Friday, October 4, 2013
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.
Thursday, October 3, 2013
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.
Wednesday, October 2, 2013
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).
Monday, September 30, 2013
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
Friday, September 27, 2013
The New York Law School Law Review is hosting a symposium titled, "The 100th Anniversary of the Revenue Act of 1913: Marking a Century of Income Tax Law in the United States," to be held on the campus on October 4, 2013. Edward Kleinbard (USC) is scheduled to deliver the keynote address.
Program and registration information is here.
Wednesday, September 25, 2013
Several law reviews did some catching up with summer releases. Here are a few:
The SMU Law Review's Winter 2013 volume includes articles by Antonio Gidi on opt-out class members, Janet Freilich on patent law, John Kip Cornwell on Sexting, Christina Mulligan on freedom of the press, Jessica M. Eaglin on "Against Neorehabilitation," Ester K. Hong on the Confrontation Clause in post-conviction proceedings and Anhana Malhotra on "The Immigrant and Miranda."
The Summer 2013 Texas Tech Law Review includes, "Are Twombly & Iqbal Affecting Where Plaintiffs File? A Study Comparing Removal Rates by State," by Jill Curry and Matthew Ward, "Oil and Gas Leases and Pooling: A Look Back and a Peek Ahead," by Bruce M. Kramer, "Viewing the 'Same Case or Controversy' of Supplemental Jurisdiction Through the Lens of the 'Common Nucleus of Operative Fact' of Pendent Jurisdiction," by Douglas D. McFarland, and "The Age of Allocation: The End of Pooling As We Know It," by Clifton B. Squibb.
Villanova Law Review, Volume 58, Number 4, includes the Norman J. Shachoy Symposium, "Assessing the CISG and Other International Endeavors to Unify International Contract Law: Has the Time Come for a New Global Initiative to Harmonize and Unify International Trade?"
The most recent Harvard Environmental Law Review, Vol. 37, No. 2, includes the lead article, "Administrative Proxies for Judicial Review: Building Legitimacy from the Inside Out," by Emily Hammond and David L. Markell, and other articles by Alex L. Wang, Margot J. Pollans, Linda Breggin & D. Bruce Meyers, Jr., and Brendan C. Selby. Links to the articles are available at the link.
The Indiana Health Law Review includes papers from the AALS Symposium "Imagining the Next Quarter Century of Health Care Law" with contributions by Gaia Bernstein (article link), Kristin Madison, Barbara J. Evans, Peter J. Hammer and Efthimios Parasidis.
The Spring 2013 Florida Coastal Law Review includes "Drafting Effective Noncompete Clauses and Other Restrictive Covenants: Considerations Across the United States," by Kyle B. Sill.
Volume 47, No. 3, New England Law Review includes the symposium, "Crisis in the Judiciary," with articles a Forward by Stewart D. Aaron and contributions byDaniel J. Hall & Lee Suskin, Dr. Roger E. Hartley, Donald Campbell, Marie D. Natoli, and Martha F. Davis.
The Summer 2013 George Mason Law Review includes the 16th Annual Antitrust Symposiumwith remarks by Jeffrey Rosen and articles by Frank Pasquale, Catherine Tucker, Adam Thierer, Allen P Grunes, and James C. Cooper. Links to the articles are available at the link
The Spring 2013 Harvard Journal of Law & Technology includes Standards of Proof in Civil Litigation: An Experiment from Patent Law by David L. Schwartz & Christopher B. Seaman, Trademarks as Search Engine Keywords: Much Ado About Something? by David J. Franklyn & David A. Hyman and Patent Privateers: Private Enforcement's Historical Survivors by John M. Golden.
The Summer 2013 Tennessee Law Review includes the symposium, "TVA v. Hill: The Greatest Little Story Never Told" with contributions by Becky L. Jacobs (Forward), Dr. David A. Etnier (Introduction), Zygmunt J. B. Plater, Patrick A. Parenteau, and Henry S. Mattice, Jr., and a panel discussion transcript.
The Washington University Journal of Law & Policy, Volume 42, includes the symposium, "Privilege Revealed: Past, Present and Future" with contributions by Stephanie M. Wildman, Arthur F. McEnvoy, Bela August Walker, Lisa C. Ikemoto, Meera E. Deo, Danielle Kie Hart, and Barbara J. Flagg.
