Today, investment advisers, including robo-advisers, push dense disclosures to consumer investors who may not be able to fully comprehend their import. Tomorrow, robo-advisers and their innovative technology, if embraced by regulators and consumers, can facilitate and cultivate a trusted collaborative relationship between investor and adviser where the adviser learns from the investor and provides education tailored to the investor, helping to solve vexing consumer protection issues and lessen the impending retirement crisis. More and more of us are comfortable making decisions without human involvement and entirely through a digital interface. Despite consumers’ increasing comfort relying upon machines to direct and guide their decisions, most Americans nevertheless lack basic foundational knowledge in finance and investing. Even those Americans who are able to save for retirement lack financial sophistication and may not be able to understanding the complex products in which they are invested. Robo advice may not be the solution for these problems, as robo-advisers present a potential black box problem where the digital investment advisers may not be capable of explanation beyond the information input and advice output. In such a world, it is not only the new technology that should be questioned. The existing standards through which the new technology is regulated should similarly be explored. An understanding of potential benefits and potential harms may provide lessons that better allow us to protect consumer investors and better prepare for the so-called retirement crisis. This essay explores the parameters of the pre-existing regulatory regime as applied to a new landscape of investing with a focus on the key regulatory tool of disclosure. This short essay examines the challenges of delivering appropriate disclosures in a new world of robo-advisory advice. It suggests a reconceptualization of the aim of disclosure to capitalize on robo-advisers’ ability to truly know their clients and shift the burden of investor education from the customer to a fiduciary level adviser capable of tailoring advice and education to each investor at a level she is capable of understanding. The essay concludes with a recommendation: robo-advisers and investor collaboration via an active and iterative disclosure regime that encourages investor comprehension, understanding, and learning.
This article will evaluate the impact emerging AI technology has on the practice of law, in particular in the areas of legal research, “search and find” services, form automation and creation, and predictive analytics. It will discuss the impact emerging AI technology has had on legal education and what some law schools are doing to prepare students to be competitive and succeed in this rapidly evolving legal environment. Lastly, the author argues that legal education must attempt to bridge the law-tech divide and become ground zero for innovation and change. It is clear further discussions are needed, and legal educators need to come together, evaluate current law school curriculum, and brainstorm as to how to improve upon current pedagogical practices.
This paper is based on the author's presentation at the gender equality symposium. Professor Wriggins connects domestic violence and gender equality before turning to some significant reforms of the U.S. legal system concerning domestic violence-all of them relatively recent. Moving on, she discusses her reflections on the 12-year law practice that informs her expertise before becoming a law professor and also her long involvement in the movement for LGBTQ equality. Drawing on that experience, Professor Wriggins shares firsthand views of some of the consequences of not having legal protections. Outlining some of the shortcomings and critiques of the reforms, she finally turns to the future-what the law would be wise to anticipate and to do.
Addressing women’s inequality in the workplace will require challenging the gendered ideas of productivity that have contributed to rising precarity and inequality for most workers, across gender lines. This article examines how a contemporary narrative of new “economic engines” of innovation and growth responds to broad economic distress by reviving an older moral order where productivity normally and naturally requires gender, race, and class inequality. Current ideas of economic power recuperate older legal structures that made labor an obligation owed by dependent subordinates to their political and legal masters. Drawing on sociologist Erin Hatton’s research on the twentieth century temporary staff industry, I consider how gender ideology contributes to constructing workers in general as costs rather than productive assets. That reasoning helped rationalize the twenty-first century shift to a “gig economy” where workers hired as independent contractors increasingly bear the risks of production, including the risks of race and gender discrimination. The contemporary emphasis on economic innovation and entrepreneurship further mobilizes masculinized ideas and practices to undermine workers’ economic power and security. The article surveys evidence that technology enterprises hailed as engines of the new economy particularly feature gender inequity and harassment. I conclude that women’s subordination at work will requires countering the view that productivity depends on granting unequal power and protection to uniquely talented and unaccountable risk-takers.
There are three critical elements that define the modern legal profession: autonomy, intellectualism, and obligation. The first of these elements is the personal autonomy that should protect the professional in her role as independent counselor, guide, and confidant. Autonomy has eroded due to increased billing expectations, commoditization of practice, efficiencies of technology, and decreased investment in lawyer training. Other industries, such as those in the technology industries have improved employee autonomy even as law has regressed. Intellectualism, the second element, reflected the critical intellectual role that lawyers once played as thought leaders. Unfortunately, a systemic attack on intellectualism which began during the McCarthy hearings has continued with ever-greater impact, stripping public figures and civic leaders of their roles as public intellectuals who supported a civil society through their insights and rigorous debate. The third element is the professional obligation to uphold justice, a concept that is perhaps the most discussed and whose absence has been noted for centuries. As law schools look to shape the next generation of lawyers, they must reinvigorate these three attributes and establish a new legal profession committed to them. The vehicle is a new legal services approach that funds law students’ tuition in exchange for years of moderate-pay legal service. The article outlines the case for a restructuring of legal services for the poor and middle class, to help close the justice gap, assure meaningful representation for both criminal and civil justice needs, and through this training, restore the attributes of autonomy, intellectualism, and obligation to the profession. Through this approach, participating students will receive free legal education in exchange for participating in a Peace Corps modeled program that provides legal services to those with demonstrated need.
