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Showing papers in "Fordham Law Review in 2003"


Book ChapterDOI

43 citations



Journal Article
TL;DR: Shapero et al. as mentioned in this paper proposed the American Code of Legal Ethics (ACL) as a moral code for the legal profession, a set of ethical principles applicable to the usual concrete ethical problems which confront the lawyer in the routine of practice.
Abstract: ethical principles into a series of canons applicable to the usual concrete ethical problems which confront the lawyer in the routine of practice. ' 125 The Committee's recommendation represents both a continuation of, and a change from, the past. On the one hand, the Committee's recommendation still implied the creation of an ethos or moral code-what the Committee called \"that indefinable ethical something which is the soul and spirit of law and justice\"' 126 that was a standard for judging lawyer conduct that aimed higher than either the criminal law or the rules of the marketplace.'27 On the other hand, that same recommendation was an acknowledgement of a changed legal profession, a profession with far more lawyers, differing in class and educational background, and trained in the law through law school instead of apprenticeships. 128 Although formerly the was greatest among lawyers in large cities, like New York, where \"there is no brotherhood; the Bar is too numerous and too heterogeneous for any central influence.\" Charles A. Boston, A Code of Legal Ethics, 20 The Green Bag 224, 227 (1908). Boston's observation implies that there was a general need for the Canons because the informal pressures of a close-knit legal community had dissipated; the American legal profession, at least in metropolitan areas, was no longer cohesive enough for such pressures to influence lawyer conduct and motives. 124. 1906 Comm. Rep., supra note 21, at 603. 125. Id. at 604. 126. Id. at 602. Many of the state bar associations also recognized the need for an inspirational moral standard higher than positive law. See, e.g., Ga. Fifth Meeting, supra note 112, at 144; Ky. Second Meeting, supra note 72, at 34. 127. The need for a set of ethical standards that were more stringent than the rules of conduct embodied in the criminal law was well recognized by the state bar associations in adopting their own ethics codes. See, e.g., Proceedings of the First Annual Meeting of the Kentucky Bar Ass'n 96 (1902) (\"The criminal code and the criminal laws of the Commonwealth serve a good purpose for extreme cases, but there are many matters resting largely in conscience and in good manners, which the criminal statutes do not, and can not reach.\"). Many years later, Justice Stone made a similar point: \"It is needful that we look beyond the club of the policeman as a civilizing agency to the sanctions of professional standards which condemn the doing of what the law has not yet forbidden.\" Stone, supra note 19, at 13. More recently, Justice O'Connor has pointed out, in the context of attorney advertising, that enforcing high ethical standards for lawyers lies beyond the realm of positive law. See Shapero v. Ky. Bar Ass'n, 486 U.S. 466, 488-89 (1988) (O'Connor, J., dissenting) (\"Membership [in the legal profession] entails an ethical obligation to temper one's selfish pursuit of economic success by adhering to standards of conduct that could not be enforced either by legal fiat or through the discipline of the market.\"). 128. One contemporary commentator, George Costigan, Jr., Dean of the College of Law at the University of Nebraska, wrote that \"democratization has made it inevitable that the unwritten common law of professional etiquette.., which governed generations of lawyers in the past shall be replaced by written rules of professional etiquette and a written ethical code.\" George P. Costigan, Jr., The Proposed American Code of Legal Ethics, 20 The Green Bag 57, 57 (1908)

17 citations





Journal Article
TL;DR: State Blaine Amendments as mentioned in this paper are provisions in thirty-seven state constitutions that restrict persons and organizations' access to public benefits on religious grounds, and they are often interpreted as erecting religion-sensitive barriers to the flow of public benefits that exceed the churchstate separation demanded by the Establishment Clause.
Abstract: The State Blaine Amendments are provisions in thirty-seven state constitutions that restrict persons’ and organizations’ access to public benefits on religious grounds. They arose largely in the midto late-1800s in response to bitter strife between an established Protestant majority and a growing Catholic minority that sought equal access to public funding for Catholic schools. After the failure to pass a federal constitutional amendment—the “Blaine Amendment”—that would have sealed off public school funds from “sectarian” institutions, similar provisions proliferated in state constitutions. These “State Blaines” have often been interpreted, under their plain terms, as erecting religion-sensitive barriers to the flow of public benefits that exceed the church-state separation demanded by the Establishment Clause. Today, the State Blaines are becoming increasingly relevant as the Supreme Court has progressively softened federal constitutional barriers to religious access to public funds. This article examines the history, language, and general operation of the State Blaines. It concludes that the State Blaines generally raise explicit, religion-sensitive barriers to the allocation of otherwise available public benefits and, consequently, that the operation of the State Blaines would typically violate the religious non-persecution principle of the First Amendment.

