Thursday, October 23, 2014
I have posted Effective Plea Bargains for Noncitizens on SSRN. Here is the abstract:
In Padilla v. Kentucky, the United States Supreme Court held that the Sixth Amendment requires criminal defense attorneys to advise non-citizen clients regarding the deportation risks associated with a guilty plea. The Court held in that case that a defendant's guilty plea may be involuntarily made when defense counsel fails to advise the client about those deportation risks. Trial judges accepting guilty pleas from criminal defendants have a duty to confirm the defendant makes the plea voluntarily and intelligently. Judges make this determination through the plea colloquy -- a series of admonishments and questions with the pleading defendant done prior to accepting the plea. Padilla at a minimum requires trial judges to inquire whether or not the defendant is a non-citizen, and if so, whether the defendant has received the correct advice regarding the guilty plea's immigration consequences. The judge's failure to do so may result in a conviction tainted by ineffective assistance or supported by a plea not voluntarily and intelligently made.
This Article suggests trial judges should take affirmative steps prior to accepting a non-citizen's plea to reveal whether counsel has provided relevant and correct immigration advice to the defendant. Part I discusses Padilla's facts, rationale and holding, Part II discusses the requirement for a voluntary and intelligently made guilty plea in modern plea bargain jurisprudence and Part III discusses the process for obtaining post-conviction relief for Sixth Amendment violations under Strickland v. Washington's ineffective assistance standard. Part IV closes by discussing best practices for trial judges and counsel to safeguard a non-citizen's rights while developing a record that anticipates post-conviction Sixth Amendment claims.
I presented this paper at an immigration law symposium hosted by The Scholar: St. Mary's Law Review on Race and Social Justice in April. The students and faculty hosting the event were top notch and I appreciated greatly the chance to meet and work with them all.
Friday, September 12, 2014
The Journal of Law and Health's Annual Symposium at Cleveland Marshall Law School has issued a call for papers which provides in part:
You are invited to submit an Article for possible inclusion in the Journal of Law & Health’s Annual Symposium: The Social, Ethical, and Legal Consequences of Sports-Related Brain Injuries. The Journal of Law & Health is a student-run publication dedicated to publishing innovative articles that offer diverse perspectives on the intersection between law, health, and medicine.
The selection of the Symposium topic was a result of the myriad of new research on the prevalence of traumatic brain injuries in sports and the long-term health consequences that result from head injuries. Further, high profile legal disputes, such as the NFL’s $765 million settlement with retired players, has thrust the discussion of brain injuries in sports into the legal arena as well. The Symposium aims to facilitate a well-rounded discussion between, judges, legislators, academics, and medical professional on the social, ethical, and legal issues that may occur as more research becomes available on brain injuries in sports.
Additional information and submission instructions can be found by clicking Download Call for Papers Final
Mitchell H. Rubinstein
Wednesday, July 2, 2014
Professor Bill Herbert (CUNY) writes to inform us of a call for papers by the National Center for the Study of Collective Bargaining in Higher Education. The conference will be held in April 2015. I have been to their conferences. It is one of the best interdisciplinary conferences. More details can be found in the announcement, here. Download Call For Papers and Proposed Workshops 2015 National Center Conference pdf
Mitchell H. Rubinstein
Tuesday, July 1, 2014
From the NKU Chase Law + Infomatics Institute website:
The Northern Kentucky Law Review and NKU Chase College of Law seek submissions for the fourth annual Law + Informatics Symposium on February 26-27, 2015. The conference will provide an interdisciplinary exploration of digital information in the courtroom, including the importance of insuring that such information is reliable, resilient, and uncompromised.
The symposium is an opportunity for academics, practitioners, consultants, and students to exchange ideas and explore emerging issues regarding digital forensics and the rules of evidence and discovery in criminal and civil cases.
The full release is here.
Suggested topics include digital forensics, constitutional issues, digital evidence in the courtroom, international and comparative law, e-discovery and emerging issues. The most immediate deadline is September 1, 2014 for abstracts.