This paper is a contribution to the symposium entitled Scalpel to Gavel: Exploring the Modern State of Health Law. This essay quantifies and explores the central role Medicaid now plays in our health insurance system. For its first forty-nine years, Medicaid covered less than half of the nation’s poor. Today, one in five Americans have Medicaid coverage during the course of a year, and that number soon will increase to one in four given the insurance expansions enacted through the Patient Protection and Affordable Care Act. Medicaid now effectively functions as social insurance for many of its enrollees. In this essay, we begin to explore how Medicaid, after the ACA, metamorphoses from exclusion and limitations in access and benefits to a form of social insurance that implicates theories of social justice. The social justice aspect of universality provides an important lens for understanding the numbers, both in terms of the states that are expanding and the states that so far are opting out. States that refuse to expand their Medicaid programs are denying millions of Americans the benefit of a precious legal entitlement. It is essential that states understand the power — and the potential — of this evolving social program and its newfound status as a vehicle of social insurance.
Although widely dreaded, strategic planning is often required. More importantly, it is critical for institutional success. Here I offer tips for successful strategic planning in law schools, organized around the mnemonic HAVE FUN: H: Hands on and High Priority; A: Align Ideas with Funding; V: Viewpoint Diversity Is Critical; E: Engage All Key Stakeholders...at the Right Time; F: Find Leverage Points for Communication; U: Understand Who's Doing What; N: Never Put It on a Shelf.
On June 25, 2012, I walked into the dean's office at Texas Wesleyan University School of Law. He and I had been summoned by our university president to a hastily called meeting to discuss the law school's Since I helped oversee our academic program as Associate Dean for Academic Affairs at the time, I was not particularly looking forward to the meeting. I assumed there would be bad news of some sort. Instead, we were told that Texas Wesleyan University (TWU) and Texas A&M University (TAMU) were in negotiations that, it was expected, would result in a strategic partnership beneficial to both universities. One result of that partnership, we were told, would be that operational control of TWU School of Law would be transitioned to TAMU. I must have looked as confused as I felt at that moment, because the President then leaned forward and with a kind, patient face said to me, If everything goes as expected, the law school will be acquired by Texas A&M. The following two years at the law school were extraordinary. We spent 2012-2013 building relationships with TAMU and laying the foundation for our transition, all the while continuing our existing programs for 750 students. On August 13, 2013, approximately one year after we were told about the negotiations, the acquisition was complete, and we began operations as Texas A&M University School of Law. The following academic year, 2013-2014, involved navigating countless changes and adjustments across the entire range of our operations. One thing we did not have during the last two years was the luxury of reflection and careful planning. Instead, our work was triage. Certain tasks had to be completed so we could survive and operate as TAMU School of Law from day one. Others could wait, at least a short while. In Part I of this Essay, I provide a brief summary of the past two years at TWU-TAMU School of Law for background and context. In Part II, I provide a few reflections based on my experience in the leadership team that helped navigate our school through this significant transition. These are things I wish I had known two years ago. Perhaps law school administrators at schools facing similar institutional triage in the future will find them useful. Given the news from law schools across the country, it seems clear that other institutional changes are brewing, if not actively underway, as this Essay goes to print. These are difficult times (and, of course, times of opportunity) in legal education. Applications, enrollment, indicators, and revenue are down nationwide, job prospects for many graduates have dwindled, and schools are rethinking and reinventing their educational goals, programs, and operations. As universities and law schools grapple with these challenges, major changes will result. Institutions will size, merge, or close altogether. The leaders of those schools will face difficult decisions, some of which will have to be made on short notice with little time to thoroughly plan and evaluate options. This is not a how-to essay. From an administrative perspective, I think we did a number of things right and well during our last two years. But, as is usually the case in life, we could have done many things better. And we certainly made at least a few mistakes. To the extent there is value in these reflections, it may lie primarily in what we could have done more effectively or efficiently. As challenging as these past two years have been for our law school, we are now a stronger institution. We operated as a part of TWU from 1992 through 2013. During that time, we gained full American Bar Association (ABA) accreditation (1994), were granted membership in the Association of American Law Schools (2012), achieved a strong regional reputation for producing well-trained and skilled graduates, and attracted a talented faculty with diverse scholarly and teaching interests. With our transition to TAMU, the future looks even brighter for our institution. Financial support for the law school has increased; we are carefully developing a number of new academic initiatives, including collaborations between the law school and other academic colleges at TAMU; our 1L indicators have improved; and we are actively hiring new full-time faculty members to add depth and breadth to our program. We are grateful to have emerged from the uncertainty and anxiety of the last two years, ready to face the future.
