This article is part of an exchange including Anthony Alfieri and William Simon in the Georgetown... more This article is part of an exchange including Anthony Alfieri and William Simon in the Georgetown Law Journal on the implications of law firms\u27 increasing reliance on the concept of risk management as the focus of efforts to ensure ethical conduct by lawyers. A risk management program involves the adoption of various policies and procedures designed to minimize conduct that may lead to individual and firm liability. Conflicts checking procedures, standard terms in engagement letters, and the requirement of a second signature by a disinterested partner on legal opinions are but a few of such measures. On one hand, the risk management paradigm reflects appreciation of the importance of situational incentives and pressures in shaping behavior in organizational settings. This is an advance over conceptions of legal ethics that assume that behavior is principally a function of individual character. Law firms are now major business enterprises, and their systems of rewards and sanction...
Confidence Games provides an account of the wave of tax shelters that occurred at the turn of the... more Confidence Games provides an account of the wave of tax shelters that occurred at the turn of the twenty-first century. During this period, some of America’s most prominent law and accounting firms created and marketed products that enabled the very rich — including newly minted dot-com millionaires — to avoid paying their share of taxes by claiming benefits not recognized by law. These abusive tax shelters bore names like BOSS, BLIPS, and COBRA and were developed by such prestigious firms as KPMG, Ernst & Young, BDO Seidman, the now defunct Jenkens & Gilchrist and Brown & Wood, now merged into Sidley Austin. These shelters brought in hundreds of millions of dollars in fees from clients and deprived the U.S. Treasury of billions in revenue before the IRS and Justice Department stepped in with civil penalties and criminal prosecutions targeting the professionals and firms involved. As we suggest, the decade of tax shelter activity between the mid-1990s and mid-2000s is the most serio...
In the last several years, there has been an increasing tendency to view the impacts of transnati... more In the last several years, there has been an increasing tendency to view the impacts of transnational business operations through the lens of human rights law. A major obstacle to holding companies accountable for the harms that they impose, however, has been the separate legal identity of corporate subsidiaries and of contractors in a company's supply chain. France's recently enacted duty of vigilance statute seeks to overcome this obstacle by imposing a duty on companies to identify potential serious human rights violations by their subsidiaries and by companies with which they have an “established commercial relationship.” Failure to engage in such vigilance can subject a company to liability for damages resulting from such failure.<br><br>This Article situates the new French duty of vigilance within a broader set of norms that can be characterized as the Business and Human Rights Galaxy. This Galaxy consists of five rings that represent standards and expectat...
Justice announced that it had agreed not to prosecute Jenkens & Gilchrist, based on representatio... more Justice announced that it had agreed not to prosecute Jenkens & Gilchrist, based on representations that the firm would shortly cease operations and that its representatives would cooperate with the criminal investigation of tax shelter work at the firm. (U.S. Department of Justice 2007). Thus ended the life of the fastest growing law firm in the United States less than a decade before, and a pillar of the Dallas corporate establishment for over half a century. Jenkens & Gilchrist's press release in connection with the non-prosecution agreement said that certain of its lawyers "developed and marketed fraudulent tax shelters," and that Jenkens "failed to exercise effective oversight and control over the firm's tax shelter practice." (Jenkens & Gilchrist 2007). On June 9, 2009, Paul Daugerdas and two other partners in the Chicago office, Erwin Mayer and Donna Guerin, were indicted for their work on tax shelters. (Indictment 2009). For some, the story of Jenkens & Gilchrist is simple: it's another example of how business considerations have led law firms in recent years to neglect their professional duties. Both journalists and scholars have written extensively about intensified competition in the legal services market over the last quarter century.
