Arizona State Law Journal

Archive for March, 2011

This article has been written by guest author Harvey Gilmore, LL.M., J.D., Professor Monroe College.

There is a great body of research that states that there is a great deal of career dissatisfaction in the legal profession. Yes, it is true that there are a number of practicing attorneys who detest what they do. Yes, there are any number of stories about attorneys who have suffered from depression, substance abuse, and have even attempted suicide.

However, I am here to tell you that just because there are several horror stories out there, do not automatically assume that you will become the next statistic, just one more victim of job burnout.  Why? Not only are there attorneys who enjoy what they do, but there are also law school graduates who enjoy what they do. I know; I am a happy member of the second group. I know what it is to go to a job that one can’t stand. I was an accountant for ten years before I went to law school, and hated a couple of jobs that I had early in my career.  Believe me, when one hates his job, he does not look forward to the next day. He cannot get a good night’s sleep because he knows, or more accurately, DREADS what’s coming tomorrow.

No job is ever worth suffering that kind of despair, no matter how good the money is and no matter how good the other perks might be. So, before you find yourself in a similar situation, I suggest that you think about what your true career desire might be. Yes, I know that there might be family and professional obligations to take into account. But, once you realize that that there are several viable career options out there, you will be able to make a better informed decision regarding your career pursuits and find the job that is best for YOU.

After law school, your professional pursuit should be something you enjoy and are passionate about. When you enjoy what you do, the workdays zoom by, and you are much better able to handle the less positive aspects of the job. Does this mean that you will never have to deal with demanding bosses or upset clients? Of course not; there is no such thing as a 100 percent stress free job. However, having a job that you enjoy puts you in a better position to handle the occupational stress that comes every so often.

Also, in this day and age, not only do people change jobs, but people also change careers (sometimes more than once) as well. A very popular misconception suggests that because one graduates from law school, it automatically means that he is confined to practicing law for the rest of his career. I cannot disagree more, and nothing can be further from the truth.

Believe it or not, not every law school graduate fantasizes about being the next Atticus Finch (“To Kill a Mockingbird”), Jack McCoy (“Law and Order”), Denny Crane (“Boston Legal”), or even Arnie Becker (“L.A. Law”). And not every law school graduate fantasizes about scoring a big firm job, getting that corner office, and eventually becoming a partner. I never did. I went straight into academia after law school and that was the greatest career decision I ever made. I enjoy what I do and my getting a law degree made that all possible.

That said, there are law school graduates who want the big firm lifestyle and all the trappings that I just mentioned. As long as you have the desire, stamina, and intestinal fortitude for that career path, I say: GO FOR IT!!! GOD BLESS YOU!!! In the final analysis, it comes down to what you really want to do with your career. This is true whether you are looking at a big firm job, hanging your own shingle, doing something completely different outside of law, or even a little of each.

In addition to legal practice, law school graduates also have successful careers as business consultants, entrepreneurs, sportscasters (Howard Cosell, & ESPN analysts Jay Bilas and Rod Gilmore), professors (like yours truly), & even politicians (Barack Obama, Bill, Clinton, Richard Nixon & Rudy Giuliani, among many others).

The best thing about pursuing a career after law school is that there is something for everyone. We all have our own reasons as to why we wanted to go to law school. The next step is to decide what is best for you. Nobody is going to go to work and do the job BUT YOU. So again, you might as well like what you will do. This is ultimately your call; no one else will make that call for you. I sincerely hope that my two cents helps you in some small way, and not only do I wish you success, but I wish you something even more important: CAREER FULFILLMENT!!!

This article has been written by guest author Hector D. Marin.

Precontractual Agreements are used very often in business transactions. But from the case law that has been analyzed it is clearly inferred there is a great uncertainty about their effects. However some clear concepts of Precontractual Agreements with certain effects based on the following conclusions:

1.- There are different types of Precontractual Agreements.
The case law and the commentators clear indicate that the Precontractual Agreements are used for different purposes. The content of the Precontractual Agreement and the intent of the parties are different depending on the use of the Precontractual Agreement.

