Articles Posted in Law Practice

Amherst professor Austin Sarat discusses a Justice Department motion to lift an injunction against the construction of Donald Trump’s White House ballroom, noting that the filing adopts the inflammatory and legally irrelevant rhetoric of President Trump’s social media posts. Professor Sarat argues that the lawyers involved violated their ethical obligations and federal procedural rules by submitting such a frivolous document and urges the court to impose sanctions to protect the rule of law.

Child protection advocate Kathryn Robb discusses the sanctioning of attorney Richard Trahant for allegedly violating a protective order in the Archdiocese of New Orleans bankruptcy case, examining the tension between litigation confidentiality rules and child safety in institutional sexual abuse cases. Ms. Robb argues that broadly interpreted protective orders in such cases can function as instruments of institutional secrecy that endanger children, and she calls for narrowly tailored exceptions that prioritize child safety and align with mandatory reporting policies.

Amherst professor Austin Sarat examines the Trump administration’s legal battle against several prominent law firms targeted by executive orders, following the administration’s erratic appellate strategy through the D.C. Circuit. Professor Sarat argues that the executive orders constitute clear First Amendment retaliation, that the administration’s legal claims are meritless, and that its portrayal of the president as a free-speech victim is both legally untenable and absurd.

UC Davis Law professor Irene Joe and restorative justice specialist Jeremiah Mungo examine how ABA advertising restrictions and the absence of meaningful credentialing standards leave criminal defendants—particularly those who can afford private counsel—with little reliable information for choosing a defense attorney, forcing them to rely almost entirely on informal word of mouth. Drawing on Mr. Mungo’s personal experience hiring a private attorney who was later disbarred, Professor Joe and Mr. Mungo argue that modest reforms such as voluntary specialist certification programs, tiered qualification requirements, and publicly available attorney experience data could establish a quality floor in the criminal defense market without dismantling legitimate concerns about lawyer advertising.

Criminal defense attorney Jon May examines systemic ethical misconduct within the Department of Justice (DOJ) under the Trump administration, focusing on how DOJ leadership has undermined the rule of law and judicial independence. Mr. May argues that federal courts should use their existing authority to issue formal ethical conduct orders at the outset of litigation to enforce accountability and deter misconduct by both government attorneys and their supervisors.

In a recent episode of the Touro Law Review podcast, Touro University, Jacob D. Fuchsberg Law Center professor Rodger D. Citron speaks with attorney and debut novelist Victor Suthammanont about his journey from drama student to legal professional, and how both fields inform his exploration of truth. Their conversation delves into the themes of Suthammanont’s novel Hollow Spaces, the limits and purpose of the trial system, and the ongoing role of law in serving the public good.

Amherst professor Austin Sarat and attorney Steve Kramer critique the long-standing legal doctrine of “litigation privilege,” which protects lawyers from civil liability for statements made during legal proceedings, even if those statements are false or malicious. Professor Sarat and Mr. Kramer argue that in light of recent ethical breaches by attorneys involved in efforts to overturn the 2020 election, it is time to eliminate this privilege to uphold integrity and truthfulness within the legal profession.

Cornell Law professor Michael C. Dorf explores whether law firms that settled with the Trump administration by agreeing to provide free services to the government violated the Antideficiency Act, which bars unauthorized voluntary services to federal agencies. Professor Dorf argues that these services are not truly voluntary, as they were made under coercive executive orders, and thus the law firms did not violate the Act—but instead, it is President Trump who broke the law by issuing unconstitutional orders targeting political enemies.

NYU Law professor Samuel Estreicher and JD candidate Lior Polani examinee the limitations of artificial intelligence (AI) in legal practice, focusing on the technical constraint of “context windows”—the limited amount of information AI systems can process at once—which hampers their ability to handle complex, interconnected legal documents and tasks requiring nuanced judgment. The authors argue that while AI can boost efficiency in narrow, rule-based legal functions, its fundamental constraints make fully autonomous legal analysis unreliable, and they emphasize that AI should be used as a supportive tool under human oversight rather than a replacement for legal professionals.

Amherst professor Austin Sarat examines the public distrust of lawyers in the United States and the recent political attacks on the law firm Perkins Coie by President Trump, focusing on the legal and constitutional implications of those actions. Professor Sarat argues that Judge Beryl Howell’s decision to strike down Trump’s executive order targeting the firm is a critical defense of the legal profession’s independence and a reminder that protecting lawyers’ ability to represent clients without political interference is essential to upholding democracy and the rule of law.

