Digital Commons Network^™

Law School Clinics And The First Amendment, Jonathan L. Entin

Faculty Publications

No abstract provided.

Fictionalized Criminal Law And Youth Legal Consciousness, Avi Brisman

NYLS Law Review

No abstract provided.

The Political Economy Of Criminal Procedure Litigation, Anthony O'Rourke

Journal Articles

Criminal procedure has undergone several well-documented shifts in its doctrinal foundations since the Supreme Court first began to apply the Constitution’s criminal procedure protections to the States. This Article examines the ways in which the political economy of criminal litigation – specifically, the material conditions that determine which litigants are able to raise criminal procedure claims, and which of those litigants’ cases are appealed to the United States Supreme Court – has influenced these shifts. It offers a theoretical framework for understanding how the political economy of criminal litigation shapes constitutional doctrine, according to which an increase in the number …

Rationing Justice By Rationing Lawyers, Peter A. Joy

Scholarship@WashULaw

The number of lawyers in the United States continues to increase, but low and middle-income persons still find it difficult, if not impossible, to afford legal assistance. National and state surveys reveal that more than 80 percent of the civil legal needs of the poor go unmet, as do a majority of the needs of middle-income persons. Legal representation can often dramatically increase a person’s ability to win at trial or to negotiate a favorable outcome, and the lack of access to lawyers effectively closes the courthouse doors for millions. This Article focuses on the crisis in Missouri's public defender …

Government Property And Government Speech, Joseph Blocher

Faculty Scholarship

The relationship between property and speech is close but complicated. Speakers use places and things to deliver their messages, and rely on property rights both to protect expressive acts and to serve as an independent means of expression. And yet courts and scholars have struggled to make sense of the property-speech connection. Is property merely a means of expression, or can it be expressive in and of itself? And what kind of “property” do speakers need to have – physical things, bundles of rights, or something else entirely?

In the context of government property and government speech, the ill-defined relationship …

Crisis In The Legal Profession: Don’T Mourn, Organize!, Michael E. Tigar

Faculty Scholarship

No abstract provided.

The State (Never) Rests: How Excessive Prosecutor Caseloads Harm Criminal Defendants, Adam M. Gershowitz, Laura R. Killinger

Faculty Publications

No abstract provided.

Constitutionalizing Immigration Law On Its Own Path, Anne R. Traum

Scholarly Works

Courts should insist on heightened procedural protections in immigration adjudication. They should do so under the Fifth Amendment’s Due Process Clause rather than by importing Sixth Amendment protections from the criminal context. Traditional judicial oversight and the Due Process Clause provide a better basis than the Sixth Amendment to interpose heightened procedural protections in immigration proceedings, especially those involving removal for a serious criminal conviction. The Supreme Court’s immigration jurisprudence in recent years lends support for this approach. The Court has guarded the availability of judicial review of immigration decisions. It has affirmed that courts are the arbiters of constitutional …

The Exclusionary Rule In Immigration Proceedings: Where It Was, Where It Is, Where It May Be Going, Irene Scharf

San Diego International Law Journal

The piece examines the treatment of the Fourth Amendment in immigration courts by surveying its jurisprudential history in those courts and then analyzes the judicial responses thereto. Disparities among circuit court rulings add to the confusion and unpredictability typical of Immigration Court decisions. Finally, the article discusses the difficulties raised by the divergent circuit court opinions and offers suggestions as to how we may resolve these difficulties in accordance with the Constitution's requirement of fair play.

Overcoming Defiance Of The Constitution: The Need For A Federal Role In Protecting The Right To Counsel In Georgia, Stephen B. Bright, Lauren Sudeall Lucas

Faculty Publications By Year

In their issue brief, Mr. Bright and Ms. Lucas discuss the problems that have existed in Georgia’s indigent defense system since Gideon was handed down. They contend that “[a]ll three branches of Georgia’s government have failed in their constitutional responsibility to ensure that poor people accused of crimes are effectively represented by competent lawyers.” They also argue that “[t]he federal government, which has made immense contributions to the prosecution of criminal cases in Georgia through grants to law enforcement, prosecutors, and courts, shares responsibility for the integrity of Georgia’s criminal justice system and the enforcement of the constitutional right to …

Litigating The Ghost Of Gideon In Florida: Separation Of Powers As A Tool To Achieve Indigent Defense Reform, Wayne A. Logan

Scholarly Publications

This paper, part of a symposium addressing indigent defense-related issues, examines litigation challenging a Florida law that expressly prohibits courts from granting public defender motions to withdraw on the basis of an alleged conflict of interest caused by excessive caseload or underfunding.

Raising The Bar: Standards-Based Training, Supervision, And Evaluation, Adele Bernhard

Articles & Chapters

In this short Article, I sketch the methodology my colleagues and I at Pace Law School use to incorporate practice standards into our clinical teaching and reflect on how a standards-based teaching paradigm could be adapted to the training, supervision, and evaluation of public defenders. Then, I briefly consider how standards and standards-based teaching assist in the administration of assigned counsel plans and in the evaluation of the performance of public defender organizations. Although this Article does not cover any of these topics in depth, my goal is to introduce the reader to a standards-based approach to teaching and suggest …

The "Licentiousness" In Religious Organizations And Why It Is Not Protected Under Religious Liberty Constitutional Provisions, Marci A. Hamilton

William & Mary Bill of Rights Journal

No abstract provided.

The “Licentiousness” In Religious Organizations And Why It Is Not Protected Under Religious Liberty Constitutional Provisions, Marci A. Hamilton

Articles

No abstract provided.

