Hinshaw & Alberts, Doing the Right Thing: An Empirical Study of Attorney Negotiation Ethics

Professor Art Hinshaw of the Arizona State University College of Law, & Professor Jess K. Alberts of the Arizona State University School of Human Communication, have published Doing the Right Thing: An Empirical Study of Attorney Negotiation Ethics, a paper delivered at CELS 2009: The 4th Annual Conference on Empirical Legal Studies. Here is the abstract:

“The code of ethical conduct for lawyers — the American Bar Association’s Model Rules of Professional Conduct (the ‘Model Rules’) — legitimizes a certain amount of dissembling and misdirection in the negotiation realm, only prohibiting legal negotiators from making fraudulent misrepresentations about material matters. To determine if attorneys are meeting this low standard, the authors surveyed practicing lawyers and asked them if they would agree to engage in a fraudulent pre-litigation settlement scheme if a client requested them to do so. Nearly one-third of the respondents indicated they would agree to the client’s overtures, and only half indicated that they would refuse the client’s overtures, thereby following the Model Rules. Follow-up questioning suggested several reasons for these results: there appears to be substantial misunderstanding as to what constitutes a fraudulent misrepresentation, there seems to be considerable confusion surrounding the rule’s operative term ‘material fact,’ and it appears that some of the attorneys believe that other legal rules, including other portions of the Model Rules, either gave them permission or required them to engage in the fraudulent negotiation scheme. To rectify these apparent misunderstandings among practicing lawyers, the article offers three interdependent means for improving lawyer negotiation ethics – rule clarification, education, and increased rule enforcement.”

HT @thetrialwarrior.

Proactive Law in Action: Warsaw Pilot Project Educating Potential Applicants to the ECHR

An interesting example of pro active law — the movement to educate citizens about substantive law and procedure, so that citizens may make informed decisions about the many issues in their lives that have legal consequences — was reported this week in connection with the European Court of Human Rights (ECHR). Antoine Buyse of the Netherlands Institute of Human Rights reports at ECHR Blog that the Council of Europe’s Information Office in Warsaw has begun an effort, named the Warsaw Pilot Project, to educate potential applicants to the ECHR, “about admissibility criteria and more generally about the ECHR.” “Such undertakings,” Buyse contends, “either performed by a specially appointed lawyer or by national human rights institutions, might help to avoid part of the deluge of cases streaming to Strasbourg.”

The Warsaw Pilot Project presents an example of a kind of public legal education effort that could have positive consequences for judicial case administration reform, discussed in recent writings by Judge Dory Reiling and the Institute for the Advancement of the American Legal System at the University of Denver, as well as for the proactive law movement.

Buyse reports that participants at last week’s London meeting of NGOs in preparation for the February 18-19, 2010 Interlaken conference on the future of the ECHR cited the Warsaw Pilot Project, as an example of efforts that they will encourage the ECHR to undertake, to increase understanding of “how the [European Convention on Human Rights] system works both among the general public but specifically among practising lawyers.” Buyse reports that the conference participants agreed that “ECHR as a standard part of legal education would be helpful, but also [necessary is] practical dissemination of information on admissibility criteria and other matters within the state parties themselves.”

Empirical study of the Warsaw Pilot Project and similar efforts would be worthwhile projects for legal informatics researchers who study legal information behavior.

For more information on the London NGO meeting, please see Buyse’s fine report.

HT Human Rights in Ireland.

Tamanah, Beyond the Formalist-Realist Divide: The Role of Politics in Judging

Professor Brian Z. Tamanaha of St. John’s University School of Law has published Beyond the Formalist-Realist Divide: The Role of Politics in Judging (2009). Here is the abstract:

“According to conventional wisdom in American legal culture, the 1870s to 1920s was the age of legal formalism, when judges believed that the law was autonomous and logically ordered, and that they mechanically deduced right answers in cases. In the 1920s and 1930s, the story continues, the legal realists discredited this view by demonstrating that the law is marked by gaps and contradictions, arguing that judges construct legal justifications to support desired outcomes. This often-repeated historical account is virtually taken for granted today, and continues to shape understandings about judging. In this groundbreaking book, esteemed legal theorist Brian Tamanaha thoroughly debunks the formalist-realist divide.