Friday, July 5, 2013
The June 2013 Yale Law Journal includes a symposium on the iconic Warren-Era case Gideon v. Wainwright. This issue includes:
- Why Civil Gideon Won’t Fix Family Law, Rebecca Aviel;
- Gideon Exceptionalism?, John H. Blume and Sheri Lynn Johnson;
- Fifty Years of Defiance and Resistance After Gideon v. Wainwright, Stephen B. Bright & Sia M. Sanneh;
- Poor People Lose: Gideon and the Critique of Rights, Paul D. Butler;
- Celebrating the “Null” Finding: Evidence-Based Strategies for Improving Access to Legal Services, Jeanne Charn;
- Race and the Disappointing Right to Counsel, Gabriel J. Chin,
- Participation, Equality, and the Civil Right to Counsel: Lessons from Domestic and International Law, Martha F. Davis;
Gideon’s Migration, Ingrid V. Eagly;
- Searching for Solutions to the Indigent Defense Crisis in the Broader Criminal Justice Reform Agenda, Roger A. Fairfax, Jr.;
- Gideon’s Amici: Why Do Prosecutors So Rarely Defend the Rights of the Accused?, Bruce A. Green;
Valuing Gideon’s Gold: How Much Justice Can We Afford, M. Clara Garcia Hernandez & Carole J. Powell;
- Investigating Gideon’s Legacy in the U.S. Courts of Appeals, Emily Hughes;
- An Immigration Gideon for Lawful Permanent Residents, Kevin R. Johnson;
- Gideon at Guantánamo, Neal Kumar Katyal;
- Enforcing Effective Assistance After Martinez, Nancy J. King;
- Gideon’s Law-Protective Function, Nancy Leong;
- Gideon’s Shadow, Justin Marceau;
Gideon at Guantánamo: Democratic and Despotic Detention, Hope Metcalf & Judith Resnik;
- Fear of Adversariness: Using Gideon To Restrict Defendants’ Invocation of Adversary Procedures, Pamela R. Metzger;
- Federal Public Defense in an Age of Inquisition, David E. Patton;
- Effective Trial Counsel After Martinez v. Ryan: Focusing on the Adequacy of State Procedures,
Eve Brensike Primus;
Implicit Racial Bias in Public Defender Triage, L. Song Richardson & Phillip Atiba Goff;
- Effective Plea Bargaining Counsel, Jenny Roberts;
Lessons from Gideon, Erwin Chemerinsky; and
Gideon at Fifty: A Problem of Political Will, Carol S. Steiker
Tuesday, May 28, 2013
Stephanos Bibas (Penn) has posted "Justice Kennedy's Sixth Amendment Pragmatism," an essay written in conjunction with an appearance at a McGeorge Law Review symposium on Justice Kennedy's jurisprudence, on SSRN. Here is the abstract:
This essay, written as part of a symposium on the evolution of Justice Kennedy’s jurisprudence, surveys three areas of criminal procedure under the Sixth Amendment: sentence enhancements, the admissibility of hearsay, and the regulation of defense counsel’s responsibilities. In each area, Justice Kennedy has been a notable voice of pragmatism, focusing not on bygone analogies to the eighteenth century but on a hard-headed appreciation of the twenty-first. He has shown sensitivity to modern criminal practice, prevailing professional norms, and practical constraints, as befits a Justice who came to the bench with many years of private-practice experience. His touchstone is not a bright-line rule derived from history, but a flexible approach that is workable today. Notwithstanding the press’s assumptions about him as a swing Justice, his approach is remarkably consistent and principled.
The essay explores four important themes in his Sixth Amendment jurisprudence. First is the use of history. Justice Kennedy is a moderate originalist, looking to history where it works but adapting it to modern realities, especially to new circumstances and new problems. Second is his common-law incrementalism and flexibility, in contrast to some other Justices’ rigid formalism. Third is Justice Kennedy’s structural approach to the Constitution as fostering dialogue among branches and levels of government. He emphasizes federalism and checks and balances, not a strict separation of powers. Fourth is his use of practicality and common sense to leaven theoretical abstractions. He looks closely at the purposes of laws, their effects, the lessons of expertise, and the existence of alternative solutions. In interpreting the Sixth Amendment, then, Justice Kennedy is fundamentally a practical lawyer, applying the humble wisdom born of experience rather than the rigid extremes that flow from a quest for theoretical purity.
This essay will appear in the McGeorge Law Review's symposium edition in Volume 44.
