This study examines the influence of the type of defense counsel on prosecutorial and judicial decisions in domestic violence cases. We found that the type of defense counsel mattered more in sentencing compared with previous decision points. Cases handled by private attorneys were less likely to experience charge reductions at screening and be dismissed. However, decision patterns are reversed postarraignment, where charges start to decrease at a higher rate for cases represented by private counsel. Defendants represented by private lawyers were less likely to plead guilty, but they were also markedly less likely to face incarceration.

Legal Profession and Government Lawyers: What is the Highest Competing Duty to Act in the Public Interest?

It is assumed by many scholars that “the government attorney may have authority regarding legal matters that do not exist in a private lawyer-client relationship, including the settlement of a matter or declining to appeal an adverse decision.” Private lawyers or lawyers who do not work for the government are primarily concerned with protecting the interests of their clients, even if those clients may have been engaged in wrongdoing. However, we must analyze if government’s attorneys have a higher or a competing duty to act in the public interest. Therefore, in the first place this paper is about the difficulty of deciphering who is a government attorney client. Then it will analyze if a government attorney fails to determine his attorney-client duties because of the difficulty to differentiate the individuality of the client, if there is a risk of a breach of ethical duty. But in the bottom of all these, the ultimate question is if there is a real difference between private and government lawyers regarding the public interest argument.

Moral Outrage and Betrayal Aversion: The Psychology of Punitive Damages

AbstractPunitive damages have been predominantly studied from a one-sided perspective focusing on the wrongdoer. The role of the tort victim in bringing the punitive lawsuit has often been curtly described either as some sort of private attorney general moved by a desire to deter undesirable behavior (i. e., playing a contingent role) or as an agent exercising her legal power to exact a punitive sanction by virtue of what the defendant did to her and how it was done conceived in terms of just deserts (i. e., playing a necessary role). I argue, conversely, that the victim’s intrinsic response to deliberate wrongdoing involves much more than the mere imposition of punishment: it involves who we are and the meaning we construe from the circumstances of wrongdoing seen as a deliberate threat to our individual autonomy, dignity, physical integrity, or even life. A more meaningful understanding of punitive damages is thus available from considering the rich value-laden lay intuitions that drive people to punish certain behaviors. The mind sciences and in particular the social psychology and social cognition literature on human actors’ motivations for punishment offer valuable insight into moral outrage and betrayal aversion as rich retributive intuitions. Together, these intuitions comprise a significant element that is still missing from the predominant understanding of punitive damages, one we must not overlook.

ESSAY ON THE DEVELOPMENT OF THE BAR IN RUSSIA

The article examines the historical trends of the development of the Bar in Russia. The way of formation and development of a professional lawyer's representation from the origins of representation in the domestic legal process in the 15th century is traced, and up to the adoption of the current Russian law on advocacy in 2002. Complex and generally contradictory relationship between the state and legal profession throughout its existence is shown. Special attention is paid to the golden age of the Russian advocacy, which began after the Great Judicial Reform of Emperor Alexander II and lasted only half a century. In this connection, both the institution of sworn attorneys and the institute of private attorneys introduced later and causing a lot of criticism were subjected to analysis. Further, the thorny path of legal profession during the Soviet period of state and law from the Decree on Court No. 1 to the Regulation on the Bar of the RSFSR of 1980 is traced. The adoption of the current Federal Law On Advocacy in 2002 was due to radical changes in Russian society, which led to an increase in the demand for qualified legal assistance and the needs for effective protection of human rights and freedoms.

Capital Punishment Decisions in Pennsylvania: 2000-2010: Implications for Racial, Ethnic and Other Disparate Impacts

