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The rise of lawyer mobility is a recent and remarkable development within the legal profession. In the past, movement of lawyers between firms was uncommon, but over the last thirty years lateral hiring has become the norm rather than the exception, and lawyers may expect to change their practice locales numerous times over their professional careers. The recent wide acceptance of lawyer mobility caused one court to describe the “revolving door” as a “modern-day law firm fixture.”
The era of lawyer mobility began in the 1980s and shows no signs of subsiding. To the contrary, in recent years, lateral moves of entire practice groups have become common. The moves are made possible because client loyalties run to lawyers as well as their firms, and some clients are more interested in the lawyers employ than the firms they retain. As an economic reality, client portability is vital to lawyer mobility.
The lawyer or law firm that controls client files has distinct advantages in any competition for clients. Not surprisingly, disputes over control and possession of client files have long occupied the attention of courts and ethics committees, which over the years have developed a significant body of case law and ethics opinions addressing myriad issues relating to client files. This authority, however, is largely directed to a world of “hard copy” files where pieces of paper neatly assembled within file folders invite a property-based analysis whenever disagreements over possession or access arise. Until recently, the most significant development requiring any rethinking of settled norms was the development of inexpensive duplicating mechanisms (e.g., copy machines, which replaced carbon copies). Although this development was significant on many levels, the greater ease with which hard copy material could be duplicated did not require fundamental changes in the law’s approach to client files. . .
The state of punitive damages in the United States has been a controversial topic for more than three decades, resulting in litigation reaching the U.S. Supreme Court and state supreme courts. Various business advocacy groups have sought to drastically curb or eliminate punitive damages while plaintiffs’ lawyers and consumer groups vigorously defend the use of punitive damages. State legislatures have responded with many substantive and procedural reforms over the years. Yet, in Exxon Shipping Co. v. Baker, the United States Supreme Court, while approvingly citing empirical evidence indicating that there are “not mass-produced runaway awards” and that “by most accounts the median ratio of punitive to compensatory awards has remained less than 1:1,” once again expressed concerns about punitive awards exceeding a single-digit ratio to compensatory damages and the predictability of punitive awards. A full understanding of the issues involved in the punitive damages controversy requires consideration of the causes of action, the magnitude of both compensatory and punitive claims, the ratios of these two outcomes, and a qualitative understanding of the nature of punitive awards. This article presents a profile of punitive damages awarded by juries in 2005 using the U.S. Bureau of Justice Statistics’ Civil Justice Survey of State Courts. We supplement the BJS survey with an additional sample of punitive damages claims from nine states in 2005. This additional database provides more details about the disputes and procedural matters associated with the trials. The data show that there are case-type patterns in the awarding of punitive damages that contradict claims about punitive awards, especially those involving product liability cases, and that the ratio of punitive to compensatory damages is a complex matter not easily resolved without consideration of the underlying factual bases of the claims. . .
In November 2008, one week after Barack Obama was elected as our forty-fifth President, I had the honor of delivering a Donahue Lecture at Suffolk University Law School. “A National Security Agenda” offered thoughts on national security challenges, priorities and strategies for a new presidential administration. Now, more than one year later, this paper is a “scorecard” on the success of these earlier recommendations and the new administration’s actions. In the pages following, what has been accomplished and what remains is reviewed and judged against my earlier suggestions, in the hope of encouraging readers in their own analysis. . .
For more information about Dean Parker’s Donahue Lecture (which served as the basis for this article) as well as audio from the event, please click here.
It was my great pleasure to come to Suffolk University Law School to join the ranks of the many distinguished individuals who have delivered the Donahue Lecture. The topic of this lecture is the simple chemical, carbon dioxide, which is, now officially, our newest pollutant. The first question to ask is why I chose this particular title for carbon dioxide, a substance that predates the industrial revolution and is, in limited quantities at least, necessary for the survival of life as we know it on this planet. The answer relates to complexities that lie beyond my control under the peculiar statutory framework for dealing with pollutants under the Clean Air Act (CAA), which is administered by the Environmental Protection Agency (EPA). Pollutants must be registered under the CAA, and there has been a huge dispute—which I shall explain later on—about whether or not carbon dioxide should be registered as such under the Act. After much internal debate, the Bush Administration said no. The states, led by Massachusetts, thought that the answer ought to have been yes. They forced the issue to the Supreme Court, which held in Massachusetts v. EPA that, although the EPA was not necessarily bound to make that “endangerment” determination, it was nonetheless authorized to do so because carbon dioxide fell within the CAA’s definition of an “air pollutant.” Under the CAA, an “air pollutant” is “any physical [or] chemical . . . substance or matter which is emitted into or otherwise enters the ambient air.” . . .
For more information about Professor Epstein’s Donahue Lecture (which served as the basis for this article) as well as audio from the event, please click here.