Copyright (c) 2009 Florida Coastal School of Law All rights reserved. http://works.bepress.com/floridacoastallaw Recent documents in Florida Coastal School of Law en-us Tue, 24 Nov 2009 06:32:57 PST 3600 http://works.bepress.com/heidi_r_anderson/1 http://works.bepress.com/heidi_r_anderson/1 Tue, 27 Oct 2009 13:14:12 PDT As more lawmaking is achieved at the administrative agency level, the issue of whether and how to apply the rules of legal ethics to lawyers that lobby agency decision makers grows more important; however, at this time, the ethics of influencing is a murky area in need of clarification. Any attempt to clarify the ethics of influencing should start with a core principle underlying modern legal ethics -- the avoidance and/or resolution of conflicts of interest. Accordingly, this Article addresses a conflict of interest -- the "allocating influence conflict"-- that, to date, has escaped proper identification or analysis. In its simplest form, an allocating influence conflict emerges when: (i) a lawyer properly may, and was retained by the client to, influence an agency decision maker; and (ii) there is a significant risk that allocating influence on behalf of one client is reasonably certain to inhibit substantially the lawyer's ability to influence the same decision maker on behalf of another client. Essentially, if a lawyer's exercise of influence over an agency decision maker on behalf of one client could harm another client or the lawyer himself, then that lawyer likely faces an allocating influence conflict.Although allocating influence conflicts occur frequently in practice (and with particular frequency in administrative law practice), primary legal ethics sources do not explicitly address them. Similarly, although a few scholars have noted individual problems that possibly could qualify as allocating influence conflicts, no scholarship has explained how to identify allocating influence conflicts or, perhaps more importantly, how to address them ethically. This lack of guidance means that many conflicts of interest are occurring without proper identification by the affected lawyer and without effective oversight from lawyers charged with enforcing ethical standards. In turn, the practical harm to clients generally is the same harm associated with all other conflicts of interest -- the loss of loyalty, independent judgment, and zealous advocacy from one's lawyer.Part I of this Article defines an allocating influence conflict. In addition to providing a basic definition, it describes the circumstances in which these conflicts typically emerge, and distinguishes the allocating influence problem from other comparatively benign resource-allocation conflicts. Part II of this Article demonstrates the pressing need to address allocating influence conflicts given their prevalence and their harmful effects on both clients and the profession. Part III demonstrates that existing ethics sources, though lacking direct recognition of allocating influence conflicts, provide the proper foundation for addressing them. Part IV addresses how to resolve allocating influence conflicts, first by showing how allocating influence conflicts fit within the existing conflict of interest framework and, second, by suggesting specific revisions to the comments to the Model Rules of Professional Conduct.Cite as: Anderson, Heidi Reamer, Allocating Influence (June 21, 2009). Utah Law Review, Forthcoming. Available at SSRN: http://ssrn.com/abstract=1423491 Heidi R. Anderson Professional Responsibility http://works.bepress.com/jeff_mcfarland/6 http://works.bepress.com/jeff_mcfarland/6 Tue, 27 Oct 2009 10:41:32 PDT Jeffrey M. McFarland http://works.bepress.com/jeff_mcfarland/5 http://works.bepress.com/jeff_mcfarland/5 Tue, 27 Oct 2009 10:40:43 PDT Jeffrey M. McFarland Corporations http://works.bepress.com/jeff_mcfarland/4 http://works.bepress.com/jeff_mcfarland/4 Tue, 27 Oct 2009 10:39:37 PDT Jeffrey M. McFarland Securities, Disclosure, Corporations http://works.bepress.com/jeff_mcfarland/3 http://works.bepress.com/jeff_mcfarland/3 Tue, 27 Oct 2009 10:37:38 PDT Jeffrey M. McFarland Sports Law http://works.bepress.com/jeff_mcfarland/2 http://works.bepress.com/jeff_mcfarland/2 Tue, 27 Oct 2009 10:35:35 PDT Jeffrey M. McFarland Securities, Disclosure, Corporations http://works.bepress.com/jeff_mcfarland/1 http://works.bepress.com/jeff_mcfarland/1 Tue, 27 Oct 2009 10:33:52 PDT Jeffrey M. McFarland Securities, Disclosure, Corporations http://works.bepress.com/rebekah_hope/2 http://works.bepress.com/rebekah_hope/2 Mon, 28 Sep 2009 08:29:00 PDT The Individuals with Disabilities Education Act (IDEA) protects the rights of parents