Friday, May 24, 2013
The Berkeley Technology Law Journal's Symposium 2012, issue includes the symposium "Orphan Works & Mass Digitization: Obstacles & Opportunities." Ms. Maria A. Pallante, Register of Copyrights and Director, U.S. Copyright Office, delivered the keynote address.
The University of Richmond Law Review's March 2013, issue includes the Allen Chair Issue 2013: "Election Law: Beyond the Red, Purple and Blue."
The Yale Law Journal's May 2013, issue includes "City Unplanning," by David Schleicher (George Mason) and "Rethinking the Federal Eminent Domain Power," by WIlliam Baude (Stanford). The issue also includes the Storrs Lecture by Cass Sunstein (Harvard) and an Essay by Amy Kapczynski (Yale) & Talha Syed (Boalt). The Journal's April 2013, issue includes "The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy," by Jed Rubenfeld (Yale), an essay by Larissa Katz (Queen's Univ.) and a book review by Anthony V. Alfieri (Miami) & Angela Onwuachi-Willig (Iowa). The Yale Journal of Law & the Humanities' Winter 2013 issue includes a Symposium on Living Originalism. More to follow.
Wednesday, May 22, 2013
The Campbell Law Review is pleased to announce a call for papers for its National Edition, which will be focused broadly around Internet Law and related themes. The Internet and associated technologies continue to evolve a pervasively networked, globalized society, creating new forces that are shaping law, society, culture, and the legal profession.
The Law Review seeks to publish papers on legal, social, cultural, and economic issues that relate to the emerging technological changes. In particular, we seek recent essays that deal with the challenges posed and the steps that must be taken for the law to respond, now and in the future. Representative topics include privacy law, freedom of speech, and the changing nature of the legal profession.
The call for papers includes an August 1, 2013, submission deadline for publication in Fall 2013.
Hat Tip: SSRN Legal Scholarship Network.
Friday, May 17, 2013
The Georgetown Journal of Gender and the Law''s Wintere 2013 issue includes their Winter Issue of Gender and Sexuality Law with articles by Seletha R. Butler (Georgia Tech College of Business), Julie Goldscheid (CUNY Law) and Jody M. Prescott (Vermont). There is also what appears to be a potentially interesting student note titled, "Islamic Marriage Contracts as Simple Contracts Governed by Islamic Law: A Roadmap for U.S. Courts," by Emily C. Sharp. This strikes me as a particularly timely topic and I look forward to reading the note. One further aside on this journal - The GJGL charges for online content - content that in many instances is available free on SSRN. I wonder how this model works for the journal.
The Harvard Civil Rights-Civil Liberties Law Review's Winter 2013 issue includes several interesting articles inc luding one near and dear to me as a state trial judge with criminal jurisdiction - "Beyond 'Life and Liberty:' The Evolving Right to Counsel," by John D. King (Washington & Lee). The key lines from the Abstract read: "This Article argues that current Sixth Amendment jurisprudence on the right to counsel has not adequately adapted to the changed realities within which misdemeanor prosecutions take place today. Because of the dramatic changes in the cultural meaning and real-life consequences of low-level convictions, there is no longer a useful or constitutionally significant line between those cases resulting in actual imprisonment and those cases not resulting in imprisonment." Because I believe the combined effect of Padilla, Frye and Lafler will be greater judicial involvement in plea bargaining processes (but not plea bargain negotiations), contributions such as King's are valuable to gaining understanding into this "evolving" area.
The new edition of Syracuse Law Review (Vol. 63, No. 2) includes Symposium: The Age of Social Media and It's Impact on the Law. The symposium includes an article on judicial use of social media by Helia Garrido Hull (Barry). I have not found the article online yet, however the title suggests Professor Hull reaches a different conclusion than I did in my essay on a similar subject published last year in the St. Mary's Journal of Legal Malpractice & Ethics. I hope to obtain Professor Hull's article soon and my a comment further on it here.
Volume 55, No. 1, Arizona Law Review includes a collection of articles under the title "Financial Reform During the Great Recession: Dodd-Frank, Executive Compensation and the Card Act." The issue includes articles by Lisa M. Fairfax (George Washington), Kimberly D. Krawiec (Duke), MIra Ganor (Texas) and Andrea Freeman (Hawai'i).
St. Mary's Law Review's newest issue includes "Secured Transactions History: Protecting Holmes' Notes Through the Conditional Sales Acts," by George Lee Flint, Jr. (St. Mary's). Scholar: St. Mary's Law Review on Race and Social Justice's newest issue includes articles by Donna McKneelen (Cooley) and Chauntelle Ann Tibbals, Ph.D.
