Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

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Tuesday, March 4, 2014

Eldred: Ethics And The Response To Ineffective Assistance Claims

Tigran Eldred (New England Law) has posted "Motivation Matters: Guideline 10.13 and Other Mechanisms for Preventing Lawyers from Surrendering to Self-Interest in Responding to Allegations of Ineffective Assistance in Death Penalty Cases" on SSRN.  The article is forthcoming in the Hofstra Law Review.  Here is the abstract:

Defense lawyers whose clients are sentenced to death are virtually guaranteed to be accused of ineffective assistance of counsel. The question is how they will respond. On one hand, lawyers alleged to be ineffective are obligated under Guideline 10.13 of the American Bar Association’s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases to continue to safeguard the interests of their former clients, a duty that includes full cooperation in appropriate legal strategies chosen to pursue the ineffectiveness claim. On the other hand, lawyers who are accused of ineffectiveness often react defensively to the allegation, reflexively viewing the claim of poor performance as an attack on their competency and reputation. To date, there has been no systematic attempt to understand how these tensions are mediated and resolved.

To fill this gap, this article explores the psychological dimensions of how lawyers can be expected to respond to allegations of ineffectiveness. Relying on empirical research into “motivated reasoning” – a phenomenon that describes the many ways in which people unconsciously seek out, interpret and recall information in a manner that is consistent with their pre-conceived wishes and desires – it argues that motivation can be expected to play a dominant role in how lawyers respond to alleged ineffectiveness. Further, because motivation exercises its power implicitly, efforts to encourage compliance with the obligations set forth in Guideline 10.13 must take into account the subtle psychological forces that influence behavior. Simply put: motivation matters.

Counsel's ethical obligations in response to an effective assistance claim is an important and often overlooked study area.  Such such claims are frequent in the criminal system, and are frought with ethical landmines.  Attorneys facing such a claim must answer the claim with due regard to the duty to maintain client confidentiality. Under what circumstances may an attorney reveal client confidences when responding to the ineffective assistance claim?  This is a serious question attorneys and courts must address in such cases. 

Professor Eldred gives criminal law attorneys much to consider when confronting a claim that representation rendered to a client has been deficient.   He has highlighted important ethical considerations an attory must weigh when responding to an ineffecitve assistance claim.  The paper is also useful to judges that issue orders compelling responses to such claims.  I don't agree with everything Eldred has written, but on the whole, this paper covers new ground and will be useful to practicing lawyers and judges.

Craig Estlinbaum

March 4, 2014 in Constitutional Law, Ethics, Law Review Articles | Permalink | Comments (0)

Monday, December 9, 2013

Sullivan and Glynn: The FAA Triumphal: A Modest Opinion

Seton Hall Law School Professors Tim Gynn and Charlie Sullivan, both giants in this field, just posted a very unusual article on arbitration that readers may find of interest. It can be downloaded at no charge here. Professor Gynn blogged about it here

The article is unusual because it is not really an article. It is written in the form of U.S. Supreme Court decision by Justice Scalia. The article/case addresses whether the failure of a contract to mention the word "arbitration" prevents a court from finding that the parties intended disputes under that agreement to be arbitrated. The article/case concludes that this would not prevent arbitration because there is a strong presumption in favor of arbitration. 

Interestingly, the article/case, however failed to cite the Steelworkers Trilogy line of cases which squarely held that there was a presumption in favor of arbitrability. Now, those cases were decided under Section 301, not the FAA. But is there a difference? I do not think so, particularly after Pyett.

The article only cited one law review article. Many Supreme Court decisions do not even cite one. Hopefully, the Court will recognize the value of good legal scholarship.

Mitchell H .Rubinstein

Hat Tip: Tim Gynn 

December 9, 2013 in Law Review Articles | Permalink | Comments (2)

Tuesday, November 26, 2013

Harvard Law Review's Supreme Court Issue

Harvard Law Review has released its Annual Supreme Court Review.  This is the table of contents:

  • Forward, Equality Divided, by Reva B Siegel (Yale);
  • Comment, Beyond the Discrimination Model on Voting, by Samuel Issacharoff (NYU);
  • Comment, Windsor and Brown: Marriage Equality and Racial Equality, by Michael J. Klarman (Harvard);
  • Comment, License, Registration, Cheek Swab: DNA Testing and the Divided Court, by Erin Murphy (NYU).

