scispace - formally typeset
Search or ask a question
Author

Benjamin H. Barton

Other affiliations: Fordham University
Bio: Benjamin H. Barton is an academic researcher from University of Tennessee. The author has contributed to research in topics: Legal profession & Supreme court. The author has an hindex of 10, co-authored 35 publications receiving 249 citations. Previous affiliations of Benjamin H. Barton include Fordham University.

Papers
More filters
Book
31 Dec 2010
TL;DR: A short history of lawyer regulation can be found in this article, where the authors describe an ambient bias and the theory of the lawyer-judge bias in criminal and civil law.
Abstract: 1 An ambient bias 2 The theory 3 Constitutional criminal procedure 4 Civil constitutional law 5 A short history of lawyer regulation 6 Current lawyer regulation 7 Torts 8 Evidence and civil procedure 9 The business of law 10 Enron's sole survivors 11 Complexity and the lawyer-judge bias 12 Rays of hope, ramifications and possible solutions

21 citations

Journal ArticleDOI
TL;DR: The lawyer-judge hypothesis as mentioned in this paper states that there is a plausible result in this case that will significantly affect the interests of the legal profession (positively or negatively) if so, the case will be decided in the way that offers the best result for the professional profession.
Abstract: This Article answers this question with the following jurisprudential hypothesis. Many legal outcomes can be explained, and future cases predicted, by asking a very simple question: is there a plausible result in this case that will significantly affect the interests of the legal profession (positively or negatively)? If so, the case will be decided in the way that offers the best result for the legal profession. The article presents theoretical support from the new institutionalism, cognitive psychology and economic theory. The Article then gathers and analyzes supporting cases from areas as diverse as constitutional law, torts, professional responsibility, employment law, evidence, and criminal procedure. The questions considered include: why are lawyers the only American profession to be truly and completely self-regulated? Why is it that the attorney-client privilege is the oldest and most jealously protected professional privilege? Why is it that the Supreme Court has repeatedly struck down bans on commercial speech, except for bans on in-person lawyer solicitations and some types of lawyer advertising? Why is it that the Miranda right to consult with an attorney is more protected than the right to remain silent? Why is legal malpractice so much harder to prove than medical malpractice? The Article finishes with some of the ramifications of the lawyer-judge hypothesis, including brief consideration of whether our judiciary should be staffed by lawyer-judges at all.

20 citations

Journal ArticleDOI
TL;DR: In this article, the authors present the Ontario Civil Needs Project: A Comparative Analysis of the 2009 Survey Data, and the authors propose a front-end strategy for improving consumer access to justice.
Abstract: Foreword The Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada List of Contributors Part 1: Introduction Michael Trebilcock (University of Toronto), Anthony Duggan (University of Toronto), and Lorne Sossin (Dean of Osgoode Hall Law School) Part 2: Defining the Problem - What are the Unmet Legal Needs? Chapter 1: Caught in the Middle: Income, Justiciable Problems and the Use of Lawyers Pascoe Pleasance (University College London) and Nigel J. Balmer (University College London) Chapter 2: The Ontario Civil Needs Project: A Comparative Analysis of the 2009 Survey Data Jamie Baxter, Michael Trebilcock, and Albert Yoon (University of Toronto) Part 3: \"Front-End\" Proactive Solutions Chapter 3:Front-End Strategies for Improving Consumer Access to Justice Anthony Duggan (University of Toronto) and Iain Ramsey (University of Kent) Part 4: Non-Lawyer Forms of Assistance Chapter 4: Opportunities and Challenges: Non-Lawyer Forms of Assistance in Providing Access to Justice for Middle-Income Earners Russell Engler (New England Law) Chapter 5: Middle Income Access to Civil Justice: Implications of Proposals for the Reform of Legal Aid in England and Wales Roger Smith Part 5: Access to Lawyers Chapter 6: Should Legal Services be Unbundled? Samreen Beg and Lorne Sossin Chapter 7: Money Isn't Everything: Understanding Moderate Income Households' Use of Lawyers' Services Rebecca Sandefur (American Bar Foundation) Chapter 8: Legal Services Plans: Crucial Time Access to Lawyers and the Case for a Public-Private Partnership Paul Vayda (CAW Legal Services Plan) and Stephen Ginsberg (CAW Legal Services Plan) Part 6: Reforming the Dispute Resolution Process Chapter 9: Reforming Family Dispute Resolution in Ontario: Systemic Changes and Cultural Shifts Nicholas Bala (Queen's University) Chapter 10: Commentary on Bala Justice George Czurtin (Justice of the Superior Court of Justice - Ontario) Chapter 11: Access to Justice for Small Amount Claims in the Consumer Marketplace: Lessons from Australia Justin Malbon (Monash University) Chapter 12: Challenges in Small Claims Court System Design: Does One Size Fit All? Shelley McGill (Deputy Judge of the Ontario Small Claims Court) Part 7: Creating Change and Reform of the Justice System Chapter 13: Growing Ontario Legal Aid into the Middle Class: A Proposal for Public Legal Expenses Insurance Sujit Choudry (University of Toronto), Michael Trebilcock, and James Wilson Part 8: The Options Papers Noel Semple (York University) and Carol Rogerson (University of Toronto), Middle Income Access to Justice: Policy Options with respect to Family Law Judith McCormack (University of Toronto) and Azim Remani (University of Toronto), Middle Income Access to Justice: Policy Options with Respect to Employment Law Anthony Duggan, Azim Remani and Dennis Kao (Sidley Austin LLP), Middle Income Access to Justice: Policy Options with respect to Consumer and Debtor-Creditor Law Part 9: Select Bibliography

