Author: Danielle Citron

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AALS, Professor Dan Markel, and the Scholarly Tradition

This week is the annual law professor conference in New York City. The AALS conference is always a wonderful ritual of learning, discussion, and friendship. Indeed, it was the one time of the year that guaranteed a lunch, dinner, or chat with brilliant criminal law theorist and incredible friend Dan Markel. When Dan was murdered in the summer of 2014, I wrote this post for Forbes about his life’s lessons. For colleagues who are going to AALS this year, CoOp will be having a Markelfest in his honor tomorrow night. I wish that I could be there to celebrate Dan and his passion for scholarship and the world of ideas. We miss you, Dan.

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AALS and Markelfest happy hour

For those of you attending AALS in New York this week, Prawfsblawg is hosting a MarkelFest! Happy Hour from 8:30 p.m.-?? on Thursday (Jan. 7) at Bridges in the Hilton (entrance on the 54th Street side). This will be on the public side of the bar. Please come join us to meet our readers, remember Dan, and carry on the social tradition that he enjoyed so much.

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Privatization: The American Society for Political and Legal Philosophy Meeting

For readers attending AALS (or who live in the New York area), good news: the annual conference of the American Society for Political and Legal Philosophy, on “Privatization,” is being held in conjunction with the annual meeting of AALS on January 6, 2016, in New York. It will take place in the Riverside Ballroom, Sheraton New York Times Square Hotel. Here is the program. The conference features prominent scholars in law, political science, and philosophy. Registration is not required.

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Lawyers and Clients: The Absurd Reality for Indigent Clients Facing Execution

A Thought Experiment

Suppose that Facebook got sued for a privacy tort for hosting nonconsensual pornography and that Facebook’s lawyer told company executives that she did not intend to mount Facebook’s preferred response—a motion to dismiss on the grounds of Section 230 immunity. Executives explained to the lawyer that Section 230 of the federal Communications Decency Act is a knock out punch. An Internet intermediary can’t be held responsible for privacy-invading content created by a user. The lawyer, however, refused to listen to reason.

When Facebook tried to switch attorneys, its first lawyer told the court that Facebook should be forced to remain represented by that lawyer even though Facebook wanted a new one. In making that argument to the court, Facebook’s first lawyer told the court that she was doing a good job for Facebook and that her refusal to mount Facebook’s preferred defense was because Facebook had no Section 230 immunity. Facebook’s lawyer would not only be undermining her own client’s case, but would also be incorrectly representing the underlying issue to the court.

Facebook’s lawyer would be in flagrant violation of fiduciary duties to its client. Of course, clients with money can fire lawyers. Those lawyers certainly should not be permitted to undermine a client’s case in the course of trying to retain the representation—especially by inaccurately representing key features of a case. That sounds so obviously right: a contrary suggestion would surely be absurd.

Absurd Reality for Indigent Clients Facing Execution

For a reason that is hard to fathom, this is precisely what is allowed to happen in criminal cases affecting indigent clients facing execution. Apparently – at least in the Fifth Circuit – the relationship between client principals and lawyer agents is different.

This week, in Roberson v. Stephens, the Supreme Court will consider whether the execution of Robert L. Roberson should proceed even though his lawyers seem to have prioritized their own reputational interests at the expense of their client. Over at Balkanization, my colleague Mark Graber has a careful explanation of how Mr. Roberson’s lawyers seem more preoccupied with their reputations than with resuscitating a Sixth Amendment claim that might save his life.

At issue in Roberson is a failure of legal agency involving the same death penalty lawyers that a palpably displeased Justice Sotomayor rebuked on the eve of their client Raphael Holiday’s November 18 execution. The lawyers refused to file a clemency petition and opposed Mr. Holiday’s attempts to find a lawyer who would follow his wishes and file it. Forced to go along with the Court’s refusal to stay the execution because the attorneys filed a last-minute clemency petition, Justice Sotomayor nevertheless issued a powerful statement criticizing the lawyers for their behavior and the lower courts for failing to police it. She explained that the law does not permit “condemned men and women to be abandoned by their counsel at the last moment . . . [y]et this is exactly what happened here.”

Here again, the same lawyers have seemingly refused to listen to their client, Mr. Roberson, because doing so might require one of them to expose himself to a finding that the forfeiture of the Sixth Amendment claim was his own fault.

As briefing submitted in support of Supreme Court review explains: “In both Roberson and Holiday, the Fifth Circuit permitted the same pattern of conduct: CJA counsel’s refusal to pursue relief on the client’s behalf, followed by counsel’s inaccurate representations to courts about the constraints on seeking such relief, concluding with legal opposition to the very client they were appointed to represent. At base, both Roberson and Holiday express the Fifth Circuit’s view that [the statutory right to counsel] affords courts discretion to saddle inmates facing execution with lawyers who are not functioning as agents of their clients.”

