The equitable doctrine in pari delicto provides that a plaintiff who participated equally with a defendant in wrongdoing cannot pursue a claim against the defendant. Courts often describe dual policies underlying the in pari delicto defense: deterrence of illegal conduct and protection of the sanctity of the courts. Lawyers invoke in pari delicto when sued for malpractice for failing to protect a client from legal liability. A common scenario involves a lawyer advising a client to lie under oath; the client follows the advice and suffers damage as a result. When the client sues the lawyer for legal malpractice based on the lawyer’s negligent advice, the lawyer can have the case dismissed based on in pari delicto. Courts reason that the client understood that it was wrong to lie under oath and that both client and lawyer are equally at fault for the client’s resulting damages, justifying dismissal on the basis of in pari delicto.The in pari delicto defense also can be invoked when the client is a business that (through its agents) engaged in fraudulent or criminal conduct that ultimately damaged the company. In this context, the legal malpractice case is filed against a business entity’s attorney who failed to advise against the conduct, failed to inform other agents within the organization about the misconduct so that they could intervene, or participated in the misconduct. Often the business has filed for bankruptcy and the trustee is bringing the malpractice claim against the company’s former lawyers. In other cases, suit is filed by the company itself, an assignee of the company’s rights, a court-appointed receiver, or its shareholders (as a derivative suit).Courts have applied in pari delicto to dismiss these claims against the company’s lawyers. The plaintiffs in these cases stand in the shoes of the wrongdoing company and cannot escape the company’s misconduct. And there is indeed “company misconduct” because - applying basic agency principles - management’s knowledge or misconduct must be imputed to the company. While there is an exception to imputation when the agents acted adverse to the company’s interests, that exception is a narrow one inapplicable when agents engaged in misconduct for the company’s benefit. Courts reason that applying in pari delicto in such cases deters illegal conduct and allows courts to avoid being parties to the misconduct.This Article deconstructs these principles that seemingly favor the in pari delicto doctrine barring claims against an organization’s lawyer. In examining in pari delicto in these cases, it becomes apparent that the doctrine is inconsistent with an attorney’s fiduciary duty to organizational clients. By barring or substantially limiting claims against business lawyers in this context, in pari delicto has effectively immunized lawyers from liability when they fail to perform one of their most important functions: acting competently to protect their organizational clients from legal liability. T
{"title":"In Pari Delicto Deconstructed: Dismantling the Doctrine that Protects the Business Entity's Lawyer from Malpractice Liability","authors":"P. Schaefer","doi":"10.2139/SSRN.2732749","DOIUrl":"https://doi.org/10.2139/SSRN.2732749","url":null,"abstract":"The equitable doctrine in pari delicto provides that a plaintiff who participated equally with a defendant in wrongdoing cannot pursue a claim against the defendant. Courts often describe dual policies underlying the in pari delicto defense: deterrence of illegal conduct and protection of the sanctity of the courts. Lawyers invoke in pari delicto when sued for malpractice for failing to protect a client from legal liability. A common scenario involves a lawyer advising a client to lie under oath; the client follows the advice and suffers damage as a result. When the client sues the lawyer for legal malpractice based on the lawyer’s negligent advice, the lawyer can have the case dismissed based on in pari delicto. Courts reason that the client understood that it was wrong to lie under oath and that both client and lawyer are equally at fault for the client’s resulting damages, justifying dismissal on the basis of in pari delicto.The in pari delicto defense also can be invoked when the client is a business that (through its agents) engaged in fraudulent or criminal conduct that ultimately damaged the company. In this context, the legal malpractice case is filed against a business entity’s attorney who failed to advise against the conduct, failed to inform other agents within the organization about the misconduct so that they could intervene, or participated in the misconduct. Often the business has filed for bankruptcy and the trustee is bringing the malpractice claim against the company’s former lawyers. In other cases, suit is filed by the company itself, an assignee of the company’s rights, a court-appointed receiver, or its shareholders (as a derivative suit).Courts have applied in pari delicto to dismiss these claims against the company’s lawyers. The plaintiffs in these cases stand in the shoes of the wrongdoing company and cannot escape the company’s misconduct. And there is indeed “company misconduct” because - applying basic agency principles - management’s knowledge or misconduct must be imputed to the company. While there is an exception to imputation when the agents acted adverse to the company’s interests, that exception is a narrow one inapplicable when agents engaged in misconduct for the company’s benefit. Courts reason that applying in pari delicto in such cases deters illegal conduct and allows courts to avoid being parties to the misconduct.This Article deconstructs these principles that seemingly favor the in pari delicto doctrine barring claims against an organization’s lawyer. In examining in pari delicto in these cases, it becomes apparent that the doctrine is inconsistent with an attorney’s fiduciary duty to organizational clients. By barring or substantially limiting claims against business lawyers in this context, in pari delicto has effectively immunized lawyers from liability when they fail to perform one of their most important functions: acting competently to protect their organizational clients from legal liability. T","PeriodicalId":318823,"journal":{"name":"Legal Ethics & Professional Responsibility eJournal","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-02-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123141904","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The rise of for-profit law schools in the United States highlights the interplay of political and moral economy in the reproduction of legal expertise. This article offers ethnographic evidence from one ABA-accredited for-profit law school pseudonymously labeled New Delta School of Law. The article posits New Delta as a case study in market fundamentalism of the kind first theorized by Hungarian economist Karl Polanyi. Polanyi defined global capital as a “double movement” between free marketeerism on the one hand and countervailing social protectionism on the other. Treating this as incomplete, social philosopher Nancy Fraser has since argued that the emancipatory new social movements form a third element in what should more properly be considered a “triple movement.” In this article, I argue that for-profit law schools such as New Delta support Fraser’s revision. Drawing in capital commitments from large institutional investors with promises of high returns on the basis of guaranteed federal student loan dollars, New Delta recruits disproportionately from minority and low-income communities while offering low chances of bar passage and legal employment. By marrying free marketeerism with the discourse of emancipation, the school has successfully evaded scrutiny.