18 citations

Posted Content
TL;DR: The Half-Blood Prince as mentioned in this paper is a novel about a wizarding government that is completely dominated by the Ministry of Magic and completely unrepresentable, with no discernable executive or legislative branch, and no elections.
Abstract: This Essay examines what the Harry Potter series (and particularly the most recent book, The Half-Blood Prince) tells us about government and bureaucracy. There are two short answers. The first is that Rowling presents a government (The Ministry of Magic) that is 100% bureaucracy. There is no discernable executive or legislative branch, and no elections. There is a modified judicial function, but it appears to be completely dominated by the bureaucracy, and certainly does not serve as an independent check on governmental excess. Second, government is controlled by and for the benefit of the self-interested bureaucrat. The most cold-blooded public choice theorist could not present a bleaker portrait of a government captured by special interests and motivated solely by a desire to increase bureaucratic power and influence. Consider this partial list of government activities: a) torturing children for lying; b) utilizing a prison designed and staffed specifically to suck all life and hope out of the inmates; c) placing citizens in that prison without a hearing; d) allows the death penalty without a trial; e) allowing the powerful, rich or famous to control policy and practice; f) selective prosecution (the powerful go unpunished and the unpopular face trumped-up charges); g) conducting criminal trials without independent defense counsel; h) using truth serum to force confessions; i) maintaining constant surveillance over all citizens; j) allowing no elections whatsoever and no democratic lawmaking process; k) controlling the press. This partial list of activities brings home just how bleak Rowling's portrait of government is. The critique is even more devastating because the governmental actors and actions in the book look and feel so authentic and familiar. Cornelius Fudge, the original Minister of Magic, perfectly fits our notion of a bumbling politician just trying to hang onto his job. Delores Umbridge is the classic small-minded bureaucrat who only cares about rules, discipline, and her own power. Rufus Scrimgeour is a George Bush-like war leader, inspiring confidence through his steely resolve. The Ministry itself is made up of various sub-ministries with goofy names (e.g., The Goblin Liaison Office or the Ludicrous Patents Office) enforcing silly sounding regulations (e.g., The Decree for the Treatment of Non-Wizard Part-Humans or The Decree for the Reasonable Restriction of Underage Sorcery). These descriptions of government jibe with our own sarcastic views of bureaucracy and bureaucrats: bureaucrats tend to be amusing characters that propagate and enforce laws of limited utility with unwieldy names. When you combine the light-hearted satire with the above list of government activities, however, Rowling's critique of government becomes substantially darker and more powerful. Furthermore, Rowling eliminates many of the progressive defenses of bureaucracy. The most obvious omission is the elimination of the democratic defense. The first line of attack against public choice theory is always that bureaucrats must answer to elected officials, who must in turn answer to the voters. Rowling eliminates this defense by presenting a wholly unelected government. A second line of defense is the public-minded bureaucrat. Some theorists argue that the public choice critique ignores what government officials are really like. They are not greedy, self-interested budget-maximizers. Instead, they are decent and publicly oriented. Rowling parries this defense by her presentation of successful bureaucrats (who clearly fit the public choice model) and unsuccessful bureaucrats. Harry's best friend's Dad, Arthur Weasley is a well-meaning government employee. He is described as stuck in a dead end job, in the least respected part of the government, in the worst office in the building. In Rowling's world governmental virtue is disrespected and punished. Lastly, Rowling even eliminates the free press as a check on government power. The wizarding newspaper, The Daily Prophet, is depicted as a puppet to the whims of Ministry of Magic. I end the piece with some speculation about how Rowling came to her bleak vision of government, and the greater societal effects it might have. Speculating about the effects of Rowling's portrait of government is obviously dangerous, but it seems likely that we will see a continuing uptick in distrust of government and libertarianism as the Harry Potter generation reaches adulthood.