2.- The Letters of Intent or Agreements to Negotiate are binding and enforceable contracts that are used to set forth the conditions of the negotiation, clarifying the process of the bargaining and the obligations and the liabilities that the parties assume or may incur during the negotiation.

The Agreements to Negotiate are used to clarify the framework of the negotiation. Its principal aim is provide certainty to the parties about the negotiation process. The Agreement to Negotiate also contemplates a prospective contract: the one that it is going to be negotiated. But the intent of the parties is not to be bound by that prospective contract. However, the parties want to be bound during the negotiation process in order to have certainty about what can be lawfully done during the bargaining. In this vein, the parties regulate the negotiation process establishing the milestones, authorized representatives, investment sequence and so forth. This content is consistent with the intent to be bound.

The case law has recognized that an Agreement to Negotiate can be an independent binding contract. This case law has also clarified that the scope of these Agreements to Negotiate are different from the prospective contract. Therefore, the main effect of the Agreements to Negotiate is that the parties have to comply with what they undertook. The most common obligation that the parties undertake is to negotiate in good faith. Courts usually consider that its consideration is the no shop obligation. According to some case law, this duty limits the discretion of the party to break off the negotiation in three ways: i) parties have to comply with previous agreements upon the terms of the final contract, ii) parties are not allowed to try to scuttle the deal, iii) parties are not permitted to try to take advantage of the cost sunk by the other party in the negotiation process. It should be noted that this obligation does not entail an obligation to enter into a final unprofitable contract. It also should be taken into account that there are other obligations such as the confidentiality obligation that can be enforced.

The breach of these obligations may entitle the parties to obtain reliance damages. But as it has been explained that courts generally do not award damages for the high burden of proof. Expectation damages can be awarded in the rare case that the parties can prove that they would have entered into the final contract absent the breach of that obligation.

3.- The Agreements to Agree are Precontractual Agreements which contemplate the execution of a prospective contract, usually establishing the conditions under which that prospective contract will be executed. Their effect should be consistent with the intent of the parties. Normally that effect is not to be bound by the prospective contract unless those conditions precedent that are set forth in the Agreement to Agree are satisfied.

Generally the intent of the parties is not to be bound as if the prospective contract would have been executed. What they ordinarily do is to establish conditions precedent for executing the prospective contract. Consequently, even if the Agreement to Agree contains all the essential terms, it should not bind the parties unless those conditions are met.

4.- The Memoranda of Understanding are written memorials which record the partial agreements that parties have agreed upon. Their main effect is that during the negotiations the parties cannot insist on terms that are inconsistent or unreasonable with the partial agreements of the Memorandum of Understanding.

The complexity and the length of the negotiations require the parties to agree on certain and partial aspects of the prospective contract. Those partial agreements are intended to be binding to some extent. But that intent is conditioned at least to the execution of the prospective agreement. They are bound to not renegotiate again the aspects covered by those partial agreements. Accordingly, the case law that has dealt with this type of Precontractual Agreement generally finds that Memoranda of Understanding are not binding except for the obligation to negotiate in good faith, which includes the obligation not to renegotiate the partial agreements which the parties have entered into.

5.- The Authorizations to Proceed are Precontractual Agreements which contain the instruction to commence the performance of a prospective contract under certain basic conditions. Consequently, Authorizations to Proceed bind the parties to accomplish the performance and to pay for it under the terms that have been agreed.

In the Authorization to Proceed one party instructs the other to start the performance. The other party agrees to start. Ordinarily the basic terms of that performance are determined such as the price, the time and so forth. But the Authorization to Proceed does not contain all the essential terms of the prospective contract, and therefore it cannot supersede it or be considered as such.