The issue also includes the section on the Term's leading cases plus court statistics.  This is a link to the issue. There are also links at the HLR website to online responses to the Isaacharoff, Klarman and Murphy comments as well.

Craig Estlinbaum

November 26, 2013 in Law Review Articles, Supreme Court | Permalink | Comments (0)

Friday, November 1, 2013

New in Law Reviews

The Summer 2013 University of Chicago Law Review has "Tortfest," by J. Shahar Dillbury (Alabama); "Judging the Flood of Litigation," by Marin K. Levy (Duke); "Unbundling Constitutionality," by Richard Primus (Michigan); and "When Nudges Fail: Slippery Defaults," by Lauren E. Willis (Loyola LA, visiting Harvard).

The Spring 2013 Brooklyn Law Review has "The Great and Mighty Tax Law: How the Roberts Court Has Reduced Contitutional Scrutiny of Taxes and Tax Expenditures," by Linda Sugin (Fordham); "Beyond Blood and Borders: Finding Meaning in Birthright Citizenship," by D. Carolina Nunez (Brigham Young); "Harmonizing the Affordable Care Act with the Three Main National Systems for Healthcare Quality Improvement: The Tort, Licensure and Hospital Peer Review Hearings Systems," by Katharine Van Tassel (Akron); and "Software Patents and/or Software Development," by Wendy Seltzer.

The most recent Akron Law Review (Vol. 46, No. 4) includes "Symposium: The Next Generation of Envoirnmental and Natural Resources Law:  What Has Changed in Forty Years and What Needs To Change as a Result." 

The August 2013 Buffalo Law Review includes, "Hollow Spaces," by Charles H. Brower, II (Wayne State); "Shareholder Derivative Litigation's Historical and Normative Foundations," by Ann M. Scarlett (Saint Louis); and "So You Want to Have a Second Child?  Second Child Bias and the Justification-Suppression Model of Prejudice in Family Responsibilities Discrimination," by Kyle C. Velte (Denver).

Craig Estlinbaum

November 1, 2013 in Law Review Articles | Permalink | Comments (0)

Thursday, October 31, 2013

Ohio State Law Review: Tort Law Symposium

The Ohio State Law Journal will host its fall symposium, "Torts and Civil Rights Law: Migration and Conflict," on November 15, 2013.  From the journal's symposium website:

This symposium will explore the theoretical and doctrinal affinities and clashes between tort and anti-discrimination law, while fostering dialogue between tort and anti-discrimination scholars. Symposium participants will explore whether the connections are strong enough to justify robust use of tort principles in anti- discrimination analysis and whether anti-discrimination law should be interpreted through a torts lens. They also will discuss whether tort law should selectively adopt anti-discrimination norms and analysis.

Here is a list of speakers and topics and here is the (free) registration infomration. 

Craig Estlinbaum


October 31, 2013 in Conferences, Faculty, Law Review Articles | Permalink | Comments (0)

Oklahoma Law Review: Symposium

On November 15, the Oklahoma Law Review will host a half-day symposium on law enforcement access to third party records.   This strikes me as a particularly relevant and timely topic; attorneys or other interested persons in the Central Oklahoma area during this time might consider this event to learn more on the subject.

Craig Estlinbaum

October 31, 2013 in Conferences, Faculty, Law Review Articles | Permalink | Comments (0)

Wednesday, October 23, 2013

Minnesota Law Review: The Future of Organized Labor

The Minnesota Law Review will host a one day sympsium, "The Future of Organized Labor:  Labor Law in the 21st Century" on October 25 in Mondale Hall on the law school campus in Minneapolis.  The keynote speakers are Craig Becker, general counsel for the AFL-CIO and G. Roger King of Jones Day in Columbus, Ohio. 

According to the law review's website, the symposium is at capacity and registration is closed.  Interested persons, however, may want to contact the law review for the symposium issue when it is released.

Craig Estlinbaum

October 23, 2013 in Conferences, Faculty, Labor Law, Law Review Articles | Permalink | Comments (0)

Monday, October 21, 2013

Case Western Reserve Law Review: Same Sex Marriage Symposium

On October 25, the Case Western Reserve Law Review will host their fall 2013 symposium, "The Supreme Court’s Treatment of Same-Sex Marriage in United States v. Windsor Hollingsworth v. Perry: Analysis and Implications."  Here is the Agenda (pdf).