10 citations



Journal Article
TL;DR: In this paper, the authors examine the considerations impacting on due process and personal jurisdiction when non-U.S. claimants participate in class litigation, and propose guidelines necessary to ensure that the class judgment will have a binding effect on foreign claimants.
Abstract: In Phillips Petroleum Co. v. Shutts, the United States Supreme Court held that plaintiff class members residing outside the forum state are entitled to the "minimal due process protections" of notice, an opportunity to be heard, an opportunity to opt out, and adequate representation. However, class actions involving class members not just from other states but from other countries raise distinctive due process concerns in each of these areas. In this Article, Professor Bassett examines the considerations impacting on due process and personal jurisdiction when non-U.S. claimants participate in class litigation, and proposes guidelines necessary to ensure that the class judgment will have a binding effect on foreign claimants.

7 citations


Journal Article

7 citations


Journal Article
TL;DR: In this article, a prisoner-initiated proposal offering inculpatory testimony on the prisoner's confederates in exchange for immunity demonstrates that each principle paradoxically requires, and is violated by, both acceptance and nonacceptance of the offer.
Abstract: Unlike consequentialists, retributivists condemn bargain justice - plea bargains and immunity deals - as violating a number of conditions of just punishment. While the difficulties prosecutor-initiated bargaining poses for prisoners in a consequentialist system of criminal justice are well known under the rubric of the prisoner's dilemma, this Article introduces the difficulties prisoner-initiated bargaining poses for prosecutors in a retributivist system of criminal justice. Applying four central principles of retributivism to a prisoner-initiated proposal offering inculpatory testimony on the prisoner's confederates in exchange for immunity demonstrates that each principle paradoxically requires, and is violated by, both acceptance and nonacceptance of the offer. Retributivism's conflicting principles generate a moral dilemma - the Prosecutor's Dilemma - in which no matter what a prosecutor does in response to the offer, retributivism's principles will be violated. According to the means preferred by retributivists themselves to resolve conflicts among principles, the Prosecutor's Dilemma is to be resolved by not accepting the offer and punishing neither the prisoner nor her confederates. Though perhaps theoretically sound, the resolution is a practical disaster. It allows prisoners to self-immunize merely by tendering a dilemmatic immunity offer. While the resolution perhaps reduces retributivism to the point of absurdity by disabling retributivism from justifying punishment of either the prisoner or her confederates, without the resolution of the Prosecutor's Dilemma retributivism remains internally inconsistent. As a result, the Prosecutor's Dilemma supplies an indirect defense of bargain justice.

Journal Article
TL;DR: Green et al. as discussed by the authors explored the implications of the complexity inherent in modern workplace discrimination for the task of identifying its sources and of devising programs for reform, and argued that these lawsuits represent the emergence of an important new form of institutional reform litigation and rejected employer efforts to characterize the lawsuits as an inappropriate use of the class action vehicle.
Abstract: Discrimination in the workplace has become increasingly complex. Its complexity can be seen in the subtle ways in which bias creeps into everyday social interactions and perceptions and in the unsettling tension between honest adherence to an egalitarian norm and continued reliance on stereotypical categorization and judgment. But its complexity emerges perhaps most significantly for the modern antidiscrimination project in the blurring of boundaries between individual and organizational sources of harm. Even as we recognize its complex human dimensions at the individual level, we must also recognize that continuing workplace inequity and discrimination is equally an institutional and organizational problem. This article explores the implications of the complexity inherent in modern workplace discrimination for the task of identifying its sources and of devising programs for reform. Drawing on a variety of sociolegal and organizational research and theory, including a body of work concerning the context of decision making that shaped the disastrous launching of the 1986 Space Shuttle Challenger, Professor Tristin Green lays a foundation for a legal inquiry that recognizes organizational as well as individual sources of harm. From there, she considers a number of recent privately instituted Title VII class action lawsuits as a starting point for such an inquiry. She argues that these lawsuits represent the emergence of an important new form of institutional reform litigation and rejects employer efforts to characterize the lawsuits as an inappropriate use of the class action vehicle. At the same time, she identifies several significant differences in the remedial task undertaken by these recent lawsuits as compared with earlier institutional reform efforts and explores the danger that these differences pose of private co-option of larger public antidiscrimination goals.