In this vein, the case law that has adjudicated disputes which involve Authorizations to Proceed finds that the prospective contract has not been entered into. But courts usually award damages to the party who has done the performance. Those damages should be measured in accordance with the terms of the Authorization to Proceed. In the event that it is not possible to determine the damages using those terms, the criterion of the UCC or the custom of the industry should be used. When there is no request to commence the performance, the doctrine of restitution can be applied. In that case, the recovery should be calculated in accordance with the benefit of the party who accepted the performance.

6.- The effects of the Precontractual Agreements have to be determined on a case-by-case basis. The effects of the Precontractual Agreements can be claimed under different legal doctrines such as promissory estoppel, restitution or culpa in contrahendo. Ordinarily all of them may entitle the non-breaching party to reliance damages instead of expectation damages. Some of the factors that are considered to award damages are the intent of the parties, the language of the Precontractual Agreement, the conduct of the parties, their sophistication, the kind of transaction that is contemplated and its applicable custom, the sums of money that are involved or whether the parties incur in negotiation and transaction costs simultaneously. But in practice courts generally do not award any damages. One of the main reasons for not awarding damages is that it has to be proven the intent of the parties to be bound and the damages that are sought. And this is a very high burden of proof.

The College of Law’s Jessup competition moot court team won first place at the Phillip C. Jessup International Law Moot Court Competition’s Super-Regional tournament in Denver on Feb. 24-27.

The team, which includes Law Journal members Sam Efird, Rob Gordon, Adam Reich, and Jared Sutton, bested 24 other moot court teams to advance to the final rounds, the White & Case International Rounds, held in Washington D.C, from March 20-26.

Each year, thousands of law students around the world form teams to address a particular problem as part of the competition. Teams this year were asked to address the legality of the use of unmanned drones and international anti-corruption law.

In addition to the first-place finish, Rob Gordon was judged Best Oral Advocate in the competition’s final round and won the 4th place Oralist Overall Award. Samuel Efird received the 7th place Oralist Overall Award.

Cody Huffaker’s Law Journal article, “A New Type of Commandeering: The Bypass Clause of the American Recovery and Reinvestment Act of 2009 (Stimulus Package),” has been awarded best student-written article in a law review or journal in the country for 2011 by Scribes, the American Society of Legal Writers. This is an amazing honor!

Cody’s article was published in the Fall 2010 Issue of the Law Journal. It is also available on Westlaw at 42 Ariz. St. L.J. 1055.

The award will be presented during the Scribes Dinner at the 2011 National Conference of Law Reviews, which is being hosted by the Thomas Jefferson School of Law in San Diego. Cody will receive his award from Erwin Chemerinsky on March 31. Past winners are listed here: http://www.scribes.org/law-review-award.

Congrats, Cody!!

The Arizona State Journal will soon publish an article written by Dan Markel, D’Alemberte Professor at Florida State University College of Law and Scholar in Residence (2011) at the Center on the Administration of Criminal Law, New York University School of Law. Professor Markel clerked for Judge Hawkins during the 2001-2002 term.

The article examines the difference between judicially-ordered sanctions designed to humiliate or degrade an offender, as opposed to the incidental experience of shame one may feel upon enduring a non-shaming punishment, such as fines or non-visible probation conditions. The article highlights the well-known case, United States v. Gementera,[1] and more precisely, the dissenting opinion authored by Judge Hawkins, which argued that such purposeful shaming has no place in the halls of justice.[2]

Professor Markel concludes by stating that he is comforted by “knowing our blessing to have judges like Judge Hawkins, judges for justice—who remind us of the reasons we adopt laws to guide officials as much as citizens: because they are the ‘wise restraints that make men free.’”

[1]. 379 F.3d 596 (9th Cir. 2004).

[2]. Id. at 610–12 (Hawkins, J., dissenting).

