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Georgia State Legal Technology Competency Model: A Framework for Examining and Evaluating What it Means to be a Technologically Competent Lawyer
No full textThe Case for Downsizing the Corporate Attorney-Client Privilege
No full textPrivilege is a choice. In crafting evidentiary privileges, courts and policymakers have fashioned a rule that concedes that some things are more important than getting to the truth. Indeed, our entire law of privilege stems from the fact that society deems certain relationships important enough to protect their communications even from the truth-seeking process of litigation. The attorney-client relationship is a paradigmatic example. But something has gone seriously wrong with the law’s attempts to transplant protections for an intimate, confessional space for communications between an individual and their attorney onto “artificial creatures of the law”: the modern corporation.
Today’s corporate attorney-client privilege now shields communications across entire constellations of relationships among corporate agents. And as the lines between business and legal advice blur and lawyers become ubiquitous in all aspects of corporate life, an even greater universe of documents and communications may fall outside the bounds of litigation. Privilege logs often obscure the true nature of withheld communications and only moneyed litigants may be able to call an over-withholder’s bluff.
This Article proposes a sea change in the corporate privilege by arguing that courts should restrict recognition of the corporate attorney-client privilege to communications that take place in the context of a Privileged Communications Committee. While some scholars have called for the complete elimination of the privilege for corporate clients, this Article takes a more nuanced view, recognizing that some of the needs underlying the original impetus for the privilege still exist in the corporate context. The problem is that courts have landed on the wrong corporate analog for a human client. The use of a Privileged Communications Committee would serve to reset the balance, drawing the reality of the corporate privilege closer to the judicially articulated justifications for its existence
Advancing Racial Justice Through the Restatement of Children and the Law: The Challenge, the Intent, and the Opportunity
No full textNudging Improvements to the Family Regulation System
No full textThe Restatement of Children and the Law features a strong endorsement of parents’ rights to the care, custody, and control of their children because parents’ rights are generally good for children. Building on that foundation, the Restatement’s sections on child neglect and abuse law would resolve several jurisdictional splits in favor of greater protections for family integrity, thus protecting more families against the harms that come from state intervention, especially state separation of parents from children.
But a close read of the Restatement shows that it only goes so far. It is not likely to significantly reduce the wide variation in practice by jurisdiction, nor will it satisfy calls for a more fundamental transformation of the legal system. For instance, the Restatement requires consideration of the harm of removing children from their parents, without explaining how to weigh that against possible harms of remaining at home. It provides that poverty alone does not amount to neglect, without providing much guidance on the difficult question of how to implement that principle. The Restatement creates a clear preference for placement with relatives over strangers, without clarifying what suffices to overcome those preferences. It recognizes a right of parents and children separated by the state to visit with “frequency,” without defining that term.
This analysis is not a criticism of the Restatement—by codifying existing law, it does what the Restatement should do. Rather, this analysis highlights how this Restatement can contribute to child neglect and abuse law in the present context. It can help nudge the law in a modestly improved direction and highlight areas that require more transformative legal changes
Ten Tips for Living and Lawyering Authentically
No full textCatholic Law\u27s Center for Law and the Human Person hosted the final installment of its 2023-2024 Faith-in-Action lecture series on Tuesday, March 19. The series, which brings Catholic lawyers to discuss the integration of the Catholic faith and legal practice, concluded with Catholic University’s deputy general counsel, Jennie Bradley Licther, who gave a talk on “Ten Tips for Living and Lawyering Authentically.
Eleven Eleven Realty Assoc. v. Elizabeth
No full textIn this non-payment case in a co-op in Kings County, the tenant moved for summary judgment seeking a 100% rent abatement based on rent impairing violations in the common areas of the premises, citing MDL § 302-a. The landlord opposed, arguing lack of control over the common areas. However, evidence presented suggested landlord\u27s control over maintenance decisions. The court granted tenant\u27s motion, awarding the rent abatement, emphasizing landlord\u27s responsibility under RPAPL 235-b to maintain habitability, and interpreting MDL § 302 to cover violations in areas under landlord\u27s control, resulting in a substantial win for the tenant
Operationalising Progressive Ideas About Property: Resilient Property, Scale, and Systemic Compromise
No full textProperty theory is at a crossroads. In recent decades, scholars seeking to advance progressive ideas about property have embraced ‘Progressive Property’ theories that seek to advance the goals of social justice and the common good, offering a vital counter-weight to utilitarian and neo-conservative accounts of property. Progressive Property theories seek to correct an imbalance in American property discourse which—across the temporal scale—has sustained a range of narratives and normative commitments, but which has veered towards extreme acquisitive individualism and the rhetoric of property absolutism since the 1970s. The idea that individual property rights are not absolute but defined by the requirements of social justice is uncontroversial in many European jurisdictions, reflecting their normative foundations in traditions of European social welfarism and Catholic social teaching. In Property Rights and Social Justice: Progressive Property in Action, Walsh foregrounds a system designed for normative hybridity, and evaluates the practical possibility of balancing commitments to social justice within a system that upholds private property rights.