{"title":"Proprietary Law Schools and the Marketization of Access to Justice","authors":"Riaz Tejani","doi":"10.2139/SSRN.2789685","DOIUrl":"https://doi.org/10.2139/SSRN.2789685","url":null,"abstract":"The rise of for-profit law schools in the United States highlights the interplay of political and moral economy in the reproduction of legal expertise. This article offers ethnographic evidence from one ABA-accredited for-profit law school pseudonymously labeled New Delta School of Law. The article posits New Delta as a case study in market fundamentalism of the kind first theorized by Hungarian economist Karl Polanyi. Polanyi defined global capital as a “double movement” between free marketeerism on the one hand and countervailing social protectionism on the other. Treating this as incomplete, social philosopher Nancy Fraser has since argued that the emancipatory new social movements form a third element in what should more properly be considered a “triple movement.” In this article, I argue that for-profit law schools such as New Delta support Fraser’s revision. Drawing in capital commitments from large institutional investors with promises of high returns on the basis of guaranteed federal student loan dollars, New Delta recruits disproportionately from minority and low-income communities while offering low chances of bar passage and legal employment. By marrying free marketeerism with the discourse of emancipation, the school has successfully evaded scrutiny.","PeriodicalId":318823,"journal":{"name":"Legal Ethics & Professional Responsibility eJournal","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-02-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115400431","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In the wake of the implosion of Enron and WorldCom in 2001, Judge Stanley Sporkin famously asked, “Where were the lawyers?” Section 307 of the Sarbanes-Oxley Act of 2002 imposed new duties on in-house counsel to report up violations of law. Yet, we still had the LIBOR and foreign-exchange rigging scandals, which had, by 2015, led to multi-billion dollar settlements and fired bank CEOs in England and Germany; massive insider trading by hedge funds and corporate titans; the subprime mortgage crisis; and the option backdating scandals. We submit that legislation and regulatory action alone are and will continue to be insufficient to deter corporate misconduct of the sort we have experienced in the last two decades. As in-house counsel have become more entrepreneurial in both the United States and elsewhere, and as many business schools have failed to adequately prepare future managers to address the legal and ethical aspects of business, more attention must be focused on the internal forces within companies. In addition to addressing Judge Sporkin’s question, we must ask, “Where were the managers?” In this Article, we provide new data on the role of in-house counsel in Sweden and assert that counsel and managers can be more effective drivers of both compliant corporate behavior and the creation of sustainable value when they work together as strategic partners, that is, when corporate managers are legally astute and are advised by strategically astute counsel.