Craig Estlinbaum

October 21, 2013 in Conferences, Faculty, Law Review Articles | Permalink | Comments (0)

Thursday, October 17, 2013

Haw: Delay and Scientific Uncertainty

Rebecca Haw (Vanderbilt) has posted, "Delay and its Benefits for Judicial Rulemaking Under Scientific Uncertainty" on SSRN.   This is the abstract:

The Supreme Court’s increasing use of science and social science in its decision-making has a rationalizing effect on law that helps ensure that a rule will have its desired effect. But resting doctrine on the shifting sands of scientific and social scientific opinion endangers legal stability. The Court must be be responsive, but not reactive, to new scientific findings and theories, a difficult balance for lay justices to strike. This Article argues that the Court uses delay — defined as refusing to make or change a rule in light of new scientific arguments at time one, and then making or changing the rule because of the same arguments at time two — as a tool to improve decision-making amidst scientific uncertainty.

Using the Court’s antitrust jurisprudence as an example, this Article shows that delay can have a salutary effect on rule-making because it allows the Court to use academic consensus (that either develops or matures between times one and two) as a signal of scientific reliability. As a conservatizing device, delay operates in the common law tradition, but it also avoids some of the failures associated with traditional common law features like stare decisis and incrementalism. The Article concludes by contrasting Supreme Court decision-making with an area of law where delay is impractical or undesirable. In toxic tort litigation, where the goals of deterrence and compensation preclude the use of delay in the face of new scientific arguments, the law pays the price in uncertainty and error.

This article is forthcoming in the Boston College Law Review.

Craig Estlinbaum

October 17, 2013 in Law Review Articles, Supreme Court | Permalink | Comments (0)

Tuesday, October 15, 2013

Illinois - Larry Ribstein Memorial Symposium

From the University of Illinois School of Law website:

In honor or Larry Ribstein’s innumerable contributions to legal scholarship and the academy, the University of Illinois College of Law will host the Larry Ribstein Memorial Symposium on October 17-18, 2013. The Symposium is organized by Professors Amitai Aviram, Ralph Brubaker, Nuno Garoupa, Heidi Hurd, Christine Hurt, and David Hyman; and will consist of a series of roundtable sessions, including paper presentations and discussion.  Articles will be published in the University of Illinois Law Review in 2014.

For more information, click here.

Hat Tip: Legal Scholarship Blog.

Craig Estlinbaum

October 15, 2013 in Conferences, Faculty, Law Review Articles | Permalink | Comments (0)

Monday, October 14, 2013

Elon: Windsor & Perry Symposium

On November 1, the Elon Law Review, located in Greensboro, North Carolina, will host its fall 2013 symposium on the implications of United States v. Windsor and Hollingsworth v. Perry, the United State Supreme Court's two major marriage equality decisions from the Fall 2012 Term.  The symposium is co-sponsored by the Marriage and Family Law Research Project of BYU Law School, located in Provo, Utah.

Craig Estlinbaum

October 14, 2013 in Conferences, Faculty, Law Review Articles | Permalink | Comments (0)

Friday, October 11, 2013

New In Print: The Law Review Review

The October 2013 California Law Review includes "Appellate Review of Social Facts in Constitutional Rights Cases," by Caitlin E. Borgmann (CUNY); "Sticky Slopes," by David Schraub; and "Intellectual Property Doctrine and Mid-Level Principles," by David H. Blankfein-Tabachnick (Penn State, visiting), with a reply by Robert P. Merges (Cal-Berkeley).

The August 2013 Hastings Law Journal includes Symposium: From Bench to Society: Law and Ethics at the Frontier of Genomic Technology.  From the introductory essay by Jamie S. King (Hastings), the symposium's purpose was to, "examin[e] the vast potential implications (both good and bad) of the next wave of major advances in genetic andgenomic testing for patients, providers, their families, the practice of medicine, and society as a whole."

