News
"New York State Bar Offers Website Guidance to Freelance Lawyers," Bloomberg Law
"Good Privilege and Confidentiality Habits for Remote Attorneys," Law360
"Judge Must Consider Defendants' Ability to Pay Fines and Fees, Ethics Opinion Says," ABA Journal
"California Judge Publicly Censured After Years of Offensive Comments," Jurist
Conferences
The International Legal Ethics Conference, which was to be hosted by UCLA Law School in July, is canceled. From organizer Scott Cummings: "The theme for this year's conference was 'Lawyers in Divided Times.' This crisis, which has thrown so many of our personal lives into disarray, has also revealed the true depth of our social division: impacting the most vulnerable among us in profound and perhaps irreversible ways. As we all contemplate what it will mean to be ethical lawyers in the post-COVID-19 world, may we use this time of isolation to consider our collective role in rebuilding societies in which access to life's necessities—health and economic security—is not so unequal." His full letter is here.
Recent Scholarship
National Security Lawyering in the Post-War Era: Can Law Constrain Power? Oona Hathaway, Yale Law School
Do we face a rule of law crisis in U.S. national security law? The rule of law requires that people and institutions are subject to and accountable to law that is fairly applied and enforced. Among other things, this requires that those bound by the law not be the judges in their own case. Does national security lawyering meet this standard? And if not, what should be done about that? This Article seeks to answer these questions. It begins by demonstrating a key source of the problem: there are almost no external constraints on national security lawyering. Congress and the courts have mostly opted out of making decisions in cases involving national security, our international partners find it difficult to discipline a hegemon, and the press and advocacy organizations are constrained by the fact that the matters on which they seek transparency are, generally speaking, classified and thus revealing them is a crime. In short, the ordinary checks do not apply. The absence of any real oversight means that those interpreting the law are almost exclusively the lawyers for the very same actors regulated by that law — members of the U.S. executive branch. Drawing on historical research and interviews with former national security lawyers from the last four presidential administrations, the Article describes the group of lawyers most centrally involved in addressing national security law questions, now known as “the Lawyers Group.” Even at its best, it shows, the Lawyers Group process was insufficient to adequately protect the rule of law. The Trump Administration — which has been criticized for defying domestic and international law, most recently in killing Iranian Major General Qassem Soliemani — has revealed problems that existed all along, creating an opportunity to strengthen the rule of law in national security lawyering.
Lead Plaintiff Incentives in Aggregate Litigation, Vanderbilt Law Review, Charles Korsmo, Case Western Reserve University School of Law and Minor Myers, Brooklyn Law School
The lead plaintiff role holds out considerable promise in promoting the deterrence and compensation goals of aggregate litigation. The prevailing approach to compensating lead plaintiffs, however, provides no real incentive for a lead plaintiff to bring claims on behalf of a broader group. The policy challenge is to induce sophisticated parties to press claims not in their individual capacity but instead in a representative capacity, conferring a positive externality on all class members by identifying attractive claims, financing ongoing litigation, and managing the work of attorneys. We outline what an active and engaged lead plaintiff could add to the civil enforcement regime and propose a set of reforms designed induce that engagement. In particular, we argue that courts should be open to awarding lead plaintiffs amounts that are roughly equal in magnitude to those awarded to lead counsel.