The Arizona State Journal will soon publish an article written by Carlton F.W. Larson, Professor of Law at University of California, Davis, School of Law. Professor Larson clerked for Judge Hawkins during the 2000-2001 term. The article highlights Judge Hawkins’s democratic faith by examining his commitment to the American jury system.

Professor Larson notes that “Judge Hawkins believes that juries—composed of ordinary citizens from all walks of life—generally do their jobs carefully and should remain at the heart of the American justice system.” The article describes Judge Hawkins as the “nation’s leading judicial voice on the rights of grand juries” because he has “consistently resisted attempts to curb grand jury independence.” The article examines Judge Hawkins’ dissent in United States v. Marcucci,[1] and his en banc dissent in the 6-5 decision of United States v. Navarro-Vargas [2].

Professor Larson concludes by noting that Judge Hawkins’ “wisdom, experience, and judgment” will be missed as he transitions to senior status. Although Judge Hawkins will no longer take an active role in en banc proceedings, he “will no doubt hit many more home runs in the years to come” as he continues a full judicial schedule.

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[1]. 299 F.3d 1156 (9th Cir. 2002).

[2]. 408 F.3d 1184 (9th Cir. 2005).

The Arizona State Journal will soon publish an article written by Cassandra Burke Robertson, Associate Professor at Case Western Reserve University School of Law. Robertson’s article addresses the recent trend in transnational legal outsourcing.

International outsourcing has come to the legal profession. The ABA and other bar associations have given it their stamp of approval, and an ailing economy has pushed both clients and firms to consider sending more legal work abroad. This article integrates research from the fields of organizational behavior, social psychology, and economic theory to analyze the effectiveness of the legal outsourcing relationship. It identifies organizational pressures in the practice of law that affect how legal work is performed in a transnational context, and it examines how individuals on both sides of the outsourcing process influence the success or failure of a globalized practice. Ultimately, the article recommends that parties involved in legal offshoring should move away from a model of disaggregation and toward a model of collaboration. Unlike a disaggregation model that assumes outsourcing vendors will autonomously complete discrete legal tasks, a collaborative model would explicitly focus on cooperation, communication, and renegotiation of status and resources.

The Arizona State Journal will soon publish an article written by Thomas Healy, Professor of Law at Seton Hall Law School. Professor Healy clerked for Judge Hawkins during the 1999-2000 term. The article focuses on a dissent written by Judge Hawkins in Redding v. Safford School District.

The controversial dissent was not the “easy” way of analyzing the case but demonstrated the integrity of Judge Hawkins. The case dealt with the strip search of an eighth-grade student. The case seemed clear on a superficial level, but Judge Hawkins delved into the facts to reach a contrary conclusion.

Professor Healy commends the moderate tone adopted by Judge Hawkins recognizing the potential for reasonable minds to differ on such issues. Professor Healy also recognizes the value of the intense factual analysis undertaken by Judge Hawkins. Consideration of these facts and a sound walk-through of the pertinent evidence support the result reached in the dissent.

Professor Healy concludes that “[w]e all know the cliché that hard cases make bad law. But hard cases also make good judges.” This tribute goes a long way in demonstrating this assertion.

This article has been written by guest author Todd Williams, B.A. Bowdoin College, 2004; M.A., J.D., University of Washington, 2010.

The field of Islamic finance has grown popular in the United States.  Scholars are discussing the implementation of Islamic banking as a result of, among other things, the meltdown of the Western financial system and studies showing a large untapped market of stable wealth among Muslims.[1] The use of Islamic banking products in the United States is certain to expand in coming years.

Amid this enthusiasm, there are questions, among scholars and in Muslim communities, about whether products created within the confines of United States financial regulations that are marketed as “Islamic” are indeed in conformance with Shari’a, or Islamic law.[2] This disagreement is due, in part, to a lack of consensus among Islamic legal scholars regarding what is required for a modern financial product to be Shari’a-compliant.[3] This lack of consensus hints at the disjointed American terrain of Islamic authority, which presents novel challenges to Islamic institutions, both financial and otherwise, in the United States.

