The Yale Law Journal

Legal Ethics

Note

Attorney for the Day: Measuring the Efficacy of In-Court Limited-Scope Representation

James G. Mandilk

Using a unique dataset, this Note studies the impact of limited-scope representation and finds that unbundling legal services is an effective way to combat the civil-litigation justice gap. Based on those results, the Note recommends solutions that will both serve those who lack counsel and respect …

Forum

How To Think About Law as Morality: A Comment on Greenberg and Hershovitz

Steven Schaus

Introduction In philosophy, we can sometimes hope to make progress just by looking at old issues in new ways. The hope is that we might see familiar facts and controversies differently and understand them better for it. In their recent Essays, Mark Greenberg and Scott Hershovitz make the …

Note

Mere Negligence or Abandonment? Evaluating Claims of Attorney Misconduct After Maples v. Thomas

Wendy Zorana Zupac


122 Yale L.J. 1328 (2013).

In recent terms the Supreme Court has attempted to carve out remedies for habeas petitioners with negligent lawyers. This Note explores the analysis used by the Court in these cases and applies a novel descriptive model to explain how the Court has applied two different mod…

Forum

The Gang of Thirty-Three: Taking the Wrecking Ball to Client Loyalty

Lawrence Fox

The attempts by some in the Bar to compromise client loyalty on the altar of law firm profits per partner is both unceasing and depressing. The proposals from many law firm General Counsels to change the Model Rules of Professional Conduct are particularly unflattering to the proponents and undermin…

Forum

In Defense of a Reasoned Dialogue About Law Firms and Their Sophisticated Clients

James W. Jones & Anthony E. Davis

This Essay argues that the current ethical rules governing U.S.-based law firms are no longer adequate to meet the needs of commercial clients operating in multiple jurisdictions and that what is required is a single and uniform regulatory system for lawyers practicing in the United States. The Essa…

Forum

The Myth of Prosecutorial Accountability After Connick v. Thompson: Why Existing Professional Responsibility Measures Cannot Protect Against Prosecutorial Misconduct

David Keenan, Deborah Jane Cooper, David Lebowitz & Tamar Lerer

This Essay takes the Supreme Court’s recent decision in Connick v. Thompson as a point of departure for examining the efficacy of professional responsibility measures in combating prosecutorial misconduct. John Thompson, the plaintiff in Connick, spent fourteen years on death row because prosecutors…

Note

Uniform Ethical Regulation of Federal Prosecutors

Bradley T. Tennis

120 Yale L.J. 144 (2010). 

Federal prosecutors are subject to a bewildering array of ethical regulations ranging from state ethical codes to local rules adopted by federal courts to the internal policies of the Department of Justice. The inconsistent and overlapping application of these ethical rul…

Note

Corruption in Our Courts: What It Looks Like and Where It Is Hidden

Stratos Pahis

118 Yale L.J. 1900 (2009).

 

Recent surveys and events indicate that judicial corruption could be a significant problem in the United States. This Note builds an economic model of bribery to better understand the incentives behind this pernicious phenomenon. It then compiles a data set of discover…

Forum

Protecting a Business Entity Client from Itself Through Loyal Disclosure

Paula Schaefer

Many attorneys are unaware of or misunderstand an important tool they can use to protect their business organization clients: the ability to disclose the client’s confidences. In jurisdictions with “loyal disclosure” rules—rules adopted by the Securities and Exchange Commission and the Ameri…

Forum

Regulating Federal Prosecutors: Let There Be Light

Bruce A. Green

The Office of Professional Responsibility (OPR), housed within the U.S. Department of Justice (DOJ), investigates alleged misconduct by federal prosecutors and other DOJ personnel. Under the Bush administration, even when OPR found serious prosecutorial misconduct, DOJ kept the disciplinary investig…

Forum

Legal Ethics Symposium

The Pocket Part

 

The Pocket Part is proud to present our final symposium issue of the academic year, examining reoccuring and novel issues surrounding the ethical responsibilities faced by lawyers. 

