2002 MASON LADD LECTURE
Charles W. Ehrhardt
The Mason Ladd Lecture, the premier lecture series presented at the Florida State University College of Law, honors the memory of Mason Ladd, the founding Dean of the law school. After guiding the law school at the University of Iowa for over 25 years as Dean, Ladd accepted the position of Dean at Florida State and began to plan the establishment of our new law school. When he accepted this challenge, there was no building or faculty, and were no students. However, in the fall of 1966, the law school at Florida State opened with over 100 students enrolled. Under his leadership and constant prodding, the College of Law began its steady growth. Prior to his retirement at Florida State in 1969, he obtained funding for a new College of Law building and completed the preliminary planning for its construction. For three years thereafter Mason returned each winter to Tallahassee to teach evidence and renew old acquaintances.
WHO NEEDS THE BAR?: PROFESSIONALISM WITHOUT MONOPOLY
William H. Simon
Professionalism has an idealistic dimension and an institutional one. The idealistic dimension is the notion of voluntary commitment to both client interests and public values. The institutional dimension is the ideal of self-regulation by the bar. The idealistic dimension remains powerful. However disappointed we are by the distance between the profession’s ideals and its members’ practices, these ideals continue to inspire valuable efforts. Various professional organizations are making admirable contributions through pro bono representation of disadvantaged people, public education, and disinterested law reform efforts in a range of areas, such as litigation procedure, prisons, and judicial selection. Moreover, the bar’s ideals of public service provide the vantage point from which the profession’s critics assess and propose improvements to its practices.
BUSTING THE PROFESSIONAL TRUST: A COMMENT ON WILLIAM SIMON’S LADD LECTURE
W. Bradley Wendel
It is truly an honor to be asked to Comment on the work of William Simon, one of the scholars who has done the most to contribute to the reputation of legal ethics as a field with intellectual rigor and depth, as well as one with significant implications for legal theory generally. The power of his critical faculties is unmatched: the platitudes offered by the organized bar in defense of the dominant view of legal ethics lie in tatters after the sustained assault in the first three chapters of The Practice of Justice. In fact, it can be difficult to find objections to the dominant view that Simon has not already articulated more forcefully. But his project is not merely critical, as his construction of the alternative contextual view of ethics shows. His Mason Ladd Lecture is a welcome extension of the contextual view, moving from the micro-evaluation of the ethics of individual lawyers into the macro level of institutional analysis and questions of regulatory regime design. Section I of this Comment is a brief review of this proposal.
RATIONALIZING DRUG POLICY UNDER FEDERALISM
David W. Rasmussen & Bruce L. Benson
Legal systems and economic organizations have a common purpose because they exist to create incentives and constraints that modify human behavior. The field of law and economics is an intellectual niche that rests on the assumption that, in the common law at least, economic efficiency is the principle that guides legal reasoning. But some legal rules appear very inefficient, and economic analysis can also be employed to see why the incentives and constraints emerging from laws do not promote their stated purpose. Such analysis often ferrets out unintended consequences of rules and regulations.
THE MEANING OF “APPROPRIATE VALIDATION” IN DAUBERT V. MERRELL DOW PHARMACEUTICALS, INC., INTERPRETED IN LIGHT OF THE BROADER RATIONALIST TRADITION, NOT THE NARROW SCIENTIFIC TRADITION
Edward J. Imwinkelried
The Supreme Court has rendered a trilogy of cases explicating the standards governing the admissibility of expert testimony under Federal Rule of Evidence 702. In 1993, in the watershed case of Daubert v. Merrell Dow Pharmaceuticals, Inc., the Court initially held that the traditional common law, general acceptance admissibility standard for scientific evidence is no longer good law. The Court remarked that the “rigid ‘general acceptance’ requirement [was] at odds with the ‘liberal thrust’ of the Federal Rules and their ‘general approach of relaxing the traditional barriers to opinion testimony.’”
THE PROPERTY WARS OF LAW FIRMS: OF CLIENT LISTS, TRADE SECRETS AND THE FIDUCIARY DUTIES OF LAW PARTNERS
Robert W. Hillman
The dramatic rise in litigation among former law partners is a well-documented feature of the legal profession’s landscape. An impressive body of law underlying lawyer mobility has developed in the relatively short period during which law partner litigation has become commonplace. With each reported decision, the litigation has yielded substantive legal standards regulating the relationships of partners associated in a law practice.
DISABUSING THE DEFINITION OF DOMESTIC ABUSE: HOW WOMEN BATTER MEN AND THE ROLE OF THE FEMINIST STATE
Domestic abuse. The term immediately conjures up images nationally spread through such highly publicized events as the murder trial of O.J. Simpson and the saga of John and Lorena Bobbit, hit tunes like Tracy Chapman’s Behind the Wall, and movies like Julia Robert’s Sleeping with the Enemy or Farrah Fawcett’s The Burning Bed. Everyone can also tell a more local story about domestic violence, be it one carried in a hometown newspaper or known about the neighbors. After a long history of hiding domestic violence behind closed bedroom doors, everyone now knows all about the existence and prevalence of domestic violence. Or do we? The images we associate with domestic violence depict the male as batterer and the female as victim. Yet, despite the critical importance of first acknowledging and then eradicating the male abuse of women, an equally important but untold story remains. Women can be batterers. Men can be victims.
