The Lawyer As Consensus Builder: Ethics For a New Practice

In this Article, I explore the roles of lawyers in alternative dispute resolution ( ADR ), including traditional roles in arbitration and new roles in mediation and facilitation. I also discuss how conventional ethics rules for lawyers fail to provide guidance and best practices for lawyers who serve in these new roles. State legislatures and professional associations, such as the American Arbitration Association ( AAA ), the Center for Public Resources Institute for Dispute Resolution ( CPR ), and the Association of Conflict Resolution, have adopted ethical codes for mediators and arbitrators. Select professional associations are also developing best practice guides for the provision of ADR services; however, the lack of clarity in the Model Rules is a serious problem. The failure of the Model Rules to recognize the role of lawyers in peacemaking, dispute prevention or resolution, and legal problem solving marks an absence in what is publicly recognized as among the most important roles a lawyer performs - that of a constructive lawyer. Furthermore, the Model Rules misrepresent the legal profession by assuming that representing clients in adversarial matters is the only role lawyers fulfill. Such an assumption fails to give adequate guidance to a lawyer who fulfills a broader, and perhaps, more significant role than that of a hired gun

Norms and Law: Putting the Horse Before the Cart

Law and society scholars have long been fascinated with the interplay of formal legal and informal extralegal procedures. Unfortunately, the fascination has been accompanied by imprecision, and scholars have conceptually conflated two very different mechanisms that extralegally resolve disputes. One set of mechanisms might be described as the shadow of the law, made famous by seminal works by Professors Stewart Macaulay and Marc Galanter, in which social coercion and custom have force because formal legal rights are credible and reasonably defined. The other set of mechanisms, recently explored by economic historians and legal institutionalists, might be described as order without law, borrowing from Professor Robert Ellickson\u27s famous work.1 In this second mechanism, extralegal mechanisms—whether organized shunning, violence, or social disdain—replace legal coercion to bring social order and are an alternative to, not an extension of, formal legal sanctions. One victim of conflating these mechanisms has been our understanding of industry-wide systems of private law and private adjudication, or private legal systems. Recent examinations of private legal systems have chiefly understood those systems as efforts to economize on litigation and dispute-resolution costs, but private legal systems are better understood as mechanisms that economize on enforcement costs. This is not a small mischaracterization. Instead, it reveals a deep misunderstanding of when and why private enforcement systems arise in a modern economy. This Essay provides a taxonomy for the various mechanisms of private ordering. These assorted mechanisms, despite their important differences, have been conflated in large part because there has been a poor understanding of the particular institutional efficiencies and costs of the alternative systems. Specifically, enforcement costs have often been inadequately distinguished from procedural or disputeresolution costs, and this imprecision has produced theories that inaccurately predict when private ordering will thrive and when the costs of private ordering overwhelm corresponding efficiencies. The implications for institutional theory are significant, as confusion in the literature has led to overappreciation of private ordering, underappreciation of social institutions, and Panglossian attitudes toward both lawlessness and legal development

Ethics in Alternative Dispute Resolution: New Issues, No Answers from the Adversary Conception of Lawyers’ Responsibilities

The romantic days of ADR appear to be over. To the extent that proponents of ADR, like myself, were attracted to it because of its promise of flexibility, adaptability, and creativity, we now see the need for ethics, standards of practice and rules as potentially limiting and containing the promise of alternatives to rigid adversarial modes of dispute resolution. It is almost as if we thought that anyone who would engage in ADR must of necessity be a moral, good, creative, and, of course, ethical person. That we are here today is deeply ironic and yet, also necessary, as appropriate dispute resolution struggles to define itself and insure its legitimacy against a variety of theoretical and practical challenges

Ethics and Professionalism in Non-Adversarial Lawyering

Traditional notions and rules of professionalism in the legal profession have been premised on particular conceptions of the lawyer\u27s role, usually as an advocate, occasionally as a counselor, advisor, transaction planner, government official, decision maker and in the recent parlance of one of this symposium\u27s participants-a statesman [sic]. \u27 As we examine what professionalism means and what rules should be used to regulate its activity, it is important to ask some foundational questions: For what ends should our profession be used? What does law offer society? How should lawyers exercise their particular skills and competencies

