Law School

Law Center. I am grateful to Jessica Kendall for her excellent work as a research assistant and to the law schools of Catholic University and Hofstra University for their support for this work. 1. See Edward N. Wolff, How the Pie is Sliced: America's Growing Concentration of Wealth, AM. PROSPECT (June 23, 1995), at http:llwww.americanprospect.com/printV6122/wolffe.html (last visited Mar. 19, 2002). 2. See id. If one measures increasing concentration of wealth by financial wealth rather than by marketable wealth (the latter presumably including non-money assets), the wealthiest 1% of Americans owns 47% of the wealth, and the wealthiest 20% of the population owns 91%. See

The author gratefully acknowledges the assistance of Marilyn Taylor-Berry of the Center for Applied Legal Studies, whose skills as a word processor made possible the development and completion of this Article; Philip Schrag, Mary Procida, and Judy Miles for thoughtful editorial comments on various drafts; and my co-teachers Jane Aiken and David Koplow, for their patience during the production of this Article. 'At the Antioch School of Law Women's Rights Clinic, I supervised students representing women with a variety of legal problems. The majority of our cases focused on obtaining protection from domestic violence for our clients. Mrs. Carson's name and a few facts were altered in this Article, to protect her privacy, and to avoid any impact on her physical safety. She was represented by the Clinic during part of 1982. This account reflects Mrs. Carson's and my recollection of the events during that period. 2 The Center is the major intake arm of the Washington, D.C. municipal court system for cases labelled "minor disputes." The Complaint Center processes thousands of cases each year. 3 1n 1980, 9889 people filed abuse complaints with the Center about family members,

America today needs more from the legal profession. At a time when most of our nation enjoys an historic level of prosperity and comfort, we must devote special attention to those living on the edge, those lacking adequate food or shelter, those addicted or mentally ill, those whose neighborhoods have been decimated by crime and decay. George Bush' When compliance with the law becomes mainly a matter of form, the law is made to appear ludicrous, legal administration is undermined, the underlying policy of the law may be subverted, and the most conscientious bear the heaviest burden. And it is usually a sign that the law is out of touch with reality. 2 1.

In discussing the legislative implications of this work, the authors emphasized that "[t]his experiment shows the vital importance of state legislatures empowering police to make probable cause arrests in cases of domestic simple assault." Id. 218 [Vol. 83 11 Each study compares the effects of three of these "treatments". 12 Others have used mouse images to capture situations in which human beings were being treated as experimental animals, see e.g., ART SPIEGELMAN, MAUS (1986), or in which human beings have been placed in dehumanizing situations, see e.g., MON ONCLE D'AMERIQOUE (Film by Jean Renoir, 1984). Though a mouse would not fit in a test tube, the image is more evocative than that of a paramecium. 13 See e.g., SNELL ET AL., The Wifebeater's Wife: A Study of Family Interaction, 11 ARCHIVES GEN. PSYCHIATRY 107 (1964).

Since the first decades of the twentieth century, educators have experimented periodically with the device of contracting with their students over questions of the content, pacing, and method of the students' learning experiences.' Curiously, although a contract is a quintessentially legal concept, and learning contracts have been

2. This offers a sharp contrast to the on-campus interviewing programs at many law schools, which offer the easiest access and greatest visibility to available jobs at large law firms. These programs are often perceived by students as providing institutional encouragement to go into private practice and not to explore jobs in government or legal services or in non-profit organizations. 3. See Standards for Approval of Law Schools and Interpretations Standard 306(a) & interpretation 1 (1979). 4. From 1982 to 1984, I was a Clinical Fellow at the Center for Applied Legal Studies at Georgetown University Law Center. At the time, the clinic handled con

The reader should know through whatspectacles his adviser is viewing the problem. 1-William O. DouglasWashington Law Review (1965)Scholarship is the work-product of scholars. The word derives from the Latin schola, as in school. Hence, scholarship is related to education, which in turn is related to the advancement of human knowledge. By that measure, the best scholarship may increase our knowledge, both practical and theoretical. But when undisclosed bias affects that which is offered up as knowledge, it may unduly slant our understanding of life, law, and other things that matter. While bias-free knowledge may be a utopian ideal, it is, nonetheless, a principle worthy of our respect.Case in point: According to the Washington Post,2 the National Rifle Association has funded some of the scholarship propounding the view that the Second Amendment protects an individual right to own a gun. Before this sponsored scholarship, such an interpretation of the Amendment was regarded as tenuou...