Volume V, Number 1, Elon Law Review has the symposium, "A Radical Notion of Democracy: Law, Race, and Albion Tourgee, 1865-1905."  Contributions include an introduction by Sally Green,  "Reflections on Albion Tourgee's 1896 View of the Supreme Court: A "Consistent Enemy of Personal Liberty and Equal Rights," by Michael Kent Curtis (Wake Forest); "The Past as Prologue: Albion Tourgee and the North Carolina Constitution," by Judge Robert N. Hunter, Jr.; "The National Citizen's Rights Association: Precursor of the NAACP," by Carolyn L. Karcher (Temple, Liberal Arts); "The Legitimacy of Law in Literature: The Case of Albion W. Tourgee," by Brook Thomas; and "Adaline and the Judge: An Ex-Slave Girl's Journey With Albion W. Tourgee," by Naurice Frank Woods, Jr (UNC-Greensboro, African-American Studies).   Touree was a Greensboro former, lawyer, judge, and novelist best known perhaps for representing Homer Plessey before the United States Supreme Court in Plessey v. Ferguson, 163 U.S. 537 (1896).  See also here and here.

Volume 101, Number 4, Kentucky Law Review includes, "Stepping Into the Gap: Violent Crime Victims and the Right to Closure; and a Discursive Shift Away From the Zero Sum Resolutions," by Blanche Bong Cook; "White Collar Overcriminalization: Deterrence, Plea Bargaining, and the Loss of Innocence," by Lucian E. Dervan (Southern Illinois); "He Said, She Said, Let's Hear What the Data Say: Sexual Harassment in the Media, Courts, EEOC and Social Science," by Joni Hersch and Beverly Moran; and "Justice Holmes's Bad Man and the Depleted Purposes of Punitive Damages," by Jill Wieber Lens.

The Spring 2013 New England Law Review has its Symposium: Crisis in the Judiciary.  There are links to the articles at the link.  This symposium's primary focus is upon the challenges the judiciary faces by restrained budgets at the federal and state levels.

The August 2013 UCLA Law Revew has Symposium: Twenty-First Century Litigation: Pathologies and Possibilities

Volume XVIII, Number 3, Fordham Journal of Corporate and Financal Law, includes articles by Dr. Markus Roth, Hilary J. Allen (Loyola NO), Benjamin D. Landry, Paul Rose (Ohio State) and Justin Schwartz

Craig Estlinbaum

October 11, 2013 in Law Review Articles | Permalink | Comments (0)

Wednesday, October 9, 2013

South Texas Law Review: Bankruptcy Ethics Symposium

South Texas Law Review will host its 20th Annual Ethics Symposium, Bankruptcy: Best Practices from the Bench and Bar, on October 25, 2013 at the Garrett Townes Auditorium on the South Texas College of Law campus in Houston.

Speakers include Hon. Jeff Bohm, Hon. Karen K. Brown, Hon. Marvin Isgur, Hon. David Jones and Hon. Letitia Z. Paul, all bankruptcy judges in the Southern District of Texas, plus several leading members of the Harris County bankruptcy bar.  The full program is here.

Registration information is here (repaired link).

Craig Estlinbaum

October 9, 2013 in Conferences, CLE, Ethics, Law Review Articles | Permalink | Comments (0)

Tuesday, October 8, 2013

Sisk: Strict Construction and Soverign Immunity

Gregory C. Sisk (St. Thomas MN) has posted, "Twilight for the Strict Construction of Waivers of Federal Sovereign Immunity," on SSRN.  This paper surveys recent Supreme Court cases which mark a shift in interpretive approach to statutory language waiving soverign immunity.  On first review, this strikes me to be an important paper that thoroughly analysis recent developments in the Court's soverign immunity construction and jurisprudence.  Here is the abstract:

The Government of the United States has long benefited from two canons of statutory construction that tip the scales of justice heavily in its direction in civil litigation by those seeking redress of harm by that government: First, the federal government’s consent to suit must be expressed through unequivocal statutory text. Second, even when a statute explicitly waives federal sovereign immunity for a subject matter, the traditional rule has been that the terms of that statute “must be construed strictly in favor of the sovereign.” The restrictive effect of these rules has made a distinct difference in cases that truly matter to the lives and well-being of ordinary people.

