The Ethics of Copyrighting Ethics Rules

The American Bar Association’s (“ABA”) practice of requiring students to purchase the Model Rules of Professional Conduct is exploitative and unethical. The ABA uses its role in training lawyers to create a situation which all but requires law students and bar applicants to purchase the organization’s own Model Rules. The fact that the Model Rules constitute a substantial revenue stream for the ABA is due less to lawyers’ desire to brush up on Model Rules of Professional Conduct, which are not laws, than to the ABA\u27s direct role in approving law schools and its indirect role in licensing lawyers. Law schools must maintain ABA-approved status to remain in business. The ABA Standards for Approval of Law Schools require that students take a course in legal ethics. Not only must law students take a course in legal ethics, but those courses must also include instruction in the ABA\u27s ethics rules. Furthermore, nearly all jurisdictions require bar applicants pass the Multistate Professional Responsibility Examination (“MPRE”) to become a licensed lawyer. The MPRE is based substantially on the Model Rules. The ABA has thus used its role in training lawyers to create a situation that essentially requires law students and bar applicants to purchase the organization’s own Model Rules. The ABA’s decision to make its ethics rules a commodity, spanning twenty years, together with the National Conference Bar Examiners (“NCBE”) desire to nationalize testing by using the Model Rules, cultivates the dangerous view that testing checks for those inclined to unethical behavior. In light of the ABA’s successful efforts to wring even more revenue from financially-burdened law students, the creation of an essay examination in ethics sounds less like a call to renewed professionalism than a pitch for another product for the NCBE to sell to state bar examiners. It is a bureaucratic culture’s last-gasp effort, one that should be rejected firmly and finally

A Uniform Rule Governing the Admission and Practice of Attorneys Before United States District Courts

This Article proposes a Rule concerning the admission to practice law in federal district courts and is designed to account for the recent changes in the practice of law. The Rule is based on the theory that lawyers will act ethically by handling only those legal matters within their competence and that clients (consumers) will act intelligently when hiring a lawyer. The proposed Rule will not result in a system of perfect client representation by lawyers in federal district courts, but will provide the federal district courts with some assurance of lawyer competence. This Article first sets forth the various and chaotic rules concerning admission of lawyers to practice law before federal district courts. Second, an examination and criticism of previous federal bar admission proposals is given. Finally, this Article explains the basis for the proposed Rule

Modern Legal Times: Making a Professional Legal Culture

Lawyers’ belief in their professionalism was fostered by the creation and development of modern legal institutions. Law schools, bar associations, organizations like the American Law Institute, as well as the system of legal directories, the regional case reporter system, and continuing legal education groups all contributed greatly to the making of a distinctly professional culture of law in America. These institutions prospered in part because of their ideological fit with the professionalizing ethos embodied in Christopher Columbus Langdell’s statement that “law is a science.” Legal institutions, then, must be evaluated through the ideological lens which encouraged and fostered the notion that lawyers were a part of a scientific enterprise. The perception that law was a science, and lawyers scientists, altered the shape of the legal profession. This shape was further altered by the development of those legal institutions which assumed the science of law. A study of selected legal institutions provides a glimpse of the relationship between the vision of law as a science and the development of the modern American legal profession and culture

Modern Legal Times: Making a Professional Legal Culture

This essay is a truncated history of the making of the American legal profession. In contrast to other efforts, the focus of this paper is on the creation and development of legal institutions which fostered the belief, by lawyers, in their professionalism. Legal institutions include not only law schools, bar associations and organizations like the American Law Institute but also the system of legal directories, the regional case reporter system developed by the West Publishing Company and continuing legal education groups. These institutions, which contributed greatly to the making of a distinctly professional culture in law in America, are closely related to the formation of the system of legal education first developed at Harvard Law School in 1870. While a number of institutions were created for instrumental reasons having nothing to do with legal education (like Hubbell’s Legal Directory and the regional reporter system), these institutions prospered in part because of their ideological fit with the professionalizing ethos embodied Langdell’s statement that "law is a science.