Concern about the increasing militarization of police has grown in recent years. Much of this con... more Concern about the increasing militarization of police has grown in recent years. Much of this concern focuses on the material aspects of militarization: the greater use of military equipment and tactics by police officers. While this development deserves attention, a subtler form of militarization operates on the cultural level. Here, police adopt an adversarial stance toward minority communities, whose members are regarded as presumptive objects of suspicion. The combination of material and cultural militarization in turn has a potential symbolic dimension. It can communicate that members of minority communities are threats to society, just as military enemies are threats to the United States. This conception of racial and ethnic minorities treats them as outside the social contract rather than as fellow citizens. It also conceives of the role of police and the military as comparable, thus blurring in a disturbing way the distinction between law enforcement and national security operations. Demonstrations in recent years following the deaths of African Americans, especially African American men, at the hands of police have raised fundamental issues about race and criminal justice in the United States. Central to these demonstrations is concern about the use of force by the state against its own citizens. 1 One prominent way in which this is expressed is the claim that there is a trend toward the "militarization" of the police in America, in particular, the use of military tactics and equipment by police and the acquisition of such equipment through programs such as the one administered by the Department of Defense. This concern reflects unease about what I call the "material" dimension of militarization. The risk posed by this dimension is physical: that police will use intense violence against individuals and communities to secure order. Police officers should not act like soldiers because soldiers are authorized to use especially destructive means to secure their objectives, means that the police should not be permitted to use. Apprehension about the police becoming more militarized is reflected even more directly in the objection to the use of military forces to respond to public demonstrations, as President Donald Trump has suggested is necessary to quell some of the recent protests 1 By "citizens," I mean to include all persons in the United States who may be subject to the use of force, regardless of their legal status. I use the term both for shorthand convenience and to highlight the issues in political theory that I will be discussing.
The global law firm has become a significant actor in the provision of legal services in multiple... more The global law firm has become a significant actor in the provision of legal services in multiple countries. Although this reflects a response to increasing demand for these services by transnational companies, lawyers in these firms also help further the process of globalization that fuels such demand. One arena in which this occurs is the construction of transnational governance regimes that harmonize standards and expectations with respect to a variety of business activities. These regimes may be based on two different visions of the globalization process. One vision is of markets increasingly unfettered by national regulation, while another is of widely accepted human rights that impose common constraints on business activities. This article surveys the literature on transnational governance regimes and the work of transnational corporate lawyers to illuminate these dynamics, and suggests that further research on this topic can provide insight into how lawyers contribute to the ...
and the Law, Georgetown Law Center. We would like to thank Ashley Deeks and David Koplow for thou... more and the Law, Georgetown Law Center. We would like to thank Ashley Deeks and David Koplow for thoughtful comments on an earlier draft of this chapter.
Oxford University Press Oxford New York Athens Auckland Bangkok Bogota Buenos Aires Calcutta (&#x... more Oxford University Press Oxford New York Athens Auckland Bangkok Bogota Buenos Aires Calcutta ('ape Town Chcnnai Dar es Salaam Delhi Florence Hong Kong Istanbul Karachi Kuahi Lumpur Madrid Melbourne Mexico City Mumhai Nairobi Paris Sao Paulo Singapore Taipei Tokyo ...
This article is part of an exchange including Anthony Alfieri and William Simon in the Georgetown... more This article is part of an exchange including Anthony Alfieri and William Simon in the Georgetown Law Journal on the implications of law firms' increasing reliance on the concept of risk management as the focus of efforts to ensure ethical conduct by lawyers. A risk management program involves the adoption of various policies and procedures designed to minimize conduct that
Virtually all courts that have considered the issue have held that law firms cannot enforce agree... more Virtually all courts that have considered the issue have held that law firms cannot enforce agreements that impose reasonable financial penalties on lawyers who leave the firm and take clients with them. This is the case despite the fact that practice organizations in all other professions, such as medicine, accounting, and engineering, are able to enforce such provisions. The Article uses this resistance as the vehicle for exploring broader issues relating to concerns about the loss of professionalism in modern law practice. The first is the common tendency to dichotomize between law practice as a business and as a profession. This distinction ignores the complex ways in which these two dimensions of practice are intertwined. In particular, the use of business measures that make a law firm more efficient may create a competitive advantage that affords an opportunity for the firm to further non-economic values. The second issue is the failure to appreciate that the concept of professionalism involves multiple values: (1) devotion to the client's interest (2) the control over work exercised by the practitioner of a craft and (3) the exercise of independent judgment as a steward of the legal system. These values have the potential to be either conflicting or complementary. An assessment of developments in law practice thus must examine the extent to which the realization of specific values in particular settings may be furthered or hindered by such developments. A final point is the potential importance of law firms in providing an opportunity for lawyers to reconcile these values in daily practice. The Article argues that enforcing reasonable penalties can provide law firms with the economic stability that enables them to sustain a distinct institutional culture that is not wholly market-driven. This perspective underscores that allegiance to professional values is not simply a matter of individual character, but is dependent in important ways on larger organizational structures of law practice. In short, realizing the values of professionalism may be more of a collective, rather than individual, achievement in the dynamic and tumultuous world of contemporary practice.
