Founded in 1927, Temple Law Review is a student-edited, quarterly journal dedicated to providing a forum for the expression of new legal thought and scholarly commentary on important developments, trends, and issues in the law.
What justifies our failure to engage all students in discussions of the justice gap, and of our obligation to do something about it? The limited attention we give to the subject is especially strange given our extensive focus on questions of ethics. Without minimizing the importance of the rules that prohibit us from failing to act zealously on behalf of our clients, from misusing client funds, and from divulging confidences and avoiding conflicts, isn’t it also a significant ethical issue that most people of low and even moderate means are unable obtain any legal help at all?
Temple University Beasley School of Law and its professors launched me on a professional journey that continues to challenge and fulfill me. I owe my interest in the practice of criminal defense to Professor Edward Ohlbaum, under whom I studied evidence and trial advocacy while a student at the law school.
Given the wonderful benefits combined with profound uncertainties about law reviews’ current usefulness, what are we to do? No clear answer presents itself. As in other challenges in life, the most appropriate route is the one currently followed by the recent editorial boards of Temple Law Review: experiment and innovate.
Busy decision makers necessarily have short attention spans. Maybe it’s time to rethink the heavy, three-hundred-footnote law review article as a model for good legal writing. Practically speaking, judges do not have time to read lengthy, heavily-footnoted briefs, and busy lawyers do not have time to produce that kind of writing in practice, nor are clients typically willing to pay for such work.
Time is the mortal enemy of law reviews. Student editors have only a year to complete their work. They must balance editing with their personal lives, class work, and job hunting. And they must do it while learning how to manage people and their own time. There is no human resources department, no overtime pay, a modest budget, no support staff, and minimal guidance from above. The publishing cycle demands that topics be submitted far in advance of the publication date, a tricky business when the law is subject to change at any time.
Critiques of student-run law reviews are not hard to find, nor are they hard to understand. Even as students groan over dreary source cites and finicky copy edits, professors gripe at leaving their masterworks in the hands of inexpert students with hyperactive revisions. Lawyers skim only a tiny fraction of law review materials, if they happen to address a particularly relevant case or project, and even celebrated federal judges have taken time to derogate law reviews’ substantive content as misguided and irrelevant.
The Delaware Chancery Court’s decision in In re Caremark was and is a landmark decision. This brief Commentary takes a look back at Caremark on three issues that pertain to its contemporary relevance inside the corporate boardroom: (1) framing the cost-benefit assessment on the question of how much to spend on compliance; (2) how and when to force certain compliance matters to real-time board-level attention; and (3) using selection, promotion, and compensation decisions to influence the culture and risk-taking “temperature” of the firm.
This Essay discusses the project on compliance and risk management of the American Law Institute in relation to the governance of compliance and risk management in an organization. It identifies several important governance issues and debates that have emerged in the drafting process. These issues are (i) the appropriate role of what the project calls the “highest legal authority” in compliance and risk management and (ii) the related topic of to whom internal control officers, particularly the chief compliance officer and the chief risk officer, report. While discussing the importance of, and the project’s approach to, these issues, the Essay emphasizes that the project provides flexibility to organizations, which reflects the diversity of organizational practice on these, and other, governance issues.
What should a company’s compliance program encompass? In re Caremark International, Inc. Derivative Litigation (Caremark) establishes directors’ monitoring and oversight duties, functioning in tandem with other rules and regulations. But compliance programs go far beyond what is needed to avoid lawbreaking, and what directors do to “comply with” their Caremark duties goes far beyond what is needed to avoid liability, incorporating, among other things, concerns about reputation, both theirs and their company’s.
In the compliance and ethics field, In re Caremark International Inc. Derivative Litigation is one of the few judicial decisions that professionals will know by name. In 1996, the Delaware Chancery Court’s decision was the first to recognize a director’s fiduciary duty to oversee a corporation’s compliance and ethics program, which instantly raised the visibility and urgency of compliance and ethics in the board room.