Wednesday, April 30, 2014
Tulsa Law Review has published its fourth issue dedicated to book reviews. The issue includes 25 book reviews. As far as I know, Tulsa is the one of just two student-edited law journal dedicating one issue each year to book reviews -- Michigan Law Review is the other (MLR's current book review issue is here). The book review has fallen into recent disfavor among student-edited journals, leading to commentary both in law reviews and in blogs. Tulsa Law Review is ably doing its part to stem or reverse this trend.
Acknowledgement: Daniella Citron (Maryland) at Concurring Opinions.
Wednesday, March 26, 2014
South Texas Law Review has released its Volume 55, No. 1, which includes:
- A Comity of Errors: Treading on State Court Jurisdiction in the Name of Federalism, by Emily L. Buchanan;
- The Jurisprudence of Texas Supreme Court Justice Robert A. "Bob" Gammage: A Legacy ofCivil Rights and Liberties, by John C. Domino;
- Ethical Falsehood: Towards a Moral Values Paradigm in False-Speech Adjudication, by Daniel Ross Goodman;
- Challenging the Federal Prohibition on Gun Possession by Nonviolent Felons, by Conrad Kahn.
- Comment: Private Employers & Minority Preferences: Will Somthing Other Than a Remedial Justification be Sufficient, by Jill Hale;
- Comment: Texas' Iron-Clad Corporate Veil: Re-Examining Section 21.223 of the Texas Business Organizations Code, by Rachel Thompson; and
- Comment: Litigant Consent as a Constitutional Threat: Reconsidering the Jurisdiction of Magistrate Courts after Stern v. Marshall, by Lori Yount.
Saturday, March 22, 2014
Campbell Law Review has announced a call for papers for its October 17, 2014, symposium, "One City at a Time: The Role and Increasing Presence of Chapter 9 Municipal Bankruptcies." The call for papers announcement is here. HT: Calling All Papers!
Monday, March 17, 2014
SMU's Journal of Air Law and Commerce is hosting its 48th Annual Air Law Symposium on April 3-4 at the Omni Mandalay Hotel in Las Colinas, Texas. Information on this symposium, including agenda and registration details, is found here.
Sunday, March 16, 2014
Property has always been treated somewhat exceptionally in the realm of conflict of laws, but today conflicts rules for property are more unusual than ever — not because they have changed, but because they haven’t. Decades ago, most states discarded the general body of traditional conflict-of-laws doctrines, a transformation referred to as the Conflicts Revolution. Property, however, remains mysteriously untouched. The basic common-law principle is that property is governed by the law of its location — the situs rule. Despite persistent academic criticism, the situs rule is still followed in every state.
This article argues certain structural features of property support the situs rule, notwithstanding the Conflicts Revolution. Theorists have increasingly stressed property’s “in rem” quality — the idea that property is “good against the world.” This article shows how that feature creates a special need for uniform treatment across jurisdictions, such that a single, exclusive source of law is applicable to questions concerning the division of rights in a given asset. Property’s in rem character is a consequence of the allocational model used as the central organizing concept in property law. That model treats each property entitlement as part of a zero-sum game, in that one person’s entitlement to an asset means no one else can validly hold an incompatible claim to the same asset. Using different rules to resolve the same legal issue both aggravates the information cost problems generated by such a system and undermines its overall coherence. The situs rule in turn responds to the elevated need for uniformity in the property context by creating a focal point that enables states to coordinate their conflicts rules. The article shows how uniformity devices pervade property, including intellectual property and even other fields with certain formal resemblances, such as marriage and corporations law. Beyond its implications for issues of property jurisdiction, this article helps show where property’s much discussed “in rem” character comes from, what it really means, and how it distinguishes property from other private law fields like contract and tort.
In this paper, Stern effectively defends the "situs rule" against "academic hostility." At the risk of oversimplifying, the situs rule states that the place where the property is located holds exclusive jurisdiction over cases relating to that property. Stern explains, "the rule calls for the resolution of property questions using the substantive law of the situs of the property in dispute."
Monday, March 10, 2014
Tuesday, March 4, 2014
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.
Monday, December 9, 2013
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
Tuesday, November 26, 2013
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.
Friday, November 1, 2013
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).
Thursday, October 31, 2013
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.
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.
Wednesday, October 23, 2013
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.
Monday, October 21, 2013
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).
Thursday, October 17, 2013
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.