Making Civility Democratic

Historically, the concept of civility has been bound up with undemocratic notions of hierarchy and deference. Using insights from studies of civility by social psychologists, linguists, sociologists, historians, and political theorists, this article advances the theory that the legal profession’s self-consciously isolating professionalism ideology allows judges and disciplinary tribunals to apply deference-based notions of civility in their decisions to sanction lawyers. This theory would predict that the lawyers most likely to be sanctioned for incivility and rudeness are those from whom society expects the most deference. To test this theory, the author conducted an empirical study of every available case during a ten-year period in which a court labeled the speech or behavior of a lawyer “uncivil,” “offensive,” or “unprofessional.” In each of these cases, the same judge or disciplinary tribunal made a subsequent decision: whether to impose some form of sanction beyond merely condemning the attorney’s behavior by labeling it unprofessional or lacking in civility. Statistical analysis of this database of 315 cases confirmed the predictive value of the theory: the lawyers in this data pool at the greatest risk of being sanctioned for incivility beyond condemnation in a reported opinion were those who represented individuals (rather than entities), spoke defiantly to judges, and were accused of making false statements about the qualifications or integrity of judges. The article’s analysis of the Michigan Bar’s efforts to sanction well-known attorney Geoffrey Fieger for criticizing the judiciary, identifies other problems associated with the legal profession’s current approach to incivility. Framing these issues as primarily about attorneys’ rights to speak freely produces a doctrinal stalemate between professionalism’s laudatory goals of protecting the rule of law and the integrity of the judicial system, and their devastating First Amendment critique. The article suggests that the way around the impasse is for legal actors to be better informed by the concerns other disciplines have voiced about punishing citizens in a democratic society for being impolite, and to acknowledge the contingent nature of our judgments that certain speech or behavior is rude, impolite, offensiveness or disrespectful. The article concludes that making civility a more democratic norm requires greater restraint and respect. Unless a court’s ability to administer justice in a pending case is threatened, the government should refrain from legislating proper behavior and respect the rights of lawyers to use their freedom in ways some find inappropriate

Citations, Justifications, and the Troubled State of Legal Scholarship: An Empirical Study

Recent pedagogical, economic, and technological changes require law schools to reevaluate their resource allocations. Although typically viewed in terms of curricular changes, it is important also to focus on the very significant investment in legal scholarship and its impact. Typically, this has been determined by some version of citation counting with little regard for what it means to be cited. This Article discusses why this is a deeply flawed measure of impact. Much of that discussion is based on an empirical study the Authors conducted. The investigation found that citation by other authors is highly influenced by the rank of the review in which a work is published and the school from which the author graduated. Courts, on the other hand, are less sensitive to these markers of institutional authority. Perhaps more importantly, when the purpose of the citation is examined, a very small handful of those citing a work do so for anything related to the ideas, reasoning, methodology, or conclusions found in the cited work. This is slightly less true for judicial citation compared to citations by other authors. Given the level of current investment in legal scholarship and findings that reliance on it is far lower than citation counts would suggest, the Authors offer a number of recommendations designed to increase accountability of legal scholars and the utility of what they produce

Fostering Student Authorship

In this essay, we suggest that law schools may provide every student with the opportunity to become involved in the process of producing a publishable paper by establishing on-line repositories for student publications. We describe what such a program, which we call student authorship, might look like and further explore several primary benefits that such a program would confer upon students

Jean-Luc Godard and Critical Legal Studies (Because We Need the Eggs)

The New Wave in filmmaking is now thirty years old. Critical Legal Studies (CLS) has been around in one form or another for approximately a third of that time. We believe that by examining the avant-garde movement in film we may be able to anticipate what is in store for the avant-garde movement in law. Our conclusion is that just as New Wave film methodology has had only a limited impact on the film industry generally, CLS is likely to have a limited - perhaps only stylistic - effect on jurisprudential development. The reason for the shortfall is that Godard and the crits, in their respective ways, present a version of reality that we are unable - in a literal sense - to incorporate into our lives. Their message is, simply, that precious little in our existence is truly ordered or governed by identifiable principles. At a fundamental level, however, our psychological well-being may depend on our ability to avoid their version of reality by assuming (or imposing) an ordered reality. In the pages that follow, we more fully discuss ~he methods and aims of both Godard and the CLS movement. The similarities between Godard and his jurisprudential counterparts will be obvious but we devote a short section to highlighting the overlap. We elaborate on the need for order - even if contrived - and the failure of the modern film world to assimilate fully the contributions of Godard. We conclude by speculating about what that failure may tell us about the eventual impact of CLS

