What kind of constitutional standards are applicable to communications likely to cause listeners to commit crimes? An examination of the tension between the highly protective approach to advocacy of crime taken by the Supreme Court in Brandenburg v. Ohio and the provisions in many criminal codes that make those who encourage criminal violations generally punishable for solicitation is followed by an analysis of the penological reasons for punishing crime-causing communications and of the relevance to such communications of the justifications for freedom of expression. After an account of the Supreme Court decisions dealing with this subject and a summary critical examination of interpretive approaches to the First Amendment, the author suggests standards for constitutional appraisal of prohibitions of communications that may cause crime. The central proposals are that most statements of fact and value be accorded virtually absolute protection; that dominantly situation-altering utterances, such as agreements, offers of agreement, and orders, be treated as outside the scope of First Amendment protection; and that simple encouragements to commit specific crimes, a kind of action-inducing communication, be granted a degree of protection that depends heavily on context, with criteria like those contained in Brandenburg applicable to public ideological solicitation but with much less restrictive standards applicable to private solicitation.

This article, the second in a three-part series based on interviews of 180 civil litigators in Chicago, describes lawyers’ assessments of the health of the discovery system and their views about the relative severity of several major problems and abuses that burden the discovery process. The data present a disturbing picture of the way the discovery system functions, especially in larger cases. Big case litigators are much unhappier with the current state of affairs in discovery than are their smaller case counterparts, and apparently for good reason. Tactical jockeying, evasive and dilatory practices, and various forms of harassment play major and costly roles in a high percentage of large lawsuits. And in at least one of every two big cases the discovery system fails to distribute the relevant information to all the parties. Perhaps the most dramatic evidence of disaffection with the current state of affairs in major litigation, however, is the widespread support the lawyers expressed for more aggressive judicial involvement in the process and for more frequent, telling use of sanctions to punish its abusers.

The third article in this series will report the lawyers’ reform proposals and will explore some of the implications of the data described here.

Until recently, women were rarely found on the faculties of the nation's law schools. The few who were tended to teach at their alma maters and specialized in only a few subject areas. This article reports the extent to which women have become part of the tenure track faculties of the nation's law schools. The author finds that women have made considerable progress toward becoming tenure track law teachers. She finds, however, that women law professors continue to be academically inbred in disproportionate numbers and overrepresented in some subject areas.

In early 1979 I expressed the view that the Supreme Court, in City of Los Angeles Department of Water and Power v. Manhart, erred in a fundamental way and that if the decision continued to stand, it should at least be confined as narrowly as possible to minimize the damage it did. Subsequently, four of my University of Chicago colleagues have taken me to task, alleging error in my interpretation of the governing statutes and failure to give adequate consideration to the accumulating demographic learning relevant to the subject matter. I remain unpersuaded. With slight modifications induced by their discussion of the demographic literature, I continue to stand on my original analysis. But their statement was careful and ambitious and deserves the compliment of an explicit effort to refute at least its major points.

This quarter's American Bar Foundation Research Journal book review section is devoted to review articles of the American Bar Association's proposed Model Rules of Professional Conduct. In the strict sense the current draft of the Model Rules is not a book—its typescript pages and denomination as “Discussion Draft” clearly identify it as subject to change. Yet even in their preliminary form the Model Rules merit careful analysis. First, the Discussion Draft is important in its own right. It is the most significant legislative proposal in the field of legal ethics in over a decade. Second, the problems discussed in these reviews—for example, enforcement, lying in negotiation, disclosure of client confidences, and client control of decision making—will continue to be serious problems no matter what changes are made in future drafts of the Model Rules. Third, by inviting the comments of some of the leading scholars in legal ethics before a final draft is written, we have been able to supply the Commission on Evaluation of Professional Standards with drafts of the symposium contributions in ample time for the Commission to consider making some of the changes the reviewers suggest. Last, because these scholars (most of whom are also practitioners) are familiar with the ethical literature of the last decade, they should be able to set the Model Rules in the context of that literature—no small accomplishment.

Upon the enactment of the Model Rules of Professional Conduct, published ethical norms will for the first time give explicit consideration to the lawyer's behavior in the process of negotiation. Rules 4.1, 4.2, and 4.3 deal with negotiation. Although the Canons, the interpretations of the Canons, and the Disciplinary Rules and Ethical Considerations gave tangential consideration to negotiating, none of the Disciplinary Rules or Ethical Considerations explicitly considered negotiation apart from the process of litigation or counseling. The mere recognition of negotiation as a separate process worthy of unique rules is a large step. The purpose of this paper is to address the general question of truthfulness as that question is faced in Rule 4.2.