of children with disabilities with an emphasis on each individual child's unique needs. The No Child Left Behind Act (NCLB) focuses on improving academic results for all children. On the surface these two statutes appear to work in opposite directions. One provides services based on the individual needs of each eligible child, while the other seeks to raise expectations and academic achievements of all students. The former is an in-put based scheme, relying on a complex set of procedures that, if performed correctly would result in a free appropriate public education that enables each child with a disability to receive meaningful educational benefit. The latter is an outcomes-based statute that requires each state to measure every student's progress annually, and if the yearly progress is not adequate, the school or local education agency will suffer consequences. Congress and the Department of Education have made a series of attempts to align these statutes.The purpose of my article is to examine the two statutes individually and the attempts that have been made to align them. It will explain the shift in expectations for students with disabilities since the 1997 amendments to the IDEA, and more concretely since the 2004 amendments to the IDEA that followed the enactment of NCLB. It will further examine where we are now since the most attempt to align the two statutes with the adoption of the Alternative Assessment based on Modified Academic Achievement Standards (AA - MAAS) and what is needed to close the existing gap between the two statutes. First the article will describe the history, purpose and standards, and the mechanics of the IDEA. Next, the article will discuss the purpose and mechanics of the NCLB. Third, the article will identify and discuss the conflict between the two statutes, followed by attempts to reconcile NCLB with the IDEA. Finally, the article concludes by recognizing that Congress could have, and probably should have spoken more clearly on whether it intended for the two statutes to complement each other when it reauthorized the IDEA, but regardless, the statutes affect the same population of students and will need to work together. Rebekah Gleason Hope Education Law http://works.bepress.com/rod_sullivan/2 http://works.bepress.com/rod_sullivan/2 Fri, 04 Sep 2009 10:41:55 PDT In 1985 Chief Justice Warren Burger declared the "triumph of the Administrative State," referring to was the increase of the number, power, and influence of federal administrative agencies which occurred during the 20th Century. The Court has not been insensitive to unprecedented growth of administrative agencies. Since then other members of the court have commented that "The proliferation of Government, State and Federal, would amaze the Framers, and the administrative state with its reams of regulations would leave them rubbing their eyes." Nowhere is this more apparent than in the overlap between the Longshore and Harbor Workers' Compensation Act, and the workers' compensation statutes of the fifty states Rod Sullivan Admiralty Administrative Law http://works.bepress.com/david_pimentel/6 http://works.bepress.com/david_pimentel/6 Mon, 31 Aug 2009 13:23:30 PDT A new government has taken power in Nepal. Intent on replacing the monarchical Hindu state with a secular democracy, they have promised a new Constitution. Although they are operating under an Interim Constitution at the moment, it remains to be seen what the post-monarchy judiciary will look like. Those involved in the drafting should pay careful attention to how specific provisions for court governance will impact both institutional and decisional judicial independence. The Interim Constitution calls for a judicial council, but not a sufficiently independent one. The Interim Constitution also allows broad exercise of emergency powers, depriving the courts of jurisdiction over the legality or constitutionality of such exercises--a particularly disturbing flaw given the history of abuse of emergency powers in Nepal in the past. These, along with an array of other concerns that otherwise threaten to undermine the independence and effectiveness of the Third Branch of government in Nepal, can and should be corrected in the new Constitution. This article sets forth those concerns and suggests solutions for each. Nepal's prospects for the rule of law may depend on how well the new Constitution's drafters follow this punch-list of issues and principles as they establish the constitutional framework for the new Nepali judiciary. David Pimentel Comparative Law Constitutional Law Courts Human Rights Law International Law Judges Jurisdiction Law and Society