Advising Noncitizen Defendants On The Immigration Consequences Of Criminal Convictions: The Ethical Answer For The Criminal Defense Lawyer, The Court, And The Sixth Amendment, Yolanda Vazquez

Faculty Articles and Other Publications

This Article discusses the tension between the Sixth Amendment analysis by courts on the issue of immigration consequences of criminal convictions and the moral and ethical duties that an attorney owes his noncitizen client. Under the majority of jurisdictions, federal circuit and state courts hold that there is no duty to advise on this issue because they are deemed to be “collateral”. However, a growing number of these jurisdictions have begun to find a Sixth Amendment violation for failure to advise. These jurisdictions have created a Sixth Amendment duty only when: 1) the attorney “knew or should have known” the …

Justice Souter On Government Speech, Sheldon Nahmod

All Faculty Scholarship

No abstract provided.

Gps Monitoring May Cause Orwell To Turn In His Grave, But Will It Escape Constitutional Challenges? A Look At Gps Monitoring Of Domestic Violence Offenders In Illinois, 43 J. Marshall L. Rev. 845 (2010), Mary Ann Scholl

UIC Law Review

No abstract provided.

The Government-Speech Doctrine: “Recently Minted,” But Counterfeit, Steven H. Goldberg

Elisabeth Haub School of Law Faculty Publications

The foci of this Article are the ill-advised creation of a government-speech doctrine in Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009), and its potential for substantial First Amendment mischief particularly with respect to the establishment of religion. Created out of whole cloth, with no regard for precedent, and in a case that did not even raise the issue of government speech, the doctrine permits the government to speak with viewpoint about controversial cultural issues upon which the government has no constitutional right to act. Asked to find unconstitutional the refusal of a municipality to allow a Summum …

The Roberts Supreme Court Takes A Sledge Hammer To Ashwander And Cautious Constitutional Jurisprudence: Citizens United V. Federal Election Commission., Allen E. Shoenberger

Faculty Publications & Other Works

No abstract provided.

When Leviathan Speaks: Reining In The Government-Speech Doctrine Through A New And Restrictive Approach, Carl G. Denigris

American University Law Review

No abstract provided.

Rising Seas And Common Law Baselines: A Comment On Regulatory Takings Discourse Concerning Climate Change, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

In several recent cases considering claims that regulatory measures addressing rising sea levels violate the Takings Clause, courts have given significant normative weight to traditional common law rules, even when such rules have long been superseded by statutory provisions. This essay argues that giving analytic precedence to such common law baselines lacks justification and can pose serious obstacles to reasonable measures to adapt to climate change.

Ensuring The Ethical Representation Of Clients In The Face Of Excessive Caseloads, Peter A. Joy

Scholarship@WashULaw

The right of one charged with [a] crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impar-tial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with [a] crime has to face his accusers without a lawyer to assist him.

You can't give me too many cases, too many clients, …

Government Speech 2.0, Helen Norton, Danielle Keats Citron

Publications

New expressive technologies continue to transform the ways in which members of the public speak to one another. Not surprisingly, emerging technologies have changed the ways in which government speaks as well. Despite substantial shifts in how the government and other parties actually communicate, however, the Supreme Court to date has developed its government speech doctrine--which recognizes "government speech" as a defense to First Amendment challenges by plaintiffs who claim that the government has impermissibly excluded their expression based on viewpoint--only in the context of disputes involving fairly traditional forms of expression. In none of these decisions, moreover, has the …

Supreme Court Criminal Law Jurisprudence - October 2008 Term, Richard Klein

Scholarly Works

No abstract provided.

A Potent Federal Prosecutorial Tool: Weyhrauch V. United States, James T. Van Strander

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

The Lodestar Ranger: Calculating Attorneys’ Fee Awards In Perdue V. Kenny A., Rebecca Friedman

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

Penalizing Poverty: Making Criminal Defendants Pay For Their Court-Appointed Counsel Through Recoupment And Contribution, Helen A. Anderson

University of Michigan Journal of Law Reform

Over thirty years ago the United States Supreme Court upheld an Oregon statute that allowed sentencing courts, with a number of important procedural safeguards, to impose on indigent criminal defendants the obligation to repay the cost of their court appointed attorneys. The practice of ordering recoupment or contribution (application fees or co-pays) of public defender attorney's fees is widespread, although collection rates are unsurprisingly low. Developments since the Court's decision in Fuller v. Oregon show that not only is recoupment not cost-effective, but it too easily becomes an aspect of punishment, rather than legitimate cost recovery. In a number of …

Prioritizing Professional Responsibility And The Legal Profession: A Preview Of The United States Supreme Court’S 2009–2010 Term, Renee Newman Knake

Duke Journal of Constitutional Law & Public Policy Sidebar

This term, the Supreme Court is scheduled to hear ten cases on the role of attorneys and the practice of law. In doing so, the Court is departing from its normal practice of hearing two, or at most three, cases on professional responsibility. Prof. Renee Knake of Michigan State University College of Law reviews the professional responsibility cases on the Court's docket and examines how they could influence the practice of law.

Barriers To Representation For Detained Immigrants Facing Deportation: Varick Street Detention Facility, A Case Study, Peter L. Markowitz

Articles

There is an evolving crisis in the immigration courts and federal courts of appeals caused by the lack of quality representation for immigrants facing deportation. The problem is particularly acute for immigrants who are detained during their removal proceedings. As part of the Study Group on Immigrant Representation (Katzmann study group), the Subcommittee on Enhancing Mechanisms for Service Delivery undertook a case study of the institutional and legal barriers to quality legal representation for immigrants held at the Varick Street Detention Facility in New York City. Through this lens we hope to offer some useful insights into the core factors …

Conditional Cross-Petition For A Writ Of Certiorari, Holder V. Humanitarian Law Project, No. 08-1498 (U.S. July 6, 2009), David Cole

U.S. Supreme Court Briefs

No abstract provided.