Friday, May 10, 2013
David Dittfurth's (St. Mary's) article "Restitution in Texas: Civil Liability for Unjust Enrichment" appears in the latest South Texas Law Review (Winter 2012). On first read, I am impressed with this article, which is comprehensive and makes a valuable contribution to this often confusing and misunderstood area of law. We cover restitution, unjust enrichment, quantum meruit and quasi-contract and other related causes of action in our Damages class and I look forward to mining this article for a better understanding myself. As a bonus, Dittfurth includes "recent statements by the courts of forty-nine states and the District of Columbia that describe the elements of unjust enrichment" in those jurisdictions.
Monday, May 6, 2013
Professor Nancy J. King (Vanderbilt) has posted her essay, "Enforcing Effective Assistance after Martinez" on SSRN. Here is the abstract:
This Essay argues that the Court’s effort to expand habeas review of ineffective assistance of counsel claims in Martinez v. Ryan will make little difference in either the enforcement of the right to the effective assistance of counsel or the provision of competent representation in state criminal cases. Drawing upon statistics about habeas litigation and emerging case law, the Essay first explains why Martinez is not likely to lead to more federal habeas grants of relief. It then presents new empirical information about state postconviction review (cases filed, counsel, hearings, and relief rates), post-Martinez decisions, and anecdotal reports from the states to explain why, even if federal habeas grants increase, state courts and legislatures are unlikely to respond by invigorating state collateral review. The Essay concludes that alternative means, other than case-by-case postconviction review, will be needed to ensure the provision of effective assistance.
This Essay is forthcoming in the Yale Law Journal.
Friday, May 3, 2013
Fordham Law Review's April 2013, issue includes a symposium on the goals of antitrust. Barak Orbach (Arizona) contributed the Forward. The April 2013, California Law Review includes "Property's Constitution," by James Y. Stern (Virginia) and From Independence to Politics in Financial Regulation," by Stavros Gadinis (Berkeley). The current issue of the Columbia Journal of Gender & Law includes a Symposium Honoring the Advocacy, Scholarship and Jurisprudence of Justice Ruth Bader Ginsburg.
The March 2013, Columbia Law Review includes "In Defense of Big Waiver," by David J. Barron (Harvard) and Todd D. Rakoff, (Harvard) and "Technological Innovation, International Competition and the Challenges of International Income Taxation," by Michael J. Graetz (Columbia) and Rachael Doud (Yale '12). The Winter 2013, Houston Law Review includes articles by Alexia Brunet Marks (Colorado), Stacey A Tovino (UNLV) and Fredrick E. Vars (Alabama).
Legal history buffs may want to check out the Fall/Winter 2013 Rutgers Law Journal, which includes Symposium: The Constitution and the Sectional Conflict. The current issue of the Saint Louis Law Review includes the symposium, "Invisible Constitutions: Culture, Religion and Memory."
The Texas Tech Law Review's Fall 2012 issue includes the Sixth Annual Criminal Law Symposium: Sixth Amendment, including panel articles on confrontation, the right to counsel at trial, and the right to counsel before trial. As of this writing, this edition is not available online at the law review's website.
The March 2013, Cornell Law Review includes "Accepting the Limits of Tax Law and Economics," by Alex Raskolnikov (Columbia), "The Regulator Effect in Financial Regulation," by Jonathan R. Macey (Yale) and "The Social Production of National Security," by Aziz Z. Huq (Chicago).
Some other recently released symposium issues of note are UC Davis Law Review and "The Daubert Hearing: From All the Critical Perspectives;" The University of Chicago Law Review and "Immigration Law and Institutional Design;" Washington University Global Studies Law Review and "Global Nuclear Energy Law and Regulation;" and Georgetown Journal of Law & Public Policy and "Hyper Partisanship and the Law."
The April 2013, Duke Law Journal includes "Delegating Up: State Conformity With the Federal Tax Base," by Ruth Mason (Connecticut) and the lecture, "Exit, Voice and Disloyalty," by Heather K. Gerken (Yale). The current Oregon Law Review (Vol. 91, No. 4) includes a symposium on issues relating to marijuana legalization and the war on drugs.
Friday, April 26, 2013
The Denver University Law Review (Vol. 89, No. 4) has published papers from the 19th Annual Rothgerber Conference - "Toward A Constitutional Right of Access to Justice: Implications and Implementations," with a focus on access to the courts and medical marijuana, among other things.
