Out of Practice: The Twenty-First-Century Legal Profession

Lawyering has changed dramatically in the past century, but scholarly and regulatory models have failed to keep pace. Because these models focus exclusively on the practice of law as defined by the profession, they ignore many types of work that today\u27s lawyers perform and many sources of ethical tension they encounter. To address these shortcomings, I examine significant twentieth- and twenty-first-century social dynamics that are fundamentally altering contemporary lawyers\u27 work by broadening and blurring the boundary between law and business. Within the resulting boundary zone, a growing number of lawyers occupy roles for which legal training is valuable but licensure is not required. I argue that the ambiguity surrounding these roles—regarding what constitutes legal practice, what roles lawyers play, and what professional obligations attach—creates opportunities for abuse by individual lawyers and for ethical arbitrage by sophisticated corporate clients. The proliferation of these roles gives rise to key ethical tensions, ignored by existing models of the profession, that threaten to extinguish the profession\u27s public-facing orientation in favor of its private interests. I conclude that we cannot effectively understand and regulate the twenty-firstcentury legal profession until we move beyond the rigid constraints of existing models and begin to study the full range of roles and work settings—both in and out of practice—that today\u27s lawyers occupy

Just Conduct: Regulating Bench-Bar Relationships

Judicial conduct, particularly judicial misconduct, has long drawn public attention and concern. In the past few years, media coverage has brought the issue to the forefront, highlighting a reality that the legal profession might prefer to avoid-that problematic judicial conduct frequently implicates lawyers. Recent news stories have reported interactions between judges and lawyers that are clearly prohibited by the codes of judicial conduct: They entail bribery, improper financial ties, and even improper sexual relationships. Recent reports have also covered problematic interactions between judges and lawyers that are not proscribed and are, in fact, encouraged by the codes of judicial conduct- codes that prohibit similar ties between judges and other private individuals. Perhaps unsurprisingly, these codes of judicial conduct, adopted in every state, are the product of a reform movement driven almost exclusively by the legal profession

Paradise Lost in The Patent Law? Changing Visions of Technology in The Subject Matter Inquiry

In recent decades, the Patent and Trademark Office and the federal courts have dramatically expanded the scope of patentable subject matter—the set of inventions eligible for patent protection. Existing scholarship has taken a narrow view of this expansion. Scholars argue on efficiency grounds that without more meaningful limits on the scope of patentable subject matter, future invention will be impeded rather than encouraged. This Article takes a broader view of the subject matter inquiry, tracing its historical development and its changing theories of technology, from the patent system’s inception to the present. This Article demonstrates that through these theories of technology the subject matter inquiry has shaped the patent system’s vision of the social role and meaning of technology, and defined the social good that the patent law serves. While the early inquiry placed the patent system in the service of a broad array of social values, the current inquiry places it in the exclusive service of economic value. This change, in turn, has facilitated the expansion of patent rights into all aspects of human life. Recognizing the discontent that this expansion has caused, this Article proposes that we consider legislative reform of the subject matter inquiry to better align its theory of technology with that of contemporary society

Reconstructing Professionalism

Amidst widespread calls of crisis in the American legalprofession, scholars, commentators and bar leaders areproposing that we rely on market logic to address theproblems and challenges of contemporary lawyering.Proposed reforms seek to unbundle, commoditize, andautomate as many legal services as possible; to allow non-lawyers to capitalize law firms and litigation; and topermit services providers with limited or no legal trainingto perform a wide range of legal tasks. In much the sameway that policymakers in the 1980s and 1990s came toaccept market-based deregulatory reforms to industriesacross the country, today\u27s ethics committees and law firms are reconstructing lawyering as a commodityexchange, disciplined primarily by the market.This Article examines and critiques this growing trend.It argues that the market vision of lawyering ignores andundermines important democratic roles that lawyers playin enabling and empowering citizens to participate in thelegal system. Individually and collectively, lawyers guideclients through the legal system as trusted advisors andadvocates; they empower clients against powerfuladversaries or state over-reaching; they challenge andconstrain client demands that contravene the law; andthey involve clients in the creation of law on the books andin action. Lawyers perform this work by employingrational dynamics that market exchange fails to accountfor, such as trust, loyalty, judgment, empowerment, andservice. These dynamics are undermined or eliminatedwhen we ground professional regulation in a conception oflawyering as an arms\u27length exchange of services for a fee.Drawing on nineteenth century social thought thataccompanied the rise of the modern professions, thisArticle advocates a different approach to reform. Theprofessions were initially embraced as institutions thatcould intermediate between the state, society, and theeconomy, without being captured by the market. Buildingon this vision, modern reforms should seek to harness andconstrain market forces in productive ways, rather thanallowing market forces to dictate the profession\u27s future indeleterious ways. Properly reconstructed, the legalprofession can and should facilitate and mediaterelationships pursuant to law rather than wealth orpower