Regulating lawyers is a three-part process. Rules must be formulated, they must be interpreted, and they must be enforced. Although those who formulate rules cannot be held responsible for their interpretation and enforcement, they can and should bring to their work an appreciation of the problems experienced in interpreting and enforcing earlier rules. One way to evaluate the proposed Model Rules of Professional Conduct is to ask whether they are properly responsive to problems that have arisen in interpreting and enforcing the Code of Professional Responsibility. That is the standard against which the Model Rules will be measured in this review. No effort, however, will be made to canvass all the problems that have been identified under the Code.

The American Bar Association's Commission on Evaluation of Professional Standards has proposed the replacement of the existing Code of Professional Responsibility with its Model Rules of Professional Conduct. The public discussion of the Model Rules has focused largely on specific provisions, such as the proposed requirement that lawyers disclose clients' confidences in some circumstances and the exhortation that all lawyers engage in pro bono activity. Another proposed change, however, would at least on its face seem to be more significant for the future of the bar's professional standards and its self-concept than for the resolution of particular professional dilemmas. That change is the proposed elimination of about half the current Code of Professional Responsibility: those provisions included under the rubric “Ethical Considerations.”

Attorney involvement in client perjury is a restive issue that does not admit of easy resolution. Many other issues are addressed by the Kutak Commission in its proposed revision of the American Bar Association's recommended rules of attorney conduct. But few have raised such a spirited professional and public debate as the Commission's broad proposal for required disclosure of client dishonesty. Whistle blowing by counsel is mandated in some instances, permitted in the attorney's discretion in others. Counsel for parties in negotiation are carefully circumscribed in presenting misleading information to others. And the lawyer whose client commits known perjury on the witness stand is under an explicit obligation to correct the perjury. All of these rules are part of the Commission's thematic development of a broad social dimension to the lawyer's work—a dimension that, in the Commission's view, requires more explicit recognition of the lawyer's obligations to third parties and to social institutions such as the courts to assist them in their work. The range of issues presented is very extensive, and the present review will deal only with the client perjury problem.

The intense debate surrounding the proposed Model Rules of Professional Conduct centers primarily on those provisions that permit, or require, the disclosure by lawyers of information that is presently shielded from production by Canon 4 of the Code of Professional Responsibility. Indeed, were it not for the disclosure provisions, which many critics decry as fundamentally altering the lawyer-client relationship, the proposed Model Rules might have generated widespread support, or perhaps indifference, from most segments of the bar.

The work of the Kutak Commission in developing the Model Rules of Professional Conduct is probably the most important work in legal ethics since the Alabama State Bar Association first codified its Canons of Ethics in 1887. In general, the Commission's product is excellent. It is progressive without being radical and conservative without being timid. However, as can be expected in any discussion draft, there are issues not wholly thought through and concepts not clearly expressed. In the spirit of improving the next draft, these mostly critical comments are offered.

Most discussions of lawyer-client decision making concern the difficult question of deciding when a lawyer must (or may) disregard his client's wishes because of conflict with some other significant interest outside the lawyer-client relationship. One of the ideological bases of the adversary system is a strong commitment to client control of decision making, which in theory must be balanced or reconciled with concerns about such control distorting the truthfinding functions of the legal system or causing harm to others. Little discussed until recently has been the fact that, despite this ideology, lawyers in many cases significantly control their clients' decisions and exert broad discretion over the means necessary to implement decisions.

In January 1980 the Commission on Evaluation of Professional Standards released a draft of proposed Model Rules of Professional Conduct. That draft is not a final draft, nor even a tentative one, but a Discussion Draft. By that title, and by the appearance of the draft in typescript the Commission has attempted to convey that the proposed Rules are a series of ideas meriting discussion, not fixed positions that we are prepared to aggressively defend. We know that the Discussion Draft requires editorial revision, that its substance needs additional refinement, that its policies deserve reconsideration. But after two and one-half years of dialogue, study, drafting, debate, and redrafting, we thought the Model Rules would gain much from the fresh perspective and critical appraisal that others could provide. To that end we solicited comments from lawyers and the public hoping to stimulate a public discussion of the role of lawyers in American society. That discussion will ultimately lead to a final draft of proposed Model Rules that reflects the best thinking of our profession as a whole.