Review

Cosmopolitan Law?

Noah Feldman

116 Yale L.J. 1022 (2007)

Forum

Lawyers as Leaders

Ben W. Heineman, Jr.

 

Forum

In Praise of the Supporting Cast

Daniel Markovits

F.S. Oliver observed almost a century ago that a typical lawyer’s professional “experience of human affairs is made up of an infinite number of scraps cut out of other people’s lives.” Even as the lawyer’s professional life is immensely various, it remains at the same time absolutely vicar…

Forum

Executives Do Not Need Waivers and Companies Should Not Offer Them: A Response to Mark Kressel

Victor J. Rocco

Although Mark Kressel’s proposal is novel, provocative, and even enticing, it is ultimately unnecessary and unworkable to suggest that a corporation and its high-level executives should agree, at the very commencement of their relationship, to waive the corporation’s attorney-client privilege wh…

Essay

The Efficient Performance Hypothesis

Richard R.W. Brooks

116 Yale L.J. 568 (2006)

Notable American jurists and scholars have advanced an approach to contract enforcement that would render breach legally and morally uncontestable, assuming compensation follows. Much of the justification for this endeavor has rested upon claims of judicial and economic effic…

Forum

Questioning Ethics

Steven Lubet

Following Reva Siegel and Robert Post’s profound consideration of constitutional structure and democratic legitimacy, one hesitates to bring up something so pedestrian as the Code of Conduct for United States Judges. Still, legal ethics principles do have some bearing on the scope of Supreme Court…

Feature

Gideon in White/Gideon in Black: Race and Identity in Lawyering

Anthony V. Alfieri

114 Yale L.J. 1459 (2005)

Traditionally, poverty lawyers, criminal defenders, and clinical teachers have overlooked John Hart Ely's theory of judicial review in teaching the lawyering process and in representing impoverished clients and their communities. But the egalitarian themes of Ely's work on j…

Article

An Old Judicial Role for a New Litigation Era

Jonathan T. Molot

113 Yale L.J. 27 (2003)

Because litigation has changed so dramatically in the last half century, scholars tend to view contemporary civil procedure as raising new problems that require new solutions. We have overlooked that many of these problems can be explained, and even resolved, using an age-old …

Note

Sacrifice, Atonement, and Legal Ethics

David Sweet

113 Yale L.J. 219 (2003)

Lawyers surely understand sacrifice. The business of representation requires a willingness to subjugate, at least temporarily, one's own priorities, beliefs, and comforts to those of another. Today, that willingness is tested and demanded with unprecedented force. Corporate l…

Article

Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional?

Oren Gross

112 Yale L.J. 1011 (2003)

This Article suggests that legal models that have been traditionally invoked in the context of fashioning responses to emergencies may not always be adequate. Rather, there may be circumstances when the appropriate method of tackling grave threats entails going outside the l…

Review

Method and Principle in Legal Theory

Stephen R. Perry

111 Yale L.J. 1757 (2002)

The Practice of Principle is an excellent book that practically overflows with interesting and original arguments. Coleman is a superb analytical philosopher, as every page of the book attests. This is one of the most important contributions to legal theory to come along in …

Essay

Bush v. Gore and the Boundary Between Law and Politics

Jack M. Balkin

110 Yale L.J. 1407 (2001)

Shortly after the Supreme Court's 5-4 decision in Bush v. Gore, one member of the majority, Associate Justice Clarence Thomas, addressed a group of students in the Washington, D.C., area. He told them that he believed that the work of the Court was not in any way influenced…

Response

Reply: Notions of Fairness Versus the Pareto Principle: On the Role of Logical Consistency

Louis Kaplow & Steven Shavell

110 Yale L.J. 237 (2000)

In other writing, we advance the thesis that legal policies should be evaluated solely on the basis of their effects on individuals' well-being, meaning that no independent evaluative weight should be accorded to notions of fairness. In that work, we consider a variety of pr…