The assessment of the ethics experts in the case is unequivocal. Yale Professor Lawrence Fox is the former Chair of the ABA Standing Committee on Ethics and Professional Responsibility, and the former Chair of the ABA Litigation Section. Professor Fox concluded “to a reasonable degree of a professional certainty that both lawyers are operating under profound conflicts of interest that prevent them from continuing the representation[.]” Charles Herring, a renown Texas ethics expert, explained: “James Volberding and Seth Kretzer have conflicts of interest that should prevent them from representing Mr. Roberson on the [Sixth Amendment issue in the case].”

I may not be a death penalty lawyer, but I know enough to understand that we should not be allowing attorneys to obstruct relief preferred by their own clients—particularly in cases where the attorneys seem to be engaged in obstruction as a means of protecting their own interests. If we would not allow counsel for Facebook to cling onto her job contrary to the interest of its client, we certainly should not do so in a case where the stakes are not just about money but about life and death.

 

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Gifford and Jones on Keeping Cases from Black Juries: An Empirical Analysis of How Race, Income Inequality, and Regional History Affect Tort Law

My colleague Donald Gifford (whose book we featured here) and his co-author sociologist Brian Jones have an important new piece up on SSRN entitled “Keeping Cases from Black Juries: An Empirical Analysis of How Race, Income Inequality, and Regional History Affect Tort Law.” The piece is provocative and original: it may the first paper to use cross-state comparisons in an empirical study of the impact of race, income inequality, regional variations, and political ideologies on tort law.

Here is the abstract:

This Article presents an empirical analysis of how race, income inequality, the regional history of the South, and state politics affect the development of tort law. Beginning in the mid-1960s, most state appellate courts rejected doctrines such as contributory negligence that traditionally prevented plaintiffs’ cases from reaching the jury. We examine why some, mostly Southern states did not join this trend.

To enable cross-state comparisons, we design an innovative Jury Access Denial Index (JADI) that quantifies the extent to which each state’s tort doctrines enable judges to dismiss cases before they reach the jury. We then conduct a multivariate analysis that finds strong correlations between a state’s JADI and two factors: (1) the percentage of African Americans in its largest cities, and (2) its history as a former slave-holding state.

These findings suggest that some appellate courts, particularly those in the South, afraid that juries with substantial African-American representation would redistribute wealth or retaliate for grievances, struck preemptively to prevent cases from reaching them. Surprisingly, we do not find a consistent association between a state’s JADI and either income inequality or its political leanings. In other words, race and region, rather than economic class or politics, explain the failure to embrace pro-plaintiff changes that occurred elsewhere.

We suggest, therefore, that states that declined to discard antiquated anti-jury substantive doctrines between the mid-1960s and the mid-1980s should acknowledge that these precedents were tainted by their predecessors’ efforts to keep tort cases from African-American jurors and refuse to accord them deference.

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From Our Friends at University of Alabama Law School: Position Announcements

The University of Alabama School of Law anticipates making at least two tenured or tenure-track appointments to its faculty, to begin in the 2016-2017 academic year. The Faculty Appointments Committee seeks applications from entry-level candidates with excellent academic records and demonstrated potential for exceptional teaching and scholarly achievement. They also welcome applications from lateral candidates who possess outstanding academic credentials, including demonstrated teaching ability and a record of distinguished scholarship. They are particularly interested in the following academic subject areas: business law, commercial law, employment law, family law, and labor law. For interest, contact Professor Julie A. Hill, Chair of the Faculty Appointments Committee for the 2015-2016 academic year (email: facappts@law.ua.edu).

The University of Alabama School of Law also seeks nominations and applications for a University-level Chairholder. The law school welcomes nominations and applications in all fields of law. Interested candidates should apply online at https://facultyjobs.ua.edu/. Nominations should be e-mailed to Dean Mark E. Brandon at chairsearch@law.ua.edu.

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AALS Section on Poverty Law Call for Papers

AALS Section on Poverty Law

Call for Papers for 2016 AALS Annual Meeting

The AALS Section on Poverty Law is seeking abstracts or drafts of papers to be presented at the 2016 Annual Meeting in New York, NY.  This year’s program is entitled “New Directions in Poverty Law,” and it will be held on Friday, January 8, from 10:30 a.m. to 12:15 p.m. Read More

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Online Symposium: Ertman’s Love’s Promises, How Formal and Informal Contracts Shape All Kinds of Families

It’s an honor to introduce Professor Martha Ertman and the participants in our online symposium on Love’s Promises: How Formal and Informal Contracts Shape All Kinds of Families (Beacon Press). This week, we will be discussing Ertman’s important book, which tells the compelling story of how contracts shape and sustain families. As Professor Vivian Zelizer remarked, “At a time of dramatic transformations in Americans’ family lives, Love’s Promises offers unique insights into how to manage diverse intimate relationships. Ertman makes a compelling case for why, when, and how contracts can enhance loving relationships. A pioneering book that should be read by all those concerned with current and future families.

Love’s Promises raises a host of fascinating and timely questions. Can and should private contracts substitute for formal marriage? Does putting a price tag on familial relationships change the nature of those relationships? Should we get state lawmakers out of the family business? Does it matter if those issues involve children or adults?