Since the dawn of the new century, however, the Supreme Court’s increasingly common encounters with waivers of federal sovereign immunity are also becoming more conventional in interpretive attitude. During the first eleven years of the twenty-first century, the Court turned a deaf ear to the government’s plea for special solicitude in the substantial majority of instances and frequently declared that the canon of strict construction was unhelpful or ill-suited. In four sovereign immunity cases decided in the 2012 Term, the Court continued to evidence a commitment to text, context, and legislative history, unblemished by any presumption of narrow construction. Notably during oral arguments in this most recent term, multiple members of the Court openly challenged the government’s reach for broader immunity.

In these recent decisions, the Court increasingly accepts a dichotomy between the threshold question of whether sovereign immunity has been waived (requiring a “clear statement” by Congress) and the inquiry into how the statutory waiver should be interpreted in application (with the canon of strict construction fading away as a viable tool for statutory interpretation).

This paper is shown to be accepted for publication by North Carolina Law Review.

Craig Estlinbaum

October 8, 2013 in Law Review Articles, Legislation, Supreme Court | Permalink | Comments (0)

Iowa Law Review: Predicting Wrongful Convictions

The Iowa Law Review with the Innocence Project of Iowa and the University of Iowa Center for Human Rights will present Professor Jon Gould on "Predicting Wrongful Convictions" on October 10.  The free lecture will be held in the Levitt Auditorium on the Iowa law school campus.  Gould is a professor at the American Univesity's Department of Justice, Law & Society and Principal Investigator at the department's Preventing Wrongful Convictions ProjectProfessor Gould's article, which includes three co-authors, is scheduled to be published in an upcoming issue of the Iowa Law Review.

Craig Estlinbaum

October 8, 2013 in Conferences, Faculty, Criminal Law, Due Process, Equal Protection, Law Review Articles | Permalink | Comments (0)

Friday, October 4, 2013

Wayne Law Review Symposium: Michigan Constitution

Law Review symposia are typically planned months in advance and occasionally a law review's topic will prove later to have been fortuitously timed.  This year, Wayne Law Review has had just such luck with their symposium next week (October 11), "A Wave of Change: Celebrating the 50th Anniversary of Michigan’s Constitution and the Evolution of State Constitutionalism."

As readers likely well know, the City of Detroit filed bankruptcy this summer and this filing has raised assorted questions regarding the city and state's consitutional duties and obligations, particularly relating to pension obligations.  The Wayne symposium will be much broader than the Detroit bankruptcy issue, of course, but it goes without saying that now is as good as time as any to be hosting such a conference.

Craig Estlinbaum

October 4, 2013 in Conferences, Faculty, Law Review Articles, State Law | Permalink | Comments (0)

Thursday, October 3, 2013

Texas A&M: IP Symposium

The Texas A&M Law Review will host its fall IP symposium at the Fort Worth campus on Friday, October 25, 2013.  Scheduled contributors are Sydney Beckman (Lincoln Memorial), Megan M. Carpenter (Texas A&M), Jon Garon (Northern Kentucky), Steven Jamar (Howard), Michael Murray (Valparaiso), Lucas Osborn (Campbell), Susan Richey (New Hampshire), Sergio Sarmiento (Fordham, Adjunct), and Peter Yu (Drake).

For information, contact the symposium editor.

Craig Estlinbaum

October 3, 2013 in Conferences, Faculty, Law Review Articles | Permalink | Comments (0)

Wednesday, October 2, 2013

New In Print: Law Review Review

The Washington University Law Review, Volume 90, Number 4, contains "Deconstructing Deem and Pass: A Constitutional Analysis of the Enactment of Bills by Implication," by Ronald Krotoszynski (Alabama); "Police Misconduct as a Cause of Wrongful Convictions," by Russell Covey (Georgia State); and "Shame in the Security Council," by Saira Mohamed (Cal-Berkeley).

The Harvard Journal of Law & Technology's Spring 2013 issue includes "Standards of Proof in Civil Litigation: An Experiment from Patent Law," by David L. Schwartz (Chicago-Kent) & Christopher B. Seaman (Washington & Lee); "Trademarks as Search Engine Keywords: Much Ado About Something," by David J. Franklyn (San Francisco) & David A. Hyman (Illinois); and "Patent Privateers: Private Enforcement's Historical Survivors," by John M. Golden (Texas).

