Policy report here. As a former plaintiff's-side antitrust lawyer, I was surprised to see the FTC toying with ideas like legalizing cartels, price-fixing, antitrust exemptions, erecting barriers to entry, etc. Maybe I was naive, but I had thought that the internet and blogging (what the report calls "amateur journalism") had done some great "re-inventing" without the need of direct government regulation. Particularly in the legal field, the emergence of amateur journalists has been a boon to the law-obsessed readers of the world. Before that, we had the occasional NYT, WSJ or WaPo article, usually written well below the level of sophistication that lawyers would appreciate, and we had the welcome but too limited output of the American Lawyer Media. The FTC report reads like a case of regulatory capture, as the premise seems to be, "what would print newspapers like from us?"
[UPDATED] This post is about fascinating case, where a prosecutor may or may not have intentionally "thrown" a case in the defense's favor. We had a lot of discussion about the case at this blog and at the Balkinization blog as well, and then David Luban used the case as the grist for his Tabor Lecture at Valparaiso. Just recently, we had a commenter leave a message that she became aware of another situation that appears to be similar, and so I decided to let David Luban know and then bump the post. In my original post, I linked to the SSRN version of Luban's speech, but just recently in the comments below David suggested that people who are interested in the case should read his final, updated version as it was printed in the law Valparaiso Law Review:
"By the way, the published version of my "The Conscience of a Prosecutor" is significantly different from the draft I posted on SSRN and linked here. After I posted the draft, one of the defense lawyers read it and contacted me to offer his very different impressions of the case. On the basis of my conversations with Cohen, I re-interviewed Dan Bibb, who fleshed out the story still more. I would urge anyone interested in this case to read the version published in 45 Valparaiso L. Rev. 1 (2010) rather than the version posted on SSRN."
Here's, "The Conscience of a Prosecutor," the 2010 Tabor Lecture at Valparaiso, by David Luban. (The abstract is below.) The lecture deals with a NYC prosecutor, Daniel Bibb, who "threw" a case because he believed the defendants to be innocent. David Luban blogged about the matter at Balkinization, several of us chimed in with comments (Stephen Gillers, Marty Lederman, and me), and the comments became part of Luban's lecture. My view, in a nutshell, is that if by "threw" we mean "covert deceit" then the prosecutor erred. Btw, the lecture was dedicated to the memory of Fred Zacharias.
UPDATE: See the comments below by Brad Wendel, whose new book will reference the blawgospheric debate.
This essay, a version of the 2010 Tabor Lecture at Valparaiso Law School, examines issues about the role of a prosecutor in the adversary system through the lens of the following question: Should a prosecutor throw a case to avoid keeping men who he thinks are innocent in prison? This issue came to prominence in 2008, when Daniel Bibb, a New York City prosecutor, told newspaper reporters that he had done so in connection with a 1991 murder conviction that he had been assigned to reinvestigate after new evidence emerged that the wrong men had been convicted and were serving lengthy sentences. Bibb’s superiors required him (over his protests) to defend the convictions in a hearing to determine if the men should be retried. He had exhaustively reinvestigated the case, including interviews with reluctant witnesses who it seemed unlikely that anyone but Bibb could get to testify. This essay delves into the facts of the case and includes interview material with Daniel Bibb. It defends Bibb’s conduct, and argues that rather than facing professional discipline (as some ethics experts suggested), Bibb deserves praise. The essay uses the episode to examine the meaning of familiar adage that prosecutors must seek justice, not victory; the question of whether a subordinate lawyer in an organization must defer to the judgment of his or her superiors; and the role of conscience in legal ethics.
On this Memorial Day, here's some of what happening in legal ethics. . . . . . Here's a short, cite-heavy paper by Emile Loza arguing that some understanding of transnational law may be part of a lawyer's duty of basic competence. . . . . . Score one for the lawyers. The NYT's review of Jack Rakove's new book, Revolutionaries, has this: "The legal profession takes a regular, reflexive drubbing in
America. But Mr. Rakove reminds us how lucky we are that so many of our
founders had closely studied law. He quotes Edmund Burke, who wrote that
devotion to the law 'renders men acute, inquisitive, dexterous, prompt in
attack, ready in defense, full of resources.' Burke added: 'They auger
misgovernment at a distance; and snuff the approach of tyranny in every tainted
breeze.'" I bought the book in the airport but won't get to it before the summer. . . . . . Judge Raymond McKoski, "Judicial Discipline and the Appearance of Impropriety: What
the Public Sees is What the Judge Gets." Abstract:
Judges are required to forego a litany of professional and
personal behaviors deemed to be inconsistent with the role of the neutral
magistrate. For example, codes of judicial conduct prohibit ex parte
communications, the misuse of office, public commentary on prohibited topics,
and participation in certain civic, religious, and political activities.