18 citations

Journal ArticleDOI
TL;DR: The American legal profession finds itself in the midst of dizzying changes as discussed by the authors, and the main commentators on these trends have been those most likely to be affected: law professors and corporate lawyers, and they have largely presented these trends as disastrous.
Abstract: The American legal profession finds itself in the midst of dizzying changes. What was once viewed as a brief downturn now looks like a much more substantial restructuring and downsizing. The main commentators on these trends have been those most likely to be affected: law professors and corporate lawyers, and they have largely presented these trends as disastrous. This Essay argues that while these changes will be painful in the near term, they will prove beneficial overall.The obvious reason for optimism is that America will be significantly better off if we spend less on legal services. Whatever else the future holds it seems likely that legal services will be more widely available to more people at lower prices. This trend starts at the top with corporate law firms and bubbles up from the bottom with LegalZoom and other online forms providers and will eventually reach the entire market. Expenditures on law are typically just transaction costs and everyone is better off when transaction costs shrink. If you have enjoyed the digital revolution in music or photography, you will likewise enjoy the legal market of the future. Legal services will be cheaper, more accessible AND better. These changes are bad for lawyers in the same way digital photography was bad for Kodak. Nevertheless, it is outstanding news for the country as a whole.Less obviously, the trends identified in Larry Ribstein’s “Death of Big Law” and the ripple effect through law schools will, ironically, lead us to a leaner, happier profession. For years the hope of securing a job in Big Law, the easy availability of student loans, and the misperception of what lawyers do and what law school is like have drawn many ill-suited individuals into law. This has had a number of deleterious effects on those individuals and on the practice as a whole. Current market forces and news coverage, however, will eventually result in a profession staffed by individuals who chose law despite a substantial headwind, rather than because they did not know what else to do and they thought it would guarantee a high salary for life. This will make the profession as a whole healthier than it has been in years.

