Lawyering for groups, broadly defined as the legal representation of a client who is not an individual, is a significant and booming phenomenon. Encompassing the representation of governments, corporations, institutions, peoples, classes, communities, and causes, lawyering for groups is what many, if not most, lawyers do. And yet, the dominant theory of law practice—the Standard Conception, with its principles of zealous advocacy, nonaccountability, and professional role-based morality—and the rules of professional conduct that codify it, continue to be premised on the basic antiquated assumption that the paradigmatic client-attorney relationship is between an individual client and an individual attorney. The result is a set of rules and a theory of law practice that often ill fit the practice of group lawyers.
This Article explores the theoretical and practical challenges of group lawyering through the study of lawyers for American Indian tribes. We believe that a focus on tribal lawyers furthers two important goals. First, the individualistic impulse of the dominant theory of law practice is so ingrained that it forecloses the possibility of challenging and imagining genuine group-based alternatives. In order to truly see the shortcomings of the Standard Conception and conceive of alternatives to it, one must start not with an abstract theory of group representation, but with a detailed study of the meaning, needs, interests, and realities of actual groups and build a corresponding theory from the ground up. Second, the story of tribal lawyers, an important narrative of both the legal profession and of tribes, is still largely untold. This Article thus aims to challenge the homogeneity of the Standard Conception of law practice and to begin the process of imagining group-based alternatives to it, while at the same time telling part of the story of tribal lawyers.
Recent developments in class action law and scholarship have forced new attention on the question of how class representation should be assessed. This Article begins with an examination of the governance problem in class action analyzed from the perspective of the customary political theories that would justify legitimate government in public and private domains. Customary accounts of democratic legitimacy or contractual voluntarism poorly capture the distinct world of the one-time aggregation of a class under court-assigned leadership. What emerges is an assessment of how various class action doctrines serve to fill the void in customary indications of legitimacy in governance. The Article concludes with a review of alternative efforts to structure class governance to avoid the agency problems inherent in the power to manage the affairs of others.
Those who have addressed ethics issues for plaintiffs’ lawyers in mass tort litigation have focused on possible reform of the aggregate settlement rule to facilitate global settlements. This Article addresses a broader range of ethical issues, including (1) application of the general conflicts of interest rule to both client-client and client-lawyer conflicts; (2) unresolved issues concerning the interpretation of the current aggregate settlement rule, including the need to disclose client names and the applicability of the rule to court-approved settlements and formula or matrix allocations; and (3) the ability of lawyers to voluntarily withdraw from representing plaintiffs who reject an offer of settlement.
In Revlon, Inc. v. MacAndrews & Forbes Holdings, Inc., the Delaware Supreme Court explained that, when a target board of directors enters Revlon-land, the board’s role changes from that of “defenders of the corporate bastion to auctioneers charged with getting the best price for the stockholders at a sale of the company.”
Unfortunately, the Court’s colorful metaphor obfuscated some serious doctrinal problems. What standards of judicial review applied to director conduct outside the borders of Revlon-land? What standard applied to director conduct falling inside Revlon-land’s borders? And when did one enter that mysterious country?
By the mid-1990s, the Delaware Supreme Court had worked out a credible set of answers to those questions. The seemingly settled rules made doctrinal sense and were sound from a policy perspective.
Indeed, my thesis herein is that Revlon and its progeny should be praised for having grappled—mostly successfully—with the core problem of corporation law: the tension between authority and accountability. A fully specified account of corporate law must incorporate both values. On the one hand, corporate law must implement the value of authority in developing a set of rules and procedures providing efficient decision making. U.S. corporate law does so by adopting a system of director primacy.
In the director primacy (a.k.a. board-centric) form of corporate governance, control is vested not in the hands of the firm’s so-called owners—the shareholders—who exercise virtually no control over either day-to-day operations or long-term policy, but in the hands of the board of directors and their subordinate professional managers. On the other hand, the separation of ownership and control in modern public corporations obviously implicates important accountability concerns, which corporate law must also address.
Academic critics of Delaware’s jurisprudence typically err because they are preoccupied with accountability at the expense of authority. In contrast, or so I will argue, Delaware’s takeover jurisprudence correctly recognizes that both authority and accountability have value. Achieving the proper mix between these competing values is a daunting—but necessary—task. Ultimately, authority and accountability cannot be reconciled. At some point, greater accountability necessarily makes the decision-making process less efficient. Making corporate law therefore requires a careful balancing of these competing values. Striking such a balance is the peculiar genius of Unocal and its progeny.
In recent years, however, the Delaware Chancery Court has gotten lost in Revlon-land. A number of chancery decisions have drifted away from the doctrinal parameters laid down by the Delaware Supreme Court. In this Article, I argue that they have done so because the Chancellors have misidentified the policy basis on which Revlon rests. Accordingly, I argue that chancery should adopt a conflict of interest–based approach to invoking Revlon, which focuses on where control of the resulting corporate entity rests when the transaction is complete.