In addition to specific rules barring actual improprieties,
it is commonly believed that a broader disciplinary standard is necessary to
fully safeguard the public’s faith in the judiciary. As a result, under
virtually every state judicial code, discipline may be imposed upon a judge for
conduct which violates no particular rule but which is thought to create an
"appearance of impropriety.”
This Article examines the disciplinary use of the appearance
of impropriety standard from a theoretical and practical standpoint. The
history of the standard is explored together with the most debated aspect of
the rule – whether the appearance of impropriety prohibition can survive a
vagueness challenge. The inescapable conclusion is that it cannot. A
cost-benefit analysis further discloses that the disadvantages of the rule
clearly outweigh its oft-touted but, nevertheless, illusory benefits. It is
proposed that the use of the appearance standard as a disciplinary rule should
be discontinued or, in the alternative, that a limiting construction should be
placed on the "appearance of impropriety" thereby supplying the
specificity needed to meet due process requirements.
Via The Faculty Lounge and the NYT. It appears that Prof. Erlinder's arrest is attributed to his alleged denial of the Rwandan genocide -- but that may simply mean that he is representing an unpopular client in a country with a repressive government. I will try to keep this story updated.
UPDATE: Please see the comments by Scott Erlinder, who points us to this article by Peter Erlinder. I'm still learning about the issues but this matter presents a case of a lawyer being arrested and charged for advocacy in the court of public opinion and quite possibly in the courts in his role as defense counsel. As I say, I will try to stay on top of this issue. (I've edited the title of the post, so that it now reads "Rwanda.") News here and here; opinion piece here; NLG statement discussed here. (I found this article and video of Prof. Erlinger, discussing Ojibwe legal rights.)
UPDATE 2: Here's a page forwarded to us by Scott Erlinder, providing context:
I was given an original copy of the Washington Post (my hometown) for the day I was born: May 29, 1960. Believe it or not, all those news stories were in the paper that day, a half-century ago. To keep a feel for the original, I will use some of the out-dated terminology that was used back then. Below the jump is the editorial about funding more federal judgeships.
Khrushchev said of Eisenhower, “Everybody knows that the
President of the United States has two duties: The first is to play golf and
the second is to be President, and golf-playing is more important.”.....The Post surveyed jurors and
reported that “they frequently found lawyers’ arguments monotonous.”.....An all-white Alabama jury
acquitted Rev. Martin Luther King, Jr., of perjury on his tax returns.A “Negro reporter” was ejected from the
closing arguments when he sat in a section reserved for whites.[Alabama would go after Rev. King
again, unsuccessfully, on perjury charges related to taxes.] .....Communists almost duped a
lawyer into giving them aerial photos of Alaska.They tricked him into acquaintanceship by playing to his
enthusiasm for Esperanto. .....Relief efforts were underway
for Chilean victims of an earthquake......Sen. Al Gore was being
quoted about foreign policy......An all-white union opposed the hiring of Negro electricians......“Mantle, Maris hit home runs” against the beloved Nats. .....A Florida Congressman killed a proposal by which the District would have
opened a junior college that Negroes could have attended.[At that time, DC residents couldn’t
vote for anything at all and were largely governed by white, southern members of Congress.]Below
the jump is an editorial about Chief Justice Warren’s request for more federal
We got some clarification on the facts from the White House today, but what has been said thus far does not change what should be obvious -- this is politics and not much else.
