Governments, like business organizations, are exposed to risks of many kinds and have a wide range of options how to respond–from bearing the full risk themselves to obtaining full insurance coverage. The author discusses some of the traditional approaches to governmental risk management in the light of new and increasing risks–such as the liability risk–and the growing sophistication of risk management methods. He notes in particular how a government's risk management decisions differ from those of a business organization because of the unique characteristics of government entities: perpetual existence; taxing power; the need to prevent nepotism, bribery, and corruption in government administration; and political mandates and pressures of all kinds. These forces account for restrictive procurement rules and for various forms of “self-insurance” arrangements. The author finds, among other things, that in most states the rules have not kept pace with the multiplication of risks and the development of new risk management and insurance techniques, and that small and medium municipalities, especially, suffer from inadequate access to sound risk management services. On the basis of an examination of European municipal risk management practices, the author then suggests as an appropriate solution the formation of special mutual insurance organizations for municipal governments, controlled and administered by local government officials.

Recent Supreme Court decisions dealing with advertising by lawyers have focused new attention on the question whether lawyers perform services that are standardized or susceptible of standardization. The author examines the concept of standardization as applied to lawyers’ services and suggests five indicators that might reveal the extent to which such services are or could become standardized. He also discusses bow advertising could accelerate the standardization of lawyers’ services and briefly raises questions about what this will mean to lawyers and the public.

The author examines the sources and premises of the idea that free expression has value in part because of the function it performs in checking the abuse of official power (the “checking value”) and explores how this checking value difyers from those values that have dominated First Amendment analysis since 1919. In addition, the author traces in some detail the uneven influence the checking value has had recently in three areas of First Amendment adjudication: civil actions f o r defamution; disputes arising from efforts by journalists to protect or establish relationships with news sources; and claims b y nonjournalists to a constitutional or statutory right to communicate directly to the public over major print or broadcast outlets. The author argues that the checking value must receive open, systematic consideration if it is to play a consistent part in adjudication and speculates on how such consideration of the checking value might help one think about a wide range of additional First Amendment questions.

Intent to commit a crime has in recent times been used as a basis for assigning fault and making appropriate correctional decisions. The author defines attempt to commit a crime as “engaging in conduct with the specific intention to produce forbidden consequences while aware of the possibility that the circumstances that render such consequences criminal may exist.” The author develops and defends the thesis that inchoate crime is more than merely anticipatory guilt. Mens rea in inchoate offenses is not merely a condition of fault-it is a component of the danger of criminal harm that determines the need for forceful intervention.

Determination of the finance charge is central to the Truth in Lending disclosure scheme. The author analyzes difficulties encountered in drafting the finance charge provisions, judicial and administrative interpretations of the statutory provisions, and application of the concept to various types of transactions. He concludes that, despite imperfections in the statute and regulation, the present provisions are about the best that can be expected given the varieties of credit transactions and differences in state law provisions regulating such transactions.

In the beginning of the 1970s the increased activity of filing collateral attacks on criminal convictions (postconviction petitions) made by prisoners in an effort to modify either the conviction or the sentence generated concern about the additional burdens imposed on the courts. This article is the first report of a study undertaken to quantify and analyze postconviction filings and their eventual disposition under various procedures, as reflected by the variety of procedures and degrees of accessibility to the courts in the states of Illinois, California, Texas, and Colorado. The present article describes and analyzes postconviction filing activity for these four states in terms of the probability of filing; the frequency of filing (the mean number of filings per filer and the number of filings per thousand prisoners); how long after incarceration filing took place; and patterns of filing over time. It is shown that contrary to widespread belief the notion that “every prisoner files” is not justified. The author concludes that the perceived high number of collateral attacks, not necessarily supported by the figures, stems from a large number of filings (except for Illinois) generated by a small proportion of prisoners. The author points out that modifications of the petitioning process can have a significant effect on the rate of filing and suggests changes in regulations that are likely to reduce the total number of petitions.

Grievances and restlessness among convicted prisoners led to legislation–in 1943 in Massachusetts, in 1957 in Connecticut–establishing sentence review boards composed of three judges of the trial courts of first instance. The authors explore in these two jurisdictions how often and under what circumstances sentences are appealed and modified and what effect, if any, these modifications have on the sentencing practice in the trial courts. They also appraise the value of the Connecticut requirement that the review board state the reasons for its decisions. The authors explore the function of the review boards in the broader context of the need for reducing sentence disparity.

