Unsettling Questions Regarding Lawyer Civil Claim Settlement Authority

While often presumed or declared to be quite settled, many of the guidelines on lawyer civil claim settlement authority are unsettled, leaving unresolved questions for lawyers, clients, and the courts. The upcoming publication and general circulation by the ALI of The Law Governing Lawyers will help, as may any attention directed toward settlements by the ABA Ethics 2000 Commission, now at work considering possible alterations of the Model Rules of Professional Conduct. Recent experience suggests that state and federal court rulings are not likely to settle much of the present uncertainty. Our review of the prevailing lawyer civil settlement guidelines suggests the need for certain new initiatives. First, the guidelines should predominantly originate in state supreme courts. At the very least, their general parameters should usually appear in written rules on the professional conduct of lawyers. For now, federal courts should defer to these state rules unless there are very significant federal interests. Second, as a starting point, state courts should carefully consider the ALI pronouncements in The Law Governing Lawyers. Lawyers generally are not like other agents nor are lawyer retainer and subsequent legal service agreements generally like other contracts. Unlike most other agents, the conduct of lawyers with third persons on behalf of clients is governed not only by the directives of clients, but also by mandatory professional conduct standards. Furthermore, unlike most other contracts, lawyer-client legal service agreements are constrained by public policies found in these same standards, including obligations on information disclosure (from lawyer to client) and on confidentiality (by the lawyer). Thus, lawyers should keep clients informed of settlement talks even if the relevant legal services agreement does not expressly indicate such an obligation. Moreover, lawyers should not reveal the nature of their delegated authority to the adversaries of their clients even when these adversaries have good reason to know. In employing the ALI pronouncements, sensitivity to terminology will be necessary. Distinctions between delegated and undelegated authority, as well as between the varying forms of both delegated and undelegated authority should be set forth. These distinctions need not appear in written laws, but rather may be recognized in accompanying commentaries (which hopefully will dispel any notions that clients always make the civil claim settlement "decisions"). Third, in civil claim settlement settings involving the interests of two or more American governments, issues of lawyer civil claim settlement authority should normally be resolved with the lawyer professional conduct laws of the state where the relevant civil claim is pending. Otherwise, the choice of law standards in Model Rule 8.5(b) should resolve this issue. Fourth, when the general written rule (or code) provisions on lawyer conduct are supplemented (and, at times, overridden), the general laws should cross-reference, to the extent feasible, the special laws so there can be appropriate integration of all applicable standards

The Authority of Illinois Lawyers to Settle Their Clients' Civil Claims: On Principles Not Quite Settled

The Illinois laws guiding lawyer civil claim settlement authority are not well settled and should be reexamined to provide lawyers with clear standards when they agree to a settlement on behalf of their clients. A comprehensive rule making initiative pursued by the Illinois Supreme Court is the best vehicle to settle the principles of lawyer conduct. In undertaking such an initiative, the Illinois Supreme Court should clarify issues of actual authority, apparent authority, burdens of proof, and open court presumptions. Furthermore, the Illinois Supreme Court should address other laws directly impacting upon, but unrelated to, lawyer settlement authority, including laws regarding choice of law, separation of powers, required writings, compelled attendance and judicial enforcement issues. The principles governing civil claim settlements will become clear and settled only after such a comprehensive revision is complete

The Substantive Elements in the New Special Pleading Laws

Recently there have emerged new special pleading standards applicable to discrete substantive law claims or to certain remedial requests. These norms often raise troubling procedure/substance questions in separation of powers and choice of law settings. The questions are especially difficult where the standards are hard to locate; to distinguish from nonpleading laws; and to differentiate by rationale(s). In the separation of powers setting, these questions must be approached only after undertaking a distinct and detailed analysis of each relevant government's allocation of lawmaking duties. American governments differ significantly in these allocations. In the choice of law setting, these questions can arise in circumstances involving Erie, reverse-Erie and choice of state law. The procedure/substance issues here must be approached only after undertaking a close look at functions, not labels; at the possibility of false conflicts; and without a parochial view as to the possible location or designation of the special pleading norms of other interested governments