Many efforts to understand and respond to a succession of corporate scandals over the last few ye... more Many efforts to understand and respond to a succession of corporate scandals over the last few years have underscored the importance of organizational culture in shaping the behavior of individuals. This focus reflects appreciation that even if an organization has adopted elaborate rules and policies designed to ensure legal compliance and ethical behavior, those pronouncements will be ineffective if other
In Democracy’s Discontent, Michael Sandel contrasts the civic republican approach to American pol... more In Democracy’s Discontent, Michael Sandel contrasts the civic republican approach to American politics with that of liberal neutrality and shows how the two views have played out over the course of US history. Sandel argues that liberal neutrality is overwhelmingly dominant today, and he urges a return to a more Aristotelian, republican politics; both positions are controverted here. Under republicanism, government, acting on the premise that self-government is intrinsically good, would take on the challenge of inculcating the virtues of character necessary for effective citizenship. Sandel is not completely clear as to just what America’s lost republican ideals are and precisely what policies his republicanism would justify that liberalism cannot; he fails to acknowledge what both he and his critics should reject as the dark sides of republicanism: right-wing extremism and the tendency toward aristocracy. Republicanism, as well as liberalism, has special dangers for women, though h...
This article is part of an exchange including Anthony Alfieri and William Simon in the Georgetown... more This article is part of an exchange including Anthony Alfieri and William Simon in the Georgetown Law Journal on the implications of law firms\u27 increasing reliance on the concept of risk management as the focus of efforts to ensure ethical conduct by lawyers. A risk management program involves the adoption of various policies and procedures designed to minimize conduct that may lead to individual and firm liability. Conflicts checking procedures, standard terms in engagement letters, and the requirement of a second signature by a disinterested partner on legal opinions are but a few of such measures. On one hand, the risk management paradigm reflects appreciation of the importance of situational incentives and pressures in shaping behavior in organizational settings. This is an advance over conceptions of legal ethics that assume that behavior is principally a function of individual character. Law firms are now major business enterprises, and their systems of rewards and sanction...
Confidence Games provides an account of the wave of tax shelters that occurred at the turn of the... more Confidence Games provides an account of the wave of tax shelters that occurred at the turn of the twenty-first century. During this period, some of America’s most prominent law and accounting firms created and marketed products that enabled the very rich — including newly minted dot-com millionaires — to avoid paying their share of taxes by claiming benefits not recognized by law. These abusive tax shelters bore names like BOSS, BLIPS, and COBRA and were developed by such prestigious firms as KPMG, Ernst & Young, BDO Seidman, the now defunct Jenkens & Gilchrist and Brown & Wood, now merged into Sidley Austin. These shelters brought in hundreds of millions of dollars in fees from clients and deprived the U.S. Treasury of billions in revenue before the IRS and Justice Department stepped in with civil penalties and criminal prosecutions targeting the professionals and firms involved. As we suggest, the decade of tax shelter activity between the mid-1990s and mid-2000s is the most serio...
