Legal Ethics Forum

Justice Curtis and Slavery

(Cross posted from The Faculty Lounge)

In a recent interview with Jeffrey Rosen of The New Republic, Justice Ruth Bader Ginsburg was asked “when you think about your constitutional legacy, who’s your model?”  In response, she named John Marshall, the first John Marshall Harlan, Louis Brandeis, Oliver Wendell Holmes, and Thurgood Marshall.  She also added “another justice, one who didn’t serve very long, six years, I think, was Justice Curtis, who wrote a fine dissent in the Dred Scott case.”  Justice Benjamin Robbins Curtis did indeed write a blistering dissent in Dred Scott – and he resigned in disgust shortly afterward – but his overall record on slavery was nothing to be proud of.

Bibliography on legal education reform

Touro College - Jacob D. Fuchsberg Law Center has posted a nice bibliography about legal education reform, with embedded links. It collects lots of useful stuff if you're into that topic. (h/t: Faculty Lounge)

Download Touro - Bibliography about legal education

 

"Karmeier pens 16-page order explaining why he won’t recuse in Price v. Philip Morris"

Story at the Madison Record. (h/t: How Appealing) Excerpts:

Illinois Supreme Court Justice Lloyd Karmeier took a rare step last week when he rejected a request to recuse himself from the court’s review of the long running legal battle over “light” cigarette labeling — he explained why.

In a 16-page order filed Wednesday, the same day the court announced it would again hear arguments in Sharon Price v. Philip Morris, Karmeier discussed the reasoning behind his refusal and addressed the plaintiffs’ allegations he voted to overturn the $10.1 billion verdict against the tobacco company in 2005, the year after it funneled donations to his campaign for the high court.

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In regards to the plaintiffs’ allegation the cigarette maker “was responsible for ‘bankrolling’ my election to this office 10 years ago,” Karmeier said campaign records show his 2004 campaign “received no money whatever from [Philip Morris], its affiliates, or any of its employees.”

While they tried to link Philip Morris to the political action committees of the Illinois Chamber, the Chicagoland Chamber and Illinois Civil Justice League’s JUSTPAC, Karmeier contends the records just don’t support the plaintiffs’ claims.

“According to the materials presented in connection with this matter, neither movant nor any of its affiliates contributed any money to either JUSTPAC or the Chicagoland Chamber PAC in 2003 or 2004,” the order states. “In 2004, Altria Corporate Services, an affiliate of respondent, apparently did contribute $20,000 to the Illinois Chamber PAC.”

Even if Illinois Chamber PAC’s donated the entire $20,000 to his campaign, Karmeier said he wouldn’t have known about it and it would have represented “only 0.4 percent of the total $4.8 million raised in support of my campaign.”

 

Richard C. Reuben, "The Dirty Little Secret of Legal Negotiation: Confidentiality Under Federal Rule 408 and Related State Laws"

Article. Abstract:

There is a widely held belief that legal negotiations are confidential in that communications made during those discussions may not be introduced in subsequent legal proceedings. However, this first major analysis of the primary vehicle responsible for providing this protection – Federal Rule 408 and related state laws – demonstrates how this is no longer true. Rather, relatively few legal negotiations today are covered by the rules, and the federal and state courts have carved out significant exceptions that render the rule a virtual nullity. This is especially problematic modern legal negotiation emphasizes significant disclosure of sensitive information. This article explains how we got to this point, and offers a theoretical framework for regulating alternative dispute resolution processes like legal negotiation that ultimately resolves the problem by shifting the Rule 408 categorical analysis to a simple two-part test: whether the settlement discussion evidence is necessary to prevent undue hardship, and whether it is otherwise unavailable. While current Rule 408 analysis generally leads to the admission of legal negotiation evidence, the proposed analysis provides a principled and pragmatic approach for balancing the fundamental tension between the confidentiality needs of legal negotiation the information needs of public adjudication.