The problem of domestic violence has been the subject of increasing national concern. In response to that concern, states have enacted legislation providing protection to victims of domestic violence, encouraging improved police enforcement of protection law's, and constructing appropriate legal sanctions against abusers. Drafting comprehensive legislation to address this problem is difficult because both civil and criminal remedies are needed, because the needs of battered women are diverse and complex, and because effective protection requires a coordinated response by courts, law enforcement agencies, mental health personnel, and the bar. While some new legislation on wife abuse has been enacted in a majority of states, few states have addressed the fill range of available remedies, or made relief available to all victims of domestic violence. In this Article, Ms. Lerman presents a Model Act that consolidates and addresses remedies needed for domestic violence in one comprehensive statute. Ms. Lerman asserts that the primary goal of any lai' on domestic violence should be to protect the victim. Accordingly, the Model Act facilitates the victim's ability to gain access to the courts and to request protection. The Model Act also acknowledges the needfor improved police response to domestic violence and specifies particular police duties. In addition, the Model Act recognizes that domestic violence may be handled as a civil matter, as a criminal matter, or both. Finally, the Model Act considers the appropriate legal treatment of abusers and ihchudes both punitive and rehabilitative dispositional options.

The field of dispute resolution appears to have quite different meanings and functions inside and outside law schools. Outside law schools, a great deal of the activity that falls under the rubric of ADR is mediation, often conducted in programs attached to small claims or family courts.1 These programs are designed to reduce overwhelming caseloads by offering expedient and informal resolution of minor disputes. While some ADR programs perform intake and screening functions and make referrals to both traditional and nontraditional forums, their primary function is to deliver alternative services, such as mediation, which are otherwise unavailable.2 The resolution offered by an ADR program may provide an alternative to substantive law in that the dispute may be discussed without reference to law. It may offer an alternative to judicial procedure in that the resolution may be in lieu of any court proceeding. It may offer an alternative to dealing with lawyers in that the mediators are...

"I'm entitled to spend any of my money for whatever I want to spend it on." Harvey Myersonl "If the government can get [a good] result from people who don't work all night and who stay in inexpensive hotels, that's what the government ought to do. [It is a judgment call whether the government should hire] lawyers who are more expensive not only to pay, but to care for."

2. Federal Judge Stanley Sporkin asked these questions about how the massive fraud that was committed by Lincoln Savings and Loan could have occurred, given the number of lawyers and accountants who were advising the bank. See discussion in DAVID 0.

Most law professors take very seriously the obligation to conduct themselves as professional role models. Most would not think of' using their positions to secure sexual favors, to abuse students or staff, or of engaging in any other sort academic or professional misconduct. Nevertheless. we are regularly reminded that a small number of members of the legal academy do not share the professional standards subscribed to by the majority. Some law professors engage in misconduct in the course of representing clients; other incidents involve misconduct that is unique to the roles occupied by educators.' Some law professors engage in a range of unseemly behavior in and out of class, throwing tantrums in class, making sexual advances to students,' or engaging in financial or other professional misconduct. The number of cases of serious misconduct may be small, but my inipression, from talking with many colleagues at many other schools, is that at any given law school, there may be one faculty member, or sometimes a few faculty members, who. behavior presents a problem. One can't judge the magnitude of this problem by the number of cases that lead to prosecution. discipline, resignation, or firing. because so many of these cases never lead to any repercussions for the professor notr any remedial action for the affected students. Those that arc addressed in some fashion often are handled confidentially. To explore this problem. a starting point is to inventory some examples of 1. This brief essav is based on an outline that was distributed at a session on ams Professor Misconduct at the ABA 30th National Conference on Professional Responsibility, June 2-5. 294, in Naples. Florida. Other participants in the session were Professor Judith MeMorrow of Boston College Law School, James Grogan. Chiel Disciplinary Counsel of the Attorney Registration and Disciplinary Commission in Chicago. Illinois, and Professor Robert Jarvis of Nova Southeastern School of Law. Some of the information is drawn from the authors' firthcoming tcxtbook, Eit i.icAt. Pwim li-m i\ lin Pk.-,k. i il-. ot-Lw. to be published in the spring of 2005 by Aspen L.aws and IBusiness 2. lProfessor of Law and Directoi. Law and Public Policy Program. The Catholic University o America, Columbus School oft aw.