Muslim Authority Structures in the United States

In the United States, where Muslims are a growing and increasingly diverse minority in a nominally Christian nation, the potential for lack of consensus among Islamic scholars is great.  Partially due to the diversity of ethnic and cultural backgrounds, the American landscape of Islamic legal authority lacks cohesive definition and is open to new interpretation.  Khaled Abou El Fadl, the chair of Islamic Law at UCLA, has noted, “[i]n the United States the field of Shari’a is flooded with self-declared experts who inundate our discourses with self-indulgent babble and gibberish.”[4] These new voices in Islamic law have both mainstreamed the discourse and led to a simplification that lacks the traditional commitment to diverse interpretations.[5]

Despite their general lack of formal Islamic legal education, these new participants are shaping the future of Islamic law in America.  They are delivering opinions on modern American issues at the request of their constituents.  This practice is supported by leading intellecuals such as El Fadl and Taha Alalwani who discourage the application of Islamic legal decisions rendered elsewhere to the modern American context.  Instead they advocate fiqh[6] scholarship in the United States that is shaped by the contemporary American context and rendered by American scholars.[7] With the growth of an ethnically and culturally diverse community, the concept of an “imported” scholar who does not understand local conditions and circumstances has become problematic.[8] Increasingly, the American Muslim community has turned to local experts, familiar with the community and the American legal system, for solutions to their fiqh-related issues.

The lack of connection to traditional methods of Islamic legal interpretation among local authority figures has led to a discourse in the United States that some say lacks respect for the classical schools of thought and principles of pluralism.[9] Western-educated Imams “often earn instant popularity because of reference to the ‘sources,’ but, since their interpretations do not form a continuity with tradition, their impact is often partial and ephemeral.”[10] In order to stay relevant, these new intellectuals are frequently obliged to render dramatic and extremist solutions, further deviating from any consensus view.

Implications for Islamic Institutions in the United States

As a result of these various perspectives and the absence of clear hierarchy among Islamic legal scholars in the United States, questions regarding the acceptability of certain practices have resulted in disagreements.  In the context of this uncertainty, and the complex process of determining Shari’a-compliance, Muslims seeking guidance are likely to place more importance on the authority figure endorsing a given practice.[11]

For Islamic financial institutions, this presents potential challenges as they search for a religious advisor who will provide sufficient authority.  The backing of a prominent scholar provides consumers with the security that the products they are using are indeed compliant with Shari’a.[12] Many of the larger banks and mortgage companies that offer Shari’a-compliant products employ reputed Islamic scholars as consultants and certifiers for their products.[13] For small institutions without significant capital resources, paying for a well-known scholar to advise them is out of the question.  Accordingly, they must seek alternative means of projecting credibility.

As one planned Islamic credit union in Washington State found, it is essential to employ some religious advisor, even a local leader, who has credibility among the target population.[14] This advisor can either provide guidance himself on structuring products or can access a line of scholars who provide guidance.  For executives, determining what qualifications are required before a critical mass of Muslims will deem an authority figure to be credible is a tricky problem.  Selecting such an advisor may be an increasingly critical prerequisite to the success of an Islamic institution in an environment that is fraught with uncertainty.

As Islamic finance continues to grow in the United States, the trajectory of local Islamic financial institutions will be shaped by the religious scholars who come to define them, often with their own brand of uniquely American Islamic law.  In the current atmosphere of uncertain authority, it is likely that local institutions will take on various structures, each of which will reflect the ideas of their authority figures.  While this offers potential for actualizing the ideas of Muslims around the country, it may mean that disagreements regarding what qualifies as Shari’a-compliant continue for the foreseeable future.

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[1]. Chian Wu, Islamic Banking: Signs of Sustainable Growth, 16 Minn. J.  Int’l L. 233, 240–241 (2007).

