The Stalking of Lawyers: A Survey Amongst Professionals in Milan

This is the first study focused on the stalking of lawyers. The authors hypothesized that these professionals are at risk of being stalked by their clients and that this stalking is ascribable to RECON type I.B. A random sample of lawyers was survived. 37.3% of 166 respondents revealed to have been stalked: not only by clients, but also by adversaries and colleagues. Data seem to confirm that the stalking of lawyers mainly belongs to RECON type I.B. Female lawyers were at greater risk than male lawyers. In family law cases, the professionals tended to be stalked by the former husbands of the lawyers' clients (p < 0.01). Several female lawyers—but no male lawyers—were threatened with harm to their family members (p < 0.05). Most of the stalking victims described psychological effects of being stalked. Who suffered physical aggression or repercussions on work was more likely to lodge a complaint (p < 0.01).     

Introduction: Commentaries on Ensuring Corporate Misconduct by Tom Baker and Sean J. Griffith

This essay reviews some of the more striking findings in Tom Baker and Sean J. Griffith's Ensuring Corporate Misconduct: How Liability Insurance Undermines Shareholder Litigation (2010), particularly concerning the tension between two competing narratives of shareholder litigation—one stressing the important deterrent effect of such litigation, the other viewing such litigation as abusive plaintiff opportunism. The essay then introduces commentaries on the book by Carol Heimer and Jodi Short, which follow.     

Trial Argumentation: The Creation of Meaning

My purpose is to analyze lawyers creating meaning in three well-known cases in Anglo-American legal history: Commonwealth v. Woodward (1997) the famous Boston ‘nanny’ case, the O.J. Simpson Murder Trial (1995), and the John Peter Zenger Libel Case in Colonial New York (1734). In each case, creative lawyers were able to shift the question before the jury from the formal legal question—did Woodward and Simpson commit murder? Did Zenger publish libelous material?—to issues of vengeance and catharsis, and of the ability of the legal system to represent the community’s sense of justice.     

How Do Cause Lawyers Decide When and Where to Litigate on behalf of Their Cause?

In this article, we begin to respond to the deceptively simple question: How do cause lawyers decide when and where to litigate on behalf of their cause? We consider the choice of location and timing faced by cause lawyers when more than one jurisdiction evinces a suitable legal environment for pursuing litigation on their cause. To consider this choice, we use evidence from the timing and actions of cause lawyers in the marriage equality cases in the United States from January 1990 through December 2004. And, we show the value in utilizing methods that are relatively novel in cause lawyering research—statistical models—to consider the apparent commonalities, beyond a suitable legal environment, across locations and time periods that might prompt cause lawyers into action.     

The Signaling Effect of Pro se Status

When claimants press their claims without counsel, they fail at virtually every stage of civil litigation and overwhelmingly fail to obtain meaningful access to justice. This research program harnesses psychological science to experimentally test a novel hypothesis: mainly, a claimant's pro se status itself sends a signal that biases decision making about the claimant and her claim. We conducted social psychological experiments with the public (N = 157), law students (N = 198), and employment discrimination lawyers (N = 39), holding the quality and merit of a Title VII sex discrimination case constant. In so doing, we examined whether a claimant's pro se status itself shapes stereotypes held about the claimant and biases decision making about settlement awards. These experiments reveal that pro se status influences stereotypes of claimants and settlement awards received. Moreover, the signaling effect of pro se status is exacerbated by socialization in the legal profession. Among law‐trained individuals (i.e., law students and lawyers), a claimant's pro se status generates negative stereotypes about the claimant and these negative stereotypes explain the adverse effect of pro se status on decision making about settlement awards.     

“Great Men,” Law,and the Social Construction of Technology

Is Alexander Graham Bell's fame owed to law and lawyers? Two recent histories argue that some popular tales of invention originated with lawyers and judges as part of patent litigation battles (Stathis Arapostathis and Graeme Gooday , Patently Contestable: Electrical Technologies and Inventor Identities on Trial in Britain [2013]; Christopher Beauchamp , Invented by Law: Alexander Graham Bell and the Patent That Changed America [2015]). Bringing law into the historical project of understanding the social construction of technology, the authors unsettle “great man” narratives of invention. A tale of a recent patent war is a case study in the persistence of such narratives, highlighting the uses of legal storytelling (Ronald K. Fierstein , A Triumph of Genius: Edwin Land, Polaroid, and the Kodak Patent War [2015]). Together, these works invite consideration of the cultural power possessed by invention origin stories, the role of narratives in law and history, and the judicial performance of truth finding in Anglo‐American law .     