To consider these and many other issues, we have invited an all-star cast of thinkers: Jana SingerKimberly MutchersonCarlos BallMichele GoodwinDoug NeJaimeNaomi Cahn, Solangel MaldonadoZvi TrigerHillary BerkRobin LenhardtRosanna Hertz, and Judith Stacey.

We are excited for the discussion to begin!

 

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Boston University Law Review’s Symposium on the Civil Rights Act at 50

BOSTON UNIVERSITY LAW REVIEW

VOLUME 95 NUMBER 3

MAY 2015

SYMPOSIUM: THE CIVIL RIGHTS ACT OF 1964 AT 50: PAST, PRESENT, AND FUTURE

Editors’ Foreword

PANEL I: HISTORICAL PERSPECTIVES

The Long Civil Rights Act and Criminal Justice— Margaret Burnham

Intersectionality and Title VII: A Brief (Pre-)History— Serena Mayeri

Private Rights and Private Actions: The Legacy of Civil Rights in the Enforcement of Title VIIGeorge Rutherglen

The Regional Economic Impact of the Civil Rights Act of 1964Gavin Wright

PANEL II: CLASSIFICATIONS AND CATEGORIES IN THE 1964 ACT AND IN SUBSEQUENT CIVIL RIGHTS LAWS

Reading Amendments and Expansions of Title VII Narrowly— Henry L. Chambers, Jr.

Marital Status Discrimination 2.0Courtney G. Joslin

Backlash, Courts, and Disability RightsMichael Waterstone

PANEL III: RESHAPING PUBLIC AND PRIVATE SPACE: PUBLIC ACCOMMODATIONS, NEIGHBORHOODS, AND HOUSING

Can’t We Be Your Neighbor?: Trayvon Martin, George Zimmerman and the Resistance to Blacks as NeighborsJeannine Bell

Model Neighborhoods Through Mayors’ Eyes Fifty Years After the Civil Rights Act— Katherine Levine Einstein & David M. Glick

The Civil Rights Act of 1964 and “Legislating Morality”: On Conscience, Prejudice, and Whether “Stateways” Can Change “Folkways”Linda C. McClain

We Don’t Serve Your Kind Here: Public Accommodations and the Mark of SodomJoseph William Singer

 Bargaining for Civil Rights: Lessons from Mrs. Murphy for Same-Sex Marriage and LGBT RightsRobin Fretwell Wilson

PANEL IV: RESHAPING PUBLIC AND PRIVATE SPACE: EDUCATION, THE WORKPLACE, AND THE MILITARY

On Not “Having It Both Ways” and Still Losing: Reflections on Fifty Years of Pregnancy

Litigation Under Title VIIDeborah L. Brake

 Right to Serve or Responsibility to Protect? Civil Rights Framing and the DADT RepealCatherine Connell

Moving Forward, Looking Back: A Retrospective on Sexual Harassment LawJoanna L. Grossman

Reactive to Proactive: Title IX’s Unrealized Capacity to Prevent Campus Sexual AssaultKatharine Silbaugh

PANEL V: PROVING DISCRIMINATION

On Employment Discrimination and Police Misconduct: Title VII and the Mirage of the “Monell Analogue”Tristin K. Green

 Class-Based Adjudication of Title VII Claims in the Age of the Roberts CourtMichael C. Harper

Addressing Systemic Discrimination: Public Enforcement and the Role of the EEOCPauline T. Kim

Special Treatment Everywhere, Special Treatment NowhereNoah D. Zatz

PANEL VI: THE LIMITS AND FUTURE OF ANTIDISCRIMINATION LAW

The Horizontal Effect of a Right to Non-Discrimination in Employment: Religious Autonomy Under the U.S. Constitution and the Constitution of South AfricaSonu Bedi

Blaming Mothers: A Disability PerspectiveRuth Colker

RECEPTION ADDRESS

Now We Must Cross a Sea: Remarks on Transformational Leadership and the Civil Rights Movement— Walter Earl Fluker

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Upcoming Online Symposium on Martha Ertman’s Love’s Promises: How Formal and Informal Contracts Shape All Kinds of Families

During the week of June 22, 2015, we will be hosting on online symposium on Professor Martha Ertman’s ground-breaking new book Love’s Promises: How Formal and Informal Contracts Shape All Kinds of Families (Beacon Press). Most people think of love and contracts as strange bedfellows, or even opposites. Professor Ertman’s Love’s Promises shows that far from cold and calculating, contracts shape and sustain families. Insightful, accessible, and revelatory, Love’s Promises lets readers in on the power of contracts and deals to support love in its various forms and to honor the different ways that individuals contribute to our daily lives.

To discuss Love’s Promises, we will be joined by an exciting group of scholars (including Martha Ertman): Jana SingerKimberly MutchersonCarlos BallMichele GoodwinDoug NeJaimeNaomi Cahn, Solangel MaldonadoZvi TrigerHillary BerkRobin LenhardtRosanna Hertz, and Judith Stacey

For D.C./Maryland residents, you can catch Professor Ertman doing a reading from the book today at 3 p.m. at Politics & Prose.