“Drawing from extensive research into the writings of judges and scholars, Tamanaha shows how, over the past century and a half, jurists have regularly expressed a balanced view of judging that acknowledges the limitations of law and of judges, yet recognizes that judges can and do render rule-bound decisions. He reveals how the story about the formalist age was an invention of politically motivated critics of the courts, and how it has led to significant misunderstandings about legal realism.

“Beyond the Formalist-Realist Divide traces how this false tale has distorted studies of judging by political scientists and debates among legal theorists. Recovering a balanced realism about judging, this book fundamentally rewrites legal history and offers a fresh perspective for theorists, judges, and practitioners of law.”

HT Legal Theory Blog.

Knauer on Legal Fictions and Juristic Truth

Professor Nancy J. Knauer of Temple University Beasley School of Law has published Legal Fictions and Juristic Truth, forthcoming in St. Thomas Law Review. Here is a summary:

“In Part II, I provide a brief overview of legal fictions and discuss the prevalence of both common law and statutory legal fictions, with a particular emphasis on the law school curriculum. Part III then establishes that the three categories of ―new legal fictions (i.e., empirical legal errors, discredited legal regimes, and complex statutory
schemes) are different in kind from the classic fictions and, therefore, warrant separate treatment. In each case, the newly labeled ―fictions are either not transparently false or not demonstrably false. With respect to empirical errors, I argue that legal rules valued for their veracity, such as the reliability of eyewitness testimony, are not appropriately termed legal fictions despite the fact that they might rest on false premises. A classic legal fiction maintains its utility despite its falsity, but an empirically based rule that rests on a factual error should be modified or discarded. I then turn to the disturbing trend in scholarship to dismiss discredited legal regimes, such as slavery and the doctrine of discovery, as legal fictions. I distinguish these examples from the empirical errors discussed in the preceding section. Specifically, I address the argument that some of the racist assertions made in judicial opinions were known to be false. I maintain that, even
if they were understood to be false, they were propounded with the intent to deceive and, therefore, do not qualify as legal fictions. In the last section, I consider the constitutive power of law in the less emotionally charged atmosphere of a complex statutory scheme. I maintain that even though statutory schemes may be artificial constructions, they cannot be said to be false in any meaningful way. A brief conclusion restates my rationale for advocating a relatively narrow definition of legal fictions and offers some final observations regarding the nature of juristic truth.”

HT @freemoth.

Strutin: Strengthening Forensic Science: The Next Wave of Scholarship

Ken Strutin, JD, MLS, of the New York State Defenders Association has published a bibliography of recent scholarly works and conferences on the reform of forensic science in the United States, entitled Strengthening Forensic Science: The Next Wave of Scholarship, LLRX.com, Nov. 23, 2009. For some reason, authors’ names are omitted from the bibliography, so extra effort is required to evaluate the works described. Here is the abstract:

“The National Academy of Sciences report, Strengthening Forensic Science in the United States: A Path Forward [NAS Report], is the most important, recent contribution to the ongoing reevaluation of forensic evidence. Since the release of the prepublication version in February 2009, its findings and conclusions have been steadily sinking into the collective consciousness of the legal and scientific communities.

“This article focuses on threads of scholarly literature citing and commenting on the NAS Report; and highlights discussions where experts and practitioners rethink the merits of a wide range of forensic issues.2 And on the horizon is the Third Edition of the Reference Manual on Scientific Evidence, which will have its own impact on legal thinking about science in the courtroom.”

Reiling on How ICT Is Changing the Administration of Justice

Judge Dory Reiling, Vice President of the Amsterdam District Court, has published ICT verandert de rechtspraak = ICT Is Changing the Administration of Justice, in Nederlandse rechtsbestel in Europees perspectief 42 (A. C. Berghuis et al. eds., 2009). (Click here for full text in PDF.) Here is the abstract:

“This article compares ICT in European judicial systems based on the 2008 CEPEJ report [European Commission for the Efficiency of Justice (CEPEJ), European Judicial Systems: Efficiency and Quality of Justice (2008; Data 2006)] on efficiency and quality of justice. It ends by discussing whether ICT is changing the administration of justice. Office automation, jurisprudence databases, e-mail and internet access for judges and clerks have been implemented in most courts in Europe. Case registration systems were less widely introduced, and case and court management systems even less. The forerunners among the judicial systems are ahead when it comes to digital access and external communication. The inaccuracy of the CEPEJ report makes drawing more detailed conclusions problematic. Some observations from other sources show that managing and developing ICT can be difficult for judiciaries. ICT’s potential is in enhancing timeliness, access, consistency and public trust. Increased public scrutiny and the availability of information engender predictability. However, judging ultimately involves resolving issues whose outcome is unpredictable.”