Private Enforcement in the States

Scholarship on U.S. litigation and civil procedure has scarcely studied the role of private enforcement in the states. Over the past two decades, scholars have established that, almost uniquely in the world, the U.S. often relies on private parties rather than administrative agencies to enforce important statutory provisions. Take your pick of any area in American governance, and you will find private rights of action: environmental law, civil rights, employment discrimination, antitrust, consumer protection, business competition, securities fraud, and so on. In each of these areas, Congress has deliberately empowered private plaintiffs instead of, or in addition to, government agencies. Yet, despite the vast importance of private enforcement at the federal level, we have no account of how prevalent private rights of action are in state law. And this question is particularly pressing now that a number of states— triggered by the Texas abortion law S.B. 8—are using private enforcement to weaken constitutional rights. Is private enforcement a meaningful method of governance in the states or just at the federal level? Which political conditions lead to the adoption of state private enforcement? And why does it exist? In this Article, we conduct the first systematic empirical investigation of the hidden world of state private enforcement. Using computational linguistics and machine learning, we identify private-enforcement provisions across a unique dataset of all fifty states’ laws going back to 2003. Our results show that private enforcement is ubiquitous at the state level. Even by conservative estimates, there are more than 3,500 private-rights-of-action provisions in state law, ranging from traditional areas like antitrust and employment all the way to privacy violations, lawsuits against police, gravedigging, veterinary care, and waste disposal. Counterintuitively, private-enforcement provisions are expanding the most in an ideologically mixed group of small states like Utah, New Hampshire, Connecticut, Nebraska, and Wisconsin. One takeaway from these results is that state private enforcement is strikingly different from that of the federal system—it is sprawling, messy, and even chaotic. We also use our data to test conventional theories behind private-enforcement adoption. The most prominent one—the separation-of-powers theory—posits that Congress enacts private rights of action when the executive is controlled by another political party. Our empirical bottom line is that we broadly fail to find evidence in favor of any of the theories, including separation of powers. Regression analyses based on our best estimates of private-enforcement provisions do not yield a statistically meaningful relationship between divided government and private-enforcement adoption. And, while some of our measures for fee-shifting and damage clauses unearth some evidence pointing toward the separations-of-powers theory, our preferred measures of such clauses do not. We even find no correlation between an increased adoption of private enforcement and legislative control by either Democrats or Republicans. It appears the political economy of private enforcement in the states diverges radically from that of the federal government. With an eye toward future theorizing and empirical testing, we put forth three institutional differences between the states and federal government that may explain this divergence. And we sketch a future comparative research agenda focused on studying federal–state divergence. Reaffirming the central role that private enforcement plays in our system reveals the need to reorient civil procedure and incorporate state private rights of action more explicitly into its core teachings

Certificates of Confidentiality: Protecting Human Subject Research Data in Law and Practice

The federal Certificate of Confidentiality plays an important role in research on sensitive topics by authorizing researchers to refuse to disclose identifiable research data in response to subpoenas in any legal setting. However, there is little known about how effective Certificates are in practice. This article draws on our legal and empirical research on this topic to fill this information gap. It includes a description of the purpose of Certificates, their legislative and regulatory history, and a summary of the few reported and unreported cases that have dealt with Certificates. In addition, we outline other statutory confidentiality protections, compare them to the Certificate\u27s protections, and analyze some of the vulnerabilities of a Certificate\u27s protections. This analysis allows us to make specific recommendations for strengthening the protections afforded to research data

Development of an in-situ system and analysis procedure for measuring ground thermal properties

Determination of the ground’s thermal conductivity is a significant challenge facing designers of Ground Source Heat Pump (GSHP) systems applied in commercial buildings. The number of boreholes and the depth and cost of each borehole are highly dependent on the ground thermal properties. Hence, depending on the geographic location and the local drilling costs, the ground thermal properties strongly influence the initial cost to install a GSHP system. In order to be able to predict ground thermal properties, an experimental apparatus has been built capable of imposing a heat flux on a test borehole, and measuring its temperature response. Parameter estimation techniques in conjunction with a two-dimensional numerical model are used to determine the thermal conductivity of the surrounding ground. Independent measurements of the soil conductivity test results are reported for several test boreholes and a laboratory experiment. An uncertainty analysis of the thermal conductivity prediction is presented.Peer reviewedMechanical and Aerospace Engineerin