Journal Article
TL;DR: Rubenfeld as mentioned in this paper argues that the offices of "legislator" and "voter" carry with them specific incentives that will skew decision-making about some issues, especially moral issues related to political justice.
Abstract: A popular account of democracy reduces it to one dimension: government is democratic if and only if it implements the will of electoral majorities. Despite its popularity, this one-dimensional account of democracy has obvious defects. It ignores the practical characteristics of mass electorates, which are notoriously non-deliberative and arguably manipulable. It provides no way to explain why 'majority tyranny' might be undemocratic rather than merely unjust. It condemns as undemocratic virtually every nation in the world today, all of which supplement legislatures and elections with non-majoritarian institutions of various kinds. This article describes and compares two multi-dimensional accounts of democracy. In his elegant and important new book, Jed Rubenfeld focuses on the dimension of time. He maintains that for a people to exist and govern itself freely, it must make durable, generation-spanning commitments. In Rubenfeld's view, perfect sensitivity to the electoral expression of momentary preferences is undemocratic because it prevents a people from having such commitments. My own book, by contrast, emphasizes dimensions of democracy that exist at a single moment. I argue that the offices of "legislator" and, more radically, "voter" carry with them specific incentives that will skew decision-making about some issues, especially moral issues related to political justice. If so, a system may become more democratic by supplementing legislatures and elections with other institutions that correct these predictable defects.


Journal Article
Rob Atkinson1
TL;DR: The authors pointed out that the most significant development for both our legal system in general and our legal ethics in particular has been the founding of the Roman Republic and the subsequent development, through continual revival and revision, of the republican tradition.
Abstract: Quite appropriately, as symposium after symposium has had us look forward into the new millennium, Fordham, firmly anchored in the grand Jesuit tradition of liberal learning, has us looking back. We need to be reminded, as the Fordham Law Review is reminding us, that looking back is not necessarily conservative, much less backward. It is, rather, a prerequisite of radical re-orientation; "radical" is, literally, getting back to roots. The root of "radical," "radix," is the ordinary Latin word for garden variety roots-radishes, for example. This essay takes us back to the Latin roots of radicalism in law and politics. In keeping with the theme of this year's symposium, this article suggests that the most significant development, for both our legal system in general and our legal ethics in particular, has been the founding of the Roman Republic and the subsequent development, through continual revival and revision, of the republican tradition. And this article reminds us that a critical stage in that development, perhaps the most vital in Anglo-American history and law, was the seventeenth-century Commonwealth of England.

Journal Article
TL;DR: In this article, the ethical considerations raised by interference in law school clinic case and client selection and limitations on the means of representation lawyers may employ in representing their clients are explored. But the authors do not consider the impact of client selection on legal services.
Abstract: Law school clinics play an increasingly important role in training future lawyers and providing legal assistance to traditionally underrepresented individuals and groups. In addition to facing the legal issues present in any law practice, law clinic students and faculty often confront ethical issues that lawyers representing poor and unpopular clients sometimes face—outside interference in case and client selection. This article explores the ethical considerations raised by interference in law school clinic case and client selection and limitations on the means of representation lawyers may employ in representing their clients. The article’s analysis provides a useful framework for responding to interference with not just law school clinics, but also with legal services lawyers and other attorneys representing poor or unpopular clients and causes.