18 citations


Cited by
More filters
01 Jan 2014
TL;DR: In this paper, Cardozo et al. proposed a model for conflict resolution in the context of bankruptcy resolution, which is based on the work of the Cardozo Institute of Conflict Resolution.
Abstract: American Bankruptcy Institute Law Review 17 Am. Bankr. Inst. L. Rev., No. 1, Spring, 2009. Boston College Law Review 50 B.C. L. Rev., No. 3, May, 2009. Boston University Public Interest Law Journal 18 B.U. Pub. Int. L.J., No. 2, Spring, 2009. Cardozo Journal of Conflict Resolution 10 Cardozo J. Conflict Resol., No. 2, Spring, 2009. Cardozo Public Law, Policy, & Ethics Journal 7 Cardozo Pub. L. Pol’y & Ethics J., No. 3, Summer, 2009. Chicago Journal of International Law 10 Chi. J. Int’l L., No. 1, Summer, 2009. Colorado Journal of International Environmental Law and Policy 20 Colo. J. Int’l Envtl. L. & Pol’y, No. 2, Winter, 2009. Columbia Journal of Law & the Arts 32 Colum. J.L. & Arts, No. 3, Spring, 2009. Connecticut Public Interest Law Journal 8 Conn. Pub. Int. L.J., No. 2, Spring-Summer, 2009. Cornell Journal of Law and Public Policy 18 Cornell J.L. & Pub. Pol’y, No. 1, Fall, 2008. Cornell Law Review 94 Cornell L. Rev., No. 5, July, 2009. Creighton Law Review 42 Creighton L. Rev., No. 3, April, 2009. Criminal Law Forum 20 Crim. L. Forum, Nos. 2-3, Pp. 173-394, 2009. Delaware Journal of Corporate Law 34 Del. J. Corp. L., No. 2, Pp. 433-754, 2009. Environmental Law Reporter News & Analysis 39 Envtl. L. Rep. News & Analysis, No. 7, July, 2009. European Journal of International Law 20 Eur. J. Int’l L., No. 2, April, 2009. Family Law Quarterly 43 Fam. L.Q., No. 1, Spring, 2009. Georgetown Journal of International Law 40 Geo. J. Int’l L., No. 3, Spring, 2009. Georgetown Journal of Legal Ethics 22 Geo. J. Legal Ethics, No. 2, Spring, 2009. Golden Gate University Law Review 39 Golden Gate U. L. Rev., No. 2, Winter, 2009. Harvard Environmental Law Review 33 Harv. Envtl. L. Rev., No. 2, Pp. 297-608, 2009. International Review of Law and Economics 29 Int’l Rev. L. & Econ., No. 1, March, 2009. Journal of Environmental Law and Litigation 24 J. Envtl. L. & Litig., No. 1, Pp. 1-201, 2009. Journal of Legislation 34 J. Legis., No. 1, Pp. 1-98, 2008. Journal of Technology Law & Policy 14 J. Tech. L. & Pol’y, No. 1, June, 2009. Labor Lawyer 24 Lab. Law., No. 3, Winter/Spring, 2009. Michigan Journal of International Law 30 Mich. J. Int’l L., No. 3, Spring, 2009. New Criminal Law Review 12 New Crim. L. Rev., No. 2, Spring, 2009. Northern Kentucky Law Review 36 N. Ky. L. Rev., No. 4, Pp. 445-654, 2009. Ohio Northern University Law Review 35 Ohio N.U. L. Rev., No. 2, Pp. 445-886, 2009. Pace Law Review 29 Pace L. Rev., No. 3, Spring, 2009. Quinnipiac Health Law Journal 12 Quinnipiac Health L.J., No. 2, Pp. 209-332, 2008-2009. Real Property, Trust and Estate Law Journal 44 Real Prop. Tr. & Est. L.J., No. 1, Spring, 2009. Rutgers Race and the Law Review 10 Rutgers Race & L. Rev., No. 2, Pp. 441-629, 2009. San Diego Law Review 46 San Diego L. Rev., No. 2, Spring, 2009. Seton Hall Law Review 39 Seton Hall L. Rev., No. 3, Pp. 725-1102, 2009. Southern California Interdisciplinary Law Journal 18 S. Cal. Interdisc. L.J., No. 3, Spring, 2009. Stanford Environmental Law Journal 28 Stan. Envtl. L.J., No. 3, July, 2009. Tulsa Law Review 44 Tulsa L. Rev., No. 2, Winter, 2008. UMKC Law Review 77 UMKC L. Rev., No. 4, Summer, 2009. Washburn Law Journal 48 Washburn L.J., No. 3, Spring, 2009. Washington University Global Studies Law Review 8 Wash. U. Global Stud. L. Rev., No. 3, Pp.451-617, 2009. Washington University Journal of Law & Policy 29 Wash. U. J.L. & Pol’y, Pp. 1-401, 2009. Washington University Law Review 86 Wash. U. L. Rev., No. 6, Pp. 1273-1521, 2009. William Mitchell Law Review 35 Wm. Mitchell L. Rev., No. 4, Pp. 1235-1609, 2009. Yale Journal of International Law 34 Yale J. Int’l L., No. 2, Summer, 2009. Yale Journal on Regulation 26 Yale J. on Reg., No. 2, Summer, 2009.

