In 1924, proponents of the Federal Arbitration Act (“FAA”) believed arbitration was an amicable way to resolve disputes between business professionals: Arbitration “preserves business friendships. . . . It raises business standards. It maintains business honor.” This indeed may be true, but judicial opinions interpreting the FAA have transcended the realm of legal reasoning, becoming hostile and antagonistic not toward a party’s improper action, but toward judges.
Whether and to what extent multidisciplinary practices should be allowed in the United States has recently been described as the “‘most important issue facing the legal profession today.’” Multidisciplinary practices, or “MDPs,” emerged as an important ethical issue more than ten years ago when the accounting profession began to offer businesses a wide variety of professional services they had not traditionally offered. Consulting and other professional service firms followed suit, and began promoting services similar to those traditionally offered by law firms. The growth of these nonlegal firms led such firms to hire an increasing number of lawyers. Not surprisingly, this trend raised concerns about the unauthorized practice of law, conflicts of interest, and lawyer independence. Since the distinctions between legal and nonlegal professions have become muddled, the American Bar Association (“ABA”) has devoted significant resources to addressing the MDP issue.
New crimes require new thinking about regulation. Because of computerization and globalization, today’s world faces new crimes and new ways of committing old crimes. Because of the interconnectedness of our global financial markets, this evolving criminal activity has unprecedented power to wreak havoc on every aspect of modern life. Law enforcement has no choice but to respond effectively.
One aspect of this new thinking is revising our concept of crime. Complex, economic wrongdoing is difficult to categorize as criminal primarily because it is enormously difficult to prove the high level of mens rea traditionally and appropriately required in criminal law. Proving this requisite mental state by the heightened burden required in criminal cases is even more difficult. Moreover, even when proof of criminal intent beyond a reasonable doubt is possible, conducting the investigation and proving a case by these standards is so expensive and time-intensive for both the executive and judicial branches that the costs often outweigh any benefit achieved. Lastly, imposing the criminal sanction of imprisonment on defendants whose wrongdoing, however destructive to society, may be malum prohibitum, is morally and practically questionable for a criminal justice system and is often economically inefficient.
Mediation—the process through which a third party neutral assists parties in reaching their own agreement—has achieved a prominence in our legal system that belies its youth. Earlier in the twentieth century, the use of mediation was limited almost entirely to small disputes (which did not justify the expense of litigation) and labor disputes (which required quick resolution in order to avoid costly strikes and shutdowns.) By contrast, mediation today is touted for disputes of all sizes and in all areas of the law, including probate, family, commercial lending and business, criminal, employment discrimination, environmental, legal malpractice, medical malpractice, and maritime law. Indeed, such is the enthusiasm for mediation, that one is hard pressed to find a legal area in which mediation is not actively encouraged. Despite such broad encouragement, its success varies widely in different fields of law. While in some areas of law it has achieved dominance, in others its development has been far slower. Two areas where this disparity is particularly puzzling are divorce and will contests.
In 1958 in Pakistan, Parveen Chaudry’s parents introduced her to Hanif Chaudry, the man they had chosen to be her husband. In accordance with Islamic tradition, Parveen’s parents negotiated the terms of her marriage contract with Hanif, consenting to and even signing the contract on Parveen’s behalf. According to Islamic law, Parveen’s marriage contract included a mahr provision, or dower, in the amount of 15,000 rupees (approximately $1,500), to protect Parveen if Hanif suddenly divorced her. Islamic law provides that couples retain their assets before, during, and after marriage, and because Parveen would likely not be permitted to work outside the marriage home without her husband’s permission, the mahr was a nest-egg in case the marriage soured.
On February 22, 2002 the General Accounting Office (“GAO”) filed an unprecedented lawsuit against Vice President Richard Cheney, seeking an injunction requiring him to produce certain records relating to the National Energy Policy Development Group (“NEPDG”), which he chaired at the behest of President George W. Bush. For the first time in its eighty-one year history, the GAO has filed suit against a federal official in relation to records access.
The suit is the result of a GAO inquiry begun at the request of Representatives Henry Waxman and John Dingell, who were concerned about the potential influence Enron and other special interest groups had over the NEPDG’s activities. The Vice President has so far refused to meaningfully acquiesce to any of the GAO’s information requests or attempts at accommodation, and has argued that the GAO does not have the statutory authority to obtain the records requested. More significantly, he has hinted at—though not formally asserted—executive privilege, setting the stage for a legal showdown that could make its way to the Supreme Court.
In 1976, Professor Hans A. Linde published his pathbreaking paper, Due Process of Lawmaking. That article focused attention on a subject of subtlety and importance: To what extent should the processes by which laws are enacted affect their validity under seemingly substantive constitutional provisions like the First Amendment and the Equal Protection Clause?
In response to the September 11, 2001 terrorist attacks, the chorus of those arguing that international law cannot serve as an effective tool in the fight against terrorism has grown. In fact, one might say that September 11 has swelled the ranks of international relations realists, who view international law primarily as a cover for strategic interests and thereby as lacking any independent bite. According to this view, for the United States to comply with the letter of international law would be to don a straight-jacket that would hamper efforts to protect national and international security. Instead, because of the serious nature of the threat, ordinary rules should be bent, if acknowledged at all. This type of thinking has even spilled over into domestic law. Anyone who harps too much on the need for law at best is naive and at worst aids and abets terrorists.
This resurgent realism with respect to international law has taken several forms. Some have argued that the United States need not pay overly precise attention to international law in its military response to the attacks. Others have suggested that the detention of captured terrorism suspects is not, or should not be, governed by international law. And still others have suggested that the United States need not comply with the principles established under international law in prosecuting individual terrorists.