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The State Action Doctrine and the Principle of Democratic Choice

The state action doctrine is somewhat of a mystery to law students, legal scholars, lawyers, and judges. It is a key component of the Fourteenth Amendment—a threshold requirement that must be satisfied before triggering protection of our fundamental rights—but the … Continue reading

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Judicial Ethics, the Appearance of Impropriety, and the Proposed New ABA Judicial Code

In any presentation on legal ethics, it is common for the speaker to argue that we need more ethics. As the Duchess of Windsor (and others) once said, one can never be too thin or too rich. So also, many … Continue reading

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“Play in the Joints Between the Religion Clauses” and Other Supreme Court Catachreses

Even when the U.S. Supreme Court reaches the right result in a matter involving church-state relations, the Justices too often do so for the wrong reasons. Cutter v. Wilkinson is illustrative. Decided during the Court’s last term, Cutter reversed a … Continue reading

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Moralizing in Public

Chief Justice Earl Warren once remarked: “In civilized life, law floats in a sea of ethics.” There is, in other words, a foundation of ethical values for the law. In performing our legal duties, we are also satisfying our ethical … Continue reading

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Henry Lord Brougham and Zeal

In a recent article, Professors Fred Zacharias and Bruce Green undertook to “reconceptualize” advocacy ethics. In the course of that article, they rejected the ethic of zeal, and stated erroneously that Henry Lord Brougham had himself repudiated his famous statement … Continue reading

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Big Talk, Broken Promises: How Title I of the Americans with Disabilities Act Failed Disabled Workers

The Americans with Disabilities Act (“ADA” or “the Act”) was signed into law in July 1990 with much fanfare. President George H.W. Bush echoed Congress’s belief that it would level the playing field for the disabled in all facets of … Continue reading

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An Old Means to a Different End: The War on Terror, American Citizens . . . and the Treason Clause

In 2004, Supreme Court Justice Antonin Scalia, while dissenting in Hamdi v. Rumsfeld, stated that when the United States government accuses one of its own citizens of waging war against it, “our constitutional tradition has been to prosecute him in … Continue reading

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The Supreme Court Will Not Overrule Roe v. Wade

The recent confirmation of two purportedly conservative Justices to the Supreme Court has fueled media speculation that the Supreme Court may be “poised to overrule Roe v. Wade.” The speculation has been fanned by South Dakota’s recent enactment of a … Continue reading

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The Zeal Shortage

Professional zeal, according to a leading treatise, “is found in the United States in a form that, for vigor, has no rival anywhere.” Zeal manifests itself as a force in both the performance and the theory of advocacy: Lawyers practice … Continue reading

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Do Bar Association Ethics Committees Serve the Public or the Profession? An Argument for Process Change

Thank you Dean Twerski for your most gracious introduction, and Professor Simon and Professor Freedman for asking me to participate in this gathering of distinguished scholars for Hofstra University School of Law’s 2005 Legal Ethics Conference: Lawyers Ethics in an … Continue reading

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