A study of disparity in the administration of the death penalty in Pennsylvania by Kramer, Ulmer, and Zajac (2017) was recently completed for the Pennsylvania Interbranch Commission on Gender, Racial, and Ethnic Fairness. This study collected basic statistical data on 4,274 cases charged with homicide in Pennsylvania from 2000 to 2010, and then collected highly detailed data from courts and prosecutors’ offices on a subset of 880 first degree murder convictions in 18 counties accounting for more than 87% of all 2000-2010 first degree murder convictions. Utilizing propensity score methods in analyses of these first degree murder convictions, the study examined whether defendants’ and victims’ race/ethnicity (separately and in combination), predicted: 1) prosecutors’ decisions to seek the death penalty, 2) prosecutors’ decisions to retract a motion to seek the death penalty once it is filed, and 3) court decisions to sentence defendants to death or life without parole. Key findings were: 1) No pattern of disparity was found to the disadvantage of Black or Hispanic defendants in prosecutors’ decisions to seek and, if sought, to retract the death penalty. 2) Black and Hispanic defendants were not disadvantaged in death penalty sentence decisions relative to White defendants. 3) Cases with White victims, regardless of race of defendant, were 8% more likely to receive the death penalty, while Black victim cases were 6% less likely to receive the death penalty. 4) Prosecutors filed to seek the death penalty in 36% of first degree convictions; but later retracted that filing in 46% of those cases. Moreover, a predominant pattern emerged in which a death penalty filing strongly predicted a guilty plea in these murder cases, and pleading guilty strongly predicted the retraction of the death penalty filing. 5) There were very large differences between counties in the likelihood of prosecutors filing to seek the death penalty, the likelihood of their retracting that filing, and in courts imposing the death penalty. In fact, the biggest extra-legal influence on whether defendants faced or received the death penalty was where their cases were handled. 6) Public defenders were less likely than private or court appointed attorneys to have the death penalty filed in cases they represented. However, public defender cases were more likely to receive the death penalty, and defendants represented by private attorneys were especially unlikely to receive the death penalty. These defense attorney differences also, in turn, varied greatly between counties.

State Public Law Litigation in an Age of Polarization

Public-law litigation by state governments plays an increasingly prominent role in American governance. Although public lawsuits by state governments designed to challenge the validity or shape the content of national policy are not new, such suits have increased in number and salience over the last few decades — especially since the tobacco litigation of the late 1990s. Under the Obama and Trump Administrations, such suits have taken on a particularly partisan cast; “red” states have challenged the Affordable Care Act and President Obama’s immigration orders, for example, and “blue” states have challenged President Trump’s travel bans and attempts to roll back prior environmental policies. As a result, longstanding concerns about state litigation as a form of national policymaking that circumvents ordinary lawmaking processes have been joined by new concerns that state litigation reflects and aggravates partisan polarization. This Article explores the relationship between state litigation and the polarization of American politics. As we explain, our federal system can mitigate the effects of partisan polarization by taking some divisive issues off the national agenda, leaving them to be solved in state jurisdictions where consensus may be more attainable — both because polarization appears to be dampened at the state level, and because political preferences are unevenly distributed geographically. State litigation can both help and hinder this dynamic. The available evidence suggests that state attorneys general (who handle the lion’s share of state litigation) are themselves fairly polarized, as are certain categories of state litigation. We map out the different ways states can use litigation to shape national policy, linking each to concerns about polarization. We thus distinguish between “vertical” conflicts, in which states sue to preserve their autonomy to go their own way on divisive issues, and “horizontal” conflicts, in which different groups of states vie for control of national policy. The latter, we think, will tend to aggravate polarization. But we concede — and illustrate — that it will often be difficult to separate out the vertical and horizontal aspects of particular disputes, and that in some horizontal disputes the polarization costs of state litigation may be worth paying. We argue, moreover, that state litigation cannot be understood in a vacuum, but must be assessed as part of a broader phenomenon in American law: our reliance on entrepreneurial litigation to develop and enforce public norms. In this context, state attorneys general often play roles similar to “private attorneys general” such as class action lawyers or public interest organizations. And states, with their built-in systems of democratic accountability and internal checks and balances, compare well with other entrepreneurial enforcement vehicles in a number of respects. Nevertheless, state litigation efforts may not always account well for divergent preferences and interests within the broad publics that the states represent, and this deficiency becomes particularly important in politically polarized times. Although our account of state litigation is, on the whole, a positive one, we caution that state attorneys general face a significant risk of backlash by other political actors, and by courts, if state litigation is (or is perceived to be) a bitterly partisan affair.