The April 2013, Harvard Law Review includes " The Problem of Resource Access," by Lee Anne Fennell (Chicago), a book review by David A. Strauss (Chicago) plus student notes and recent cases. The Winter 2013, Harvard Journal of Legislation includes papers by Senator Jeanne Shaheen on fililbuster reform, Senator Olympia J. Snowe on legislative effectiveness in the 112th Congress, and Rep. Louise Slaughter on the Genetic Information Non-Discrimination Act. The edition also includes a short symposium on Government Outsourcing and Privatization.
Alabama Law Review (Vol. 64, No. 3) includes Meador Lecture Series papers by Robert C. Ellickson, "The Law and Economics of Street Layouts: How a Grid Pattern Benefits a Downtown," and Brian Leiter (Chicago), "The Boundaries of the Moral (and Legal) Community." The Nov-Dec. 2012 San Diego Law Review includes the 2012 Editors' Symposium: "The Philosophical Foundations of Intellectual Property."
The March 2013 issue of Law and Contemporary Problems (Duke, faculty edited) includes the symposium, "A Global Perspective on Sentencing Reform." The Winter 2013 issue of the Indiana Law Journal leads with "Procedural Fairness in Election Contests," by Joshua Douglas (Kentucky).
Volume 2013, No. 1, Wisconsin Law Review includes, "colloquium essays address[ing] the role of empirical research in identifying, measuring, and clarifying crucial issues of service delivery, resource allocation, and access to justice in American law and society." Participating essayists are Jane H. Aiken (Georgetown) & Stephen Wizner (Yale), Catherine R. Albiston (Berkeley) & Rebecca L. Sandefur (Illinois), Anthony V. Alfieri (Miami), Jeanne Charn (Harvard) & Jeffrey Selbin (Berkeley), and Scott L. Cummings (UCLA). Meredith J. Ross (Wisconsin) contributed the Introduction to the Colloquium.
The New York Law School Law Review, Volume 57, Number 4, released this week and includes the symposium, "Trial by Jury or Trial by Motion? Summary Judgment, Iqbal, and Employment Discrimination."
Tuesday, April 23, 2013
Jenny Roberts (American) has posted "Effective Plea Bargaining Counsel" on the Social Science Research Network. The article appears to have been accepted for later publication by the Yale Law Journal. This is the abstract:
Fifty years ago, Clarence Earl Gideon needed an effective trial attorney. The Supreme Court agreed with Gideon that the Sixth Amendment guaranteed him the right to counsel at trial. Recently, Galin Frye and Anthony Cooper also needed effective representation. These two men, unlike Gideon, wanted to plead guilty and thus needed effective plea bargaining counsel. However, their attorneys failed to represent them effectively, and the Supreme Court - recognizing the reality that ninety-five percent of all convictions follow guilty pleas and not trials - ruled in favor of Frye and Cooper.
If negotiation is a critical stage in a system that consists almost entirely of bargaining, is there a constitutional right to the effective assistance of plea bargaining counsel? If so, is it possible to define the contours of such a right? The concept of a right to an effective bargainer seems radical, yet obvious; fraught with difficulties, yet in urgent need of greater attention.
In this Essay, I argue that the Court’s broad statements in Missouri v. Frye, Lafler v. Cooper and its 2010 decision in Padilla v. Kentucky about the critical role defense counsel plays in plea negotiations strongly support a right to effective plea bargaining counsel. Any right to effective bargaining should be judged - as other ineffective assistance claims are judged - by counsel’s success or failure in following prevailing professional norms. The essay discusses the numerous professional standards that support the notion that defense counsel should act effectively when the prosecution seeks to negotiate and should initiate negotiations when the prosecution fails to do so, if it serves the client’s goals.
The objections to constitutional regulation of plea bargaining include the claims that negotiation is a nuanced art conducted behind closed doors that is difficult to capture in standards and that regulating bargaining will open floodgates to future litigation. While real, these are manageable challenges that do not outweigh the need to give meaning to the constitutional right to effective counsel. After all, in a criminal justice system that is largely composed of plea bargains, what is effective assistance of counsel if it does not encompass effectiveness within the plea negotiation process?
