Legal Profession Blog

Conviction Reversed; Prosecutor Knowingly Used Perjured Testimony

The Indiana Court of Appeals had reversed a burglary conviction based on its conclusion that the prosecution knowingly used perjured testimony.

 The case involved the robbery of a Dollar General in December 2012.

A video showed that the perpetrator was a white female.

An employee named Greenlee (a white female) came under suspicion and confessed that it was she in the video. She implicated Smith (her black male boyfriend) and another female as accomplices.

Greenlee entered a guilty plea and admitted under oath that she was the one in the video.

She was awaiting sentencing when she was called as a witness in Smith's trial and offered to testify that it was Smith in the video.

After an objection by defense counsel (who was aware of Greenlee's plea) and a recess, the trial judge allowed the testimony.

The judge found that Greenlee's plea and trial was inconsistent but not necessarily false. Greenlee explained that her plea testimony was false because she was trying to aid Smith.

The prosecution granted Greenlee immunity for any false statements at her plea.

The court found that the issue had been preserved and that the prosecution had knowingly used perjured testimony. The witness gave mutually exclusive accounts of the robbery under oath and there was a "high probability" that her trial testimony was false.

Further, the grant of immunity did not solve the perjury problem, only Greenlee's problem.

Notably, a police witness testified that the video showed that the perpetrator was a white female.

Thanks to Don Lundberg for sending the case to us. (Mike Frisch)

Do Attorney-Arbitrators Hand Out Less Money Than Nonattorney-Arbitrators? Do Democrats Award More Than Republicans? Empirical Study of Lawyers, Arbitrators, and Panel Dynamics

Posted by Alan Childress

Stephen Choi (NYU Law), Jill Fisch (U. Penn.), and Adam C. Pritchard (U. Mich. Law) have posted to bepress their new paper, "Attorneys as Arbitrators."  It looks interesting for the empirical fans among us (like Jeff's recent post on lawyer stereotypes, hypothesis, and testing) and the hardcore ELS types (like Bill). I like the fact that the authors used political contribution as one variable and found its party affiliation to be significant.  Keep in mind, though, that plenty of attorneys (and others) give for pragmatic and nonpolitical-leaning reasons, and often give to both sides.

And, as icing, it can be downloaded without going through SSRN!  Here is their abstract:

We study the role of attorneys as arbitrators in securities arbitration conducted by the National Association of Securities Dealers (NASD, n/k/a FINRA), using a dataset of 422 randomly selected arbitrators and their 6724 arbitration awards from 1992 to 2006. We find that arbitrators who also represent brokerage firms or brokers in other arbitrations award significantly less compensation to investor-claimants than other arbitrators. We find no significant effect for attorney-arbitrators who represent investors or both investors and brokerage firms. The relation between representing brokerage firms and arbitration awards remains significant even when we control for political outlook. We report that ideology correlates significantly with arbitration awards - arbitrators who donate money to Democratic political candidates award greater compensation than arbitrators who donate to Republican candidates.

Because the arbitration award is the product of the panel, not a single arbitrator, we also study the dynamics of panel interaction. We find that the position of chair is an important factor in assessing the arbitrator's influence, although the financial relationships of other arbitrators may also affect arbitration awards. Coalitions with the other arbitrators are also important. If the chair and another panelist possess a common attribute, the effect on the arbitration award increases.

Finally, we provide evidence that the 1998 reforms to the arbitration process - which introduced party control over the composition of panels - ameliorated, but did not eliminate, the effect that attorneys who represent brokers have on outcomes. We find no significant effect from the NASD's 2004 reforms.

Adam Pritchard also posted a piece questioning the common stereotype that Delaware law and courts create a 'race to the bottom' that entrenches and lowers quality of management.  More on that below the fold.  Oh, the new TypePad does not have a fold?  Sorry, then here is the link to Murali Jagannathan and Adam Pritchard, "Does Delaware Entrench Management?" Exciting bedtime reading for Jeff.

