Papers by Marshall J Breger
The Vatican-Israel Accord of 1993 was clearly a political documentone undertaken between two sove... more The Vatican-Israel Accord of 1993 was clearly a political documentone undertaken between two sovereign states. 1 At the same time, there can be no doubt that the Accord would not have been possible without significant change in the traditional theological approach of the Catholic Church towards the people of Israel. Any student of modem Christianity will understand immediately the extraordinary changes that have taken place in recent Vatican thinking toward Judaism and the Jewish people. The Catholic Church has made a 180-degree turn in its view of Jews and Judaism since the 1965 Vatican Declaration Nostra Aetate. 2 Moving beyond what Jules Isaac termed "the teaching of contempt,"' Catholics now claim that "the Jews still remain most dear to God., 4 In a 1985 statement, the Vatican told us that "Judaism is a living religion" and that the Hebrew Bible "retains its own value as revelation." 5
CONFLICT OF INTEREST 1117 professional judgment on behalf of a client,' and requires that a lawye... more CONFLICT OF INTEREST 1117 professional judgment on behalf of a client,' and requires that a lawyer refuse to accept proffered employment if such representation would be likely to affect this judgment adversely. 6 Canon 4 mandates that attorneys preserve the confidences and secrets of their clients. 7 This duty extends indefinitely into the future, even after the attorney-client relationship has been terminated.8 Canon 9 suggests that an attorney must decline employment or withdraw from representation when the appearance of impropriety exists. 9 Courts have been reluctant to require disqualification on this ground alone, however, and have looked to the facts and circumstances of each particular case before requiring disqualification solely on this basis.' 0 Once attorneys have agreed to represent their clients, Canon 7 requires that they represent those individuals "zealously within the bounds of the law."' 1 Underlying all these proscriptions is the goal of preserving the fiduciary relationship between attorneys and their clients. This relationship demands the encouragement and protection of trust," 2 and prohibits attorneys from disclosing professional confidences or simultaneously representing clients with differing interests.' 3 Attorneys must remain loyal to their clients and must place their knowledge and ability at their clients' exclusive command. This exclusivity cannot be shared with other persons or causes1 4 -one cannot easily serve two masters at once. Representation of clients with differing interests may be concurrent or successive. As the Canons of Professional Ethics, which preceded the present code, stated: a "lawyer represents conflicting interests when, on behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose."' 5 The proscription extends to interests which In general, the Model Rules focus specifically on the central problems raised by the conflicts dilemma-problems which the present Code addresses obliquely if at all. 5 MODEL CODE OF PROFESSIONAL RESPONSIBILITY Canon 5 (1979). 6 Id. DR 5-105(A).
Case Western Reserve Journal of International Law, 2000
Studies in Christian-Jewish Relations, Apr 15, 2011
elements/texts/center/conferences/soloveitchik/Korn_23Nov03.htm. Rabbi Korn has since published a... more elements/texts/center/conferences/soloveitchik/Korn_23Nov03.htm. Rabbi Korn has since published an updated version, "The Man of Faith and Religious Dialogue: Revisiting 'Confrontation'," Modern Judaism 25/2 (2005):290-315.
Catholic University Law Review, 1995
In a fascinating article published in the Duke Law Journal, Sidney Shapiro and Richard Levy argue... more In a fascinating article published in the Duke Law Journal, Sidney Shapiro and Richard Levy argue in favor of more determinacy in the judicial review of administrative law cases.' They explore the reasons for indeterminacy and make some interesting suggestions to meet their goal of increased determinacy. 2 Specifically, Shapiro and Levy propose amending the Administrative Procedure Act 3 (APA) to include "specific inquiries" in place of "open-ended scope of review standards."' One of the incessant complaints of students taking Administrative Law (or practitioners practicing it) is that there often appears to be applicable black letter doctrine, and yet decisions appear to vary greatly. Put simply, Shapiro and Levy are unhappy that they cannot handicap judges in administrative law cases. I understand their concern, as I have problems picking winners at Saratoga. There is, of course, a science to success at the track (or so readers of the racing form believe). Is there a similar method of prediction at the courthouse?
New York Law School (on leave); Visiting Fellow in Legal Policy, Heritage Foundation (1983). The ... more New York Law School (on leave); Visiting Fellow in Legal Policy, Heritage Foundation (1983). The views expressed in these remarks are those of the author and do not necessarily represent the position of the United States Government.
MR. ROSS: Thank you, Judge Wald. Our next speaker is the Solicitor of the Department of Labor, Ma... more MR. ROSS: Thank you, Judge Wald. Our next speaker is the Solicitor of the Department of Labor, Marshall Breger. Marshall, as many of you know, served as the distinguished Chairman of the Administrative Conference of the United States for a number of years. MR. BREGER: Thank you very much. It is really a delight to be here and not to be in Chairman Ross's shoes at this time. Judge Wald has captured all the administrative law movies of the year. Thus, I am just going to have to be a bit of a deconstructionist, and I will title my talk "Husbands and Wives." I will leave it to those assembled to figure out, or perhaps freely associate, the overarching meaning of this talk-let alone its relation to Woody Allen. More seriously, it is a pleasure to be here, before so many of my friends and former colleagues, to give you my thoughts as Solicitor of Labor on last year's Supreme Court term in administrative law. Of course, when I served as the moderator of the panel last year, I had the luxury of being impartial and objective. Now that I supervise some sixhundred aggressive government attorneys, I have developed more of a litigator's perspective on such matters. You will forgive me if I examine some recent administrative law developments in the Supreme Court focusing on the labor law area. I think I can offer more insight into those administrative law cases that affect the Department of Labor. Let me start off by noting that traditional employment cases did not play a prominent role in last year's Supreme Court docket. There was only one NLRB ruling,' one case addressing Section 301 of the Labor Management Relations Act (LMRA), 2 and one case, involving Title * Marshall J. Breger is a Senior Fellow at the Heritage Foundation in Washington, D.C. He has served as the Solicitor of Labor in the Bush Administration, and previously served as Special Assistant to President Ronald Reagan from 1983 to 1985. Mr. Breger was also the Chairman of the Administrative Conference of the United States from 1985 until 1991. 1. See Lechmere, Inc. v. NLRB, 112 S. Ct. 841 (1992) (holding that employers have right to exclude non-employee union organizers when reasonable alternative means of access exist).
