Gillilan Hadfield: Law for a Flat World: Legal Infrastructure and the New Economy. Excerpts from abstract:
In the last two decades, the economy has undergone fundamental transformation with the twin structural changes of a great increase in the size of global markets and the internet-driven development of a platform for global exchange and work processes. . . . In this paper I argue that our legal infrastructure - the socially available set of legal materials that economic actors can use to help govern relationships - has not kept up with this transformation in the economic demand for law. Empirical evidence for this claim includes the increasing levels of dissatisfaction in even the most elite corporate legal markets, the unprecedented impact of the Great Recession of 2009 on large law firms, and surveys and interviews conducted with corporate counsel. The primary basis for the claim of a mismatch, however, is theoretical: the attributes of our existing legal infrastructure - a heavy reliance on densely-worded and complex statutes, regulations and contracts; human-capital-intensive craft production methods; undiversified legal business models; almost exclusive reliance on mandatory legal rules imposed by public actors - are poorly suited to the nature of economic activity in the new economy. The reason our legal infrastructure has not adapted, I argue, is attributable to an even deeper level of legal infrastructure: the severe limitations on who may produce legal rules and other legal inputs (such as advice, document templates, norms and practices) imposed by our continued reliance on publicly produced rules and the excessively closed nature of our lawyer- and judge-controlled legal markets.
This article generally assesses the extent and availability of rights under the attorney-client privilege and work-product doctrine [when appearing before Congress]. The article first explores the history and development of those concepts in the courts and before Congress. It next discusses Congress’s authority to investigate and compel testimony and the scope of Congress’s contempt authority to punish those persons not compliant. The article also considers whether a basis exists for Congress to treat the two concepts differently.
Amanda Peters: Lawyers Who Break the Law: What Congress Can Do to Prevent Mental Health Patient Advocates from Violating Federal Legislation. Abstract:
In 1986, Congress enacted the Protection and Advocacy for Individuals with Mental Illness Act (PAIMI). PAIMI created a national, federally-funded system of patient advocacy for individuals with mental illness. Patient advocates are lawyers who are charged with protecting individuals who have mental illness from abuse, neglect, and civil rights violations.
Over the past twenty-four years, advocates have saved countless individuals from abuse and death. However, numerous federal Department of Justice investigations reveal that patient advocates are not always carrying out their PAIMI responsibilities. Instead, patient advocates frequently engage in activities that are prohibited or unauthorized under federal law. These activities have placed their clients in peril and have taken them away from their federally-mandated mission.
This article examines how patient advocates have engaged in federally prohibited lobbying efforts and how they have tried to defeat proposed legislation, some of which would actually benefit their clients. It also explores their shift away from individual representation, which has placed more individuals with mental illness at risk. And it reveals their hostile attitude towards the families of those with mental illness, an attitude that is in direct conflict to the intent and purpose of PAIMI. Finally, it addresses the problems with each of these activities and it offers solutions that Congress can incorporate in the Act when it is revised next year.