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Politics, Ethics & the Law, Legal Practice & Scholarship 政治、道德与法律、法律实践与学术
Pub Date : 2008-12-09 DOI: 10.2139/SSRN.1313904
W. Gerven
This paper examines legal practice, legal scholarship, ethics and politics from the viewpoint of an academic who in his lifetime has, besides having been a professor, been a vice-rector, a civil servant, an advocate general and an anti-corruption officer.. As a vice-rector he acknowledged the essence of decision making: based on intuition kept in check by deliberation. As a civil servant he learned to involve considerations of general interest in the decision making process. As an advocate general he tried to combine assistance to the Court with assistance to the legal community in a multicultural and pluralist European environment. As an “anti-corruption” officer he used his judicial experience to advance reform in the EC Commission. As an academic he sought to promote the “bottom up” approach of comparative law: from judicial (and legislative) solutions to general principles which the EU member states have in common.
本文从一位曾任教授、副校长、公务员、总检察长和反腐败官员的学者的角度审视法律实践、法律学术、伦理和政治。作为副校长,他认识到决策的本质:以直觉为基础,再加上深思熟虑。作为一名公务员,他学会了在决策过程中考虑到普遍利益。作为总律师,他试图在多元文化和多元化的欧洲环境中将对法院的援助与对法律界的援助结合起来。作为一名“反腐败”官员,他利用自己的司法经验推进了欧共体委员会的改革。作为一名学者,他试图推广比较法的“自下而上”方法:从司法(和立法)解决方案到欧盟成员国共有的一般原则。
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引用次数: 1
Pro Bono as an Elite Strategy in Early Lawyer Careers 公益作为早期律师职业生涯中的精英策略
Pub Date : 2008-10-29 DOI: 10.2139/ssrn.1291998
Ronit Dinovitzer, B. Garth
This chapter will appear in the forthcoming book edited by Robert Granfield and Lynn Mather entitled Private Lawyers and the Public Interest: The Evolving Role of Pro Bono in the Legal Profession (Oxford University Press 2009). Drawing on the sociological theory of Pierre Bourdieu and data from the first wave of the After the J.D. Project, the chapter examines the way that pro bono reflects and reinforces professional hierarchies evident also in the construction of legal careers. Taking as a starting point Bourdieu's work on the "interest in disinterestedness," this chapter examines the social distribution of pro bono service by looking at the backgrounds of pro bono practitioners and their work settings. We also investigate the relationship between pro bono work and job satisfaction, finding that there is indeed a symbolic and tangible value to disinterestedness. Finally, the chapter also finds that orientations and dispositions towards pro bono work themselves reflect and reinforce the hierarchy of the profession.
这一章将出现在即将出版的由罗伯特·格兰菲尔德和林恩·马瑟编辑的名为《私人律师和公共利益:公益在法律职业中的演变角色》的书中(牛津大学出版社2009年)。利用皮埃尔·布迪厄的社会学理论和第一波法学博士项目的数据,本章考察了公益反映和加强职业等级的方式,这在法律职业的建设中也很明显。本章以布迪厄关于“无私的利益”的研究为出发点,通过观察公益从业者的背景和他们的工作环境来考察公益服务的社会分布。我们还调查了公益工作与工作满意度之间的关系,发现无私确实具有象征性和有形的价值。最后,本章还发现,对公益工作的取向和倾向本身反映并加强了该职业的等级制度。
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引用次数: 12
How To Comply with ABA Guideline 10.7(B)(2) and Why It Matters - Part 1 of 2 如何遵守美国律师协会指南10.7(B)(2)及其重要性-第1部分/ 2
Pub Date : 2008-05-07 DOI: 10.2139/ssrn.1129349
R. Jade
Guideline 10.7(B)(2) of the American Bar Association's Guidelines for the Appointment and Performance of Defense Counsel in Capital Cases (2003) requires death penalty defense counsel to ensure that the official record of the case is complete, and to supplement it as needed. Part 1 of this two-part article explains the nuts and bolts of how to comply with the Guideline and is designed for use as a training packet for capital defenders. Part 2 of this article presents the sample pleadings and copies of public documents from Oregon death penalty cases as referenced in Part 1.