That state and federal agencies have emergency powers is well known. Much less is known about the process and circumstances under which these powers are exercised—subjects that divide scholars into two theoretical camps. Scholars on one side assert that ample agency discretion in time of need is not only desirable but is also laudable in the pursuit of efficiency and “deossification” of regulatory action. Scholars on the other side contend that emergency powers are so broadly granted, and representative procedure is so easily abandoned, that the inevitable result is agency unaccountability and aggrandizement. In response, this Article presents new empirical research that shows a startling rise in the actual use of federal emergency power (the “good cause” exemption) and extensive use by certain state agencies of their comparable emergency rulemaking powers. After conducting a novel and comprehensive normative analysis, this Article concludes by offering an approach to reharmonize the efficiency/public participation trade-off for emergency rulemaking at both the state and federal level: (1) to restrict federal agency emergency powers in language and structure and (2) to increase agency flexibility at the state level. Discussion of these proposals is particularly timely because the general level of emergency rulemaking has increased, and federal and state administrative agencies also must now gird themselves for an increased burden on agencies that regulate health insurance programs. In this arena in particular, the empirical evidence reveals intense tension between administrative efficiency, public participation, and a compelling need for an immediate rebalancing of these competing interests.
Securities law’s dirty little secret is that rich investors have access to special kinds of investments—hedge funds, private equity, private companies—that everyone else does not. This disparity stems from the fact that, from its inception, federal securities law has jealously guarded the manner in which firms can sell shares to the general public. Perhaps paternalistically, the law assumes that the average investor needs the protection of the full panoply of securities regulation and thus should be limited to buying public securities. In contrast, accredited—i.e., wealthy—investors, who it is presumed can fend for themselves, have the luxury of choosing between the public and private markets.
This Article uses the emergence of new secondary markets in the shares of private companies to illustrate the above disparity, which has long characterized the world of investment access. First, focusing narrowly on these markets reveals their troubling potential effects on the venture capital world, a vital source of startup funding. More broadly, these new secondary markets bring to light the stark contrasts in investing power and access that have always been securities law’s dirty little secret: by making it easier for accredited investors to wield their special privilege, the new markets just make the disparity of investment access more obvious. For example, after Facebook’s initial public offering, it was widely reported that accredited investors had been buying shares of the high-profile company in the three years before it rather disastrously went public—at which point the big money had already been made.
Thus, the increased transparency that the secondary markets bring to the world of private investment makes our overall securities law newly vulnerable to a fundamental critique: government intervention has created an investing climate that lets the rich get richer, while the poor get left behind. The Article acknowledges elements keeping the current system in place, explaining the current inequality of investor access by way of public choice theory: regulators and companies alike favor the status quo. Viewed from the perspective of the little guy, however, inequality in investment access may prove less defensible and ultimately less tenable. I suggest a modest fix: letting the general public participate in the private market via mutual fund investment, something it currently cannot do.
Every day, in courtrooms across the United States, law enforcement officers testify in criminal and civil trials. Often an officer is certified as an expert witness and, accordingly, can provide opinions to the court based on his or her law enforcement expertise. Other times, the officer offers testimony as a layperson. In the latter situation, Federal Rule of Evidence 701 controls the officer’s lay opinion testimony. This Rule was first adopted to remedy a problematic common law practice of universally prohibiting lay opinion testimony. As the Rule stands now, all lay witnesses, including law enforcement officers, must limit their opinions to ones that are based on their personal perceptions and that are helpful to the fact-finder.
Courts, however, are split regarding where to draw the line when lay officers are asked to provide lay opinion testimony about an investigation. In particular, courts have disagreed over the question of when a lay officer may provide opinion testimony about the meaning of recorded phone calls. This Note explores the three approaches the federal circuit courts take to this question. To resolve the split, this Note suggests that an amended version of the Second, Fourth, and Eighth Circuits’ approaches be adopted. These circuits hold that officers’ lay opinion testimony must be restricted to instances of true first-hand knowledge to ensure that jurors are not prejudiced by unqualified and unhelpful testimony.
In August 2012, the first social impact bond in the United States was implemented, introducing a revolutionary framework that aligns the incentives of the participants and provides nonprofits with a steady source of long term funding to scale up social projects. In the prevailing social impact bond structure, private investors essentially place a bet with a government agency that the selected nonprofits will accomplish measureable goals through a comprehensive project designed to reduce public costs. If the program fails to reach these goals, the investors lose the bet and their entire financial commitment to the social impact bond. If the program succeeds, the government agency repays the initial investment plus a profit margin to the investors. This Note examines social impact bonds from a nonprofit’s perspective and answers the question whether the profit margin that the private investors may achieve would qualify as an impermissible private benefit that would allow the IRS to revoke a participating nonprofit’s tax-exempt status.