{"title":"Who Let the Lawyers Out?: Reconstructing the Role of the Chief Legal Officer and the Corporate Client in a Globalizing World","authors":"C. Bagley, Mark D. Roellig, Gianmarco Massameno","doi":"10.2139/SSRN.2661466","DOIUrl":"https://doi.org/10.2139/SSRN.2661466","url":null,"abstract":"In the wake of the implosion of Enron and WorldCom in 2001, Judge Stanley Sporkin famously asked, “Where were the lawyers?” Section 307 of the Sarbanes-Oxley Act of 2002 imposed new duties on in-house counsel to report up violations of law. Yet, we still had the LIBOR and foreign-exchange rigging scandals, which had, by 2015, led to multi-billion dollar settlements and fired bank CEOs in England and Germany; massive insider trading by hedge funds and corporate titans; the subprime mortgage crisis; and the option backdating scandals. We submit that legislation and regulatory action alone are and will continue to be insufficient to deter corporate misconduct of the sort we have experienced in the last two decades. As in-house counsel have become more entrepreneurial in both the United States and elsewhere, and as many business schools have failed to adequately prepare future managers to address the legal and ethical aspects of business, more attention must be focused on the internal forces within companies. In addition to addressing Judge Sporkin’s question, we must ask, “Where were the managers?” In this Article, we provide new data on the role of in-house counsel in Sweden and assert that counsel and managers can be more effective drivers of both compliant corporate behavior and the creation of sustainable value when they work together as strategic partners, that is, when corporate managers are legally astute and are advised by strategically astute counsel.","PeriodicalId":318823,"journal":{"name":"Legal Ethics & Professional Responsibility eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-01-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130096657","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The common law “reasonable apprehension of bias” test for judicial disqualification is highly fact and context specific. While there are good reasons for this approach as a general proposition, it also gives rise to considerable uncertainty for both judges and litigants in considering whether or not it is appropriate for the judge to sit in a marginal case. This article explores rule-based judicial disqualification regimes in the United States, Germany and the Quebec Code of Civil Procedure to gain insights into how rules can be employed to provide greater clarity to judges and litigants who are addressing situations that have the potential to give rise to judicial disqualification. Using these insights, the authors then propose the use of rules to address problem areas with respect to professional relationships with former colleagues and clients, prior judicial involvement with litigants, extra-judicial writings, and procedural rules for making determinations concerning judicial disqualification.
{"title":"From Principles to Rules: The Case for Statutory Rules Governing Aspects of Judicial Disqualification","authors":"Jula Hughes, Philip Bryden","doi":"10.2139/ssrn.2791528","DOIUrl":"https://doi.org/10.2139/ssrn.2791528","url":null,"abstract":"The common law “reasonable apprehension of bias” test for judicial disqualification is highly fact and context specific. While there are good reasons for this approach as a general proposition, it also gives rise to considerable uncertainty for both judges and litigants in considering whether or not it is appropriate for the judge to sit in a marginal case. This article explores rule-based judicial disqualification regimes in the United States, Germany and the Quebec Code of Civil Procedure to gain insights into how rules can be employed to provide greater clarity to judges and litigants who are addressing situations that have the potential to give rise to judicial disqualification. Using these insights, the authors then propose the use of rules to address problem areas with respect to professional relationships with former colleagues and clients, prior judicial involvement with litigants, extra-judicial writings, and procedural rules for making determinations concerning judicial disqualification.","PeriodicalId":318823,"journal":{"name":"Legal Ethics & Professional Responsibility eJournal","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122110948","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The candidates for the Law Society of Upper Canada’s bencher election, which concluded on April 30, 2015, should have dealt with the national unaffordable legal services problem as the determinative issue, because: (1) it afflicts the majority of the population in that people cannot afford lawyers’ legal advice services; (2) it is clogging the courts with self-represented litigants; (3) it is greatly depressing the economic future of Canada’s legal profession; and, (4) it is making increasingly difficult the funding of legal aid organizations as more taxpayers cannot obtain a lawyer’s advice services. Because of its much outmoded method of delivering legal services, the legal profession has priced itself beyond the majority of the population. It uses a “handcraftsman’s method” instead of a support services method for producing legal services. Like handcraftsmen, law firms use no outside, specialized, scaled-up volume, support services. “Nothing cuts costs as effectively as scaling-up,” i.e., “bigger is better.” The legal profession has no counterpart to the medical profession’s infrastructure of mutually interdependent, highly specialized support services of specialized doctors, technicians, technical tests, drugs, and hospital services. No doctor’s office provides all treatments and remedies to all patients, as does a law firm for all clients.Benchers perform like the charitable, part-time amateurs that were the 19th bencher-managers of law societies. They are amateurs because they lack the expertise to solve problems as complex as the unaffordable legal services problem, and they don’t go out and get it, and in the province of Ontario, they average only 31 days work per year, and their work is almost totally unpaid. Their legal duties are to the public, but they are elected by the lawyer-members of Ontario’s law society, the Law Society of Upper