Fused Modality. An Integral Part of Lawyers’ Form of Life*

Abstract. In this reply to Dahlman (2004 ), the focus is on aspects that I take to be of general interest. The point to be emphasised is the absence of a critically reflexive mode of questioning on the part of Dahlman and, in general, on the part of the position he represents, namely, an empiricist and logical paradigm of atemporal cognition and control. It is argued that lawyers’ thinking de lege lata—with its distinctive connection to normativity and morals, through the unity of the temporal and institutional dimensions in fused modality—can never be understood within such a framework.     

From Marx to Market: Lawyers,European Law,and the Contentious Transformation of the Port of Genoa

What happens when international courts are asked to tackle local political controversies and their judgments subsequently spark contentious resistance? In the European Union (EU), scholars have posited that the politicization of the often‐liberalizing rulings of the European Court of Justice (ECJ) provokes Euroscepticism and noncompliance. In contrast, I argue that contentious politics may also produce permissive conditions for activist “Eurolawyers” to promote awareness of EU law and mobilize support for liberalization. To unpack this claim, I conduct an intensive case study of perhaps the most explosive controversy in Italy to generate litigation before the ECJ: The 1991 “Port of Genoa” case, where the public monopoly rights of a centuries‐old dockworkers' union were challenged. Leveraging interviews, court and newspaper records, public opinion data, and litigation statistics, I trace how—despite dockworkers' vigorous resistance—a pair of entrepreneurial lawyers liberalized Italy's largest port by combining strategic litigation with a public relations campaign to mobilize a compliance constituency. I conclude with insights the case study offers into the contemporary politics of transnational governance.     

Elements of the Support Structure for Campaign Finance Litigation in the Roberts Court

This article considers the organizations, financial patrons, and lawyers involved in two significant campaign finance cases decided by the Roberts Court: Citizens United v. Federal Election Commission and McCutcheon v. Federal Election Commission. The research indicates that these elements of the support structures for litigation on both sides of these cases, like the justices to whom they direct their advocacy, fall into well‐defined opposing and partisan camps. It also suggests that strategic case selection on the challengers' side, the diversity of organizations supporting their positions, their network and coordination, and a simple and powerful frame around which to rally may have contributed to their success and to the Roberts Court's fundamental reshaping of campaign finance doctrine.     

Lawyer rankings either do not matter for litigation outcomes or are redundant

I investigate the success of litigants in tax cases in England and Wales between 1996 and 2010. I explore the effect upon success of having better-ranked legal representation, according to rankings of barristers published by Chambers. I find that, for a variety of model specifications, there is no significant positive effect of having better-ranked legal representation. After conducting a sensitivity analysis, I conclude that better-ranked legal representation might have a positive effect on litigation outcomes, but only if better-ranked lawyers receive cases that are substantially more difficult to win. However, if better-ranked lawyers receive substantially more difficult cases, this suggests consumers of legal representation are sophisticated enough to dispense with legal rankings.     

Mechanisms and Consequences of Professional Marginality: The Case of Poverty Lawyers Revisited

A partial replication of Jack Katz's (1982 ) Poor People's Lawyers in Transition, this article explores the manifestations and consequences of professional marginality of legal aid lawyers. Based on thirty‐five interviews with poverty attorneys and interns in Chicago, the authors show that scarce material resources and unclear expectations continue to give rise to the marginalization of this segment of the legal profession. The authors analyzed ideological, task, status, and material dimensions of attorneys' professional marginality. With no access to reform litigation, central to the legal aid “culture of significance” in the 1970s, present‐day poverty lawyers seek new ways to cope with marginality. The authors argue that these lawyers' coping strategies have many negative consequences. Thus, over time, poverty lawyers' deep engagement with clients, ideals of empowerment, and social justice orientation give way to emotional detachment, complacency, and an emphasis on “making do” within the constraints of the system.     

