How to Make Rules for Lawyers: The Professional Responsibility of the Legal Profession

When considering the professional responsibilities of American lawyers, two questions often arise: (1) whether a particular rule strikes the right balance among the multiple interests it purports to reconcile and (2) whether in a particular circumstance a lawyer\u27s or law firm\u27s behavior complied with the governing rules. This article explores a third question. What is the responsibility of the profession itself when, through its various institutions and especially bar associations, it asks courts, lawmakers, or agencies to adopt particular rules governing the conduct of lawyers? Rather than exploring the discussing the conduct of individual lawyers or the correctness of any particular rule this Article concerns the professional responsibility of the legal profession itself and suggests how the work of devising the rules might be improved Addressing the rules the legal profession should follow when drafting the rules it will propose for itself represents a practical contribution to the literature. The bar can do a better job. Improving the intellectual quality of arguments regarding suggested rules, placing an increased emphasis on empirical data, giving attention to the burden of proof, diversifying ABA committees to include non-lawyers, circulating proposals to non-lawyers and mainstream commentators, and opening the House of Delegates listserv would allow the profession to credibly fulfill its public responsibility to the courts and the system of justice. The ABA should institute a permanent Committee on the Future of the Profession. In addition to facilitating empirical research, such a committee should explore the effect of virtual presence on the traditional geo-centric basis for licensing lawyers, study licensing law workers to perform certain tasks for which a traditional legal education should not be required, study and make recommendations for the regulation of companies that generate online legal documents for customers, and review the governance procedures that the Association uses when it proposes amendments to the Model Rules or to court rules or legislation whose focus is the conduct of lawyers

A Tendency to Deprave and Corrupt: The Transformation of American Obscenity Law from Hicklin to Ulysses II

This article concerns questions of artistic and literary freedom surrounding the Ulysses cases. My interest is how the courts responded to censorship charges once they were leveled, or more particularly, how and why they failed to respond in a mindful way. That is, why did they fail to bring anything that can be recognized as the rule of law to the issues raised in the contests before them? Where did American courts find the law? What weight did they give to the right to speak and publish? What conditions, in addition to the skills of Morris Ernst, contributed to the federal rulings that freed Ulysses, rulings that began (but only began) a decades-long retreat from the Hicklin straitjacket and toward greater artistic and literary freedom? To understand the Ulysses cases it is necessary to appreciate their antecedents, especially the Hicklin decision in England and three subsequent obscenity prosecutions (two state and one federal) in nineteenth-century New York. These four cases are discussed next. The Article then moves to its two main acts: the prosecution of Anderson and Heap and the federal court decisions that allowed Random House safely to publish Ulysses in the United States. The second of these federal decisions, from the Second Circuit Court of Appeals, may be seen as the progenitor of modern obscenity law. Less prominent cases in the story are examined throughout

Can a Good Lawyer Be a Bad Person

A Review of The Good Lawyer: Lawyers\u27 Roles and Lawyers\u27 Ethics edited by David Luban and The Adversary System: A Description and Defense by Stephan Landsma