美国律师协会《死刑案件辩护律师的任命和履行准则》(2003年)的准则10.7(B)(2)要求死刑辩护律师确保案件的正式记录完整,并根据需要予以补充。这篇由两部分组成的文章的第1部分解释了如何遵守《指导方针》的具体细节,旨在作为资本保卫者的培训包使用。本文第2部分提供了第1部分中提到的俄勒冈州死刑案件的诉状样本和公开文件副本。
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引用次数: 0
How to Comply with ABA Guideline 10.7(B)(2) and Why it Matters - Part 2 (Attachments) 如何遵守美国律师协会指南10.7(B)(2)及其重要性-第2部分(附件)
Pub Date : 2008-05-04 DOI: 10.2139/ssrn.1128952
R. Jade
This is Part 2 of a training packet for capital defenders on Guideline 10.7(B)(2) of the American Bar Association's Guidelines for the Appointment and Performance of Defense Counsel in Capital Cases (2003). This packet includes the sample pleadings from Oregon cases and other public record documents referenced in Part 1.
这是针对美国律师协会《死刑案件辩护律师的任命和表现指引》(2003)第10.7(B)(2)条的死刑辩护人培训包的第二部分。本包包括俄勒冈州案件的诉状样本和第1部分中引用的其他公共记录文件。
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引用次数: 0
Deconstructing the Duty to the Tax System: Unfettering Zealous Advocacy on Behalf of Lesbian and Gay Taxpayers 解构税收制度的责任:代表女同性恋和男同性恋纳税人的无拘无束的热心倡导
Pub Date : 2007-08-11 DOI: 10.1017/CBO9780511609800.019
Anthony C. Infanti
In this article, I consider how the tax lawyer's generally-acknowledged duty to the tax system should be applied in the representation of lesbian and gay clients. Due to the significant initial advantages that taxpayers are thought to have over the government in the tax compliance and enforcement process, this duty to the tax system requires a tax lawyer to avoid both questionable positions and the temptation to play the audit ?lottery.? The tax lawyer is asked to temper the zealousness of her advocacy in this way in order to preserve the integrity and, ultimately, the proper functioning of the tax system. For lesbian and gay taxpayers, however, the realities of the tax compliance and enforcement process starkly contrast with the conventional picture. Lesbians and gay men are in the unique position of being the only group that is the object of both overt and covert invidious discrimination in the application of the tax laws. Thus, if a tax lawyer were to temper her advice to lesbian and gay clients in accordance with the conventional conceptualization of the duty to the tax system, she would risk compounding the effects of this discrimination and doing serious harm to her clients. The purpose of this article is to open the necessary ethical space for crafting an alternative view of the duty to the tax system - one that better suits the representation of lesbian and gay clients. The alternative view that I lay out descries a duty to the tax system that exists in harmony with, rather than opposition to, the duty of zealous advocacy. This alternative view allows a tax lawyer simultaneously to protect her lesbian and gay clients from harm and to discharge her obligation to safeguard the integrity of the tax system.
在这篇文章中,我考虑了税务律师对税收制度的公认义务应该如何应用于女同性恋和男同性恋客户的代理。由于纳税人被认为在税收合规和执行过程中比政府具有重大的初始优势,因此对税收系统的这一义务要求税务律师既要避免有问题的立场,又要避免参与审计的诱惑。税务律师被要求以这种方式缓和她倡导的热情,以保持税收制度的完整性,并最终保持其正常运作。然而,对于女同性恋和男同性恋纳税人来说,税务合规和执法过程的现实与传统情况形成鲜明对比。男女同性恋者处于一种独特的地位,他们是唯一一个在适用税法时既受到公开歧视又受到隐蔽歧视的群体。因此,如果一名税务律师要按照传统的税收制度责任观念来缓和她对同性恋客户的建议,她就有可能加剧这种歧视的影响,并对她的客户造成严重伤害。这篇文章的目的是打开必要的伦理空间,以形成另一种对税收系统责任的看法——一种更适合女同性恋和男同性恋客户代表的观点。我提出的另一种观点是,对税收制度的责任与热心倡导的责任相协调,而不是对立。这种不同的观点允许税务律师同时保护她的女同性恋和男同性恋客户免受伤害,并履行她维护税收制度完整性的义务。
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引用次数: 3
Ethics and the Modern Professions: Autonomy, Social Institutions, and Potential Futures (Includes Syllabus) 伦理与现代职业:自主性、社会制度和潜在的未来(包括教学大纲)
Pub Date : 2007-05-01 DOI: 10.2139/SSRN.984601
David A. Bray, PhD
Within modern society, we frequently rely on strangers for professional services. This course will examine the role of professionals and the professions in society. Specifically, this course will examine the role of ethics in maintaining autonomy of the professions as social institutions, as well as helping to ensure that we (as customers who rely on professional services) generally can place trust in professionals to do the right thing even when no one is watching - because often no one is.