Investigating the determinants of pretrial settlement rates: contingent versus non-contingent lawyers’ fees

In this article, we explore the possibility that the percentage of litigations settled outside of court is affected by the degree of contingency of lawyers’ fees. In our view, a litigation is a game where not only the plaintiff and the defendant, but also their lawyers are independent players. The main consequence of this assumption is that the authority to settle is allocated endogenously to either the clients or their lawyers, depending on the value of the relevant parameters. In this game theoretical setup, (1) we compare the incentives to settle provided by contingent and non-contingent lawyers’ fees, and (2) we state the conditions under which settlement is more likely to happen.      

Braving Jim Crow to Save Willie McGee: Bella Abzug,the Legal Left,and Civil Rights Innovation, 1948–1951

This article considers the role of Bella Abzug, lead counsel for Willie McGee from 1948–1951, in shaping the defense of this Cold War era Mississippi rape case. Representing McGee left an indelible mark on Abzug: she made her first trip south, wrote her first Supreme Court petition, and faced her first death threat. Participation in the Left legal bar—especially the National Lawyers Guild and Left feminist circles—shaped Abzug's legal consciousness as she redirected the McGee defense significantly in 1950. By joining race and sex, Abzug's legal argument zeroed in on the taboo of interracial sexual relations at the heart of Southern rape cases, thereby exposing the innermost sexual color line. She urged the courts and cause lawyers—albeit unsuccessfully—to pursue a more radical civil rights agenda than outlawing public segregation, as ultimately achieved in Brown v. Board of Education (1954), and typically recognized in Cold War civil rights scholarship.     

Where Have All of the Pro‐Choice Lawyers Gone? An Analysis of Post‐Roe Reproductive Rights Lawyering

A body of scholarship attests to the importance of experienced litigators before the U.S. Supreme Court. In this article, we specifically consider the role of experienced litigators in the thirty years of reproductive rights litigation that followed Roe v Wade . To that end, we divide the lawyers by their pro-choice or pro-life affiliations and ask (1) how often individual lawyers appear before the Court in reproductive rights cases, (2) who the lawyers arguing these case before the Supreme Court are, and (3) how their participation has changed over time. We find changes in the pro-choice and pro-life bars that mirror the reproductive rights movement at large. Pro-choice groups, which once employed a stable of elite lawyers with significant expertise, have been decimated by the retirements of pro-choice counsel with no lawyers emerging to replace them. At the same time, the pro-life bar and pro-life groups appear to be developing a strong litigation campaign complete with experienced litigators.     

Conceptions of Agency in Social Movement Scholarship: Mack on African American Civil Rights Lawyers

This essay examines the theory of individual agency that propels the central thesis in Kenneth Mack's Representing the Race: The Creation of the Civil Rights Lawyer (2012)—namely, that an important yet understudied means by which African American civil rights lawyers changed conceptions of race through their work was through their very performance of the professional role of lawyer. Mack shows that this performance was inevitably fraught with tension and contradiction because African American lawyers were called upon to act both as exemplary representatives of their race and as performers of a professional role that traditionally had been reserved for whites only. Mack focuses especially on the tensions of this role in courtrooms, where African American lawyers were necessarily called upon to act as the equals of white judges, opposing counsel, and witnesses. Mack's thesis, focused on the contradictions and tensions embodied in the performance of a racially loaded identity, reflects the influence of postmodern identity performance theory as articulated by Judith Butler and others. Mack and others belong to a new generation of civil rights history scholars who are asking new questions about contested identities related to race, gender, sexuality, and class. This essay offers an evaluation of this new direction for civil rights scholarship, focusing especially on its implicit normative orientation and what it contributes to the decade‐old debate over how to conceive of agency in social movement scholarship.     

Do the interests of academic lawyers and practising lawyers ever overlap?

‘A book may be good for nothing; or there may be onlyone thing in it worth knowing; are we to read it all through?’(Samuel Johnson) This section is dedicated to the review of ideas, articles,books, films and other media. It will include replies (and rejoinders)to articles, the evaluation of new ideas or proposals, and reviewsof books and articles both directly and indirectly related tointellectual property law. The book-reading habits of practising lawyers can be very differentto those of academic lawyers. A well-known publisher of lawbooks for academics and practitioners provides its authors witha style guide, which includes the following, helpful advicefor writing     

The Biggest “Have” of Them All: Wal‐Mart and Its Litigation Outcomes in Slip‐and‐Fall Cases