Order Without Judges: Customary Adjudication

Scholarship on custom and law has largely focused on the creation and enforcement of informal rules, demonstrating and in some cases endorsing the existence of order without law. But creating and enforcing rules are only two of the three functions of governance, corresponding roughly with what in other contexts are called the legislative and executive branches. The third function—adjudication—has not played such a prominent role in the scholarly literature on informal governance. As one leading scholar puts it: Custom has no constitution or judges. But if customs can be created and enforced by nonstate actors, why should scholars assume that formal (that is, noncustomary) courts are the only institutions that do or should adjudicate those customs? This Essay seeks to describe and emphasize the role of customary adjudication, the third branch of customary governance. In doing so, it has three main goals: first, to argue that customary governance can be understood in terms of the same three functions familiar to students of formal governance; second, to deliver a preliminary and tentative account of the third of these branches; and finally, to suggest that existing scholarship on custom and law has given comparatively little attention to the functions and forms of customary adjudication. If successful, those contributions should set the stage for future descriptive and normative work

The Minnesota News Council: Principles, Precedent and Moral Authority

This study addresses the Minnesota News Council’s moral authority–that is, its ability to serve as a referent for the ethical or moral choices of others–and how its authority might be affected by perceptions of its legitimacy. After analyzing all of the Council’s 125 written determinations, we argue that the Council’s legitimacy and authority could be enlarged by clearer statements of ethical principles, explicit expressions of standards of conduct, and more consistent references to past determinations

Ethics for Examiners

The inquisitorial bankruptcy examiner is sui generis in our system. He faces unique ethical quandaries and considerations, which require a code of ethics tailored to his role if he is to achieve fully the promise of improving Chapter 11 through the introduction of inquisitorial investigative methods. This Article attempts to point the way toward guidelines that will regulate the conduct of examiners to mitigate real, potential, and perceived abuses

Regulation in the Shadows of Private Law

With proponents of deregulation ascendant, both domestically and around the world, private regulation appears to be an attractive solution to a seemingly intractable problem—assuming it is or can be effective. This Article adds an important corrective to standard accounts of private legal regulation and its effectiveness. Existing scholarship generally looks to the formal contract terms as the key to understanding private regulation and to evaluating its impact. This practice needs to be rethought. The relationship between contracting parties, as well as the regulatory authority that one party exerts over the other, can be quite different than the relationship described by the formal contract terms. This Article illustrates the problem with the scholarly assumption that formal contract language reliably describes the private regulatory relationships they establish. It does so through an in-depth analysis of a form of private contracting with great regulatory potential: the loan guarantees and associated political risk insurance policies underwritten by the World Bank. Such policies are purchased by corporations to mitigate the risks associated with doing business in under-regulated jurisdictions. Because, on their face, the terms of these policies require socially responsible corporate behavior, they appear to be a promising form of private regulation, succeeding in imposing significant obligations on corporations that traditional public regulation has failed to mandate. But these formal terms reveal little about the true nature of the private regulatory relationships they create. Even though the policy terms themselves are unlikely ever to be formally enforced, the policyholders often have significant incentives to go above and beyond the contract requirements if requested to do so by the underwriter. But whether they are in fact being asked to do so, and whether they are in fact complying if they are being asked, is unclear. The World Bank provides considerable transparency surrounding the terms of its policies and the process for obtaining them. However, little information is available regarding its post-contracting interactions with policyholder corporations. Providing data about these interactions could be done relatively easily and without infringing upon the confidentiality interests that it, and its policyholders, may have. To the extent that entities like the World Bank are serious about their corporate social responsibility policies, it is imperative that information about the actual contracting relationship—and not just the formal contract terms—be made available

Consumer protection and financial literacy : lessons from nine country studies

The recent turmoil in financial markets worldwide has emphasized the need for adequate consumer protection and financial literacy for long-term stability of the financial sector. This Working Paper aims to summarize key lessons from reviews of consumer protection and financial literacy in nine middle-income countries of Europe and Central Asia (Azerbaijan, Bulgaria, Croatia, the Czech Republic, Latvia, Lithuania, Romania, the Russian Federationand Slovakia). All the country assessments used a systematic common approach, based on a set of Good Practices for Consumer Protection and Financial Literacy developed by the World Bank's Europe and Central Asia Region. The objective of the Working Paper is to contribute to the international dialog on strengthening financial consumer protection and financial literacy in emerging markets.A financial consumer protection regime should meet three objectives. First, consumers should receive accurate, simple, comparable information of a financial service or product, before and after buying it. Second, consumers should have access to expedient, inexpensive and efficient mechanisms for dispute resolution with financial institutions. Third, consumers should be able to receive financial education when and how they want it. A common challenge among the nine countries is the need of an adequate institutional structure for financial consumer protection. However independent of the specific institutional structures, financial consumers should have one single agency where to submit complaints and inquiries. Financial institutions should be required to apply fair, non-coercive and reasonable practices when selling and advertising financial products and services to consumers. Personal data should also be carefully protected.Financial Literacy,Access to Finance,Emerging Markets,Debt Markets,Bankruptcy and Resolution of Financial Distress