Although Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306 (1950) is a classic Civil Pr... more Although Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306 (1950) is a classic Civil Procedure case, its history has never before been written. This Article reveals that history, traced among other sources, in the papers of New York's Governor Herbert Lehman, whose misgivings did not prevent his signing the legislation that the Supreme Court struck down, and of Justice Robert Jackson, who wrote the opinion striking it down. More or less behind the scenes, two struggles were going on. One involved and prefigured all of the tensions of the modern class action: conflicts within the class, the relative functions of notice and adequate representation, the attempt to secure "global peace" by binding nonparticipants, and more. The other struggle concerned the efforts of trust companies to enlarge their turf and get into the investment business while barring liability to their customers. The due process holding for which we remember Mullane thus emerged from and glossed over deeper and more particularized conflicts. This Article explores both the history and the contemporary relevance of Mullane.
The trials in Shakespeare’s plays are strange. There are no lawyers or professional judges, there... more The trials in Shakespeare’s plays are strange. There are no lawyers or professional judges, there may be no witnesses, and the adjudicator often imposes unusual sanctions such as banishment. Most strikingly, almost all the trials are fakes, manipulated by a character toward a predestined result. Two obvious explanations—that trials in Shakespeare’s day were like that, and that trials in the contemporary drama were like that—turn out to be largely incorrect. It is more persuasive to trace the strange features of Shakespeare’s trials to the various dramatic functions they fulfill, yet even this approach does not explain everything.
Page 1. Gandhi's Legal Ethics John Leubsdorf * I. Introduction Gandhi was a lawyer. He studie... more Page 1. Gandhi's Legal Ethics John Leubsdorf * I. Introduction Gandhi was a lawyer. He studied law in England and practiced for more than twenty years.1 Of course, his moral and political ideals deeply affected his style of practice. ...
Each of these has been amended by the ABA after its original promulgation, and has been adopted a... more Each of these has been amended by the ABA after its original promulgation, and has been adopted at different times by state supreme courts, often with changes. Variants of the Model Rules are now in effect in almost all states. 5. State Ethics Rules, [2006] Laws. Man. on Profl Conduct (ABA/BNA) No. 287, at 01:11-94 (describing differences between state rules and Model Rules).
One of the many wonderful features of Representing Justice is its exploration of the ambivalence ... more One of the many wonderful features of Representing Justice is its exploration of the ambivalence of the traditional depiction of Justice. Justice\u27s blindfold suggests both impartiality and moral or factual blindness; her sword cuts through obfuscations and complexities but also inflicts pain and death. Other contributions to this Issue develop further ambivalences: Bennett Capers considers whether Justice\u27s blindness makes her color-blind; Peter Goodrich asks whether her blindfold obstructs her vision or rather makes it impossible for us to see her. Yet the ambivalence does not stop there. Much that we would wish to incorporate in a portrait of Justice is missing from the familiar image of the Goddess with the Scales. True, leaving things out of a depiction can sharpen our perception of what remains. Yet it is also true that focusing on what has been omitted can help us move beyond what is familiar. As artists sometimes portray a figure by drawing the negative space around it,...
Disciplinary rule 7-104 of the American Bar Association Code of Professional Responsibility forbi... more Disciplinary rule 7-104 of the American Bar Association Code of Professional Responsibility forbids a lawyer to communicate with a represented party without the permission of the party's lawyer.1 Does this veto power, vested in a client's lawyer, promote the client's best interest? This essay will argue that it does not, and that a revised rule would protect clients without depriving them of the right to decide whether to communicate directly with opposing counsel. Although the rule to be challenged here is not the most conspicuous of professional regulations, it is not insignificant. Lawyers obey it, disciplinary authorities enforce it,2 and bar associations construe it.3 The rule has sometimes been stretched to extraordinary lengths. The American Bar Association's ethics committee once announced that a lawyer should dissuade a client from speaking to his own wife about a controversy in which the wife is also represented, even though the controversy is not in litigation. 4 The same committee recently decided that counsel for a professional association member who was suing the association could not present the member's views to an association task force set up to consider whether the regulation challenged by the suit should be amended, unless the association's lawyer consented. Most appli
Although much has been written on the history of the requirement of proof of crimes beyond a reas... more Although much has been written on the history of the requirement of proof of crimes beyond a reasonable doubt, this is the first study to probe the history of its civil counterpart, proof by a preponderance of the evidence. It turns out that the criminal standard did not diverge from a preexisting civil standard, but vice versa. Only in the late eighteenth century, after lawyers and judges began speaking of proof beyond a reasonable doubt, did references to the preponderance standard begin to appear. Moreover, U.S. judges did not start to instruct juries about the preponderance standard until the mid-nineteenth century, and English judges not until after that. The article explores these developments and their causes with the help of published trial transcripts and newspaper reports that have only recently become accessible. The history thus revealed casts a new light on two subjects that have aroused much scholarly attention during the last few years: the fact that European civil la...
Planned Use of Requested Funds (Please describe the event or purpose for which the funds will be ... more Planned Use of Requested Funds (Please describe the event or purpose for which the funds will be used): Budget for Event (Please set forth all sources of funds and all expenses): Attempts to Obtain Funds from Other Sources (Please describe what other efforts you have made to secure other funding): SBA Funding (Please set forth the funding received from the SBA for the academic year and how that money has been or will be used): Signed: Name Title Date * The Mission of the Rutgers School of Law-Newark Alumni Association: To strengthen relationships among alumni and between alumni and the Law School community; and to advance the ideals, reputation, and educational goals of Rutgers School of Law—Newark.
