UCLA Law Review Volume 52, Issue 3

"You Are Now Free to Move About the Country": Why Bankruptcy Lawyers Should Be Free to Engage in Multijurisdictional Practice

For bankruptcy professionals, particularly transactional attorneys, the ability to practice nationwide without the fear of breaking ethical and legal standards is surprisingly not a given. While litigators can be granted temporary pro hac vice admission, there is no equivalent safe harbor for the transactional bankruptcy attorney. Fewer than fifteen states have adopted any rule allowing for transactional practice on a temporary basis. Thus, unauthorized practice of law violations are not easy to avoid, and they are difficult to define because of anachronistic rules. Cases interpreting these rules are murky and contradictory both to other decisional law and to common sense. Consequently, the rules are often ignored by both practitioners and courts. The tension between the law as it is and the law as it is practiced should be resolved in favor of more liberal rules for bankruptcy practitioners, whose unique specialty provides a strong rationale for change. This Comment explains the conflict between requirements for admission to state and federal courts and illustrates the general shortcomings of state admissions requirements, particularly with respect to bankruptcy practice. It also explains how the case law defines unauthorized practice of law, in conjunction with the ABA Model Rules of Professional Conduct as recently reworked and adopted and the Restatement (Third) of the Law Governing Lawyers. It also examines enforcement mechanisms for these restrictions. Finally, the Comment asserts that arguments for restricting multijurisdictional practice are unpersuasive, especially in the bankruptcy context. Such arguments smack of anticompetitive rather than consumer protection aspirations. Moreover, the restrictions are economically inefficient, serving form over function in a very specialized arena where there is absolutely no room for waste. We argue that widespread state reform is required, in the form of the new ABA Model Rule 5.5 or legislation such as Michigan’s recent exemption rule. Such reform would replace the apparent indifference that currently exists so that practitioners can represent clients legally, effectively, and with confidence.

A New Approach to the Wine Wars: Reconciling the Twenty-first Amendment With the Commerce Clause

At a time when consumers enjoy an unprecedented level of access to the goods of their choice, why does a patchwork of state laws prevent equal access to one class of goods: alcoholic beverages? The not-so-simple answer lies in the history and application of section 2 of the Twenty-first Amendment, and in the tension between the Twenty-first Amendment and the Commerce Clause. Spearheaded by farmers, wineries, and consumers who seek to expand the market for wine beyond the traditional three-tier system, the “wine wars” of recent years have challenged state statutes that ban or greatly restrict the direct shipment to state residents of wine and other alcoholic beverages from out-of-state sources. Opinion across the circuit courts is divided: The Second and Seventh Circuits favor a strict interpretation of section 2 and have upheld New York and Indiana bans on direct shipment of wine to consumers; the Third, Fourth, Fifth, Sixth, and Eleventh Circuits have enjoined states from enforcing their direct shipping prohibitions and favor an approach that relies on the Dormant Commerce Clause and a realistic assessment of the national wine market. In its 2004–2005 Term, the Supreme Court has consolidated three cases from the Second and Sixth Circuits for review to answer the question: “Does a State’s regulatory scheme that permits in-state wineries directly to ship alcohol to consumers but restricts the ability of out-of-state wineries to do so violate the dormant Commerce Clause in light of Sec. 2 of the 21st Amendment?” This Comment asserts that reconciliation of the Commerce Clause and the Twenty-first Amendment is preferable to historical interpretations of the Twenty-first Amendment as an exception to the Commerce Clause; specifically, it argues for a reconciliation of the two provisions by analogizing to First Amendment jurisprudence and by using the methodology employed by the Court in R.A.V. v. City of St. Paul.

Is Consent Necessary? An Evaluation of the Emerging Law of Cohabitant Obligation

In the United States today, unmarried cohabitants have no obligations to each other unless they have contracted to assume such obligations. “Conscriptive” rules that base the obligations of cohabitants on status instead of contract have been adopted in a number of other nations, and the American Law Institute has advocated adoption of the conscriptive approach in the United States. This Article analyzes the desirability of such a shift in legal standards and concludes that the evidence does not support the claim that marriage and cohabitation are functionally equivalent. Instead, the evidence shows that married and cohabiting couples tend to behave and view their relationships quite differently: Cohabitants are much less likely than married couples to share or pool resources; cohabitation usually functions as a substitute for being single, not for being married. Cohabitation thus does not imply marital commitment, the accepted basis of marital obligation. Nor, given its typically short duration and limited sharing, is it likely that cohabitation generally induces dependency or leads to unjust enrichment. Because of these differences, it would be unfair to impose marital obligations on cohabitants simply because a relationship has survived for a legislatively determined time period. Individualized inquiry into the nature of a couple’s relationship is also undesirable as it is likely to produce uncertain and inconsistent results. Conscriptive reforms are not needed to protect marital investments or avert unjust enrichment. The private commitments of cohabitants can be honored through a revivified common law marriage doctrine and some type of voluntary registration or marriage option for same-sex couples. Unjust enrichment can be averted through traditional equitable remedies. Conscription also entails serious public policy disadvantages; it would introduce discordant values into the law of relational obligation, diminish personal autonomy, and falsely signal that marriage and cohabitation are equivalent states. Because marriage is advantageous for both adults and children, legal standards should foster marital commitments; by diminishing their importance, the conscriptive approach risks harm to individual interests and the public good. For all of these reasons, policymakers should affirm the role of commitment in the imposition of marital obligation and reject proposed conscriptive reforms.

Administering Crime

Although agencies are the dominant force in criminal law today, existing scholarship has largely failed to analyze how these bodies perform as agencies. We know little about how the institutional design of these agencies affects their output or whether the politics of regulation are different when an agency is responsible for the regulation of criminal justice issues as opposed to traditional regulatory areas. This Article takes up that task by evaluating the agencies charged with regulating one of the most important aspects of criminal law: sentencing. Many reformers turned to agencies to regulate sentencing because they did not trust the political process on its own to produce rational sentencing policy in a tough-on-crime culture. This Article explores what kind of model works for regulating criminal sentences if the goal is to create an influential agency that can temper rash political impulses. Drawing from administrative law, political science, and the actual experience of state and federal commissions, the Article demonstrates that—contrary to conventional wisdom—the agency model can succeed. But, unlike other substantive areas where an independent agency is seen as the most effective, an insulated agency model is not a viable answer when the agency is responsible for regulating criminal sentencing. Instead, agencies responsible for sentencing are more efficacious when they are politically enmeshed and operate largely like interest groups. Like an interest group, a well-connected agency that can produce politically salable information is more likely to wield influence than one that is aloof from political pressures.

In Search of a Theory for Constitutional Comparativism

Constitutional comparativism—the notion that international and foreign material should be used to interpret the U.S. Constitution—is gaining currency. Yet proponents of this practice rarely offer a firm theoretical justification for the practice. This Article contends that constitutional comparativism should be examined from the perspective of constitutional theory. The use of comparative and international material must be deemed appropriate or inappropriate based on a particular judge’s interpretive mode of constitutional analysis. The Article presents four classic constitutional theories—originalism, natural law, majoritarianism, and pragmatism—and addresses the propriety of constitutional comparativism under each theory. This theoretical approach goes far to explain why particular judges embrace comparativism, while others eschew it. In so doing, it grounds the debate in the larger framework of classic constitutional theory. It also anticipates the disquiet that constitutional comparativists will experience at the inadequacy of any existing constitutional theory to capture fully the comparative agenda. It therefore introduces the broad outlines of a comparative constitutional theory and judges such a theory based on established criteria for its saliency.

Volume 52, Issue 3