UC Davis Law professor Vikram David Amar and Illinois Law professor Jason Mazzone examine the legal and ethical implications of recent executive orders from the White House targeting law firms for their past work opposing the administration, and they discuss the resulting fragmentation within the legal profession over how to respond. Professors Amar and Mazzone argue that while individual law firms may face practical incentives to capitulate, coordinated resistance would be both more effective and legally protected under the First Amendment based on analogous Supreme Court precedents on collective political action and petitioning the government.

Attorneys Stephen Marcus and Bruce Kuhlik discuss the ethical responsibilities of lawyers in the context of predicted attempts by Donald Trump and his allies to undermine the 2024 U.S. presidential election. The authors argue that lawyers considering advocating unsubstantiated claims of election fraud should learn from the disciplinary actions taken against Trump’s 2020 election lawyers, adhere to their ethical duties, and follow the example of those who refused to violate their obligations to their profession and the Constitution after the 2020 election despite significant pressure to do so.

Criminal defense attorney Jon May discusses the importance of zealous advocacy in the legal profession, examining what it means to be a zealous advocate, the motivations behind lawyers’ practices, and why zealous advocacy is essential to the justice system. Mr. May argues that while zealous advocacy does not justify unethical conduct, it is a critical component of lawyers’ professional identity and obligations to their clients, and that efforts to eliminate references to zealous advocacy in ethical codes or to prioritize the “public good” over clients’ interests in legal education are misguided.

Former federal prosecutor Dennis Aftergut criticizes the law firm Boies Schiller Flexner for hiring Mark Brnovich, the former Attorney General of Arizona, as a lateral partner, citing Brnovich’s prominent role in misleading the public about election fraud. The author argues that such a hiring decision tarnishes the law firm's reputation and undermines the legal profession's responsibility to uphold truth and democratic values.

Cornell professor Joseph Margulies criticizes a recent article by the New York Times that focuses on Rudy Giuliani’s drinking habits, questioning its relevance to the prosecution of Donald Trump and suggesting that the article engages in public shaming. Professor Margulies argues that while Giuliani’s public behavior may be worthy of scrutiny, his personal struggles with alcohol should not be the subject of journalistic attention, especially when they have no proven relevance to his professional advice to Trump.

Cornell Law professor Michael C. Dorf considers the implications of ChatGPT and other generative AI tools in law schools. Professor Dorf observes that for now, smart, well-motivated students will outperform AI in most tasks required of law students, but legal educators will soon have to grapple with the reality that banning AI-based tools will make less and less sense as they become more mainstream various ways in legal practice.

Arbitrator and mediator Barry Winograd comments on the recent decision by the U.S. Supreme Court in Coinbase v. Bielski, in which the Court held that a litigation stay is required when an interlocutory appeal permitted by Section 16(a) of the Federal Arbitration Act is taken from a federal district court order denying a motion to compel arbitration. Mr. Winograd summarizes the Coinbase decision, shares several thoughts about its reasoning, and considers the decision’s potential effects on arbitration practice.

Illinois Law professors Lesley Wexler and Jennifer Robbennolt comment on the recent decision by a judge declining to require an apology from the lawyers who submitted a brief with fictitious cases generated by ChatGPT. Professors Wexler and Robbennolt explain why the judge’s reasoning that “a compelled apology is not a sincere apology” assumes that a compelled apology has no value and fails to consider the other purposes apologies serve, such as acknowledgment to victims and affirmation of violated norms.

In this second in a series of columns on the litigation ending in settlement between Fox News and Dominion Voting Systems, Illinois Law professor Jennifer K. Robbennolt, University of Houston Law professor Jessica Bregant, and Illinois Law professor Verity Winship comment on the non-apology Fox made at the end of the case. The authors argue that the Fox/Dominion settlement is a stark example of the multiple audiences for an apology and how the incentives and desires of private parties and public audiences may diverge.

Illinois Law professor Jennifer K. Robbennolt, University of Houston Law professor Jessica Bregant, and Illinois Law professor Verity Winship describe the findings of their study of people’s perceptions of legal settlements generally, and what that means about the Fox/Dominion settlement. The authors point out that the lawsuit ended exactly as most lawsuits do—in settlement—and argue that for all the case’s weighty implications, the public reactions to the settlement are exactly what we would expect.