Emails feel like private, confidential communications. But in the workplace, employers often retain the right to monitor every communication sent or received by an employee on an employer-owned device or network. This Note addresses the issue of whether attorney-client privilege should attach to communications made between an employee and her private attorney over a system monitored by her employer. When addressing this issue, most district and state courts apply a test that seeks to determine the reasonableness of the employee’s expectation of confidentiality in the attorney-client communication. However, courts differ in how they apply the expectation of reasonableness test, with nearly every court finding a different fact dispositive. This Note argues that attorneys, employers, and courts should instead use a three-pronged approach: first, attorneys should seek to prevent monitored communications with their clients from occurring in the first place; second, employers should take precautions to prevent their employees’ attorney- client communications from becoming nonconfidential; and third, courts should allow attorney-client privilege to attach to communications that the client believed were confidential. This three-pronged approach is consistent with the doctrine&rsquols other exceptions to a strict confidentiality requirement and realigns attorney-client privilege with its public policy goals.
In recent years, there has been an increase in consumer protection class action litigation in federal courts. These suits arise from a group of consumers who have felt deceived by a particular product, ceased using that product, and then tried to sue a defendant manufacturer through state consumer protection statutes. Often, these individuals seek to enjoin the defendant’s use of an allegedly unfair business practice, such as “all natural” labeling. Since the plaintiff no longer uses the product, however, many district courts have refused to recognize that they may be at risk of a future injury and have held that these plaintiffs do not have standing to seek an injunction in the federal forum.
This Note discusses the tension between the purposes and aims of state consumer protection statutes and the heavily ingrained—yet vague—Supreme Court precedent regarding Article III standing. While many lower courts continue to conservatively interpret the Court’s decisions on standing, some California district courts have bucked this trend and begun granting consumer plaintiffs standing. This Note ultimately concludes that consumer classes must begin relying on individuals who continue to use the disputed product throughout litigation or redefine the scope of their future injury to better conform to current Supreme Court precedent.
Ninety-seven percent of federal convictions are the result of guilty pleas. Despite the criminal justice system’s reliance on plea bargaining, the law regarding the prosecution’s duty to disclose certain evidence during this stage of the judicial process is unsettled. The Supreme Court’s decision in Brady v. Maryland requires the prosecution to disclose evidence that establishes the defendant’s factual innocence during a trial. Some courts apply this rule during plea bargaining and require the disclosure of material exculpatory evidence before the entry of a guilty plea. Other courts have held or suggested that the prosecution may suppress exculpatory evidence during plea bargaining, forcing the defendant to negotiate and determine whether to accept a plea offer or proceed to trial without it. Substantial disparities therefore exist in the bargaining power and decision-making ability of criminal defendants, depending on where they are charged.
This Note addresses the divide in how courts approach Brady challenges to guilty pleas. After analyzing the development of plea bargaining and the Brady rule, this Note concludes that a guilty plea is not valid if made without awareness of material exculpatory evidence possessed by the prosecution. To provide additional support for the recognition of pre–guilty plea exculpatory Brady rights, this Note presents a case study of two 2012 Supreme Court decisions establishing the right to effective assistance of counsel during plea bargaining, and argues that the same justifications for recognizing that right during plea bargaining apply to Brady as well.
Historically, the scope of constitutional protections for fundamental rights has evolved to keep pace with new social norms and new technology. Internet speech is on the rise. The First Amendment protects an individual’s right to speak anonymously, but to what extent does it protect a right to anonymous online speech? This question is difficult because the government must balance the fundamental nature of speech rights with the potential dangers associated with anonymous online speech, including defamation, invasion of privacy, and intentional infliction of emotional distress. While lower courts have held that there is a right to anonymous online speech, they have not yet adopted a common standard. Meanwhile, to simplify the confusion and protect the rights of those who are injured by anonymous online speech, state legislatures are seeking to restrict some or all anonymous online-speech rights.
This Note explores the history of speech regulation, with a special focus on the history of anonymous online speech, and the justifications for protecting speech rights. It then discusses the judicial standards under which courts require disclosure of anonymous speakers and the current legislative proposals to restrict speech rights. Next, this Note suggests that legislatures should not restrict speech rights, and should instead expand the remedies available to those injured by harmful speech. This Note also suggests that courts should adopt a summary judgment standard that requires plaintiffs to provide evidence demonstrating that the anonymous speaker has committed a tort before requiring the speaker to disclose his or her identity.
The Hague Convention on the Civil Aspects of International Child Abduction is a multilateral international treaty designed to effectively govern the return of children abducted (often by a parent) and taken to a foreign country. In most cases, if the “left-behind” parent applies for relief under the Convention within a year of the abduction, the child must be returned to the country of origin for a custody hearing. If, however, the application for return is made more than one year after abduction and the child is now “well-settled” in their new environment, the application may be denied under the well-settled affirmative defense provided by Article 12 of the Convention. The Convention does not, however, specify which factors are to be considered in a well-settled determination, and courts have frequently grappled with how immigration status (particularly, whether the abducting parent and child are living in the new country illegally) should impact the determination. U.S. and international courts have adopted one of three approaches to the issue: granting immigration status considerable weight in the determination, treating immigration status as one of a number of equally weighted factors in the determination, or granting immigration status considerably little weight in the determination. This Note addresses this conflict and concludes that courts should generally accord immigration status little weight, except where uncertain immigration status is likely to affect the child’s future prospects, irrespective of a deportation risk.