Copyright (c) 2009 All rights reserved. http://works.bepress.com/robert_condlin Recent documents in Robert J. Condlin en-us Thu, 02 Jul 2009 14:26:07 PDT 3600 http://works.bepress.com/robert_condlin/20 http://works.bepress.com/robert_condlin/20 Thu, 28 May 2009 13:00:12 PDT In the good old days legal bargaining scholarship was based mostly on negotiator war stories exuberantly told. The social-scientific study of the subject did not begin in earnest until the nineteen-seventies. Since then, however, the literature of storytelling has gone into a pronounced eclipse and social-scientific study is now the principal scholarly game in town. This article questions the wisdom of this shift, almost seismic in its proportions, and argues that it is too soon to jump on the social science bandwagon. Discussion focuses to the uses made of the Prospect Theory of Daniel Kahneman and Amos Tversky and the Theory's central concept of Anchoring. Anchoring is the most thoroughly analyzed of the Prospect Theory concepts and difficulties encountered in incorporating it into legal bargaining theory will recur many times over in working with other parts of the Prospect Theory framework. It is an exemplary test case. Robert J. Condlin Dispute Resolution http://works.bepress.com/robert_condlin/15 http://works.bepress.com/robert_condlin/15 Fri, 30 May 2008 10:39:12 PDT Robert J. Condlin Dispute Resolution http://works.bepress.com/robert_condlin/14 http://works.bepress.com/robert_condlin/14 Fri, 30 May 2008 10:39:09 PDT Robert J. Condlin Clinical Legal Education http://works.bepress.com/robert_condlin/13 http://works.bepress.com/robert_condlin/13 Fri, 30 May 2008 10:39:05 PDT Robert J. Condlin Dispute Resolution http://works.bepress.com/robert_condlin/12 http://works.bepress.com/robert_condlin/12 Fri, 30 May 2008 10:39:01 PDT Presentation to the Clinical Section of the Association of American Law Schools. Robert J. Condlin Clinical Legal Education http://works.bepress.com/robert_condlin/11 http://works.bepress.com/robert_condlin/11 Fri, 30 May 2008 10:38:56 PDT Should lawyers love their clients and try to be their friends? Highly regarded legal scholars have defended the "lawyer-as-friend" analogy in the past, although usually on the basis of a more contractual understanding of friendship than the understanding currently in vogue. These past efforts were widely criticized on a variety of grounds, and after a period of debate, support for the analogy appeared to wane. That is until recently, when other scholars, looking at the topic from a more religious perspective, have asserted a refined version of the friendship analogy as the proper model for lawyer-client relations. It is this rejuvenated love-and-friendship view that I examine in this article, to consider whether, after all these years, there is now good reason to believe that lawyers should be thought of as their clients' friends. I argue that an adequate conception of lawyer-client relations cannot be grounded in an analogy to intimate personal relationships. Self-conscious attempts by lawyers to behave as friends can come across as insincere (as they often will be, although not malevolently so), condescending, and arrogant. They also can provoke self-demeaning and childlike behavior in response, as clients dutifully try to play out their assigned role as designated beneficiaries of their lawyers' help. When both types of pretense are combined, lawyer-client conversations often will take on the qualities of an elaborately coded performance in which each side signals its genuine beliefs and wants in unnecessarily convoluted and confusing ways. Interacting in this fashion over a lifetime in law practice can cause lawyers to become cynical about client attitudes and less respectful of client ends. In fact, perhaps the biggest difficulty with the lawyer-as-friend view is that it can cause lawyers to become less friendly over the course of a career. I discuss these issues by examining two generations of scholarly argument for the lawyer-as-friend analogy, and a description of the approach in operation in an actual legal case. Each of these discussions shows what sorts of questions a lawyer-as-friend takes up, how he or she divides or shares authority with clients differently from lawyers who use more traditional approaches to legal representation, and how the personal psychological experience of representing a client as a friend compares with the experience of representing a client as a fiduciary and agent. In the course of the discussion, I compare the idea of legal friendship with representative views of friendship found in western literature and philosophy generally, identify the comparative advantages and disadvantages of the legal friendship model, and conclude by defending a more traditional way of thinking about the relationship between lawyers and clients. Robert J. Condlin Legal Ethics http://works.bepress.com/robert_condlin/10 http://works.bepress.com/robert_condlin/10 Fri, 30 May 2008 10:38:52 PDT Debate over the relative merits of communitarian and adversarial theories of dispute negotiation has pre-occupied legal bargaining scholarship for at least twenty years. Seen as a negotiation, this debate makes it clear that communitarians are by far the better bargainers. In a move one might think more characteristic of adversarial bargainers, communitarians changed the definition of bargaining effectiveness by reconstituting the world in which bargaining operates (the meta move of the title - in communitarian terms they "changed the game by changing the frame"), and in the process made adversarial bargaining obsolete. Many of the arguments and maneuvers used in this effort are gratuitously combative, disingenuous and manipulative, and based on aesthetic and ideological preferences that have little in the way of empirical evidence to back them up. Often, in fact, these arguments and maneuvers look more like stealth maneuvers for competing successfully for stature and influence in the legal academy than collaborative overtures to partners working on common intellectual problems (also seemingly contrary to communitarian principles). None of this will surprise anyone familiar with the ways of the world. Only communitarians are shocked to discover that they are as competitive as the next person when their own interests are at stake. But it does raise an interesting question of whether the success of the communitarian assault on bargaining theory is a basis for rethinking the nature of effective bargaining. The new communitarian orthodoxy may be a linguistic phenomenon more than a substantive one, the re-labeling (and refinement) of familiar adversarial technique in communitarian terms rather than the discovery of a new communal structure