Canada. Therefore: (1) they are a politically unaccountable regulator of an important professional service; and, (2) the public has insufficient opportunity to affect the making of law society policy and practice. And their law society work conflicts with their need to cope with their duties to their clients or institutional legal departments, and with their motivations for becoming benchers. Therefore, there are eight major reasons for the inadequacy of law society management. As a result, a different management structure is needed for Canada’s law societies.If law societies are to avoid government intervention into their management, they must create: (1) a national institute of experts that can: (a) provide advice on the necessary changes in the demand for legal services and how to satisfy them; (b) advise how to maintain legal services as affordable to the population; and, (c) expertly monitor similar changes and innovations in other countries; and (2) create specialized support services, having greater cost-efficiency in their production of specialized legal services than law firms can provide for t
2015年4月30日结束的上加拿大律师协会(Law Society of Upper Canada)议员选举的候选人，应该把全国负担不起的法律服务问题作为决定性问题来处理，因为:(1)这个问题困扰着大多数人，因为人们负担不起律师的法律咨询服务;(二)自我辩护的当事人使法院拥挤不堪的;(3)这极大地压抑了加拿大法律行业的经济前景;(4)越来越多的纳税人无法获得律师的咨询服务，这使得法律援助组织的资金越来越困难。由于提供法律服务的方法非常过时，法律职业的价格超出了大多数人的承受能力。它使用“工匠的方法”而不是支持服务的方法来提供法律服务。就像手艺人一样，律师事务所不需要外部的、专业化的、规模化的支持服务。“没有什么比扩大规模更有效地削减成本了，”也就是说，“越大越好。”法律职业没有与医疗职业相对应的基础设施，即由专业医生、技术人员、技术测试、药品和医院服务组成的相互依存、高度专业化的支助服务。没有一个医生的办公室能为所有的病人提供所有的治疗和补救措施，就像没有一个律师事务所能为所有的客户提供所有的治疗和补救措施一样。法官们的表现就像第19代法律协会的法官经理，他们是慈善的兼职业余人士。他们是业余的，因为他们缺乏专业知识来解决像负担不起的法律服务问题这样复杂的问题，他们不出去找，在安大略省，他们平均每年只工作31天，而且他们的工作几乎完全没有报酬。他们的法律职责是对公众负责，但他们是由安大略省法律协会，即上加拿大法律协会的律师成员选举产生的。因此:(1)他们是一项重要专业服务的政治上不负责任的监管者;(2)公众影响法治社会政策制定和实践的机会不足。他们在律师协会的工作与他们对客户或机构法律部门履行职责的需要相冲突，也与他们成为法官的动机相冲突。因此，法学会管理不足的原因主要有八个方面。因此，加拿大的法律协会需要一种不同的管理结构。如果律师协会要避免政府干预其管理，它们必须建立:(1)一个全国性的专家机构，能够:(a)就法律服务需求的必要变化以及如何满足这些变化提供咨询意见;(b)就如何维持市民负担得起的法律服务提供意见;(c)熟练地监测其他国家的类似变化和创新;(2)创建专门的支持服务，在提供专业法律服务方面比律师事务所自己提供的服务具有更高的成本效益。另见:“诉诸司法- -加拿大负担不起的法律服务- - CanLII作为必要的支助服务”(http://ssrn.com/abstract=2365818);以及我的SSRN作者页面上的其他“诉诸司法”论文。
{"title":"A Memorandum for Judging the Candidates Running in the Law Society of Upper Canada's (Ontario’s) 2015 Bencher Election","authors":"Ken Chasse","doi":"10.2139/SSRN.2598898","DOIUrl":"https://doi.org/10.2139/SSRN.2598898","url":null,"abstract":"The candidates for the Law Society of Upper Canada’s bencher election, which concluded on April 30, 2015, should have dealt with the national unaffordable legal services problem as the determinative issue, because: (1) it afflicts the majority of the population in that people cannot afford lawyers’ legal advice services; (2) it is clogging the courts with self-represented litigants; (3) it is greatly depressing the economic future of Canada’s legal profession; and, (4) it is making increasingly difficult the funding of legal aid organizations as more taxpayers cannot obtain a lawyer’s advice services. Because of its much outmoded method of delivering legal services, the legal profession has priced itself beyond the majority of the population. It uses a “handcraftsman’s method” instead of a support services method for producing legal services. Like handcraftsmen, law firms use no outside, specialized, scaled-up volume, support services. “Nothing cuts costs as effectively as scaling-up,” i.e., “bigger is better.” The legal profession has no counterpart to the medical profession’s infrastructure of mutually interdependent, highly specialized support services of specialized doctors, technicians, technical tests, drugs, and hospital services. No doctor’s office provides all treatments and remedies to all patients, as does a law firm for all clients.Benchers perform like the charitable, part-time amateurs that were the 19th bencher-managers of law societies. They are amateurs because they lack the expertise to solve problems as complex as the unaffordable legal services problem, and they don’t go out and get it, and in the province of Ontario, they average only 31 days work per year, and their work is almost totally unpaid. Their legal duties are to the public, but they are elected by the lawyer-members of Ontario’s law society, the Law Society of Upper Canada. Therefore: (1) they are a politically unaccountable regulator of an important professional service; and, (2) the public has insufficient opportunity to affect the making of law society policy and practice. And their law society work conflicts with their need to cope with their duties to their clients or institutional legal departments, and with their motivations for becoming benchers. Therefore, there are eight major reasons for the inadequacy of law society management. As a result, a different management structure is needed for Canada’s law societies.If law societies are to avoid government intervention into their management, they must create: (1) a national institute of experts that can: (a) provide advice on the necessary changes in the demand for legal services and how to satisfy them; (b) advise how to maintain legal services as affordable to the population; and, (c) expertly monitor similar changes and innovations in other countries; and (2) create specialized support services, having greater cost-efficiency in their production of specialized legal services than law firms can provide for t","PeriodicalId":318823,"journal":{"name":"Legal Ethics & Professional Responsibility eJournal","volume":"139 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-04-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123442544","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Much of the discussion of the bar's "public interest" effort has centered on the apparent unwillingness of lawyers, including young lawyers, to pursue public interest rather than traditional careers. To the extent that it is agreed that public interest work should be increased, the problem has been 'Viewed as one of supply of lawyers rather than one of demand for their services. In this paper, just the opposite is argued; a variety of evidence is brought forth to suggest that the current public interest effort is limited mainly by the number of jobs available in that sector. In this light, various methods of increasing the funding of the public interest sector and hence the number of jobs that are reviewed.