Session One: Limits on Misleading Conduct

A Transcript Featuring the Honorable Thomas Zlaket, Wm. Reece Smith, Jr., Esq., Professor Nathan Crystal, and Professor Amy Mashburn, Moderator from the symposium - Ethical Issues in Settlement Negotiations, Session One: Limits on Misleading Conduct

Making Civility Democratic

Historically, the concept of civility has been bound up with undemocratic notions of hierarchy and deference. Using insights from studies of civility by social psychologists, linguists, sociologists, historians, and political theorists, this article advances the theory that the legal profession’s self-consciously isolating professionalism ideology allows judges and disciplinary tribunals to apply deference-based notions of civility in their decisions to sanction lawyers. This theory would predict that the lawyers most likely to be sanctioned for incivility and rudeness are those from whom society expects the most deference. To test this theory, the author conducted an empirical study of every available case during a ten-year period in which a court labeled the speech or behavior of a lawyer “uncivil,” “offensive,” or “unprofessional.” In each of these cases, the same judge or disciplinary tribunal made a subsequent decision: whether to impose some form of sanction beyond merely condemning the attorney’s behavior by labeling it unprofessional or lacking in civility. Statistical analysis of this database of 315 cases confirmed the predictive value of the theory: the lawyers in this data pool at the greatest risk of being sanctioned for incivility beyond condemnation in a reported opinion were those who represented individuals (rather than entities), spoke defiantly to judges, and were accused of making false statements about the qualifications or integrity of judges. The article’s analysis of the Michigan Bar’s efforts to sanction well-known attorney Geoffrey Fieger for criticizing the judiciary, identifies other problems associated with the legal profession’s current approach to incivility. Framing these issues as primarily about attorneys’ rights to speak freely produces a doctrinal stalemate between professionalism’s laudatory goals of protecting the rule of law and the integrity of the judicial system, and their devastating First Amendment critique. The article suggests that the way around the impasse is for legal actors to be better informed by the concerns other disciplines have voiced about punishing citizens in a democratic society for being impolite, and to acknowledge the contingent nature of our judgments that certain speech or behavior is rude, impolite, offensiveness or disrespectful. The article concludes that making civility a more democratic norm requires greater restraint and respect. Unless a court’s ability to administer justice in a pending case is threatened, the government should refrain from legislating proper behavior and respect the rights of lawyers to use their freedom in ways some find inappropriate

The Criminal Defense Lawyer\u27s Fiduciary Duty to Clients with Mental Disability

This Article argues that the defense attorney has a multifaceted fiduciary duty toward the client with mental disability. That duty requires, first and foremost, respect for the autonomy of the client. The lawyer shows that respect not only by heeding the wishes of the competent client but by refusing to heed the wishes of the incompetent client. A coherent approach to the competency construct is therefore important. Following the lead of Professor Bonnie, this Article has broken competency into two components: assistance competency and decisional competency. It has defined the former concept in traditional terms, as an understanding of the criminal process and an ability to communicate relevant information, while arguing that the latter concept should be defined in terms of basic rationality and self-regard

Jean-Luc Godard and Critical Legal Studies (Because We Need the Eggs)

The New Wave in filmmaking is now thirty years old. Critical Legal Studies (CLS) has been around in one form or another for approximately a third of that time. We believe that by examining the avant-garde movement in film we may be able to anticipate what is in store for the avant-garde movement in law. Our conclusion is that just as New Wave film methodology has had only a limited impact on the film industry generally, CLS is likely to have a limited - perhaps only stylistic - effect on jurisprudential development. The reason for the shortfall is that Godard and the crits, in their respective ways, present a version of reality that we are unable - in a literal sense - to incorporate into our lives. Their message is, simply, that precious little in our existence is truly ordered or governed by identifiable principles. At a fundamental level, however, our psychological well-being may depend on our ability to avoid their version of reality by assuming (or imposing) an ordered reality. In the pages that follow, we more fully discuss ~he methods and aims of both Godard and the CLS movement. The similarities between Godard and his jurisprudential counterparts will be obvious but we devote a short section to highlighting the overlap. We elaborate on the need for order - even if contrived - and the failure of the modern film world to assimilate fully the contributions of Godard. We conclude by speculating about what that failure may tell us about the eventual impact of CLS