to legal dispute bargaining. Or, at least so I will argue. Robert J. Condlin Dispute Resolution http://works.bepress.com/robert_condlin/9 http://works.bepress.com/robert_condlin/9 Fri, 30 May 2008 10:38:45 PDT Commentators frequently claim that there is no single, coherent doctrine of extra-territorial personal jurisdiction, and, unfortunately, they are correct. The International Shoe case, commonly (but inaccurately) thought of as the wellspring of the modern form of the doctrine, announced a relatively straightforward, two-factor, four-permutation test that worked well for resolving most cases. In the nearly sixty-year period following Shoe, however, as the Supreme Court expanded and refined the standard, what was once straightforward and uncomplicated became serendipitous and convoluted. Two general, and generally incompatible, versions of the doctrine competed for dominance. The first, what might best be described as a totality-of-the-circumstances view, is essentially a balancing test which weighs the convenience interests of litigants against the sovereignty interests of state and federal governments to situate litigation wherever those collective interests are reasonably accommodated. The second, perhaps best described as a defendant-veto view, is a kind of single-factor test that permits defendants to escape the extra-territorial reach of a state's personal jurisdictional power by avoiding certain kinds of purposeful contacts with the state. There is some overlap between these two versions of the doctrine, of course, but also a considerable area of difference, and the two views dictate opposite results when the forum a defendant has studiously avoided is a (or even the most) convenient forum. In the decade immediately after Shoe, the competition between the two views remained in relative equilibrium, with neither view gaining a clear upper hand, but at the end of that period, in the bookend cases of Hanson v. Denckla and McGee v. International Life Insurance Company, the Supreme Court reached opposite results, relying on the defendant-veto view in Hanson and the totality-of-the-circumstances view in McGee, when the reverse outcomes seemed to make more sense. It was as if, after ten years of thinking about it, the Court was no clearer on what form the doctrine should take than it was when it started. The doctrine then sat nearly dormant for about twenty years, during which the Court made few systematic attempts to restate or reformulate it. It was not until the early 1980s, in a spate of now well-known cases (Kulko, Helicol, Ireland, Keeton, Calder, Woodson, Burger King, and Asahi, among others), that the Court got back into the field, mostly to reinforce the defendant-veto view, which had been losing ground in the lower federal and state courts. In this important series of cases the Court added considerable sophistication to the doctrine, but introduced a number of confusing elements as well. The confusion was caused principally by the Court's unfortunate propensity to use key concepts to mean more than one thing, to change doctrinal terminology without indicating that it was doing so, to use more than one term to express the same idea, to fail to ground the doctrine adequately in the Constitution (causing many to question its legitimacy), and to mix and match substantive law and jurisdictional concerns in developing doctrinal principles, all the while professing that it was not doing any of these. Lower federal and state courts were confused by all of this, of course, and began to add layers of confusion of their own, relying sometimes on one part of the Supreme Court's thinking and other times on other parts. Many courts, for example, all but eliminated the category of general jurisdiction, at least as originally understood and articulated in Shoe, by making its requirements either identical to, or less demanding than, those required for the supposedly easier-to-satisfy category of specific jurisdiction. Courts also ignored the distinction between contacts and fairness considerations in the specific jurisdiction standard, and began to treat both types of factors as interchangeable and free-standing jurisdictional tests in their own right. And still other courts defined the nexus requirement of specific jurisdiction to include almost any kind of relationship between the defendant's forum contacts and the plaintiff's claim, confusing litigants and undercutting the defendant's veto right. These and equivalent doctrinal frolics-and-detours have caused serious problems for litigants, lawyers, and judges, of course, who want to know where suits may be brought and where they will have to defend. The problem is especially serious in periods when the Supreme Court is not taking personal jurisdiction cases, since there is little prospect of reversing erroneous lower court decisions. The lack of a clear standard also exacerbates the pressure on litigants to forum shop, and forum-shopping, in turn, reinforces the familiar rule-of-law criticism of American courts, that their decisions lack legitimacy because they are based more on home court prejudice than on substantive entitlement. It may be that the Supreme Court is about to get back into the personal jurisdiction business, however, in part to clear up the difficulties described above, and in part to resolve new kinds of problems raised by cases in which the defendant's forum contacts are made over the internet. The roughly twenty year dormancy period in which the Court, historically, has not taken personal jurisdiction cases is coming to an end, for one thing, and many of the internet-contacts cases that have now begun to proliferate present interesting questions not easily resolved by existing doctrinal formulations. Early internet (mostly commercial dealing) cases were not all that different from the telephone contacts and stream-of-commerce pollution contacts cases familiar in the Shoe era, but the newest set of cases, principally those involving libel and intellectual property claims, present questions not easily answered by earlier formulations of the standard, and they have produced a wide variety of not always consistent or satisfactory responses in the lower federal and state courts. In this article I hope to sort out some of these confusions, and offer suggestions for how the Court, using the internet cases, might get the personal jurisdictional doctrine back on track. Robert J. Condlin Civil Procedure http://works.bepress.com/robert_condlin/8 http://works.bepress.com/robert_condlin/8 Fri, 30 May 2008 10:38:41 PDT Robert J. Condlin Clinical Legal Education http://works.bepress.com/robert_condlin/7 http://works.bepress.com/robert_condlin/7 Fri, 30 May 2008 10:38:38 PDT Robert J. Condlin Dispute Resolution