In the last several years, there has been an increasing tendency to view the impacts of transnati... more In the last several years, there has been an increasing tendency to view the impacts of transnational business operations through the lens of human rights law. A major obstacle to holding companies accountable for the harms that they impose, however, has been the separate legal identity of corporate subsidiaries and of contractors in a company's supply chain. France's recently enacted duty of vigilance statute seeks to overcome this obstacle by imposing a duty on companies to identify potential serious human rights violations by their subsidiaries and by companies with which they have an “established commercial relationship.” Failure to engage in such vigilance can subject a company to liability for damages resulting from such failure.<br><br>This Article situates the new French duty of vigilance within a broader set of norms that can be characterized as the Business and Human Rights Galaxy. This Galaxy consists of five rings that represent standards and expectat...
Justice announced that it had agreed not to prosecute Jenkens & Gilchrist, based on representatio... more Justice announced that it had agreed not to prosecute Jenkens & Gilchrist, based on representations that the firm would shortly cease operations and that its representatives would cooperate with the criminal investigation of tax shelter work at the firm. (U.S. Department of Justice 2007). Thus ended the life of the fastest growing law firm in the United States less than a decade before, and a pillar of the Dallas corporate establishment for over half a century. Jenkens & Gilchrist's press release in connection with the non-prosecution agreement said that certain of its lawyers "developed and marketed fraudulent tax shelters," and that Jenkens "failed to exercise effective oversight and control over the firm's tax shelter practice." (Jenkens & Gilchrist 2007). On June 9, 2009, Paul Daugerdas and two other partners in the Chicago office, Erwin Mayer and Donna Guerin, were indicted for their work on tax shelters. (Indictment 2009). For some, the story of Jenkens & Gilchrist is simple: it's another example of how business considerations have led law firms in recent years to neglect their professional duties. Both journalists and scholars have written extensively about intensified competition in the legal services market over the last quarter century.
Concern about the increasing militarization of police has grown in recent years. Much of this con... more Concern about the increasing militarization of police has grown in recent years. Much of this concern focuses on the material aspects of militarization: the greater use of military equipment and tactics by police officers. While this development deserves attention, a subtler form of militarization operates on the cultural level. Here, police adopt an adversarial stance toward minority communities, whose members are regarded as presumptive objects of suspicion. The combination of material and cultural militarization in turn has a potential symbolic dimension. It can communicate that members of minority communities are threats to society, just as military enemies are threats to the United States. This conception of racial and ethnic minorities treats them as outside the social contract rather than as fellow citizens. It also conceives of the role of police and the military as comparable, thus blurring in a disturbing way the distinction between law enforcement and national security operations. Demonstrations in recent years following the deaths of African Americans, especially African American men, at the hands of police have raised fundamental issues about race and criminal justice in the United States. Central to these demonstrations is concern about the use of force by the state against its own citizens. 1 One prominent way in which this is expressed is the claim that there is a trend toward the "militarization" of the police in America, in particular, the use of military tactics and equipment by police and the acquisition of such equipment through programs such as the one administered by the Department of Defense. This concern reflects unease about what I call the "material" dimension of militarization. The risk posed by this dimension is physical: that police will use intense violence against individuals and communities to secure order. Police officers should not act like soldiers because soldiers are authorized to use especially destructive means to secure their objectives, means that the police should not be permitted to use. Apprehension about the police becoming more militarized is reflected even more directly in the objection to the use of military forces to respond to public demonstrations, as President Donald Trump has suggested is necessary to quell some of the recent protests 1 By "citizens," I mean to include all persons in the United States who may be subject to the use of force, regardless of their legal status. I use the term both for shorthand convenience and to highlight the issues in political theory that I will be discussing.
The global law firm has become a significant actor in the provision of legal services in multiple... more The global law firm has become a significant actor in the provision of legal services in multiple countries. Although this reflects a response to increasing demand for these services by transnational companies, lawyers in these firms also help further the process of globalization that fuels such demand. One arena in which this occurs is the construction of transnational governance regimes that harmonize standards and expectations with respect to a variety of business activities. These regimes may be based on two different visions of the globalization process. One vision is of markets increasingly unfettered by national regulation, while another is of widely accepted human rights that impose common constraints on business activities. This article surveys the literature on transnational governance regimes and the work of transnational corporate lawyers to illuminate these dynamics, and suggests that further research on this topic can provide insight into how lawyers contribute to the ...
and the Law, Georgetown Law Center. We would like to thank Ashley Deeks and David Koplow for thou... more and the Law, Georgetown Law Center. We would like to thank Ashley Deeks and David Koplow for thoughtful comments on an earlier draft of this chapter.