在现代社会,我们经常依赖陌生人的专业服务。本课程将探讨专业人士和专业人士在社会中的角色。具体来说,这门课程将研究道德在维护专业作为社会机构的自主性方面的作用,以及帮助确保我们(作为依赖专业服务的客户)通常可以信任专业人士做正确的事情,即使没有人在看着-因为通常没有人。
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引用次数: 0
The Looming Collapse of Restrictions on Judicial Campaign Speech 对司法竞选言论的限制即将崩溃
Pub Date : 2007-03-01 DOI: 10.2139/SSRN.967653
Nat Stern
In Republican Party of Minnesota v. White, the Supreme Court in 2002 struck down Minnesota's ban on a judicial candidate's announc[ing] his or her views on disputed legal or political issues. Since then, the American Bar Association and many states have revised their codes of judicial conduct to comply with White's specific holding while seeking to retain other limitations on judicial campaign speech. Such efforts, however, ignore the broader implications of the Court's opinion in White. Both the logic of that opinion and the ideological inclinations of the current Court point to the likely invalidation of major portions of these campaign codes. Rather than squander resources on refining and enforcing a regime with such dim prospects, critics of judicial elections should focus on other means of improving the quality of the electoral process.
在明尼苏达州共和党诉怀特案中,最高法院于2002年推翻了明尼苏达州禁止司法候选人就有争议的法律或政治问题发表自己观点的禁令。从那时起,美国律师协会和许多州修改了他们的司法行为准则,以遵守怀特的具体判决,同时寻求保留对司法竞选言论的其他限制。然而,这种努力忽视了法院在怀特案中意见的更广泛含义。该意见的逻辑和当前法院的意识形态倾向都表明,这些竞选法规的主要部分可能无效。批评司法选举的人不应该把资源浪费在完善和执行一个前景如此黯淡的政权上,而应该把重点放在提高选举过程质量的其他途径上。
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引用次数: 2
Hip-Pocket Injuries in Workouts: Accessory Liability for Bankers and Advisers 训练中的髋袋损伤:银行家和顾问的附属责任
Pub Date : 2006-11-01 DOI: 10.2139/SSRN.946316
R. Austin
In this conference paper Justice Austin describes current Australian trends in corporate workouts, where a financier such as a bank wishes to assist a corporation in financial difficulty, without making use of any process of external administration. He identifies some legal pitfalls in informal workouts, including the law concerning de facto and shadow directorships (which may lead to liability for the financier under the law of insolvent trading), and the law of accessory and primary statutory liability for misleading conduct and non-disclosure. He analyses the Australian law, noting some parts of the current Australian definition of "director" that might increase the likelihood of liability for a financier, beyond the level of liability identified in the English case law.
在这篇会议论文中,Austin法官描述了当前澳大利亚企业重组的趋势,即银行等金融家希望在不利用任何外部管理程序的情况下,帮助陷入财务困境的企业。他指出了非正式重组中的一些法律陷阱,包括有关事实董事和影子董事的法律(根据破产交易法,这可能导致金融家承担责任),以及关于误导行为和不披露的辅助和主要法定责任的法律。他分析了澳大利亚法律,指出澳大利亚现行“董事”定义的某些部分可能会增加金融家承担责任的可能性,超出英国判例法中确定的责任水平。
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引用次数: 0
Justice for Sale? Campaign Contributions and Judicial Decision Making 正义出售?竞选捐款和司法决策
Pub Date : 2006-08-10 DOI: 10.2139/ssrn.991364
Damon M. Cann
While federal judges are selected by appointment, many state judges are selected through competitive elections. As state judicial campaigns become progressively more costly and political, judicial candidates have turned increasingly to lawyers and law firms as a source of campaign funds. Given that contributing lawyers frequently appear in court, it is natural to wonder whether judges are more likely to rule in favor of attorneys who offered financial support to their campaign. Looking at cases from the Supreme Court of Georgia's 2003 term, I show that campaign contributions are indeed correlated with judges' decisions. Further, using a two-stage probit least squares estimator to address questions of causality, I show that the campaign contributions directly affect judicial decision making.
