Category Archives: Articles

The Rise of Institutional Law Practice

For generations, the legal profession has assumed that only individual lawyers practice law. Ethical standards have been largely, if not exclusively, directed at individuals, and practice organizations have been regulated to prevent limiting individual lawyer professional judgment. The world in … Continue reading

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Faulkner’s Voting Rights Act: The Sound and Fury of Section Five

In its most recent examination of the Voting Rights Act (the “VRA”), the Supreme Court told a story about the South. Although the Court ultimately did not rule on the continued constitutionality of section 5, the VRA provision that singles … Continue reading

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The Constitutional Rights of Non-custodial Parents

The legal treatment of non-custodial parents has become a lightning rod in modern family law. The topic is obviously important. Every year in this country, about one million children see their parents divorce. In addition, roughly a third of all … Continue reading

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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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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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Creating Space for Lawyers to Be Ethical: Driving Towards an Ethic of Transparency

Ostensibly there is little to connect the harried lawyer facing an ethical dilemma and the frazzled driver at an accident-prone intersection. The lawyer who miscalculates whether a former employer’s noncompete clause bars his client from selling a newly invented device … Continue reading

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Secret Evidence is Slowly Eroding the Adversary System: CIPA and FISA in the Courts

The Bush administration is reportedly the most secretive in United States history. The unprecedented scope of secrecy in intelligence gathering, detentions, decision-making, data collection, and legislative implementation has recently received public scrutiny. Often justified as essential to preserve national security, … Continue reading

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Counseling Organizational Clients “Within the Bounds of the Law”

The principal function of lawyers is to communicate the lawyer’s knowledge of law to the client and apply it to the client’s situation. Thus, every lawyer who has clients, whatever else they do, is a counselor. Two professional rules deal … Continue reading

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