{"title":"Young Lawyers and Work in the Public Interest","authors":"H. Erlanger","doi":"10.2139/SSRN.2503104","DOIUrl":"https://doi.org/10.2139/SSRN.2503104","url":null,"abstract":"Much of the discussion of the bar's \"public interest\" effort has centered on the apparent unwillingness of lawyers, including young lawyers, to pursue public interest rather than traditional careers. To the extent that it is agreed that public interest work should be increased, the problem has been 'Viewed as one of supply of lawyers rather than one of demand for their services. In this paper, just the opposite is argued; a variety of evidence is brought forth to suggest that the current public interest effort is limited mainly by the number of jobs available in that sector. In this light, various methods of increasing the funding of the public interest sector and hence the number of jobs that are reviewed.","PeriodicalId":318823,"journal":{"name":"Legal Ethics & Professional Responsibility eJournal","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-09-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133483480","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
An intuitive and popular belief is that we steadily improve our decision-making over time by learning from experience. This is a myth because learning from experience is quite complex and difficult due to many reasons. One reason is that we routinely engage in mental time travel by anticipating our future and remembering our past. Our anticipations and memories differ systematically from our experiences. Research in psychology and neuroscience reveals that many of our anticipations and remembrances are systematically inaccurate and lead us to hold illusions about how we will or do behave. This Article analyzes a number of temporally-caused illusions that we have about our financial, ethical, and tortious decision-making. These illusions in turn influence our financial, ethical, and tortious decision-making. Such decision-making tasks can be complex; demand focused, cognitive attention; generate noisy feedback; and provoke anxiety, stress, and other strong and quite often negative emotions. Our experiences are intrinsically complex, endogenous, and scarce. We selectively reconstruct our memories of experiences. We have limited attention with which to learn. We are motivated to pay attention to that which we like to think about and ignore that which we find unpleasant. This Article applies research about human learning in general and human learning from experience in particular to explain how and why human learning will inevitably be incomplete. This Article considers legal implications of bounded learning. Creative examples of responses to bounded learning include financial entertainment computer video games, such as one where a player is a vampire managing a blood bar and planning for retirement. Empathy, identity, and tangibility gaps exist between our present and future selves. Two tools that act effectively as behavioral time machines to facilitate our mental time travel and close the above gaps are: future lifestyle imagination exercises and virtual reality avatars of our aged-morphed future selves. This Article concludes by explaining how fostering increased mindfulness can help us mitigate temporal illusions.