UUM 128, 328 (1992) (hereafter cited as MacCrate Report). 2 See generally Peter deL Swords & Frank K. Walwer, Cost Aspects of Clinical Education, in AssOcIATION OF AMERiCAN LAW SCHOOLS-AMERICAN BAR AssOcIATION COM-Mr[rEE ON GUIDELINES FOR CLINICAL LEGAL EDUCATION, CLINICAL LEGAL EDUCATION 133 (1980). 3 See eg., MacCrate Report, supra note 1, at 254 n.36 (citing data on costs of in-house clinics and observing that "[a] goal of offering enrollment in a live client in-house clinic to every student before he or she graduates may not be feasible from a budgetary perspective for some time"). Dean Matasar indicated his goal that the clinical program at Chicago-Kent would serve half the students. AALS Tape, Matasar comments, infra note 6. 14 Laser, supra note 10, at 285. 15 Id. 16 This array of options was listed by Professor Gary Laser in response to a question I asked at the AALS meeting. AALS tape, supra note 6, Laser comments. 17 Id.

Responsibility. 1. I have assigned fictitious names to each of the sources whose stories appear in this paper. I have not identified the law firms where they work or worked. Some participants in the Orlando program asked whether I had an obligation to report the professional misconduct described in these stories to the disciplinary authorities. To address this question briefly: the purpose of my confidential conversations is to study ethical dilemmas that affect some practicing lawyers. I gather and retell stories to help the profession to identify and discuss problems that might otherwise remain behind closed doors. This is accomplished better by examination of real facts than by discussion of hypotheticals. Most of those who shared these stories with me would not have given me permission to publish them absent a commitment from me to keep their identities confidential. One cannot simultaneously conduct interviews as a scholar and act as an officer of the court. Furthermore, I question whether these third-hand reports constitute the kind of "knowledge" that would oblige me to report. 2. Brackets indicate that the speaker's language has been paraphrased. 3. Conversation with "Henry Newman", former associate at a large law firm (Fall

In the 1970s, Monroe Freedman did a great deal of work trying to curb the tendency of the lawyer disciplinary system to go after the wrong people. During this period, Freedman and some other public interest lawyers were charged with ethics violations because they spoke up about problems they observed in the legal system. Freedman had dared to give a talk in which he urged that in some instances, a criminal defense lawyer’s duty to his client was more important than his duty of candor to the tribunal. Freedman defended some of the other lawyers who were charged with similar ethics violations. In the last thirty years, the District of Columbia disciplinary system has become less political and more professional. Even so, Freedman’s work to ensure even-handed enforcement of the ethics rules remains unfinished. Bar counsels still tend to bring most of their charges against solo practitioners and small firm lawyers. Disciplinary charges are

I started teaching law school courses in Professional Responsibility in 1984. I taught my first ethics CLE program in 1985. Right from the beginning, I noticed that navigating the classroom in Professional Responsibility was a much trickier business than teaching the other courses I taught. In 1988 I went to a conference at which David Luban gave a talk called “12 ways to fail as a PR teacher.” I was astonished to learn that it wasn’t just me, and that even David Luban (who, like Deborah Rhode, is one of my permanent role models) was finding it difficult to teach legal ethics. Luban inventoried some of what I have since learned are “the usual problems” that legal ethics teachers encounter. For example, how do you overcome the disengagement or hostility of cynical students who think the class is a bunch of hooey? How can a teacher avoid being regarded as a touchy-feely Pollyanna? How is one supposed to teach an increasingly voluminous and complex body of law without becoming a doctri...

America today needs more from the legal profession. At a time when most of our nation enjoys an historic level of prosperity and comfort, we must devote special attention to those living on the edge, those lacking adequate food or shelter, those addicted or mentally ill, those whose neighborhoods have been decimated by crime and decay. George Bush' When compliance with the law becomes mainly a matter of form, the law is made to appear ludicrous, legal administration is undermined, the underlying policy of the law may be subverted, and the most conscientious bear the heaviest burden. And it is usually a sign that the law is out of touch with reality. 2 1.