Judge Reiling will defend her dissertation, entitled Technology for Justice: How Information Technology Can Support Judicial Reform (2009), on December 11, 2009, at Vrije Universiteit Amsterdam.

SEALS Project: Semantic Evaluation At Large Scale

Those interested in legal knowledge representation or legal semantic information retrieval may be interested in the European SEALS project: Semantic Evaluation At Large Scale, a project to develop an infrastructure for the evaluation of semantic technologies. Interested researchers are invited to join the SEALS Community. Here is the press release from Universidad Politécnica de Madrid (UPM). HT ACM Tech News.

SEALS, a “7th Framework Programme (FP7) under the topic of e-Infrastructures, is coordinated by Ontology Engineering Group at the UPM’s School of Computing and includes researchers from other nine European universities and research centres from Austria, France, Germany, Switzerland, and the United Kingdom.”

For more information, please see the SEALS Website.

If you know of law-related activities or systems within the SEALS project, please feel free to identify them in the comments.

Update on Legal Information Preservation: 2009 LIPA Minutes Available

Minutes are now available of the July 26, 2009 meeting of LIPA, the Legal Information Preservation Alliance, held in Washington, DC, at the 2009 AALL Annual Meeting. LIPA coordinates legal information preservation efforts in the United States. Here are some highlights of the July 2009 meeting:

• The National Conference of Commissioners on Uniform State Laws (NCCUSL) has appointed a Drafting Committee on Authentication and Preservation of State Electronic Legal Materials, to write a uniform state law setting standards for the preservation and authentication of U.S. state legal resources in digital format. The Committee Reporter is Professor Barbara A. Bintliff of the University of Colorado School of Law.
• The Chespeake Project Legal Information Archive completed its pilot project, during which it captured and preserved 4306 digital law-related information resources, in a system that runs on the CONTENTdm platform. LIPA Executive Director Margaret Maes reported that the Chesapeake Project “is now part of LIPA under the umbrella of the Legal Information Archive,” and LIPA members were to be invited to participate in the Legal Information Archive in the fall of this year;
• Professor Kent McKeever of Columbia University Law School reported on LIPA’s Print Retention Program, which monitors and coordinates the retention of print legal resources among U.S. law libraries. Here is the most recent report on this program. This project currently involves Columbia University’s Diamond Law Library and the Harvard Law School Library. There are plans to expand the project to enable other libraries to commit to preserving particular print legal resources. “There is a parallel project being done by the old RLG group whereby preservation status will be in 583 field of the bibliographic record. This model will allow smaller libraries to be able to participate in the print retention project.”
• LIPA has named a Digital Preservation Priorities and Inventory Committee, which is “developing priorities for selecting materials for a repository of digital and born-digital information and maintaining that information on the LIPA Website”;
• LIPA has a new strategic plan, whose goals include:
• promoting preservation of born-digital and print legal information resources;
• creating a database of LIPA’s preservation inventory; and
• developing best practices for legal information preservation.

For more information, please see the minutes, or visit the LIPA Website.

2009 Law via the Internet Conference

[NOTE: Updated on 24 November 2009 to change the Twitter hashtag to #LVI2009.]

The 10th International Law via the Internet Conference will be held 26 – 27 November 2009, in Durban, South Africa. The conference theme is “Global Free Access to Law and Developing Countries: Impact, Challenges and Networks.”

The conference program is available here.

The Twitter hashtag for the conference is #LVI2009.

The conference blog is available here.

We wish our colleagues a very successful conference.

HT @montserratlj & @trbruce.

Whisner on The United States Code, Prima Facie Evidence, and Positive Law

Mary Whisner, Reference Librarian at University of Washington’s Marian Gould Gallagher Law Library, has published The United States Code, Prima Facie Evidence, and Positive Law, 101 Law Library Journal 545 (2009). Here is the abstract:

This article “examines the history of the U.S. Code, explaining why it is only ‘prima facie evidence of the law,’ and discusses the efforts of the Office of the Law Revision Counsel to enact Code titles into positive law.”