Written as a contribution to a symposium issue of the Toledo Law Review honoring retiring professor Susan Martyn, this article takes as its starting point an early article by Professor Martyn entitled “Informed Consent in the Practice of Law.” In that article, Professor Martyn decried the inability of clients to control the course of their representation and urged state legislatures to remedy this situation by enacting legislation creating an action in damages based upon a lawyer’s failure to obtain the client’s informed consent. Such an action would be similar to common law actions that courts had recently recognized by patients against their physicians for failure to obtain their informed consent to various medical procedures. In the decades since publication of this article, it is not surprising that legislatures have not enacted such statutes. What may be surprising, however, is that courts have not significantly expanded the availability of a legal malpractice action when the gravamen of the complaint is the lack of informed consent. The purpose of this article is to attempt to explain why common law courts have not clearly adopted the informed consent doctrine in the legal context to the same extent as they have done so in the medical context. It suggests that a primary reason for this lack of development of informed consent in legal practice is the lack of clarity and consensus among courts and commentators concerning several separate but related concepts: the allocation of decision-making authority between lawyer and client, the lawyer’s duty to keep the client reasonably informed concerning the representation, and the lawyer’s duty to fully explain matters when the client’s consent is necessary. This confusion was evident not only in the ABA Code of Professional Responsibility that was in effect when Professor Martyn published her formative article, but also in the ABA Model Rules of Professional Conduct that were initially adopted in 1983. While some of the confusion was removed in subsequent amendments to the Model Rules, which were adopted as a result of recommendations by an ABA commission on which both Professor Martyn and I served, there continues to be significant confusion concerning these related concepts.Speaking for herself, the author confesses that she now believes that the commission could have and should have done more to eliminate this confusion, including providing additional guidance concerning which actions lawyers are “impliedly authorized” to take on behalf of clients and expressly requiring lawyers to obtain the client’s “informed consent” for all decisions that are the client’s to make. However, with respect to the failure of relevant law outside the rules of professional conduct to clearly designate which decisions are for clients and which are for lawyers, the author rejects the conclusion that the Model Rules should have adopted the view of the American Law Institute that clients should have the right to instruct their lawyers so long as such instructions are lawful and do not require lawyers to violate their professional responsibilities. In the author’s opinion, there are normative reasons why courts have not uniformly embraced this view; as a result, the allocation of decision-making authority between lawyer and client involves highly contested issues that should not be resolved by fiat in rules of professional conduct. Thus she is satisfied that the commission rightfully declined to resolve the question of who decides when the lawyer and client fundamentally disagree over the means of the representation, fully cognizant that the failure to do so may reduce the likelihood that common law courts will adopt the informed consent doctrine in legal practice to the same extent that they have done so in medical practice.
Much of the public debate over education reform has focused on teachers, their compensation and working conditions, and how these matters are affected by collective bargaining. “Reformers” point to teacher unions as the principal cause of the shortcomings in public education. They often trot out a junior teacher who has won accolades and awards for teaching and express outrage that he or she is paid less than and is in line to be laid off before allegedly mediocre senior teachers. They point to the costs of terminating tenured teachers and to allegedly horrid teachers reinstated by hearing officers and arbitrators. Wisconsin Governor Scott Walker, defending what ultimately became Wisconsin Act 10 which gutted the collective bargaining rights of most Wisconsin public employees, argued that the legislation responded to the need to give employers “the tools to reward productive workers … [and] confront the barriers of collective bargaining that currently block innovation and reform.”Measures that have been passed off as effective reform in many states have eliminated collective bargaining or severely restricted its scope, strengthened employers in the bargaining process, weakened unions generally and teacher unions in particular, and weakened or eliminated teacher job security.This essay shows how the current wave of “reform” is misguided. Part II surveys successful education reforms that have resulted from empowering teachers with a true voice through their unions in educational decision-making. Part III examines the current state of the law and shows how, rather than facilitate such reforms, current legal doctrine inhibits them. Part IV suggests alternative approaches for truly effective reform.