{"title":"Back to the Present: Mental Time Travel-Induced Illusions about Financial, Ethical, and Tortious Behavior","authors":"P. H. Huang","doi":"10.2139/ssrn.2329236","DOIUrl":"https://doi.org/10.2139/ssrn.2329236","url":null,"abstract":"An intuitive and popular belief is that we steadily improve our decision-making over time by learning from experience. This is a myth because learning from experience is quite complex and difficult due to many reasons. One reason is that we routinely engage in mental time travel by anticipating our future and remembering our past. Our anticipations and memories differ systematically from our experiences. Research in psychology and neuroscience reveals that many of our anticipations and remembrances are systematically inaccurate and lead us to hold illusions about how we will or do behave. This Article analyzes a number of temporally-caused illusions that we have about our financial, ethical, and tortious decision-making. These illusions in turn influence our financial, ethical, and tortious decision-making. Such decision-making tasks can be complex; demand focused, cognitive attention; generate noisy feedback; and provoke anxiety, stress, and other strong and quite often negative emotions. Our experiences are intrinsically complex, endogenous, and scarce. We selectively reconstruct our memories of experiences. We have limited attention with which to learn. We are motivated to pay attention to that which we like to think about and ignore that which we find unpleasant. This Article applies research about human learning in general and human learning from experience in particular to explain how and why human learning will inevitably be incomplete. This Article considers legal implications of bounded learning. Creative examples of responses to bounded learning include financial entertainment computer video games, such as one where a player is a vampire managing a blood bar and planning for retirement. Empathy, identity, and tangibility gaps exist between our present and future selves. Two tools that act effectively as behavioral time machines to facilitate our mental time travel and close the above gaps are: future lifestyle imagination exercises and virtual reality avatars of our aged-morphed future selves. This Article concludes by explaining how fostering increased mindfulness can help us mitigate temporal illusions.","PeriodicalId":318823,"journal":{"name":"Legal Ethics & Professional Responsibility eJournal","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-09-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131501105","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The solution to the “access to justice” problem that the majority of the population cannot obtain legal services at reasonable cost, is to enable the Canadian Legal Information Institute (CanLII) to provide the support services to all lawyers in Canada, that the LAO LAW division of Legal Aid Ontario (LAO) provides to lawyers in Ontario who do legal aid cases. In contrast, all of the literature and conferences that this most serious of access to justice problems has generated, suggest solutions that involve treating the symptoms of the problem but not the cause. For example, the solutions put forward by the Federation of Law Societies of Canada involve cutting the cost of legal services by using: (1) self-help solutions; (2) people of lesser competence than lawyers; (3) pro bono or “low bono” services. This article discusses the inadequacy of those solutions. The long history of law society failure to solve this problem is due to a lack of understanding of its cause. As a result, the solutions that have been recommended are meant to improve the existing system of providing legal services. That is the cause of the problem, the preservation of the existing system — the "handcraftsman’s" method of delivering legal services. Instead, LAO LAW enables the use of a “support services” method of delivering legal services. If the legal profession in Canada does not make that transition, the problem will never be solved. It has to be solved, otherwise the small and middle-sized law office will not be preserved, and government intervention will be necessary — either by: (a) a program of socialized law by way of government-funded legal services; or, (b) enabling the free enterprise competitive marketing of legal services. LAO LAW has a 35-year history of success in supplying fact-specific legal research services, and several other support services developed from that initial research service. It has solved a smaller version of the very same problem. It has saved LAO millions of dollars that would otherwise have been paid out on lawyers’ accounts for legal research. The Federation of Law Societies of Canada is the sponsor of CanLII, which is “funded by Canada’s lawyers and notaries for the benefit of all.” At present, CanLII provides free online access to court and tribunal decisions and to statutes from all jurisdictions in Canada. It is a national service available in both English and French, with an impressive record of accomplishment. But its present service cannot provide a solution to the problem. All legal services are based on legal research. Therefore CanLII could substantially reduce the cost of legal services provided by lawyers if it could provide the support services at cost that LAO LAW provides. Therefore the solution lies in the hands of the law societies. But such innovation will not happen if there is not sufficient fear of the interaction among: (1) the consequences of not solving the problem; (2) the power of the internet, the social media,
{"title":"Access to Justice – Canada's Unaffordable Legal Services – CanLII as the Necessary Support Service","authors":"Ken Chasse","doi":"10.2139/ssrn.2365818","DOIUrl":"https://doi.org/10.2139/ssrn.2365818","url":null,"abstract":"The solution to the “access to justice” problem that the majority of the population cannot obtain legal services at reasonable cost, is to enable the Canadian Legal Information Institute (CanLII) to provide the support services to all lawyers in Canada, that the LAO LAW division of Legal Aid Ontario (LAO) provides to lawyers in Ontario who do legal aid cases. In contrast, all of the literature and conferences that this most serious of access to justice problems has generated, suggest solutions that involve treating the symptoms of the problem but not the cause. For example, the solutions put forward by the Federation of Law Societies of Canada involve cutting the cost of legal services by using: (1) self-help solutions; (2) people of lesser competence than lawyers; (3) pro bono