Although Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306 (1950) is a classic Civil Pr... more Although Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306 (1950) is a classic Civil Procedure case, its history has never before been written. This Article reveals that history, traced among other sources, in the papers of New York's Governor Herbert Lehman, whose misgivings did not prevent his signing the legislation that the Supreme Court struck down, and of Justice Robert Jackson, who wrote the opinion striking it down. More or less behind the scenes, two struggles were going on. One involved and prefigured all of the tensions of the modern class action: conflicts within the class, the relative functions of notice and adequate representation, the attempt to secure "global peace" by binding nonparticipants, and more. The other struggle concerned the efforts of trust companies to enlarge their turf and get into the investment business while barring liability to their customers. The due process holding for which we remember Mullane thus emerged from and glossed over deeper and more particularized conflicts. This Article explores both the history and the contemporary relevance of Mullane.
The trials in Shakespeare’s plays are strange. There are no lawyers or professional judges, there... more The trials in Shakespeare’s plays are strange. There are no lawyers or professional judges, there may be no witnesses, and the adjudicator often imposes unusual sanctions such as banishment. Most strikingly, almost all the trials are fakes, manipulated by a character toward a predestined result. Two obvious explanations—that trials in Shakespeare’s day were like that, and that trials in the contemporary drama were like that—turn out to be largely incorrect. It is more persuasive to trace the strange features of Shakespeare’s trials to the various dramatic functions they fulfill, yet even this approach does not explain everything.
Page 1. Gandhi's Legal Ethics John Leubsdorf * I. Introduction Gandhi was a lawyer. He studie... more Page 1. Gandhi's Legal Ethics John Leubsdorf * I. Introduction Gandhi was a lawyer. He studied law in England and practiced for more than twenty years.1 Of course, his moral and political ideals deeply affected his style of practice. ...
Each of these has been amended by the ABA after its original promulgation, and has been adopted a... more Each of these has been amended by the ABA after its original promulgation, and has been adopted at different times by state supreme courts, often with changes. Variants of the Model Rules are now in effect in almost all states. 5. State Ethics Rules, [2006] Laws. Man. on Profl Conduct (ABA/BNA) No. 287, at 01:11-94 (describing differences between state rules and Model Rules).
One of the many wonderful features of Representing Justice is its exploration of the ambivalence ... more One of the many wonderful features of Representing Justice is its exploration of the ambivalence of the traditional depiction of Justice. Justice\u27s blindfold suggests both impartiality and moral or factual blindness; her sword cuts through obfuscations and complexities but also inflicts pain and death. Other contributions to this Issue develop further ambivalences: Bennett Capers considers whether Justice\u27s blindness makes her color-blind; Peter Goodrich asks whether her blindfold obstructs her vision or rather makes it impossible for us to see her. Yet the ambivalence does not stop there. Much that we would wish to incorporate in a portrait of Justice is missing from the familiar image of the Goddess with the Scales. True, leaving things out of a depiction can sharpen our perception of what remains. Yet it is also true that focusing on what has been omitted can help us move beyond what is familiar. As artists sometimes portray a figure by drawing the negative space around it,...
Disciplinary rule 7-104 of the American Bar Association Code of Professional Responsibility forbi... more Disciplinary rule 7-104 of the American Bar Association Code of Professional Responsibility forbids a lawyer to communicate with a represented party without the permission of the party's lawyer.1 Does this veto power, vested in a client's lawyer, promote the client's best interest? This essay will argue that it does not, and that a revised rule would protect clients without depriving them of the right to decide whether to communicate directly with opposing counsel. Although the rule to be challenged here is not the most conspicuous of professional regulations, it is not insignificant. Lawyers obey it, disciplinary authorities enforce it,2 and bar associations construe it.3 The rule has sometimes been stretched to extraordinary lengths. The American Bar Association's ethics committee once announced that a lawyer should dissuade a client from speaking to his own wife about a controversy in which the wife is also represented, even though the controversy is not in litigation. 4 The same committee recently decided that counsel for a professional association member who was suing the association could not present the member's views to an association task force set up to consider whether the regulation challenged by the suit should be amended, unless the association's lawyer consented. Most appli
Although much has been written on the history of the requirement of proof of crimes beyond a reas... more Although much has been written on the history of the requirement of proof of crimes beyond a reasonable doubt, this is the first study to probe the history of its civil counterpart, proof by a preponderance of the evidence. It turns out that the criminal standard did not diverge from a preexisting civil standard, but vice versa. Only in the late eighteenth century, after lawyers and judges began speaking of proof beyond a reasonable doubt, did references to the preponderance standard begin to appear. Moreover, U.S. judges did not start to instruct juries about the preponderance standard until the mid-nineteenth century, and English judges not until after that. The article explores these developments and their causes with the help of published trial transcripts and newspaper reports that have only recently become accessible. The history thus revealed casts a new light on two subjects that have aroused much scholarly attention during the last few years: the fact that European civil la...
Planned Use of Requested Funds (Please describe the event or purpose for which the funds will be ... more Planned Use of Requested Funds (Please describe the event or purpose for which the funds will be used): Budget for Event (Please set forth all sources of funds and all expenses): Attempts to Obtain Funds from Other Sources (Please describe what other efforts you have made to secure other funding): SBA Funding (Please set forth the funding received from the SBA for the academic year and how that money has been or will be used): Signed: Name Title Date * The Mission of the Rutgers School of Law-Newark Alumni Association: To strengthen relationships among alumni and between alumni and the Law School community; and to advance the ideals, reputation, and educational goals of Rutgers School of Law—Newark.
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