Some commentators, including some Members of Congress, continue to advance the theory that it is illegal for the Administration to offer a job to someone who has declared that he will run for federal office, that such an offer is "bribing" the person not to run and is illegal interference in a federal election. As I have previously explained, such an offer cannot possibly be a bribe because an Administration job and standing for election are mutually exclusive under the Hatch Act. One cannot be Secretary of the Navy (a job apparently not offered to Sestak) and a candidate for Congress at the same time. The advisory board positions that apparently were discussed with Sestak would be exempt from this provision of the Hatch Act, but are uncompensated and of minimal other value to a United States Congressman. The suggestion that someone would abandon a Senate bid for such an advisory board position is laughable. Where there is nothing offered up it is hard to discern a quid pro quo. The "bribe"story does not hold water.
As for interfering in an election, 18 USC 595, this statute can be interpreted very broadly to prohibit any official capacity activity by a federal employee that affects the outcome of an election (announcing a new Transportation Department project in a Congressman's district, giving a federal job to a candidate or potential candidate, etc.). It isn't. Indeed, I never heard of such a broad interpretation, until now. Such an interpretation would place in legal jeopardy anyone who worked it the political affairs office of any Administration, Republican or Democratic, and many others as well. Such an interpretation would prohibit any Administration job offer to any Member of Congress who intends to run for reelection.
For other reasons, I have suggested that we rethink the ill advised concept of having an Office of Political Affairs at the White House, and put that office at DNC or RNC instead. Moving this office might reduce the excessive politicization of White House decision making, but it won't stop it
Long before there was a White House Office of Political Affairs, FDR advisor Harry Hopkins is reported to have said "We will spend and spend, and tax and tax, and elect and elect." Has anything much changed? I would ask that commentators, particularly those who have worked in political affairs and know what goes on in Washington, spare us sanctimonious statutory interpretation that contradicts much of what the federal government does.
Meanwhile, we are distracted from what is going on right now with the banking bill and the lobbyists who have every intention of legally interfering with federal elections in the fall if they don’t get what they want from Congress now.
Here's a statement from Robert Bauer, White House Counsel. The key distinction, it will apparently be argued, is that the offer was for an unpaid position. Can an unpaid position be a "thing of value" nonetheless?
Yesterday in the NYT Nicholas Kristof had an article about a nun who was ex-communicated because she participated in a panel that permitted an abortion at 11 weeks gestation in order to save the life of the mother. A number of things struck me about the article, but one was about the implicit and conflicting conceptions of how the ethics of conduct should be determined put forward by the Church on the one hand, and by Kristof on the other. In the church's conception, there is a rule that governs conduct - not participating in the procurement of an abortion - and any behaviour inconsistent with that rule is properly judged to be unethical. In Kristof's conception, ethical behaviour depends on the proper application of the rule in context; where the application of the rule would violate morality, all things considered, then the ethical decision is to ignore the rule.
My question is this: which conception of ethics is most prevalent within legal ethics? And can one ever distinguish between different theories of legal ethics based on the extent to which they view rules as determinative of whether conduct is ethical, and the extent to which they view "decisions in context" as determinative of whether conduct is ethical?
In my (tentative, and subject to change) view it is likely that some theories tend to be more rule orientated, and others tend to be more decision in context orientated. For example, I think the perspective of David Luban, or of Bill Simon, would tend to orientate more towards decision in context than towards the application of a rule across circumstances. On the other hand, I think people like Brad Wendel, who argue for fidelity to law, might be perceived as more rule orientated and less towards decision-in-context.
I'm not suggesting that that is entirely the case - I'm not lining Brad up here with the Catholic church's view, or suggesting that David and Bill don't see rules of conduct as having relevance to ethical decision-making - but just that there might be a general theoretical orientation one way or another that distinguishes the theories in some way.
Further, I think there are some rules in legal ethics that we tend to perceive as more rule driven and others that we tend to view as more decision in context driven. For example, I think we tend to view confidentiality rules as relatively inviolable, so that in a case like Alton Logan the answer is non-disclosure, even though in its own specific context that decision can seem ethically perverse.
On what basis do we make that distinction? I think there is an initial debate to be had, on whether ethics is best orientated towards rules or towards decision-in-context, that can have implications down the line on how one approaches particular issues.
On a more personal note, I think I am perhaps troubled by this issue because I often tend towards rules as important for governing ethical conduct in lawyers, but I also feel like Kristof has the better of the argument (although that might simply reflect my underlying disagreement with the church's rule).