1,336 citations

Journal ArticleDOI
TL;DR: The Transformative Works and Cultures, No. 10, special issue as discussed by the authors, special issue, "Transformative works and Fan Activism," is devoted to the topic of "Fan Activism".
Abstract: Editorial for Transformative Works and Cultures, No. 10, special issue, "Transformative Works and Fan Activism."

83 citations

Posted Content
TL;DR: In this article, the authors argue that machine intelligence is not a one-time event that lawyers will have to accommodate, but an accelerating force that will invade an ever-larger territory and exercise a more firm dominion over this larger area.
Abstract: This Article argues that machines are coming to disrupt the legal profession and that bar regulation cannot stop them. Part I describes the relentless growth of computer power in hardware, software, and data collection capacity. This Part emphasizes that machine intelligence is not a one-time event that lawyers will have to accommodate. Instead, it is an accelerating force that will invade an ever-larger territory and exercise a more firm dominion over this larger area. We then describe five areas in which machine intelligence will provide services or factors of production currently provided by lawyers: discovery, legal search, document generation, brief generation, and prediction of case outcomes. Superstars and specialists in fast changing areas of the law will prosper — and litigators and counselors will continue to profit — but the future of the journeyman lawyer is insecure. Part II discusses how these developments may create unprecedented competitive pressures in many areas of lawyering. This Part further shows that bar regulation will be unable to stop such competition. The legal ethics rules permit, and indeed where necessary for lawyers to provide competent representation, require lawyers to employ machine intelligence. Even though unauthorized practice of law statutes on their face prohibit nonlawyers’ use of machine intelligence to provide legal services to consumers, these laws have failed, and are likely to continue to fail, to limit the delivery of legal services through machine intelligence. As a result, we expect an age of unparalleled innovation in legal services and reject the view of commentators who worry that bar regulations are a significant stumbling block to technological innovation in legal practice. Indeed, in the long run, the role of machine intelligence in providing legal services will speed the erosion of lawyers’ monopoly on delivering legal services and will advantage consumers and society by making legal services more transparent and affordable.

81 citations

Posted Content
TL;DR: The recent debate on the mission of American law schools has hinged on the assumption that a trade-off exists between teaching and research, and this analysis, although limited in various ways, casts some doubt on that assumption.
Abstract: There is a long scholarly debate on the tradeoff between research and teaching in various fields, but relatively little study of the phenomenon in law. This analysis examines the relationship between the two core academic activities at one particular school, the University of Chicago Law School, which is considered one of the most productive in legal academia. We use standard measures of scholarly productivity and teaching performance. For research, we measure the total number of publications for each professor for each year, while for teaching, we look at the average teaching rating. Net of other factors, we find that, under some specifications, research and teaching are positively correlated. In particular, we find that students’ perceptions of teaching quality rises, but at a decreasing rate, with the total amount of scholarship. We also find that certain personal characteristics correlate with productivity. The recent debate on the mission of American law schools has hinged on the assumption that a tradeoff exists between teaching and research, and this article’s analysis, although limited in various ways, casts some doubt on that assumption.

65 citations

Journal ArticleDOI
TL;DR: An overview of this study has presented the importance of the privacy of EMR and the patients’ rights, cryptography algorithms and security requirements, and discussed different architecture, designs and systems that have been reported in the literature.
Abstract: Nowadays, health care is one of the most important subjects in life. In USA, 100 billion dollars will be spent in the next 10 years, according to experts. The Electronic Medical Record (EMR) is usually a computerized legal medical record created in an organization that delivers care, such as a hospital and doctor's surgery. In the age of technology, one of the most important factors for EMR is that it secures the records for the patients, protects their rights and is responsible for the disclosure of their data. An overview of this study has presented the importance of the privacy of EMR and the patients’ rights. In addition, cryptography algorithms and security requirements have been discussed and the paper has also discussed different architecture, designs and systems that have been reported in the literature. In a nutshell, most of these systems are poor in terms of achieving the security requirements, while on the other side, most of the systems have not discussed the patient rights and how the system can detect the person who broadcast these records. Key words: Electronic medical record, information security, data privacy, rights of patient and cryptography algorithms.

64 citations