On this, the fiftieth anniversary of Gideon v. Wainwright’s broken promise, I have been asked to propose guidelines that (a) provide professional discipline of lawyers who fail to provide competent representation in death penalty cases, but that (b) do not discourage good lawyers from taking death cases or from cooperating with successor counsel who is trying to show that the lawyers were ineffective at trial. It is a pointless exercise. And I have added another pointless exercise, drafting guidelines that will discipline judges who appoint lawyers in death cases whom the judges know or should know will give incompetent representation.
Enforcing the ABA Guidelines in Capital State Post-Conviction Proceedings After Martinez and Pinholster by Eric M. Freedman
The American Bar Association (“ABA”) Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases1 (“Guidelines”) mandate “high quality legal representation in accordance with these Guidelines” from the moment of arrest until the prosecution is no longer entitled to seek the death penalty.2 Commentators have long urged the Supreme Court to translate this sound policy—one that would benefit the states as well as prisoners3—into an explicit rule of constitutional law requiring the states to provide effective counsel in capital state post-conviction proceedings.
Why Do Europeans Ban Hate Speech? A Debate Between Carl Loewenstein and Robert Post by Robert A. Kahn
European countries restrict hate speech, the United States does not. This much is clear. What explains this difference? Too often the current discussion falls back on a culturally rich but normatively vacant exceptionalism (American or otherwise) or a normatively driven convergence perspective that fails to address historical, cultural, and experiential differences that distinguish countries and legal systems. Inspired by the development discourse of historical sociology, this Article seeks to record instances where Americans or Europeans have argued their approach to hate speech laws was more “advanced” or “modern.”
As summer faded to fall in 2005, a hurricane hit New Orleans, a city so unique in its history that it has more history than many American cities. It was nonetheless an American city in these telling parameters: a city of luxury alongside squalor, two-thirds Black, one-fourth poor, with the gap between its rich and poor growing at a gallop as the waters of lake and river lapped gently along aging, grass-covered levees. 1 Freeze the frame before the waters rise, and what do you see? A devastated public school system, where Black children are labeled “failing,” along with their schools. 2 An outdated infrastructure of public works, decried by planners as a disaster waiting to happen.
The Candor Factor: Does Nominee Evasiveness Affect Judiciary Committee Support for Supreme Court Nominees?
Are members of the Senate Judiciary Committee more likely to vote in favor of Supreme Court nominees who are candid and forthcoming during their confirmation hearings? Based on a line by line content analysis of every hearing transcript since 1955, we find that candor actually plays less of a role today than in years past. Specifically, we conclude that since 1981, when the hearings were first televised, senators have been influenced more by partisanship and ideology than by nominee forthcomingness. Thus, contrary to the claims of many lawmakers, candor does not appear to influence the amount of support that a nominee receives at the pivotal committee stage. We close by discussing the political and normative implications of these findings.
Election law is experiencing immense change. The Supreme Court’s recent approach to election law cases has significant implications for the scope of the right to vote and the meaning of political participation and self-governance. This Article examines the importance of the Court’s recent pronouncement that plaintiffs can bring election law challenges only as applied to a particular political actor for a particular situation, instead of challenging a law in its entirety. 1 The “as-applied only” rule may seem like simply a procedural method for construing election laws or a mere semantic distinction, but, as I show, in reality the Court’s decisions have significant substantive ramifications.
The organized bar is increasingly providing pro bono legal assistance to the more than fifty million people of limited means in the United States. 1 In 2008, the 200 highest grossing law firms in the United States contributed a record 5.57 million hours of pro bono service to individuals and organizations that could not afford to hire lawyers. 2 These large firms now have well-organized pro bono programs that enjoy considerable administrative support. But the lawyers in large firms (over 100 lawyers) comprise only about 16% of the lawyers in private practice. 3 Solo and small firm (two to five) lawyers, who comprise 63% of private practitioners, 4 contribute more time and in greater numbers to the pro bono legal representation of persons of limited means than any other group of lawyers.
Before the ink had dried on our critical assessment of new empirical research on implicit bias, 1 Professor Samuel Bagenstos had critiqued our critique. 2 Unfortunately, Bagenstos resorted to an old rhetorical gambit: refute a caricature of an opponent’s position rather than the real thing. If Bagenstos were to be believed, we took the position that the “the law should prohibit only discrimination that results from self-conscious, irrational animus” 3 and that “rational discrimination is not a proper target of antidiscrimination law.” 4 Having attributed this extreme position to us, it is no wonder that Bagenstos concludes that our arguments will “resonate strongly” with those who believe “antidiscrimination law should aim solely at punishing individuals who act on irrational racist and sexist animus” but “will be far less relevant” to those who see discrimination as “a social problem that entrenches the subordinated and disadvantaged status of particular, socially salient groups.
Many legal rules suggest that the dead do not have rights. Often, the dead cannot marry, 1 divorce, or vote. The executor of an estate cannot sue for the libel or slander of a deceased person. And the right to medical privacy substantially erodes at death, giving family members the ability to obtain sensitive information about a decedent’s medical conditions. On the other hand, various legal institutions have spent considerable time trying to protect the rights of the dead. As a result, most testamentary distributions, burial requests, and organ donation designations are held to be valid even if they contradict the preferences of the living. Certain destructions of property requested in wills are honored even though they may have a negative impact on the living. Some states even statutorily recognize a posthumous right of publicity, and recent case law suggests there may be a posthumous right to reproductive autonomy.
It is well known that the Securities and Exchange Commission (“SEC” or the “Commission”) is the administrative agency that regulates insider trading in the United States’ financial markets. 1 It is also well known that insider trading law is notoriously difficult to understand, and even more difficult to apply. 2 It is less well known, however, that the Commission itself adds to this confusion and difficulty through its hesitancy to utilize pleading rules designed to lighten its burden in effecting its insider trading enforcement program (the “Program”). 3 The Program is the Commission’s effort to outlaw trading on material, nonpublic information by corporate insiders and outsiders which harms investors in the United States. 4 Although its goal is clear, the Program is plagued by a combination of poor Congressional guidance, courts that struggle with applying a legal fiction (the insider trading prohibition), and a disjointed Commission. 5 As a result, the prohibition on insider trading continues to be difficult to articulate and enforce. This is a situation detrimental to the Commission, the courts, and the market players—that is, the buyers and sellers of financial securities.