Litigation Governance: Taking Accountability Seriously

Both Europe and the United States are rethinking their approach to aggregate litigation. In the United States, class actions have long been organized around an entrepreneurial model that uses economic incentives to align the interest of the class attorney with those of the class. But increasingly, potential class members are preferring exit to voice, suggesting that the advantages of the U.S. model may have been overstated. In contrast, Europe has long resisted the U.S.’s entrepreneurial model, and the contemporary debate in Europe centers on whether certain elements of the U.S. model - namely, opt-out class actions, contingent fees, and the “American rule” on fee shifting - must be adopted in order to assure access to justice. Because legal transplants rarely take, this Essay offers an alternative “non-entrepreneurial model” for aggregate litigation that is consistent with European traditions. Relying less on economic incentives, it seeks to design a representative plaintiff for the class action who would function as a true “gatekeeper,” pledging its reputational capital to assure class members of its loyal performance. Effectively, this model marries aspects of U.S. “public interest” litigation with existing European class action practice. Examining the differences between U.S. and European practice, this Essay argues none of these differences are dispositively prohibitive and that functional substitutes, including an opt-in class action and third party funding, could be engineered so as to yield roughly comparable results. Although the two systems might perform similarly in terms of compensation, the ultimate question, it argues, is the degree to which a jurisdiction wishes to authorize and arm a private attorney general to pursue deterrence for profit.

The Making of the Supreme Court Bar: How Business Created a Solicitor General for the Private Sector

This Essay tells a simple but important story about power and the law: that of the rise of the modern Supreme Court bar. Since 1985, a small cadre of private attorneys has come to dominate Court advocacy. While the share of lawyers making their first arguments before the justices fell from 76% to 43% between 1980 and 2007, the fraction with ten or more arguments under their belt rose from 2% to 28%. Similarly, while litigators with five or more previous arguments were responsible for 5.8% of the case petitions granted in October Term 1980, that quotient soared to 55.5% by 2008. This elite bar disproportionately influences the Court's activity. Of the 17,000 lawyers who petitioned the Court from 2004 to 2012, the top sixty-six succeeded in getting their cases heard six times more often than their competitors. Interviews with former Supreme Court clerks, who read and summarize cert petitions for the justices, confirm that they place outsized weight on briefs filed by prominent advocates. Statistical analysis further shows that these lawyers significantly raise a party's chance of success on the merits. The bar's success on behalf of business has induced a form of "docket capture." As legal scholar Richard Lazarus has observed, the bar has forced a surge in antitrust cases that has softened anti-monoppolistic doctrine and cleared the way for aggressive mergers. It has similarly managed to persuade the justices to limit punitive damages in mass tort litigation. The bar has therefore played a crucial role in making today's Court one of the most business friendly in the nation's history.

A Comparison of Defendants with Mental Illness Represented by Public Defenders and Private Attorneys: an Analysis of Court-Ordered Pretrial Psychiatric Evaluations

This study compared the characteristics and court-ordered evaluation questions and responses among 4,430 defendants to determine if differences existed between those represented by public defenders and private attorneys when receiving trial competency or responsibility psychiatric evaluations from a state department of mental health. Defendants represented by public defenders were more likely to be younger, to have less education, to have psychotic disorders, to have a history of inpatient psychiatric treatment, to live in urban or rural counties, and to be jailed at the time of the evaluation. In addition, defendants represented by public defenders were less likely to have a request for a criminal responsibility evaluation and more likely to be evaluated as having a mental illness, to be incompetent to stand trial, and to need hospitalization pending trial. Consideration of whether defendants with public defenders receiving less requests for responsibility evaluations was indicative of a therapeutic jurisprudence approach is discussed. Implications for research on types of legal representation of defendants with mental illness are discussed.

Thinking like a private lawyer

In this review essay of their books, Private Wrongs, Corrective Justice, and The Idea of Private Law, I discuss some aspects of the approach to private law (and, in particular, tort law) taken by Arthur Ripstein and Ernest Weinrib. Among the elements of their view that I highlight are: the role of a ‘form of thought’ and its relation to questions of ‘fit’; the centrality of correlative or relational normativity; the particular kind of justification that they take to be appropriate in the context of private law; and the importance of indeterminacy.