In this Article, we build on Walsh’s account to consider the implications of her insights for scholars seeking to advance progressive ideas about property in the U.S. context across three registers of scale: rhetorical, jurisdictional, and physical. Applying Resilient Property Theory (“RPT ), we reflect on how the dominance of rhetorical methods in the last half-century has foregrounded ideological conflicts between competing normative commitments in U.S. property scholarship, locating scholars seeking to advance progressive ideas about property on a battleground that has been prepared to benefit others. Building on Walsh’s approach of “widening the doctrinal lens,” we argue that RPT offers a new methodological toolkit for advancing progressive ideas about property: by widening the legal lens; widening the contextual lens; and widening the methodological lens. We argue that each of these approaches, as they engage with material and hierarchical scales, offers opportunities to identify and advocate for compromise positions between respect for private property rights and social justice considerations, enabling active political and legal engagement with normative diversity and respecting and taking seriously different legal conceptions of the good
Why Sustainable Procurement? Read All About It
No full textAs procurement professionals (knowingly or unknowingly) await regulations promulgated in an effort to adapt to and mitigate climate change, significant opportunities exist within current federal regulations and policy to affect change. For now, the burden to stimulate innovation falls upon procurement professionals, individually, and collectively. In that context, information is power. What better place to start than with a good book?
With an eye towards informing productive conversations across the federal acquisition community about evolving expectations, practices, and policies in sustainable procurement, this article suggests some reading from the massive and diverse body of work related to climate change.
This article is part of the Driving Climate Action Through Federal Procurement Practices series devoted to Sustainable Procurement in Contract Management magazine, published by the National Contract Management Association (NCMA) and its community of practice (COP) to raise awareness of procurement\u27s role in adapting to and mitigating climate change, support knowledge sharing about existing work in this area, provide resources and training to contracting professionals, and integrate sustainability into contracting professional standards
New Tech, Old Problem: The Rise of Virtual Rent-to-Own Agreements
No full textThis Article explores how fintech has disrupted the traditional rent-to-own (RTO) industry, giving rise to new, virtual RTO agreements (VirTOs). These VirTOs have enabled the RTO industry to expand into the service industry and to markets for products not traditionally associated with rentals, such as vehicle repairs, pet ownership, and medical devices. This Article analyzes this development.RTO agreements purport to rent products to a consumer until the conclusion of a set number of renewable rental payments, at which point ownership transfers. The fundamental characteristic of these agreements – and why they are not regulated as loans – are that the consumer is able to terminate the rental agreement without penalty at any time by returning the merchandise to the rental company. An extremely high-cost form of financing, RTO agreements were traditionally offered through brick-and-mortar stores, like Aaron’s or Rent-A-Center, to low-income, subprime consumers who could not obtain traditional credit. The introduction of fintech, however, has shifted the RTO business model from traditional one-stop shop, brick-and-mortar stores to partnerships between VirTO companies and retailers. As this Article explains, these new VirTOs have different attributes from traditional RTO agreements. In a VirTO, a third-party VirTO provider purchases the desired product from a brick-and-mortar retailer and then rents the product back to the consumer. The entire transaction between the retailer and VirTO company occurs online and unbeknownst to the consumer. This business model, however, has allowed VirTOs to emerge in a variety of specialized markets and services. Not only are these agreements a high-cost method to ownership, but consumers often have little understanding that they are renting their purchases.While VirTOs purport to be rentals, it is nearly impossible for a consumer to return a rental financed with a VirTO. This Article argues that VirTOs are not, in fact, RTO agreements because the items rented with VirTOs are not practical to return. Instead, VirTOs are a sophisticated form of disguised credit. This Article demonstrates that the VirTO industry is a legal fiction designed to avoid consumer protection statutes governing credit. Accordingly, VirTOs should be treated by courts as credit, subject to state usury and federal consumer protection laws. This Article also proposes a series of policy recommendations to regulate VirTOs and to ban such agreements for services and nonsensical products, like vehicle repairs and pets.While this Article focuses solely on VirTOs, its observations about the role of fintech in the RTO industry are instructive for other parts of the fringe economy being disrupted by new technology. The policy solutions proposed in this Article provide a model for potential strategies to protect low-income and subprime consumers from the most extreme abuses as fringe financing industries grapple with the introduction of fintech