Scholars have theorized that resource‐rich litigants known as the “haves” tend to succeed disproportionately in litigation when the adverse party is a “have‐not.” The traditional theory suggests that haves are able to use their wealth to secure better attorney representation and can use their frequent experience in litigation to tip the scales of justice in their favor, particularly when faced with “one‐shotters” whose involvement in litigation is infrequent. A remaining question, however, is whether some haves fare better than other similarly situated haves. Specifically, this article posits that the litigation strategy used by the defendant may also play a role in litigation outcomes. Companies that tenaciously fight claims that, in the short term, would be cheaper to settle might discourage otherwise valid claims in the future from being filed out of fear that the litigation will be a protracted battle. This article examines Wal‐Mart Stores, Inc. (Wal‐Mart)—the largest revenue‐generating company in the United States—to explore whether it fares better than other resource‐rich defendants. Wal‐Mart in particular has a reputation against settling cases and thus is an excellent vehicle to investigate this hypothesis. Appellate cases in an eleven‐year period involving slip‐and‐fall litigation were compiled, and the results show that Wal‐Mart did win at a higher rate than other defendants. Although more research is needed to explore fully the effect of litigation strategy on win–loss rates, this sample of cases demonstrates that Wal‐Mart is a more effective and victorious litigant.     

How Planned Is “Planned Litigation”?

Civil rights litigation undertaken by lawyers associated with interest groups, particularly the NAACP and the NAACP Legal Defense and Educational Fund (LDF), is of ten described as planned" litigation. This article examines litigation by these organizations from the late 1960s through the early 1980s to explore the extent to which "planned litigation" is planned. The author interviewed both staff attorneys for organizations participating in race relations litigation and "cooperating attorneys" associated with such organizations.
Elements of planned litigation discussed are litigating organizations' choices—of areas of law on which to focus, of cases, of federal or state courts, and of amicus curiae participation—and the dynamics of litigation—including relations between staff and cooperating attorneys, litigators' control of cases, and the effect of Supreme Court decisions on litigation strategy.
The interviews reveal that much interest-group civil rights litigation is not selected deductively on the basis of previously developed criteria but instead develops inductively from cases that come to the organizations and is affected by pressure and circumstance. Counter to the view, stemming from Brown v. Board of Education, that civil rights litigation is undertaken as planned "campaigns" based on "blueprints," it appears that much about "planned" litigation is problematic, with many constraints imposed by the actions of others and by resource problems, with the result that many deviations from litigation strategy occur. Thus much "planned" litigation b responsive and reflexive and beyond litigators' control.     

Lowering the Bar: Privileged Court Filings as Substitutes for Press Releases in the Court of Public Opinion

In the civil lawsuit against Kobe Bryant for sexual assault, the judge admonished lawyers for engaging in “public relations litigation”—the use of pleadings to attract media attention and try cases in the court of public opinion. This article examines the legal ramifications of such practices and the doctrines of law that encourage some lawyers and litigants to use pleadings as a form of press release. These include the law of republication and the fair report and judicial privileges as well as the power of judges to gag trial participants. The article concludes that courts have adequate tools to control such practices, and lawyers and public relations professionals can responsibly use court documents to communicate with the public, so long as they do not abuse the judicial process.     

The Force of International Law: Lawyers' Diplomacy on the International Scene in the 1920s

Where does international law (IL) draw its authority from a still weakly institutionalized international scene deprived of the warrants of a state? To address this classical debate, the article draws from a case study on the social and professional structure of the “international legal community” as it emerged during the 1920s as part of the rise of multilateralism and international organizations. It focuses on the “situation of the international lawyers” of the time, starting with the multiple and often antagonistic roles they play (as legal advisers, scholars, judges, diplomats, politicians, etc.) and the variety of interests and causes they defend (states, international organizations, professional interests, etc.) in international politics. It argues this heteronomy of international lawyers helps understand the autonomization of international law. Far from being opposed to one another it has often been assumed—realism and idealism, national loyalty and international loyalty, political logic and learned logic—actually gain when analyzed as various modes of affirming a single cause—that of an international rule of law. This attention given to the “situation of international lawyers” and to the way they manage their various allegiances also accounts for the particular vision of the “International” and of “Law and Politics” relationships that are encapsulated in this emerging international corpus juris.