The Summer 2013 Georgia Law Review has "A Reliance Approach to Precedent," by Hillel Y. Levin (Georgia); "Jurisdiction Sequencing," by Alan M. Trammell (Brooklyn); "State Power to Define Jurisdiction," by Samuel P. Jordan (St. Louis) and Christopher K. Bader; and "Interagency Litigation and Article III," by Joseph W. Mead.

Cleveland State Law Review, Volume 61, Number 2, features an entry in the longest law review title of 2013 contest, "Interpreting Precise Constitutional Text: An Argument for a New Interpretation of the Incompatibility Clause, the Removal & Disqualification Clause and the Religious Clause Test - A Response to Professor Josh Chafetz's Impeachment & Assassination," by Seth Barrett Tillman (National Univ. Ireland - Maynooth).  Other contributions include, "Cyber Bullying and Free Speech:  Striking an Age-Appropriate Balance," by Raul R. Calvoz, Bradley W. Davis, and Mark A. Gooden (Texas, Education); "Plaintiff Control and Dominaiton in Multidistrict Mass Torts," by S. Todd Brown (Buffalo); "Buying and Electorate: An Empirical Study of the Current Campaign Finance Landscape and How the Supreme Court Erred in Not Revisiting Citizen United, by William Alan Nelson, II (George Washington); and "Legal Malpractice in a Changing Profession: The Role of Contract Principals," by Vincent R. Johnson (St. Mary's).

The Charleston Law Review's Summer 2013 edition includes articles from its 5th Annual Law & Society Symposium, "Thirty Years with the Endorsement Test," with contributions by Carl M. Esbeck (Missouri), Edward M. Gaffney, Jr. (Valapraiso), Patrick M. Garry (South Dakota), William M. Janssen (Charleston), and Andrew Koppelman (Northwestern).  United States Supreme Court Justice Sandra Day O'Connor (Retired) delivered the keynote addres at the symposium.

The Winter 2013 University of Dayton Law Review has "Comparison of United States AIA First-Inventor-To-File With Chinese First-To-File," by Jing Wang, Weidong Liu, Lei Zhang, Lei Han, Ningling Wang, Stacy Lewis, Christina N. Gervasi and Tim Irving.

The Spring 2013 Southern University Law Review includes "The SCI Investigation of the Iraq War: Part II: Politicization of Intelligence," by Robert Bejesky; "Deferred Action for Childhood Arrivals: Place a Bet or Wait on a Dream," by Michael Jeb Richard; and eight other articles on varied topics.

The Ocean and Coastal Law Review (Maine), Volume 18, Number 1, contains "Limited Solution to a Dangerous Problem: The Future of the Oil Pollution Act," by Garry A. Gabrison; "It's All Mine, Stay Off, and Let Me Do What I Please:  An Abyss Between the Rights and Desires of Coastal Property Owners and Public Privileges and Protections?," by Colin H. Roberts; and "Trading the Oceans: The Brave "New" World of Seafood Revolution Contracts," by Nicholas Boston.

The Columbia Business Law Review's Volume 2013, Number 2, includes papers from the symposium, "The Past, Present and Future of Insider Trading Law: A 50th Anniversary Re-Examination of Cady Roberts and the Revolution it Began," with contributions by John C. Coffee, Jr. (Columbia), Joel Seligman, Stephen J. Crimmins, Edward Greene & Olivia Schmid and Donald C. Langevoort (Georgetown).

Craig Estlinbaum

October 2, 2013 in Law Review Articles | Permalink | Comments (0)

Monday, September 30, 2013

Hofstra Labor and Employment Law Journal Call For Papers

Hofstra Labor and Employment Law Journal has put out a call for papers. They are particularly interested in papers discussing the Affordable Care Act and the amendments to the ADA. For additonal information, download  Download Call for Articles

Mitchell H. Rubinstein

September 30, 2013 in Law Review Articles | Permalink | Comments (0)

Touro Law Review: Takings Symposium

Touro Law Review will host "The Takings Issue 40th Anniversary Symposium" on October 3 & 4 in Central Islip, NY.  For more information, click here.

Craig Estlinbaum

September 30, 2013 in Conferences, Faculty, Constitutional Law, Law Review Articles | Permalink | Comments (0)