or “low bono” services. This article discusses the inadequacy of those solutions. The long history of law society failure to solve this problem is due to a lack of understanding of its cause. As a result, the solutions that have been recommended are meant to improve the existing system of providing legal services. That is the cause of the problem, the preservation of the existing system — the \"handcraftsman’s\" method of delivering legal services. Instead, LAO LAW enables the use of a “support services” method of delivering legal services. If the legal profession in Canada does not make that transition, the problem will never be solved. It has to be solved, otherwise the small and middle-sized law office will not be preserved, and government intervention will be necessary — either by: (a) a program of socialized law by way of government-funded legal services; or, (b) enabling the free enterprise competitive marketing of legal services. LAO LAW has a 35-year history of success in supplying fact-specific legal research services, and several other support services developed from that initial research service. It has solved a smaller version of the very same problem. It has saved LAO millions of dollars that would otherwise have been paid out on lawyers’ accounts for legal research. The Federation of Law Societies of Canada is the sponsor of CanLII, which is “funded by Canada’s lawyers and notaries for the benefit of all.” At present, CanLII provides free online access to court and tribunal decisions and to statutes from all jurisdictions in Canada. It is a national service available in both English and French, with an impressive record of accomplishment. But its present service cannot provide a solution to the problem. All legal services are based on legal research. Therefore CanLII could substantially reduce the cost of legal services provided by lawyers if it could provide the support services at cost that LAO LAW provides. Therefore the solution lies in the hands of the law societies. But such innovation will not happen if there is not sufficient fear of the interaction among: (1) the consequences of not solving the problem; (2) the power of the internet, the social media, ","PeriodicalId":318823,"journal":{"name":"Legal Ethics & Professional Responsibility eJournal","volume":"61 3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-12-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116429066","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
International arbitration is proving to be an irresistible allure for third-party funders. International arbitration cases are particularly attractive because of the prevalence of high-value claims, the speed of proceedings, the potential for reduced evidentiary costs and streamlined procedures, the ability to control variables such as expertise of the decisionmaker, the potential for legal arbitrage to avoid national restrictions on such funding, and the highly enforceable nature of arbitral awards. As a result, third-party funding seems to be a permanent fixture in international arbitration. Their increasing presence, however, raises a host of complex legal and ethical questions that can affect all various actors, most notably counsel and arbitrators, as well as the larger framework of the international arbitral regime. Notwithstanding their potential impact, the very definition of third-party funders and the mechanics of how they operate remains largely unknown. Adding to this uncertainty, third-party funders in international arbitration are uniquely untethered from any formal or national professional regulation or national mandatory laws. Meanwhile, ambiguities about counsel ethics in international arbitration and funder participation in arbitrator selection raise peculiar dilemmas that have few ready answers. Debate has begun, but to date, careful analysis of and specific proposals in response to these complex issues has been lacking. This book chapter provides one of the first sources to undertake sustained analysis of the the peculiar quandaries raised by the presence of third-party funding in international arbitration and suggest concrete solutions. As a chapter in a forthcoming book ETHICS IN INTERNATIONAL ARBITRATION (Oxford University Press, 2014), it examines how issues relating to third-party funders should be integrated into a larger regime of self-regulation of professional conduct in international arbitral proceedings.
{"title":"Gamblers, Loan Sharks & Third-Party Funders","authors":"C. Rogers","doi":"10.2139/SSRN.2345962","DOIUrl":"https://doi.org/10.2139/SSRN.2345962","url":null,"abstract":"International arbitration is proving to be an irresistible allure for third-party funders. International arbitration cases are particularly attractive because of the prevalence of high-value claims, the speed of proceedings, the potential for reduced evidentiary costs and streamlined procedures, the ability to control variables such as expertise of the decisionmaker, the potential for legal arbitrage to avoid national restrictions on such funding, and the highly enforceable nature of arbitral awards. As a result, third-party funding seems to be a permanent fixture in international arbitration. Their increasing presence, however, raises a host of complex legal and ethical questions that can affect all various actors, most notably counsel and arbitrators, as well as the larger framework of the international arbitral regime. Notwithstanding their potential impact, the very definition of third-party funders and the mechanics of how they operate remains largely unknown. Adding to this uncertainty, third-party funders in international arbitration are uniquely untethered from any formal or national professional regulation or national mandatory laws. Meanwhile, ambiguities about counsel ethics in international arbitration and funder participation in arbitrator selection raise peculiar dilemmas that have few ready answers. Debate has begun, but to date, careful analysis of and specific proposals in response to these complex issues has been lacking. This book chapter provides one of the first sources to undertake sustained analysis of the the peculiar quandaries raised by the presence of third-party funding in international arbitration and suggest concrete solutions. As a chapter in a forthcoming book ETHICS IN INTERNATIONAL ARBITRATION (Oxford University Press, 2014), it examines how issues relating to third-party funders should be integrated into a larger regime of self-regulation of professional conduct in international arbitral proceedings.","PeriodicalId":318823,"journal":{"name":"Legal Ethics & Professional Responsibility eJournal","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-10-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121968772","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
