Tag Archives: Issue 3

Professional Discipline of Death Penalty Lawyers and Judges by Monroe H. Freedman

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 … Continue reading

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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 … Continue reading

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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 … Continue reading

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The Significance of the Shift Toward As-Applied Challenges in Election Law

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 … Continue reading

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Pro Bono Publico in a Parallel Universe: The Meaning of Pro Bono in Solo and Small Law Firms

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 … Continue reading

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Facts Do Matter: A Reply to Bagenstos

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 … Continue reading

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RIGHTS OF THE DEAD

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 … Continue reading

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SEC Rule 10B5-2: A Call for Revitalizing the Commission’s Efforts in the War on Insider Trading

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 … Continue reading

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The End of an Era: Closing the Exclusionary Debate Under Herring v. United States

For nearly a century, aggressive judicial correction of government abuses has protected individual privacy rights. Favoring result over method, many of the Supreme Court’s remedies attract harsh criticism for their heavy-handed but uncertain application—subject to constant metamorphoses while maintaining a … Continue reading

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Finding Common Ground: How Inclusive Language Can Account for the Diversity of Sexual Minority Populations in the Employment Non-Discrimination Act

The Employment Non-Discrimination Act (“ENDA”) aims to protect all American employees who are or may be perceived as gay, lesbian, or bisexual by prohibiting discrimination in employment or employment opportunities, including, “firing, hiring, compensation, terms, conditions and privileges of employment … Continue reading

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