W e celebrate 1986 as a year of anniversaries. LastJune we marked the 40th anniversary of the Adm... more W e celebrate 1986 as a year of anniversaries. LastJune we marked the 40th anniversary of the Administrative Procedure Act.' From now until 1989 is the long-running seminar and birthday party called the Bicentennial of the Constitution. I find it particularly fitting to talk today about the problem of political accountability and administrative law, a subject that intertwines both documents, taking as my point of departure the 100th anniversary of Woodrow Wilson's seminal article, "The Study of Administration. 2 The article's theme was that the era of constitution-making was over and that "administration" was coming to replace politics as the principal activity and the principal problem of government. Thus Wilson observed, "It is getting harder to run a constitution than to frame one." 3 He called for the development of "a science of administration which shall seek to straighten the paths of government, to make its business less unbusinesslike, to strengthen and purify its organization, and to crown its duties with dutifulness."' To Wilson, public administration was to be distinguished from politics. "The field of administration is a field of business. It is removed from the hurry and strife of politics .... It is a part of political life only as the methods of the counting-house are a part of the life of society.... Although politics sets the tasks for administration, it should not be suffered to manipulate its offices." 5
s some of you may know, the Ad-ministrative Conference of the United States is an independent age... more s some of you may know, the Ad-ministrative Conference of the United States is an independent agency of the U.S. government dedicated to the promotion of fairness and efficiency in governmental processes. 7b this end, the conference commissions studies and makes recommendations for procedural improvements to federal agencies, Congress, and occasionally to the judiciary. The conference's interest in the provision of pro bono legal services by government lawyers began nearly two years ago when a member of the conference's Special Committee on Government Ethics Regulation brought to its attention section 205 of title 18 of the criminal code. Section 205 prohibits federal lawyers from acting as agent or attorney, with or without compensation, in any matter in which the government has a "direct and substantial interest." A government lawyer who violates the prohibition may be imprisoned for up to one year and fined $100,000, or the Justice Department may seek a civil penalty of up to $50,000 for each violation (or the amount of any compensation, whichever is greater). That's serious stuff. This seems like a draconian law should it be applied, for example, in the case of a Federal Energy Regulatory Commission lawyer who on her own time chooses to help social security claimants exercise their rights under federal disability laws. In order to spark discussion of these issues, the conference sought a consultant to study the effect of 18 U.S.C. § 205 on the pro bono activities of government lawyers. Professor Lisa Lerman, the conference's consultant, discovered in the course of her study that section 205 was only one restriction faced by government lawyers who wanted to provide pro bono legal services. And while section 205 bars representation in matters in which the government has an
HERE can be little doubt that the American justice system is failing to meet the needs of the ord... more HERE can be little doubt that the American justice system is failing to meet the needs of the ordinary citizen. Courts are clogged and overloaded.' Delays in litigation are no longer the exception, but rather the norm. Not only for the poor, but even for large corporations, the decision to litigate has become a function of cost, not injury. 2 These complaints are not new. Indeed, some suggest that the problem is cyclical. 3 Although few would argue that the grass is nec-
Journal of International Affairs, Jun 22, 1996
... of Hebrew University professor Avishai Margalit, "one city that could be home to two... more ... of Hebrew University professor Avishai Margalit, "one city that could be home to two capitals."(59) Faisal al-Husayni ... Arian's 1994 survey of Israeli political attitudes for the Jaffee Center for Strategic Studies shows that only 14 ... (40) Quoted in fundraising letter from Dr. Ziad Asali ...
Middle East Quarterly, Jun 1, 1999
Virginia Law Review, Mar 1, 1986
marks the fortieth anniversary of the passage of the Administrative Procedure Act (APA).' After f... more marks the fortieth anniversary of the passage of the Administrative Procedure Act (APA).' After four decades of extensive experience with the APA, this symposium issue of the Virginia Law Review offers an opportunity to step back and examine the Act in a broader legal and political perspective. As Chairman of the Administrative Conference of the United States, I welcome this symposium and the opportunity to make these comments. Congress established the Administrative Conference as a permanent body to "study the efficiency, adequacy, and fairness of the administrative procedure used by administrative agencies in carrying out administrative programs, and make recommendations to administrative agencies, collectively or individually, and to the President, Congress, or the Judicial Conference of the United States, in connection therewith." ' 2 The Conference is, in effect, the administering agency of the APA and the only government agency with a primary and continuing interest in administrative procedure throughout the federal government.' Pursuant to its legislative mandate, the Conference has, over the past eighteen years, continually reviewed agency experience under the APA and formulated proposals for improvement of the administrative process. The Conference has adopted over one hundred recommendations since * Chairman,
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Papers by Marshall J Breger