Tuesday, March 30, 2010
Posted by Jeff Lipshaw
Caitlin Mulligan, the EIC of the Boston College Law Review, sent us a nice note highlighting Margaret Tarkington's (BYU, left) new article A Free Speech Right to Impugn Judicial Integrity in Court Proceedings.
Before we get to the abstract, I should note that Ms. Mulligan made the mistake of sending it to me along with Alan and Mike, which meant that I got to send her the following note (the humor, as it were, of which should be apparent to law professor readers), along the lines of what many years ago, when we were looking for law firm jobs we used to refer to as the "reverse bullet":
So here's the abstract:
The temptation to write something like the following is almost unbearable.
* * *
Thank you for your interest in the Legal Profession Blog.* * *
We receive many such requests for publicity each year. Space restrictions prevent us from publicizing many fine articles. While we are unable to accept this submission, we would welcome the opportunity to review any blog posts you may write in the future.
We look forward to reading your future work and wish you the best of luck with this piece.
But we'll post something anyway.
This Article examines why a free speech right to impugn judicial integrity must be recognized for attorneys when acting as officers of the court and making statements in court proceedings. Such a right is necessary to protect the constitutional and legal rights of litigants to an unbiased and competent judiciary. Further, the recognition of such a right for the attorney preserves litigants’ access to courts and due process rights. Previous scholarly arguments, which are based on analogies to other areas of limited First Amendment protection, fail to account for the protection of litigant rights, the role of attorneys in our adversary system, and the constitutionally required role of our judicial system. By curbing speech in the presentation of claims, the judiciary undermines the adversarial system and the role of attorneys therein, as well as undermining the judiciary’s own role and responsibility in remedying constitutional violations and providing fair proceedings.