Paradise Lost in The Patent Law? Changing Visions of Technology in The Subject Matter Inquiry

In recent decades, the Patent and Trademark Office and the federal courts have dramatically expanded the scope of patentable subject matter—the set of inventions eligible for patent protection. Existing scholarship has taken a narrow view of this expansion. Scholars argue on efficiency grounds that without more meaningful limits on the scope of patentable subject matter, future invention will be impeded rather than encouraged. This Article takes a broader view of the subject matter inquiry, tracing its historical development and its changing theories of technology, from the patent system’s inception to the present. This Article demonstrates that through these theories of technology the subject matter inquiry has shaped the patent system’s vision of the social role and meaning of technology, and defined the social good that the patent law serves. While the early inquiry placed the patent system in the service of a broad array of social values, the current inquiry places it in the exclusive service of economic value. This change, in turn, has facilitated the expansion of patent rights into all aspects of human life. Recognizing the discontent that this expansion has caused, this Article proposes that we consider legislative reform of the subject matter inquiry to better align its theory of technology with that of contemporary society

The Institutional Politics of Federal Judicial Conduct Regulation

The conventional story of the federal judiciary\u27s institutional growth begins with Marbury v. Madison and Chief Justice Marshall\u27s establishment of judicial review. From there, it proceeds through the history of landmark Supreme Court decisions that pushed back against the power of the political branches and advanced the judiciary\u27s institutional position. In this familiar story, the judiciary participates in the separation of powers through its case law

RESEARCH IN THE FIELD OF MEDICINE THAT ELICIT LEGISLATIVE CHANGES IN THE HEALTH BUDGET

Regarding the psychological factors as etiologic agents that trigger the somatic diseases has gained more and more ground in the past few years, successfully repeating that the human being is a bio-psycho-social entity. In order to render the psychological interventions more efficient for the management of the diabetes mellitus diseases, we must detect and modify those configurations of the early maladaptive schemes and coping styles that stick together in the so-called acquired vulnerability which makes the person liable to an inappropriate reaction against stress

Advocacy revalued

A central and ongoing debate among legal ethics scholars addresses the moral positioning of adversarial advocacy. Most participants in this debate focus on the structure of our legal system and the constituent role of the lawyer-advocate. Many are highly critical, arguing that the core structure of adversarial advocacy is the root cause of many instances of lawyer misconduct. In this Article, we argue that these scholars’ focuses are misguided. Through reflection on Aristotle’s treatise, Rhetoric, we defend advocacy in our legal system’s litigation process as ethically positive and as pivotal to fair and effective dispute resolution. We recognize that advocacy can, and sometimes does, involve improper and unethical use of adversarial techniques, but we demonstrate that these are problems of practice and not of structure and should be addressed as such

Advocacy Revalued

A central and ongoing debate among legal ethics scholars addresses the moral positioning of adversarial advocacy. Most participants in this debate focus on the structure of our legal system and the constituent role of the lawyer-advocate. Many are highly critical, arguing that the core structure of adversarial advocacy is the root cause of many instances of lawyer misconduct. In this Article, we argue that these scholars’ focuses are misguided. Through reflection on Aristotle’s treatise, Rhetoric, we defend advocacy in our legal system’s litigation process as ethically positive and as pivotal to fair and effective dispute resolution. We recognize that advocacy can, and sometimes does, involve improper and unethical use of adversarial techniques, but we demonstrate that these are problems of practice and not of structure and should be addressed as such