Top Ten – Legal Ethics & Professional Responsibility, Feb. 13, 2007

There’s been a lot of turnover, particularly in the second five since the last time I posted.  I’ve just downloaded Differentiating Gatekeepers by Arthur Laby (Rutgers-Camden, right), because it looks like it may be relevant both to my inquiry into the differences between lawyer-like methods of rule-following versus the orientation to rule-following we might find in an entrepreneur, as well as to my previous work on lawyers as rationalizers.  Professor Laby’s abstract follows the break.

And here are the top ten papers in the SSRN Legal Ethics & Professional Responsibility Journal as measured by downloads in the last sixty days.

1.  How an Instrumental View of Law Corrodes the Rule of Law, Brian Z. Tamanaha, St. John’s University – School of Law

2   Young Associates in Trouble,David T. Zaring, William D. Henderson, Washington & Lee University- School of Law, Indiana University School of Law – Indianapolis.

3   An RSVP to Professor Wexler’s Warm TJ Invitation: Unable to Join You, Already (Somewhat Similarly) Engaged, Mae C. Quinn, University of Tennessee – College of Law

4   The View from the Trenches:  A Report on the Breakout Sessions at the 2005 National Conference on Appellate Justice, Arthur D. Hellman, University of Pittsburgh School of Law.

5  The Hypocrisy of the Milberg Indictment: The Need for a Coherent Framework on Paying for Cooperation in Litigation Bruce H. Kobayashi, Larry E. Ribstein, George Mason University School of Law, University of Illinois College of Law

6  Take Back the Night: Why an Association of Regional Law Schools Will Return Core Values to Legal Education and Provide an Alternative to Tiered Rankings Jon Garon, Hamline University School of Law

7  Differentiating Gatekeepers Arthur B. Laby, Rutgers University School of Law – Camden

8  Critical Legal Ethics Paul R. Tremblay, Boston College – Law School

9  The Scarlet Gene: Behavioral Genetics, Criminal Law, and Racial and Ethnic Stigma Karen H. Rothenberg, Alice Wang, University of Maryland School of Law, Public Defender Service for the District of Columbia – Appellate Division

10 The Changing Social Role of Urban Law Schools Joyce Sterling, Ronit Dinovitzer, Bryant G. Garth, Bryant G. Garth, University of Denver – Sturm College of Law, University of Toronto, American Bar Foundation, Southwestern Law School

[Jeff Lipshaw]

Here is Professor Laby’s abstract:

The emphasis on gatekeepers to controlcorporate misconduct has depended on a rational actor model. Agatekeeper prevents wrongdoing because expected liability orreputational harm from failing to prevent misconduct exceeds the gainin fees. This model, however, fails to distinguish among gatekeepers oraccount for how gatekeepers with different incentives respond to legalcontrols. This Article distinguishes between gatekeepers that aresupposed to be independent, such as auditors and analysts, from thosethat are supposed to be dependent, such as lawyers and underwriters.The Article then addresses why gatekeepers have not been more effectivemonitors and points out failures of conventional analysis. Advances inbehavioral and social psychology suggest that dependent gatekeepersperform their responsibilities under the yoke of unconscious bias.Independent agents, therefore, are better gatekeepers than dependentones. Concern about bias is exacerbated by indeterminacy in corporateand securities law, which facilitates self-serving interpretations ofthe law and gives wide berth to insist the principal’s conduct isappropriate. Differences among gatekeepers, viewed through a socialpsychology prism, help explain recent reforms and suggest the potentialneed for additional reforms. One such proposal is to marry thesuggestion for lawyer certifications of financial statements with the”reporting up” requirement of Sarbanes-Oxley and require, instead, thata lawyer certify annually that the lawyer is not aware of evidence of amaterial violation, or has made the required report under the SEC’slawyer rules. The prospect of making a false filing would likely havedeterrent effects that are absent under current rules. The hope is thatthe Article raises for further consideration whether insights frombehavioral psychology, married with a deeper understanding of thestructure of gatekeeper relationships, can help tailor reform.