联邦法官是通过任命产生的,而许多州法官是通过竞争性选举产生的。随着州司法竞选变得越来越昂贵和政治化,司法候选人越来越多地转向律师和律师事务所作为竞选资金的来源。鉴于提供资金的律师经常出现在法庭上,人们自然会怀疑法官是否更有可能做出有利于为其竞选提供资金支持的律师的裁决。通过对乔治亚州最高法院2003年任期的案例分析,我发现竞选捐款确实与法官的判决相关。此外,使用两阶段概率最小二乘估计器来解决因果关系问题,我表明竞选捐款直接影响司法决策。
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引用次数: 34
Mobilization Lawyering: Community Economic Development in the Figueroa Corridor 动员律师:菲格罗亚走廊的社区经济发展
Pub Date : 2006-03-08 DOI: 10.1515/9780804767965-016
Scott L. Cummings
The emergence of Community Economic Development (CED) as a distinct field of cause lawyering highlights the complexities of community mobilization in the post-regulatory state. Defined by a set of social policies and grassroots practices that promote neighborhood revitalization, CED is associated with a transactional model of cause lawyering focused on negotiating deals between community-based nonprofit organizations, public funders, and private investors. Whereas cause lawyers have traditionally sought to mobilize claims of legal rights to advance systemic reform, CED lawyers attempt to mobilize community participation to change local economic circumstances through the creation of innovative institutional structures. However, CED does not neatly remove barriers to mobilization; rather it presents a different set of opportunities and constraints. For instance, CED is not connected with broad-based social movements. Instead, it is parochial, seeking to preserve community boundaries and increase community control of resources. Moreover, while CED establishes legal mechanisms for ongoing community participation in local governance, it does so through the design of partnerships with government and business elites that create disincentives for political confrontation seeking reforms in state practice or increased resources from private sector institutions. For this reason, the modus operandi of CED practice is not one of protest and disruption. Nor is CED designed to challenge the existing rules of the game; rather, it seeks to build partnerships and distribute resources within the framework of the law as constituted. As a technique of institutional design that extends contractual relationships between the community, the market, and the state, CED therefore fosters a version of mobilization that tends to de-emphasize adversarial organizing in favor of collaboration with business and governmental partners. At the grassroots level, however, there are important recent examples of community mobilization within CED that depart from the collaborative model. In particular, the emergence of an "accountable development" movement in Los Angeles - where community-labor coalitions have pressured publicly subsidized developers into a series of agreements to provide benefits to low-income communities - has focused attention on more confrontational forms of collective action, flowing out of the traditions of community organizing and social movement activism. This essay uses the advent of accountable development to re-examine the relationship between cause lawyering and community mobilization. It begins by describing the emergence of CED as a nonadversarial cause lawyering model, situating it within the context of the reaction against the social movements and legal rights strategies of the 1960s and 1970s. Drawing upon insights from social movement theory, it then analyzes the constraints that collaborative CED can impose on collective action by low-income communitie
社区经济发展(CED)作为一个独特的诉讼领域的出现,突出了后管制状态下社区动员的复杂性。CED的定义是一系列促进社区振兴的社会政策和基层实践,它与一种事务性的公益律师模式有关,其重点是在社区非营利组织、公共资助者和私人投资者之间就交易进行谈判。传统上,公益律师寻求动员法律权利的主张来推进系统改革,而环境保护律师则试图通过创造创新的制度结构来动员社区参与来改变当地的经济环境。然而,经济发展战略并没有彻底消除动员的障碍;相反,它带来了一系列不同的机会和限制。例如,CED与广泛的社会运动没有联系。相反,它是狭隘的,寻求保持社区边界和增加社区对资源的控制。此外,虽然经济发展委员会为社区持续参与地方治理建立了法律机制,但它是通过设计与政府和商业精英的伙伴关系来实现这一目标的,这种伙伴关系可以抑制寻求国家实践改革或增加私营部门机构资源的政治对抗。出于这个原因,CED的做法不是抗议和破坏。《CED》也不是为了挑战现有的游戏规则;相反,它寻求在现行法律框架内建立伙伴关系和分配资源。作为一种制度设计技术,它扩展了社区、市场和国家之间的契约关系,因此,CED促进了一种动员形式,这种动员倾向于不强调对抗性组织,而倾向于与商业和政府伙伴合作。然而,在基层,最近有一些重要的例子表明,CED内部的社区动员偏离了合作模式。特别是,在洛杉矶出现的“负责任的发展”运动——社区劳工联盟迫使公共补贴的开发商达成一系列协议,为低收入社区提供福利——将注意力集中在更具对抗性的集体行动形式上,这些行动源自社区组织和社会运动激进主义的传统。本文利用问责发展的出现,重新审视事业律师和社区动员之间的关系。本文首先将CED的出现描述为一种非对抗性的诉讼模式,并将其置于20世纪60年代和70年代对社会运动和法律权利策略的反应的背景下。根据社会运动理论的见解,分析了协同CED对低收入社区集体行动的限制。以下是洛杉矶负责任发展的案例研究,揭示了CED的另一种方法,即动员对抗性组织来获取开发商的让步和政府改革。报告最后分析了问责发展背景下的原因律师工作,提出了传统的可持续发展实践的连续性,同时强调了问责发展中更具对抗性的方法如何重塑了律师的作用。
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引用次数: 19
期刊
Legal Ethics & Professional Responsibility eJournal
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