Evaluating the application of existing securities laws and regulation in a cyberspace context requires an understanding of how existing legal structures accommodate changing societal or other conditions, including changes resulting from technological innovation and changing business culture and practice, which both encompass and extend beyond changes resulting from technological innovations. Understanding the application of securities regulation in such circumstances represents a distinct response to the familiar problem of applying and borrowing from existing legal frameworks in new contexts. However, since existing securities laws and regulations were originally crafted during an earlier time period, the translation of such frameworks in new contexts leads at times to a questionable outcomes, at least partly because such frameworks represent a response to a particular historical context involving specific business practices that might not be as relevant in the business climate of today. This is particularly true with respect to non-public offerings, which were recognized in the Securities Act of 1933 from its inception. This article assesses the translation of existing securities laws and regulation in the cyberspace context of non-public offerings, focusing specifically on restrictions on general solicitations and advertising in non-public offerings, as well as whether and how structures that exist in real space can be adapted in the cyberspace context.
EING an interim dean is not so much about being “interim” as it is about being the dean. Some of us who start out as interim actually become the permanent dean. Some of us know from the start that we will not become the permanent dean at our own school. Still, one’s time as interim dean is much more than serving as a placeholder for a new permanent dean. Many people, especially those outside of the law school, like alumni, will see you as the dean. On the other hand, those inside the law school often will want to make sure you are viewed as temporary. What I came to understand during my eighteen months as interim dean, is this—it is important to be mindful of the temporary nature of the position, but it is also inevitable, and, I believe valuable and important both for the institution and for you, to inhabit the transitory space as though it were permanent, and to find a way to make the deanship your own. Anyone in a new position takes some time to find his or her bearings, to feel comfortable and confident in the role. This can be especially challenging when one becomes interim dean because it is often an appointment that must be made quickly because something unexpected has suddenly happened to the current dean. In my case, the president of the university appointed our dean as the interim provost after the provost unexpectedly resigned. Our dean of four and one-half years was greatly respected, not only within the school, but also by our alumni and the legal community as a whole. It was unsettling, to say the least, that he was quite suddenly no longer our dean and that we had to find a replacement immediately. For some time after I became the interim dean, I felt like I was merely a placeholder. I had been reluctant to become the interim dean. I was comfortable as the associate dean for academic affairs—a position I had held for four and one-half years. But part of what made me see that I could be a good
HROUGH the years, I have been fond of a set of expressions I sometimes use to underscore the importance of an idea or a cause I believe important and worthy of personal or institutional investment, or both. The expressions fit together like this: our society has a particular problem that needs attention; our colleges and universities, being institutions broadly representative of our society, also have this problem (as we should expect); we need to work on this problem in our colleges and universities; if we cannot solve this problem in our institutions of higher learning, then I have little hope that our society will be able to solve it; our law school needs to set an example for the rest of the university as to how we can work together to solve the problem. When I articulate this message in a speech, conversation, essay, or dean’s column, my goal is invariably to persuade the listeners or readers to action—not just to join me in supporting a cause, but to join together to make change happen in our own community, with the hope that when we improve ourselves, our example will spread outside our immediate community and influence even broader change. On most occasions when I present this message, I direct my comments toward the importance of valuing diversity, respecting others and rejecting intolerance, and preserving and promoting human rights and dignity. In that context, the implications of the appeal are obvious: promoting these values in our community makes us better, which is important in its own right; however, it is even more important that our society make progress on these values, too. If our institutions of higher learning are unable to progress, then it is hard to imagine how our larger society will find a way to improve. This message is appropriate in many other contexts as well, simply because many issues to be addressed within a law school community are also present in the broader university and the larger society outside it. Most discussions of leadership focus on the desired characteristics and behaviors of the individual who sits at the top of an organization and leads its articulation of a mission, the goals to be achieved to fulfill the mission, a plan for
Scientists will long debate the extent to which our climate is changing as a result of anthropogenic releases of greenhouse gases. But the debate over whether the earth is experiencing climate change-and in particular, global warming, is pretty much over. Much good work is being done to address climate change and its consequences both at the policy and technology levels. Technology promises to increase the efficiency of our cars, appliances, buildings, and power plants, and to provide new ways to generate electricity that minimize or eliminate greenhouse gases, or provide for their sequestration underground. Several potentially “game-changing” technologies are showing real promise. So why are the prospects for a near-term solution so dim? Put simply, the problem is with our political institutions. Our current political machinery is poorly constituted to address a problem that arises slowly and incrementally, and whose most serious consequences will most likely occur many years in the future. Just as we seek scientific and technological innovations, we need to find new decision-making models that can overcome the infirmities of our current political system. This article describes the weaknesses in our existing institutions and the characteristics of a model that might overcome them. It begins with a review of climate science and the range of expected outcomes under various scenarios. This is followed by a review of technological innovations and possible future innovations that could, if implemented, stabilize and then reverse current greenhouse gas emission levels. It then looks at current efforts to address climate change and suggests why those efforts will almost certainly fall short of what is needed. Finally, the article examines political institutions and explains why current governance models are likely to fall short of what is needed to address climate change.