Bepress Announces New Online Journal: "Law & Ethics of Human Rights"

The web announcement of this new journal is here, including a table of contents of its first issue.  Links to PDFs of these first papers, and a list of editors, are found here.  [Alan Childress]

New Issue Out: bepress's 'Studies in Ethics, Law, and Technology'

Posted by Alan Childress

The bepress journal Studies in Ethics, Law, and Technology announces at this link its newest issue, Vol. 2, Issue 1.  The journal "is a peer-reviewed and policy-focused journal that examines the ethical and legal issues that arise from emerging technologies."  All papers are easily accessed in PDF via links at either site above.  Its table of contents for lead articles (plus discussions and book reviews not listed here) is as follows:

Death in Traffic: Why Are the Ethical Issues Ignored?
Leonard Evans                                    

The Ethics of Autonomous Military Robots
Jason Borenstein

Privacy, Data Protection, and the Unprecedented Challenges of Ambient Intelligence
Antoinette Rouvroy

The Legal and Ethical Changes in the NHS Landscape Accompanying the Policy Shift from Paper-Based Health Records to Electronic Health Records
Alan C. Gillies

Engineering Greater Resilience or Radical Transhuman Enhancement?
Andy Miah

The Historical Idea of a Better Race
Matti Häyry

BE Press Offers New Online Journal on Law, Ethics and Technology

The BE Press series of e-journals has started a new one, linked here, called Studies in Ethics, Law, and Technology.  Although the description of its subject clearly includes broader ethical issues of bioethics and medical advancements, like moral issues raised by cloning, the subject does seem to include legal ethics as related to technology.  [Alan Childress]

McKenzie & Vaughn on How Computers Change the Way Lawyers Think

Posted by Alan Childress

In addition to our previous post on Richard Danner's article, consider that Elizabeth McKenzie and Susan Vaughn, both law librarians at Suffolk (and Betsy McKenzie is a law prof and the library's director), have posted to SSRN their article, "PCs and CALR: Changing the Way Lawyers Think."  It is also linked in PDF here from bepress.  Here is their abstract:

Computers are changing the way lawyers and judges think. The authors measured differences in analogical reasoning in briefs and decisions written before computers were used in law, and now. They argue that the changes found mandate changes in legal education, that students need more emphasis on careful reading and analysis.

Kohm on Judge Judy vs. People's Court and Their Different Models of Justice

Posted by Alan Childress

The recent effect or mirroring of pop culture and Judge Judy within the legal profession has been a recurring theme of LPB.  It was initially raised by Nancy Rapoport in her previous scholarship (e.g., on lawyer images in popular culture causing effects on lawyering) and continued by her on this blog, and then picked up by me with a post or two on the behavior of judges who seem to be emulating Judge Judy.

There is actually more scholarship related to the specific subject of Judge Judy:  Steven Kohm (Univ. of Winnipeg--Criminal Justice) has published in the Law & Society Review an essay on her show and also People's Court, and their competing visions of law and justice.  It is called "The People's Law versus Judge Judy Justice: Two Models of Law in American Reality-Based Courtroom TV," and was published in 40 Law & Soc. Rev. 693–728 (2006).  It is not downloadable gratis, as far as I know, but can be ordered here.  Unfortunately [my characterization], as he demonstrates, Judge Judy "wins."  Here is Kohm's abstract:

This essay examines the popular American daytime courtroom programs Judge Judy and People's Court and comparatively analyzes two distinct models of law and justice developed in these shows. Using the techniques of qualitative media analysis, I argue that Judge Judy represents a shift in the way popular culture imagines the role of law in the lives of ordinary people. This shift accords with neoliberal notions of governance and individual self-responsibility for protection against risk. Conversely, People's Court represents an older, liberal-legal model of law that emphasizes individual rights, public participation in the court process, and due process. By demonstrating the supersession of Judge Judy justice over that of People's Court, I argue that this shift in the way law is imagined in American popular culture signals wider shifts in American and indeed international attitudes toward the law in our everyday lives.