On July 1, 2012, Jan Crawford of CBS News reported details of the confidential deliberations of the Supreme Court of the United States in National Federation of Independent Business v. Sebilius. Specifically, she revealed that Chief Justice John G. Roberts began working with Associate Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel A. Alito to draft an opinion striking the Patient Protection and Affordable Care Act (the “PPACA”) as an unconstitutional exercise of Congress’s power to regulate commerce. According to Crawford, he later had a change of heart and worked with Associate Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayer, and Elena Kagan to draft the majority opinion upholding the act under Congress’s taxing power. The media seized upon this reported change of position. Conservative media outlets decried Roberts’s actions as the result of political pressure from the left. Others suggested that Chief Justice Roberts sought to promote intergovernmental harmony by upholding historic legislation that Congress had passed and the President had approved.Ms. Crawford relied on information that “two sources with specific knowledge of the deliberations” had provided to her. One important question has escaped media attention: can or should Justices of the Supreme Court of the United States discuss details of deliberations with the press, even anonymously? This essay attempts to answer that question by addressing the ethical implications of such statements from the Court, the conflict between the restrictions on judicial speech and the First Amendment rights of the Justices of the Court, and the wisdom of such extrajudicial statements. Both the ABA Model Code of Judicial Conduct and the Code of Conduct for United States Judges contain restrictions on extrajudicial speech. Specifically, those codes prohibit judges from commenting publicly on a pending or impending case. These restrictions on judicial speech would likely survive a constitutional challenge under the First Amendment because of the compelling government interest in maintaining the independence, integrity, and impartiality of the judiciary. Unfortunately, neither the Code of Conduct nor the Model Code apply to the actions of the SCOTUS informants in this instance. First, the Supreme Court is not subject to the Model Code because that code serves solely as a model on which specific jurisdictions may choose to base their own codes of conduct. The Judicial Conference of the United States did adopt a version of the Model Code, the Code of Conduct for United States Judges. That code, however, does not lust the Supreme Court among the judges to whom it is intended to apply. Moreover, the Supreme Court created the Judicial Conference and is not subject to its disciplinary authority. The second reason neither code applies to the SCOTUS leaks is because Jan Crawford’s story broke days after the Supreme Court issued its opinion in National Federation. Because the
{"title":"The Great and Powerful Oz Revealed: The Ethics and Wisdom of the Scotus Leaks in National Federation of Independent Business v. Sebilius","authors":"K. Schaffzin","doi":"10.2139/SSRN.2139467","DOIUrl":"https://doi.org/10.2139/SSRN.2139467","url":null,"abstract":"On July 1, 2012, Jan Crawford of CBS News reported details of the confidential deliberations of the Supreme Court of the United States in National Federation of Independent Business v. Sebilius. Specifically, she revealed that Chief Justice John G. Roberts began working with Associate Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel A. Alito to draft an opinion striking the Patient Protection and Affordable Care Act (the “PPACA”) as an unconstitutional exercise of Congress’s power to regulate commerce. According to Crawford, he later had a change of heart and worked with Associate Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayer, and Elena Kagan to draft the majority opinion upholding the act under Congress’s taxing power. The media seized upon this reported change of position. Conservative media outlets decried Roberts’s actions as the result of political pressure from the left. Others suggested that Chief Justice Roberts sought to promote intergovernmental harmony by upholding historic legislation that Congress had passed and the President had approved.Ms. Crawford relied on information that “two sources with specific knowledge of the deliberations” had provided to her. One important question has escaped media attention: can or should Justices of the Supreme Court of the United States discuss details of deliberations with the press, even anonymously? This essay attempts to answer that question by addressing the ethical implications of such statements from the Court, the conflict between the restrictions on judicial speech and the First Amendment rights of the Justices of the Court, and the wisdom of such extrajudicial statements. Both the ABA Model Code of Judicial Conduct and the Code of Conduct for United States Judges contain restrictions on extrajudicial speech. Specifically, those codes prohibit judges from commenting publicly on a pending or impending case. These restrictions on judicial speech would likely survive a constitutional challenge under the First Amendment because of the compelling government interest in maintaining the independence, integrity, and impartiality of the judiciary. Unfortunately, neither the Code of Conduct nor the Model Code apply to the actions of the SCOTUS informants in this instance. First, the Supreme Court is not subject to the Model Code because that code serves solely as a model on which specific jurisdictions may choose to base their own codes of conduct. The Judicial Conference of the United States did adopt a version of the Model Code, the Code of Conduct for United States Judges. That code, however, does not lust the Supreme Court among the judges to whom it is intended to apply. Moreover, the Supreme Court created the Judicial Conference and is not subject to its disciplinary authority. The second reason neither code applies to the SCOTUS leaks is because Jan Crawford’s story broke days after the Supreme Court issued its opinion in National Federation. Because the","PeriodicalId":318823,"journal":{"name":"Legal Ethics & Professional Responsibility eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-08-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122905591","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：