[2]. See, e.g., Bill Maurer, Engineering an Islamic Future: Speculations on Islamic Financial Alternatives, 17 Anthropology Today 8, 8 (2001) (discussing the heated debate among Islamic banking professionals about the permissibility of financial derivatives).

[3]. Bill Maurer, Pious Property: Islamic Mortgages in the United States 42 (Russell Sage Foundation 2006); Ibrahim Warde, Islamic Finance in the Global Economy 2 (Edinburgh Univ. Press, 2000); Frank Vogel & Samuel Hayes, III, Islamic Law and Finance: Religion, Risk, and Return 42, 10 (Dr. Mark S. W. Hoyle ed., 1998); Ashraf U. Kazi & Dr. Abdel K. Halabi, The Influence of Quran and Islamic Financial Transactions and Banking, 20 Arab L. Q. 321, 328–29 (2006).

[4]. Maurer, Pious Property, supra note 3, at 53.

[5]. Karen Isaksen Leonard, Muslims in the United States: The State of Research 91 (Russell Sage Foundation 2003).

[6]. Fiqh is Islamic jurisprudence and refers to the legal rulings of the Muslim scholars based on their knowledge of the Shari’a. Karen Armstrong, Islam 200 (Modern Library 2000).

[7]. Leonard, supra note 5, at 91.

[8]. Yusuf Talal DeLorenzo, The Fiqh Councilor in North America, in Muslims on the Americanization Path? 80 (Yvonne Yazbeck Haddad & John L. Esposito eds., 1998).

[9]. Leonard, supra note 5, at 91.

[10]. Muhammad Khalid Masud, The Obligation to Migrate: The Doctrine of Hijara in Islamic Law, in Muslim Travelers: Pilgrimage, Migration, and the Religious Imagination 46 (Dale F. Eickelman & James P. Piscatori eds., 1990); Leonard, supra note 38, at 91.

[11]. Maurer, Pious Property, supra note 3, at 3.

[12]. Maurer, Pious Property, supra note 3, at 83.

[13]. Vogel & Hayes, supra note 3, at 10.

[14]. Todd Williams, Islamic Legal Authority in a Non-Muslim Society: The Islamic Credit Union of Bellevue, Washington 15-25 (August 16, 2010). Available at SSRN: http://ssrn.com/abstract=1660210.

The Arizona State Law Journal will soon publish an article by Lenni B. Benson. Professor Benson is a Professor of Law at New York Law School and a graduate of the Arizona State University College of Law. This article examines primarily the various immigration opinions of Judge Michael Daly Hawkins of the Ninth Circuit. The article also discusses Judge Hawkins’ contributions outside of his opinions, and evaluates needed reforms in the immigration process.

Professor Benson begins with a discussion of the limitations placed on the immigration system by the bureaucratic process. The appeal process and internal working of the courts are discussed, with a strong focus on Judge Hawkins and the Ninth Circuit. Weaknesses of the process are pointed out and room for improvement is shown in various aspects of the system.

Continuing, Professor Benson discusses the extremely deferential review that immigration cases undergo, and a general reluctance of the Board of Immigration Appeals to address errors and issues head-on. Judge Hawkins is compared to a referee at a sporting event, ensuring that all participants receive fair hearings and receive due process rights. Various opinions by Judge Hawkins are discussed in the context of the special processes of immigration law that are at play.

Discussed as well are the various interpretations of law which have resulted in the preservation of due rights to those in immigration cases. These decisions have preserved review and access to federal courts in proceedings where they might have otherwise diminished. Also discussed is the restraint shown by Judge Hawkins, showing that while he is willing to carefully consider the limits of statutes, he defers to Congress at appropriate times.

Professor Benson closes with a summary bringing the entire discussion into focus, portraying Judge Hawkins as standing up for fairness in an area often lacking appropriate review processes. Judge Hawkins is further commended for all of his efforts in this regard.