The process of specialization is now well advanced within the legal profession, and the specialties have acquired clearly varying levels of prestige among the practicing bar. What are the characteristics of the specialties, or of the lawyers who practice in them, that might account for these variations in prestige? In describing the prestige differences and several of the variables that might be thought to account for them, the authors analyze the results of a survey of a large random sample of Chicago lawyers. Among the findings are a strong relationship between prestige within the legal profession and the type of clients that the specialty serves, a substantial correlation between prestige and the degree of intellectual challenge presented by the subject matter of the specialty, and the perhaps surprising result that prestige is not significantly associated with the income earned by lawyers practicing in the specialty. The authors conclude that legal specialties that regularly confront personal suffering lose social standing as a result, that prestige within the profession is directly proportional to the degree to which the specialty facilitates the conduct of corporate enterprise, and that the varying prestige of the specialties is likely to affect the political and professional power of the lawyers who practice in them and to influence the patterns of recruitment of lawyers into law practice.

While social scientists have long advocated the use of statistical methodology in legal analysis, its practical application has not been tested. Statistical models based on social science theories have been used to predict judicial decisions and explain court behavior, but the legal profession has failed to develop statistical models based on traditional legal theories and using data familiar to the lawyer. This article seeks to demonstrate by practical application of statistical methodologies, coupled with traditional legal research methods, that such research can produce important insight into a court's decision making and provide a useful model for predicting the probability of a favorable decision. The zoning amendment decisions of the Connecticut Supreme Court are the data base of this study, which also provides a comprehensive explanation of zoning amendment law in Connecticut as a backdrop against which to evaluate the insights gained by statistical analysis.

Legal service plans, widely regarded as the key to better availability of legal services for Americans of moderate incomes, have not yet found their proper place in the legal and regulatory framework. Uncertainty about regulatory requirements threatens to hold up progress. This article presents the results of a three-year study of alternative approaches to the regulation of legal service plans. It analyzes the inherent dangers of various types of plans and suggests ways of providing adequate protection for consumers while preserving maximum freedom and flexibility for experimentation with new delivery systems. Specifically, the authors recommend the existing and time-tested system of insurance regulation as the most suitable model for plans having a significant risk-carrying element, subject, however, to appropriate amendments to accommodate the unique features of some kinds of plans, such as bar-sponsored nonprofit organizations, and with special procedures to ensure close cooperation with disciplinary authorities as far as the conduct of lawyers is concerned.

A volume containing all the principal and background papers prepared in this study, including a modified version of the present article, will be published by the American Bar Foundation as Legal Service Plans: Approaches to Regulation.

A long accepted canon of professional ethics forbids a lawyer to appear in a particular matter in the dual role of advocate and witness for his client. As Disciplinary Rule 5-101(B) of the American Bar Association's Code of Professional Responsibility states:

At any given time, as many as 15,000 persons are hospitalized for study or treatment regarding their competence to stand trial. Although most of the defendants found incompetent to stand trial “could rapidly be returned to competence and so maintained were the facilities and treatments of modern psychiatry made available to them”, the impact of recent advances in psychiatry—particularly drug therapy—has not been fully absorbed by the legal system. Defendants restored to competence by psychotropic drugs frequently require ongoing medication. Some courts, mistakenly assuming that psychotropic drugs produce a “chemical sanity” that is unacceptable for participation in a trial, have adopted a practice—the “automatic bar rule”—of automatically prohibiting the return for trial of defendants under the influence of such drugs. A lack of statutory, regulatory, or judicial guidance leaves the question largely to the discretion of individual trial judges. This article critically examines the automatic bar rule in light of the effects of various psychotropic drugs and of the consequences of the rule both to defendants and to the state.

This article was stimulated by the publication of Toward Equal Justice: A Comparative Study of Legal Aid in Modern Societies, edited by Mauro Cappelletti, James Gordley, and Earl Johnson, Jr. (Dobbs Ferry, N.Y.: Oceana Publications, Inc., 1975), a recent and ambitious entry in the debate over alternative methods of delivering legal services to the poor. Brakel, the author of several publications in the field, feels that the portion written by Johnson, presenting the operational and research experience with legal services for the poor in this country, is one-sided and unsatisfactory and maintains that, through the process of critically examining the Johnson portion, it is possible to present a more balanced picture of the legal aid experience in the United States. This is important for the domestic audience as well as for the international readers whom the book seeks to address.