Positivist Legal Ethics Theory and the Law Governing Lawyers: A Few Puzzles Worth Solving (by Amy Salyzyn)

(This post, by Amy Salyzyn, is an abbreviated version of a longer article with the same title that appears in Vol 42:4 Hofstra Law Review. Full citations appear in the original article)

Broadly speaking, positivist accounts of legal ethics share a view that the law owes its normative content to its ability to solve coordination problems and settle moral controversies. This view of the law, in turn, informs a particular view of the lawyer as governed in her actions by the legal entitlements at issue, as opposed to, for example, considerations of morality or justice writ at large.

Because the positivist account grounds a theory of legal ethics in respect for the law, it seems safe to assume that the law governing lawyers is properly viewed as playing a central role in this account. Stated otherwise, the same "fidelity to law" (to use Brad Wendel’s term) that lawyers must exhibit when, for example, interpreting tax codes to advise clients on structuring financial transactions is presumably also required when a lawyer is interpreting how the rules of professional conduct apply to her situation.

What has not been given much attention to date is how the law governing lawyers is different from other types of law. The law governing lawyers does not simply have the status of law (and therefore, assumes a central role in the positivist account), it also addresses the same subject matter — the proper bounds of lawyer behavior — that legal ethics theory itself purports to address. As a consequence, two of the "typical" questions or challenges lobbied at positivist accounts of law — what to do when: (1) following the law leads to unpalatable outcomes; or (2) the law at issue contains moral or discretionary terms — give rise to some outstanding questions in the case of positivist legal ethics theory.

With respect to the first query, a number of other commentators have already observed that positivist legal ethics theory doesn’t seem to have a clear answer to the question of what should happen in circumstances where strict adherence to the law governing lawyers might result in a significant injustice (see, for example, discussion in Andrew B. Ayers, “What if Legal Ethics Can’t Be Reduced to a Maxim?” and David Luban, “Misplaced Fidelity”). Is there an escape valve? If there is one, in what circumstances des it come into play?

Abolitionist Ethics

(Cross posted, with some changes, from The Faculty Lounge)

John E. Cook served as John Brown's advance man and spy in Harper's Ferry, and he was initially one of only seven raiders who was not either killed or captured when the insurrection failed.  He managed to reach Chambersburg, Pennsylvania, where he was apprehended by bounty hunters.  Returned to Virginia for trial, Cook was represented by the Copperhead Democrat Daniel Voorhees, who claimed that Cook had been duped by John Brown, and thus based his defense on a ringing affirmation of slavery. 

Voorhees's trial work was highly professional from the perspective of advocacy, although shameful in its premise.  But Voorhees was not Cook's first lawyer.   When he was  captured in Pennsylvania, Cook had been briefly represented by Alexander McClure, an ardent abolitionist who took a very different approach to the case.  McClure was far more principled than Voorhees concerning human rights, but with much less adherence to legal ethics.

"Fictitious case to snare judge was elaborate"

Story at Philly.com about the federal efforts to catch a suspected crooked state court judge through the use of a phantom arrest and staged criminal case. Query: is it ethical for a federal lawyer to participate in that? (h/t: How Appealing)

(slightly off topic) "Why the Supreme Court keeps smacking down America's top patent court"

Interesting interview at Vox with Robin Feldman about the US Supreme Court's efforts to rein in the Federal Circuit. Here is Feldman's recent essay.The expansion of patent rights under the Federal Circuit strikes me as a case of unconscious institutional bias -- that is, the Federal Circuit increased its own importance through its rulings. I don't doubt the good faith of the judges, but we're all human.

2014 Rebellious Lawyering Conference: “Race” – San Francisco, CA (Nov. 13-15)

The conference site is here.

US DOJ will no longer seek IAC waivers in plea bargains

What a huge result! (Prior coverage here, here, and here.) Congrats to the lawyers who accomplished it. And congrats to the US DOJ for making a sensible, fair policy choice.  Story at WSJ.