SHOULD KLANSMEN BE LAWYERS? RACISM AS AN ETHICAL BARRIER TO THE LEGAL PROFESSION
Carla D. Pratt
Within the legal community, it is often said that there are certain core values of the legal profession: loyalty, confidentiality and competence. Often overlooked, but recognized by some, is the core value of justice. From our history, which includes the drafting of our Constitution, are derived two core values that serve as the cornerstones of our system of justice, which necessarily includes the legal profession since it has the monopolistic privilege of administering justice. Those core values are fairness and the notion of equal justice for all. Equal justice is a core value of the legal profession because history demonstrates that without a commitment to this value, our legal system will commit atrocities against the powerless and the oppressed. Without a commitment to equal justice, lawyers are empowered to commit the racist mistakes of past administration of justice to our minority population. A commitment to equal justice is important to the professional role of a lawyer because without it lawyers will be perceived as biased and unfair administrators of justice who will threaten the orderly administration of justice by causing the public to question the integrity of the entire judicial system. Justice is not a commodity for only the majoritarian group; it is for all. Hence in order to be a lawyer, one must be committed to justice for all regardless of race. The thesis of this Article is that in order to possess the requisite moral character to be an officer of the court and an administrator of justice, also known as a lawyer or attorney, an individual must subscribe to the core value of equal justice that serves as a cornerstone of our entire system of justice. Members of any group advocating racial caste systems, including but not limited to white supremacists, do not subscribe to these core values because they do not believe that all people are entitled to fairness and equal justice without regard to their race. White supremacists believe that justice is a commodity that only the whitest of white people should enjoy.
THOREAU’S PENCIL: SHARPENING OUR UNDERSTANDING OF WORLD TRADE
Among the items in the exhibit were the handwritten pages from Thoreau’s journals, the earliest drafts of Thoreau’s essays, and an early edition of Thoreau’s timeless classic, Walden–his lyrical account of the months he spent in self-imposed solitude in the 1840’s in a homemade hut in the woods beside Walden Pond.
“BARE”LY LEGAL: THE EVOLUTION OF NAKED CRUMMEY POWERS AND A CALL FOR REFORM
Patrick T. Neil
It is often said that there are two sure things in life: death and taxes. Sometimes the two converge, and together form what is hatefully referred to as the “death tax.” For as much as the average American grimaces at the twenty or thirty percent taken from their paycheck each month, they downright despise the fact that the same money could be taxed again at their death. With that, some Americans fear the knocking of the Internal Revenue Service (IRS) at their deathbed just as voraciously as they do the grim reaper. As a result, taxpayers and their very able tax advisors have toiled to formulate numerous trap doors and escape routes through the endless maze of tax codes, revenue rulings, and case law, all in the name of avoiding the dreaded “death tax.”
A HIGHER AUTHORITY: THE VIABILITY OF THIRD PARTY TORT ACTIONS AGAINST A RELIGIOUS INSTITUTION GROUNDED ON SEXUAL MISCONDUCT BY A MEMBER OF THE CLERGY
Janna Satz Nugent
Papal courts gained popularity in the Middle Ages as a major source of the Roman Church’s power and wealth; and the Pope, as the head of the papal court, often decided cases in collaboration with a king, a duke, or an archbishop. Ironically, early concerns over the papal court centered on the Pope’s entanglement in the secular and political life of Europe. “[T]o think chiefly in legal, was to think chiefly in secular, terms,” a practice ill-suited to Peter’s successors. Increasingly, the Popes of the Middle Ages acted like kings and became entrenched in diplomatic, international relations. Efforts to reform the Church by improving ethical standards and “disengaging the clergy from their role as supporters of the State, ended, by a kind of helpless logic, in thrusting the Church far more deeply and completely into the secular world [and] . . . the Church became a secular world of its own.” Like many of the rival kingdoms in Europe, the Church and the State were bound for war.
DAVIS V. MONROE COUNTY BOARD OF EDUCATION: A HOLLOW VICTORY FOR STUDENT VICTIMS OF PEER SEXUAL HARASSMENT
Following the 1999 United States Supreme Court decision in Davis v. Monroe County Board of Education, Verna Williams, lead counsel for the plaintiff, wrote that Davis “is a wake-up call to the nation’s educational institutions—elementary, secondary, and postsecondary alike—to make sure that they take seriously complaints about a student’s sexual harassment by a peer.” Ms. Williams succeeded in convincing the Court that educational institutions should be required to pay damages under Title IX of the Education Amendments of 1972 “if they turn their backs when students harass one another sexually.” While students were previously granted the right to seek damages against educational institutions if sexually harassed by a teacher, Davis was the first case in which the Court extended this right under Title IX to students sexually harassed by their fellow classmates.