On the Road of Good Intentions: Justice Brennan and the Religion Clauses

Associate Supreme Court Justice William J. Brennan took the oath of office on October 16, 1956. At the time of Justice Brennan’s appointment to the Supreme Court, the Court had decided only a few cases involving the religion clauses of the first amendment, and judicial interpretation of the religion clauses had been sparing. In the thirty-four years of Justice Brennan’s tenure, the Court worked several revolutions in religion clause jurisprudence—revolutions guided by a sense of the needs of a changing society. Justice Brennan was one of several architects of a new order in establishment clause interpretation, and was the architect in reframing the constitutional view of the free exercise clause. In particular, the all-embracing interpretation of the establishment clause eventually was a catalyst used by a revisionist Supreme Court in 1990 to complete a revolution in free exercise jurisprudence. However, that revolution returned the legal interpretation of the free exercise of religion to an older order of things, and the middle level of generality used to evaluate establishment clause claims neither fostered the higher level goals of the Court nor created a specific understanding for governmental officials to guide their conduct. In other words, the good intentions by which the Supreme Court, including Justice Brennan, decided religion clause cases for much of the period between 1956 and 1990 have led to suspicion, misunderstanding, and confusion, not enlightenment, tolerance, and respect. So while Justice Brennan’s religion clause opinions were calculated to work a revolution in the sense of creating a new order, ultimately, this revolution sowed the seeds of a return to an older order. This revolution, which created Court-based protection for religious belief from legislative interference, appears destined to revolve into a situation in which religious belief is protected only through limited forms of legislative grace

Suicidal Rights

The legal debate regarding the right to commit suicide requires a critical review of the relationship between the individual and the community in present liberal political thought. Modern liberal political thought postulates that the government or community must be neutral about what is good both for members of the community and the community itself. It also postulates that there exists a sphere of action which affects solely an individual. The neutrality postulate and the harm of self/harm to others dichotomy are best explicated by John Stuart Mill in his essay On Liberty, in which Mill separates and categorizes the individual and the community. This separation and categorization has animated much of constitutional law discourse over the past twenty-five years. In fact, the dichotomy has become an archetype for structuring a number of important constitutional law decisions. However, in tort, criminal, and other nonconstitutional law areas, this model is being replaced by a more communitarian model. The use of Millian thought in constitutional law is an attempt to alleviate the tension between claims of right by an individual and claims of community interest by the state. Yet, review of legal responses to suicide will show that such an attempt (1) is in conflict with legal thought outside of constitutional law, and (2) cannot succeed in structuring a solution to a debate about a right to commit suicide, but can only result in exacerbating the tension found in American liberalism. Such a review shows that, by creating a right of autonomy which purports to dignify the individual, such a right instead cuts off the individual from other members of the community. In this situation, an ideal of reconciliation or hope for and from the community can no longer exist

A Thrice-Told Tale, or Felix the Cat

The manual I intend to present focuses on the importance of Felix Frankfurter. In discussing the historical understanding of the Justices of the Supreme Court, Professor John Henry Schlegel wrote, "there is the problem of Felix Frankfurter." Justice Frankfurter remains a problem if one wants to understand twentieth-century legal history. His influence as a law professor and intellectual activist, his influence as a member of the Court, and his influence directing the work of other constitutional scholars must be taken into account when assessing constitutional histories. In this Article, I suggest that Justice Felix Frankfurter tried to coordinate history to protect the integrity of the Court as he saw it, and that he succeeded

A Judge in Full: Wallace Jefferson of Texas

During his eight years as Chief Justice of the Texas Supreme Court, Wallace Jefferson has written a number of deeply engaging opinions that illustrate his command of the work required as an appellate judge. His work should be understood in light of the unusual division of appellate power in Texas, as well as the shifting but exclusively Republican composition of the membership of the Supreme Court of Texas during his tenure. Chief Justice Jefferson rarely speaks explicitly of his jurisprudential views, requiring the inquisitive to construct his interpretive manner and style through an evaluation of his implicit assumptions. The best evidence of those views is found not in his opinions for the court, but in his dissenting and concurring opinions. The following conclusions are made about his work: (1) his opinions reflect a wide knowledge of the law; (2) he is particular about the procedural framework through which the case has reached the Texas Supreme Court; (3) his opinions for a divided court indicate both a pragmatism and a willingness to view the common law more broadly than his dissenting colleagues; and (4) his concurring and dissenting opinions are fully realized jurisprudential efforts, which prepare a path on which a future court may travel. The opinions written by Chief Justice Jefferson seek the “underlying principle” of the law and illuminate a path for that principal. Chief Justice Jefferson justifiably enjoys a strong reputation for sagacity and thoughtfulness. He is a judge in full

The Law of Evidence and the Idea of Progress

To ask the question, "Does Evidence Law Matter?," is to assume that some sets or groups of people believe it is important while others are challenging that view. In other words, the thesis is that evidence matters, the antithesis is that it doesn't, and this symposium is one effort to craft a synthesis. My assumption is slightly different. I assume that the question is asked because legal academics believe that evidence both does and does not matter, at either or both a narrow or broad level of generality and that those academics also believe that these are irreconcilable beliefs. What interests me is how we reached this point and why legal academics believe that evidence law both does and does not matter