A few years before, Kohm had written his doctoral dissertation on TV judges after studying 200 hours' worth.  (Ouch.  Sort of like the Michael Caine-Gene Hackman thesis in the movie PCU.)    The dissertation is available as a PDF file from this link (though the file is so big it froze my tiny laptop--man I hate PDF--so better luck to you).  It is cleverly called "I'm Not A Judge But I Play One on TV:  American Reality-Based Courtroom Television."  Its 2004 abstract and alternative download info are linked here.

Coquillette on the Profession, Jury Trials, and Legal Education Circa 1763

Posted by Alan Childress
Daniel Coquillette (B.C.--Law) has posted this article to bepress's NELLCO collection: "The Legal Education of a Patriot: Josiah Quincy Jr.'s Law Commonplace (1763)."  It will appear in Arizona State Law Journal, sum. 2007.  The paper can be downloaded (free and without subscription) from this site.  Here is the abstract:

This article is based on the exciting discovery of a never before printed Law Commonplace, written by the 18th-century lawyer and patriot, Josiah Quincy, Junior. Quincy was co-counsel with Adams in the famous Boston Massacre Trial, a leader of Committee on Correspondence and the Sons of Liberty, and author of the first American law reports. His Law Commonplace provides an exceptional window into the political, racial and gender controversies of the evolving American legal system, and profoundly challenges our conventional views on the origin of American legal education. In certain areas, particularly jury trial, it also has present constitutional significance, as compelling evidence of the state of the law referenced by the Seventh Amendment.

Professor Coquillette discusses the advocacy of Quincy and Adams, and relates it to Cully Stimson's controversial comments, in this Boston Globe op-ed.

Dinovitzer & Garth on Job Satisfaction in the Legal Profession: Sorting the Social Class Factor

Posted by Alan Childress

Ronit Dinovitzer (Univ. of Toronto, Soc'y) and Bryant Garth (Dean of Southwestern Law School & ABF [left]) have posted on SSRN's Law & Society: Legal Prof. journal a provocative empirical article, "Lawyer Satisfaction in the Process of Structuring Legal Careers."  It uses data as part of the ongoing After the JD Project following longitudinally the bar class of 2000 [part of their earlier work from the project, with others, here].  This one will be published in 2007 in Law & Society Review.  Its abstract:

This paper proposes a new approach to the study of job satisfaction in the legal profession. Drawing on a Bourdieusian understanding of the relationship between social class and dispositions, we argue that job satisfaction depends in part on social origins and the credentials related to these origins, with social hierarchies helping to define the expectations and possibilities that produce professional careers. Through this lens, job satisfaction is understood as a mechanism through which social and professional hierarchies are produced and reproduced. Relying on the first national data set on lawyer careers (including both survey data and in-depth interviews), we find that lawyers' social background, as reflected in the ranking of their law school, decreases career satisfaction and increases the odds of a job search for the most successful new lawyers. When combined with the interview data, we find that social class is an important component of a stratification system that tends to lead individuals into hierarchically arranged positions.

In this After the JD Project team photo [all names here], Prof. Dinovitzer is shown sitting toward right, next to Dean Garth.

Spindler on Corporations' Release of Information After Dura Pharmaceuticals' Securities Damages Rule

Posted by Alan Childress

James Spindler (Southern Cal., Law) has posted on bepress Legal Repository the article, "Why Shareholders Want Their CEOs to Lie More after Dura Pharmaceuticals." It will be published next year in the Georgetown Law Journal.  Despite the provocative title, it seems primarily about the timing and "bundling" of release of corporate information and, in any event, raises some implications for proper counseling of corporations after the Supreme Court, per Justice Breyer, decided Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336 (2005).  The abstract:

The Supreme Court's recent Dura Pharmaceuticals decision requires a plaintiff to show a market decline (ex post losses), as opposed to price inflation at the time of purchase (ex ante losses), in order to maintain an action for securities fraud. Since fraud is actionable only where a market decline attributable to the fraud occurs under the ex post loss rule, firms that can bundle together disclosures or business projects are under-deterred by the antifraud regime: the success of one project may compensate for the failure of another, the firm can time the release of good and bad news to mask fraud's effect on price, and "other factors" that would have caused a loss of investment value even without the fraud can disallow a claim for damages. Strategically, firms may bundle to minimize exposure to liability. On the other hand, firms that value transparency may wish to unbundle. In this sense, the credibility of disclosure under an ex post loss rule depends on the extent to which firms can and do unbundle, whereas an ex ante regime is theoretically perfect in any case. This analysis also reveals two additional problems with an ex post rule: market tests for ex post damages awards (a chief purported benefit) are generally not available for bundled firms, and awarding ex post damages may over-punish small frauds but reward big ones.

Spindler had previously posted on analysts' conflicts of interest in "Conflict or Credibility: Analyst Conflicts of Interest and the Market for Underwriting Business."  It was published in volume 35 of the Journal of Legal Studies (June 2006).

Zealous Advocacy Meets Fantasia: A Response to Professor Donohue

Posted by Jeff Lipshaw

John J. Donohue III (Yale) has a column in The Economist's Voice (Berkeley Electronic Press) entitled The Discretion of Judges and Corporate Executives:  An Insider's View of the Disney Case.  To be accurate, Professor Donohue's "insider" status derives from the fact that he was an expert witness for the plaintiff shareholders in the shareholder derivative litigation claiming that Disney officers and directors breached their fiduciary duties and wasted corporate assets.  So it turns out Professor Donohue wasn't a fly on the wall when Michael Eisner and his general counsel, Sanford Litvack, were trying to decide what to do about the very highly paid executive Disney had recently hired, and who was turning out to be one of the great hiring errors in recent corporate history.  Like the rest of us, Professor Donohue was an after-the-fact commentator on the cold record of documents and depositions, taking (hey, that's what we're paid to do) a pot shot, albeit learned, at their decision.

It's pretty clear Professor Donohue does not hold himself out as an expert on Delaware corporate law; he has a distinguished background as a legal academic and economist, and according to his biography on the Yale Law School website "has used large-scale statistical studies to estimate the impact of law and public policy in a wide range of areas from civil rights and employment discrimination law to school funding and crime control. Before joining Yale Law School, he was a chaired professor at both Northwestern Law School and Stanford Law School. He recently published Employment Discrimination: Law and Theory." 

A real insider might have been somebody like Senator George Mitchell (right) who was on the board of Disney at the time, and who took over as the interim chairman of Disney when the board relieved Michael Eisner of that title.

Extended reaction below the fold.

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The Value of Transactional Lawyering

Posted by Jeff Lipshaw

I suppose one reaches a point in one's academic career when one no longer jumps around the house shouting "yes, yes, yes, yes, yes" when one places a law review article, or, as we say, "kvells" quietly upon being cited by anybody, much less a fine scholar in a really interesting and insightful article, and even when you're not sure the citation is for precisely the point you thought you were making.  But I'm still a neophyte, that explains my happy reaction, apart from the real value of the article, to Explaining the Value of Transactional Lawyering, posted by Steven Schwarcz (Duke Law School) in the ExpressO pre-print series. 

The really interesting approach Professor Schwarcz has taken is to collect data from lawyers and clients on their perceptions of the value lawyers create in transactions, and uses it to challenge the "transaction cost engineering" approach proposed over twenty years ago by Ronald Gilson.  With all the appropriate disclaimers for the flaws in the data, Professor Schwarcz hypothesizes that the primary value transactional lawyers bring to the party is not transaction cost engineering (in the sense of reducing the likelihood of future litigation), or acting as reputational intermediaries, but in reducing "client regulatory" and "transaction regulatory" costs.

More below the fold.

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