Oxford University Press Oxford New York Athens Auckland Bangkok Bogota Buenos Aires Calcutta (&#x... more Oxford University Press Oxford New York Athens Auckland Bangkok Bogota Buenos Aires Calcutta ('ape Town Chcnnai Dar es Salaam Delhi Florence Hong Kong Istanbul Karachi Kuahi Lumpur Madrid Melbourne Mexico City Mumhai Nairobi Paris Sao Paulo Singapore Taipei Tokyo ...
This article is part of an exchange including Anthony Alfieri and William Simon in the Georgetown... more This article is part of an exchange including Anthony Alfieri and William Simon in the Georgetown Law Journal on the implications of law firms' increasing reliance on the concept of risk management as the focus of efforts to ensure ethical conduct by lawyers. A risk management program involves the adoption of various policies and procedures designed to minimize conduct that
Virtually all courts that have considered the issue have held that law firms cannot enforce agree... more Virtually all courts that have considered the issue have held that law firms cannot enforce agreements that impose reasonable financial penalties on lawyers who leave the firm and take clients with them. This is the case despite the fact that practice organizations in all other professions, such as medicine, accounting, and engineering, are able to enforce such provisions. The Article uses this resistance as the vehicle for exploring broader issues relating to concerns about the loss of professionalism in modern law practice. The first is the common tendency to dichotomize between law practice as a business and as a profession. This distinction ignores the complex ways in which these two dimensions of practice are intertwined. In particular, the use of business measures that make a law firm more efficient may create a competitive advantage that affords an opportunity for the firm to further non-economic values. The second issue is the failure to appreciate that the concept of professionalism involves multiple values: (1) devotion to the client's interest (2) the control over work exercised by the practitioner of a craft and (3) the exercise of independent judgment as a steward of the legal system. These values have the potential to be either conflicting or complementary. An assessment of developments in law practice thus must examine the extent to which the realization of specific values in particular settings may be furthered or hindered by such developments. A final point is the potential importance of law firms in providing an opportunity for lawyers to reconcile these values in daily practice. The Article argues that enforcing reasonable penalties can provide law firms with the economic stability that enables them to sustain a distinct institutional culture that is not wholly market-driven. This perspective underscores that allegiance to professional values is not simply a matter of individual character, but is dependent in important ways on larger organizational structures of law practice. In short, realizing the values of professionalism may be more of a collective, rather than individual, achievement in the dynamic and tumultuous world of contemporary practice.
Many efforts to understand and respond to a succession of corporate scandals over the last few ye... more Many efforts to understand and respond to a succession of corporate scandals over the last few years have underscored the importance of organizational culture in shaping the behavior of individuals. This focus reflects appreciation that even if an organization has adopted elaborate rules and policies designed to ensure legal compliance and ethical behavior, those pronouncements will be ineffective if other
In Democracy’s Discontent, Michael Sandel contrasts the civic republican approach to American pol... more In Democracy’s Discontent, Michael Sandel contrasts the civic republican approach to American politics with that of liberal neutrality and shows how the two views have played out over the course of US history. Sandel argues that liberal neutrality is overwhelmingly dominant today, and he urges a return to a more Aristotelian, republican politics; both positions are controverted here. Under republicanism, government, acting on the premise that self-government is intrinsically good, would take on the challenge of inculcating the virtues of character necessary for effective citizenship. Sandel is not completely clear as to just what America’s lost republican ideals are and precisely what policies his republicanism would justify that liberalism cannot; he fails to acknowledge what both he and his critics should reject as the dark sides of republicanism: right-wing extremism and the tendency toward aristocracy. Republicanism, as well as liberalism, has special dangers for women, though h...
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