Roberts' article highlights proposed professional and ethical norms relating to plea bargaining. The Padilla, Frye and Cooper trilogy have opened the door for courts to closely scruitinize trial counsel's plea negotiations in subequent post-conviction proceedings. The highlights important considerations for defense counsel desiring to negotiate the best possible plea while simultaneously securing the plea's finality against post-conviction challenges. This article is recommended reading.
Sunday, April 21, 2013
The Northern Kentucky Law Review has issued a call for papers for its February 27-28, 2014, Law & Informatics Symposium: "Cyber Defense Strategies and Responsibilities for Industry." For more information, click here.
Monday, April 15, 2013
Cardozo Law Review's February 2013, issue includes Symposium: Constitutionalism, Ancient and Modern. The Michigan State Law Review's Volume 2012:2 includes a series of articles on the subject of Lawyers as Conservators, with titles such as "Training Young Lawyers to Be Conservators of Legal Institutions & the Rule of Law" and "On the Declining Importance of Legal Institutions."
Volume 29:1 of the Touro Law Review includes exerpts from the Touro College Jacob D. Fuchsberg Law Center Conference in Paris: Persecution Through Prosecution: Alfred Dreyfus, Leo Frank and the Infernal Machine. The Summer 2012 edition of the University of Detroit Mercy Law Review includes Symposium: The Future of Intellectual Property, which clocks in as one of the shortest symposium editions in recent memory at 29 pages.
South Texas Law Review's Fall 2012 issue includes Symposium: Citizen Employees: Whistleblowers and Other Employees Acting in the Public Interest. The University of Miami Law Review's Winter 2013, issue includes Symposium: The Future of the Death Penalty in America. William & Mary Law Review's February 2013, issue features the symposium "Law Without a Lawmaker" and features articles on Erie Railroaad Co. v. Tompkins.
The American University International Law Review's Volume 27, No. 4 includes the Center on International Commercial Arbitration Symposium: Salient Issues in International Commercial Arbitration. Volume 39:2 of the William Mitchell Law Review includes a symposium on the U.S.-Dakota War of 1862. Volume 76, Issue 1 of the Albany Law Review includes Symposium: What Are We Saying? Violence, Vulgarity, Lies ... and the Importance of 21st Century Free Speech. (New York Univ)
Boston College Law Review's March 2013, issue includes a modified version of Professor Jeremy Waldron's (New York Univ.) Clough Distinguished Lecture in Jurisprudence titled, "Separation of Powers in Thought and Practice." The Fall 2012 issues of Duke Enviornmental Law & Policy Forum includes a special issue on Disaster Law. Harvard Journal of Law & Public Policy's Spring 2013, issue includes Symposium: Privacy, Security, and Human Dignity in the Digital Age. The current issue of the Washington University Journall of Law & Policy includes Symposium: Liddell Is Forty: Commemorating the Desegregation Movement in St. Louis, and A Look at the Future of Urban Education.
The April 2013, Michigan Law Review features its annual Survey of Books, including a Forward by Richard A. Danner (Duke). Finally, the Spring 2013, issue of Southwestern Law Review includes papers presented at the AALS ADR Section's Program titled "The Supreme Court and the Future of Arbitration.
Friday, April 12, 2013
Since Padilla v. Kentucky, decided in 2010, expressly established a connection between criminal pleas and collateral criminal consequences, there has been growing discussion as to whether or not Sixth Amendment protections announced in the landmark decision Gideon v. Wainwright, celebrating its 50th Anniversary this year, should be extended to any degree to persons facing deportation.
For the past fifty years, immigration law has resisted integration of Gideon v. Wainwright’s legacy of appointed counsel for the poor. Today, however, this resistance has given way to Gideon’s migration. At the level of everyday practice, criminal defense attorneys appointed pursuant to Gideon now advise clients on the immigration consequences of convictions, negotiate “immigration safe” plea bargains, defend clients charged with immigration crimes, and, in some model programs, even represent criminal defendants in immigration court. A formal right to appointed counsel in immigration proceedings has yet to be established, but proposals grounded in the constitution, statutes, and expanded government funding are gaining momentum.
From the perspective of criminal defense, the changing role of Gideon-appointed counsel raises questions about the breadth and depth of immigration assistance that should develop under the defense umbrella. From the perspective of immigration legal services, the potential importation of a Gideon-inspired right to counsel requires consideration of the appropriate scope and design for an immigration defender system. This Essay does not attempt to resolve these challenging questions, but rather provides a framework for further reflection that is grounded in lessons learned from the criminal system’s implementation of Gideon.