Legal Malpractice in a Changing Profession: The Role of Contract Principles

In little more than four decades, the field of American legal ethics has grown from unimportant into a set of of legal principles that drives the practice of law in countless respects. However, the fabric of legal ethics is threatened by a looming transformation of the legal profession. That potential restructuring may revolutionize the delivery of legal services by replacing what is essentially a unified American legal profession that has monopoly powers and corresponding responsibilities with a diverse range of legal services providers, some of whom may not be lawyers at all, others of whom may not be fully licensed, and none of whom will enjoy an exclusive franchise. Such changes, if they come to pass, will undercut the foundations upon which the law of modern legal ethics is founded. It will then be necessary to reconstitute an effective legal ethics regime for a world of disaggregated legal services

Book Review: Chinese Law on SARS by Chenglin Liu

The pace of change in contemporary China is staggering. Changes to the Chinese legal system are more difficult for foreigners to appreciate than alterations of the physical environment, in part because they are less visible, and are less frequently reported by the foreign press. Against this backdrop of unrelenting change and slow scholarly publication comes Chenglin Liu’s Chinese Law on SARS. The book analyzes the Chinese response to the Severe Acute Respiratory Syndrome (SARS) epidemic in 2003. Most notably, it examines the government’s passing of two new laws and the implementation of other legal steps to bolster the nation’s public health system

The Ethical Foundations of American Judicial Independence

When one thinks of the independence of the American judiciary, the mind focuses first on federal courts. There have been many pivotal cases in which independent judges stood against the tides of public opinion or the power of the legislative and executive branches. State judges may be less independent than their federal counterparts. Elections are frequently decided not by qualifications (about which the voting public often knows little) but by advertising. Campaign contributions that buy advertising undermine judicial independence by clouding the exercise of judicial judgment with considerations related to financial obligation. Also, state judges typically must win re-appointment or reelection on a relatively frequent basis, sometimes every four or six years. With the shadow of the next campaign looming, it can be hard to focus on doing what is right under the law and the facts, rather than doing what is popular. One factor easily overlooked, but quite significant, is the judicial ethical norms that have developed in the United States. These norms shape the conduct of American judges on a daily basis and give concrete meaning to the idea that judges should be free from undue or inappropriate pressures when performing the duties of office

Ethics in Government at the Local Level

Efforts to foster ethics in government should begin at the local, rather than the state or national, level. City officials and employees make a broad range of decisions that affect the welfare of citizens in many ways. Officials who begin their careers in local government often progress to other positions in state or national settings. If proper values and ethical practices have been ingrained in those officials when they first serve in local government, there is reason to hope that the same high standards and practices may follow them when their careers move to a broader stage. This Article offers a distinctly American perspective on legal regulation of ethics in government at the local level. The first assumption is that all persons should be treated equally by the government. The current prevailing view that no one should enjoy an advantage based on special connections to those in office is a result of powerful streams of social development. The second key assumption animating American debates about ethics in government is that law is a proper tool for ensuring good conduct

Standardized Tests, Erroneous Scores, and Tort Liability

Hopes and dreams often hinge on the accuracy of standardized test scores. Results frequently determine, or greatly influence, whether a student progresses to the next grade level, attains a diploma, gains admission to a college or university, or can practice a profession after graduation. Because standardized tests are relied upon in professional credentialing, such as teaching certification and admission to the bar, erroneous scores pose a further risk that the public will not be protected from deficient practitioners and that qualified aspirants will be barred from their callings

On Race, Gender, and Radical Tort Reform: A Review of Martha Chamallas & Jennifer B. Wriggins, The Measure of Injury: Race, Gender, and Tort Law

The Measure of Injury is an intellectual tour de force of gender and race-based jurisprudence applied to critical issues in the law of torts. In this volume, Martha Chamallas and Jennifer B. Wriggins shed light on numerous issues related to law governing accidents and intentional injuries, while offering insights into the American tort system and the challenges it faces. Chamallas and Wriggins draw upon the feminist theory, critical race theory, and general critical theory in analyzing tort doctrines and evaluating potential reforms. The authors explore how racial perceptions can distort even seemingly neutral inquiries, such as those related to factual causation. In their review of tort precedent related to race and gender, the authors explore a number of important historical topics: the doctrine of coverture, the “nervous-shock” cases, wrongful-death cases, and wrongful-birth cases. Viewed in all of its complexity, the authors’ argument seems to be that matters of race should be taken into account by tort law when cognizance will benefit persons who are members of classes that have historically suffered from discrimination, but not otherwise. To the extent that the author’s arguments are found to be persuasive, The Measure of Inquiry may play a key role in revolutionizing the compensation of intentional injuries and accidents

The Ancient Magna Carta and the Modern Rule of Law: 1215 to 2015

This article argues the text of the Magna Carta, now 800 years old, and reflects many of the values that are at the center of the modern concept of the Rule of Law. A careful review of its provisions reveals the Magna Carta demonstrates a strong commitment to the resolution of disputes based on rules and procedures that are consistent, accessible, transparent, and fair; and to the development of a legal system characterized by official accountability and respect for human dignity

Cybersecurity, Identity Theft, and the Limits of Tort Liability

This article considers to what extent database possessors (such as credit card companies and universities) can be held liable for harm caused to data subjects (such as consumers, applicants, and alumni) when information relating to those persons is hacked or otherwise subject to improper access. Addressing common-law and statutory sources (including new legislation in 17 states) the article clearly differentiates the duty to safeguard data from the duty to notify data subjects that the security of their information has been breached. By analogy to the “medical-monitoring damages” which some states award in toxic-exposure cases, the article argues that “security-monitoring damages” should be available in database-intrusion cases. More specifically, the article proposes that, in cases of ordinary negligence, the interests of society will be best served by limiting recoverable economics losses to the cost of security-monitoring damages once a database possessor discloses to the affected individual the fact that data has been improperly accessed. This approach will encourage database possessors to discover and reveal instances of data intrusion. It will also place data subjects in a position to protect their own interests by monitoring their economic and personal security when there is heightened vulnerability

Americans Abroad: International Educational Programs and Tort Liability

In recent decades, the number of foreign programs operated by American colleges and universities has greatly expanded. There is reason to expect the number and size of foreign educational programs to increase. The proliferation of collegiate international study has been paralleled in American society by heightened concerns—sometimes ill-founded—about the risks of tort liability. Program providers have focused increasingly on the threat of being sued for damages based on actions or omissions related to college and university activities generally or to study abroad in particular. Until lately, there were few reported cases involving claims arising from foreign educational ventures. However, several recent disputes are now memorialized in court opinions

"Absolute and Perfect Candor" to Clients

Does an attorney owe a client a duty or "absolute and perfect candor?" More than a dozen recent cases from Texas, California, Oklahoma, and the District of Columbia ha\e used this phrase to describe an attorney's fiduciary obligations. "Candor" entails a duty to disclose information without request as well as a duty to respond honestly when an inquiry is made,' If the phrase "absolute and perfect candor" is read literally and without qualification, it cannot possibly be an accurate statement of an attorney's obligations under all circumstances. An unbending requirement of "absolute and perfect candor" would also leave no room for competing interests favoring the privacy of information that a client might in some sense want or even need to know