Category: Legal Ethics

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Privacy, Power & Ethics Conference April 5-6

I am pleased to announce that Seton Hall Law School’s Institute for Privacy Protection will be hosting their spring conference, Privacy, Power, & Ethics, on April 5-6, 2019. The conference will bring together a variety of technologists, attorneys, and legal academics to discuss legal issues at the intersection of emerging technology, privacy, and ethics. Continuing legal education credits (8 NJ including 4 ethics and 7 PA including 2 ethics) will be available to participants (based on full attendance).

Registration details may be reviewed here:   https://law.shu.edu/privacypower.

If you have any questions, please do not hesitate to contact Stephanie Montalvo at Stephanie.montalvo@shu.edu.  We look forward to seeing you all in April!

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Bad Bankruptcy?

Although I hope to spend most of May talking about “Contract (as) Social Responsibility,” today’s news that Cambridge Analytica is going into bankruptcy (and the English counterpart) reminds me that an important, severely undertheorized question about corporate bankruptcy is whether, or to what extent, questions of morality and ethics matter  in this context?

We know that Congress takes the morality of consumer debtors seriously.  That, Congress said, was why they amended the Bankruptcy Code in 2005 to “get tough” on consumers who wanted to walk away from their debts.  But with the Weinstein Companies and (earlier) many Catholic dioceses viewing Chapter 11 as a way to convert sins of the flesh to sins of the balance sheet, it is (again) worth asking:  should Chapter 11 be used to cash out (almost) all social problems?

The answers are not easy, and I don’t pretend to have them, but our nearly single-minded focus on the financial, rather than the ethical, aspects of corporate reorganization is, itself, interesting, especially given the very different treatment accorded consumers.  A woman who ran up unmanageable medical bills for therapy following sexual assault by Harvey would find it much harder to use bankruptcy to escape those liabilities than would the Weinstein Company for its respondeat superior debt for the underlying misconduct.

In what world is that the right normative answer:  the corporate perpetrator can walk away, but the victim can’t?  The answer, it would appear, is “ours.”

 

 

 

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Empowering Law Students in a Time of Trouble

The presidential election of 2016 ended with a stunning upset. The result left many people concerned about the future. As a law professor, I think I have a special responsibility to think about those concerns, because my students are becoming lawyers at a time when our nation may need lawyers more than ever.

This fall, I’ve taught a small group of first-year students. We’ve worked on much more than civil procedure doctrine; we’ve worked on lawyering.   Students have to attempt uncomfortable arguments, analyze in unaccustomed ways, write “like lawyers,” and attend to details of facts and procedure.

Before the election, I’m not sure I’d explained why lawyering matters. As John Adams said in 1780, this is “a government of laws and not of men,” that is, a government of laws and not of individuals. If, as many fear, President-Elect Donald Trump acts as though he does not understand what a government of laws means, we can despair, or we can do what lawyers do: use our power to keep government within the law and not use government power in pursuit of individual gain or to injure some groups while helping others.

Law students sometimes lack an appreciation for the primacy of law. When we examine the Constitution, some are surprised that Article I is about the Congress, the body charged with enacting laws. Article II concerns the executive branch, which is charged with carrying out the laws. While students (and many lawyers) think the courts are more important, we only hear about them in Article III.   The creation of law comes first; execution, interpretation and enforcement come later.

The idea that federal government officials use their power solely as authorized by the Constitution and by laws enacted by Congress is plainly an aspiration and not always the reality. The smaller the gap, the more confident people feel that we are protected from government going awry.

Students in civil procedure read many cases in which government goes awry, starting with Pennoyer v. Neff. The Supreme Court said no when a court allowed a plaintiff to use government power to limit a defendant’s rights in his property without giving the defendant notice in advance. Even a court is not permitted to use power except consistently with the law. No government official or government institution is permitted to act illegally – not the president, not the Congress, not a judge, and not a police officer.

Over the course of my career, my colleagues and I have frequently had to insist that government officials act legally. Some of these officials have been Democrats and some have been Republicans, but all are subject to the law. We’ve argued and won child custody and family violence cases by demanding that the judge decide the case based on the law and not out of gender bias. We’ve persuaded courts not to convict a defendant unless the state has demonstrated beyond a reasonable doubt that the defendant is guilty of a crime. We’ve forced state government agencies not to deprive poor people of Medicaid when federal law says that Medicaid is due.

Because we are a government of laws and not of individuals, people can be asked to believe that government officials try to act within legal boundaries. When government fails, people have the right to demand an end to illegality.

What do law students need to know about lawyers, law and power? My students learned from Buffalo Creek that residents of a flooded valley believed they would never be compensated for their devastating losses. They were convinced that the coal company which caused the flood possessed all the power and that they would be denied justice.

Some residents asked a lawyer to help. Why a lawyer and not a minister or a legislator? Because the lawyer’s job is to make the system work for all, to insist that we have a government of laws, not of individuals. That kind of government is fair and unbiased. Under that kind of government, a coal company cannot make courts to do whatever is good for the company, regardless of law and facts. With the help of a lawyer and his firm, the residents won, and the coal company lost.

Imagine that you are an African-American who has concluded from this presidential campaign that nobody is standing up for you. When you say that racism is behind police killings in your community and that your right to vote is attacked because of racism, you are told that only racists accuse people of racism. Imagine that you are an immigrant or a refugee. You are told you don’t belong here, and you are told that you will be thrown out. Imagine that you are a woman who objects to being groped and demeaned. You are told you are overly sensitive and that nobody does those things; they just talk about them. Imagine that you are Jewish or Moslem. You are told that you cause more trouble than you are worth to this society. Imagine that you are disabled. You are told that you are a freak who can be mocked with impunity.

I am not imagining these threats. What prevents people from concluding that our next group of government officials will not be scrupulous about fighting the threats and complying with the law? What hope do people under attack have in the aspiration that this is a government of laws and not individuals?

As lawyers-to-be, my students need to understand that they will have power to share. As lawyers, we are entrusted with knowing the law. We see when government officials are overstepping their boundaries. We can help educate the public, we can offer help, and we can put our knowledge and skills to work. I hope my students have learned some lawyering this semester. Even more important, I hope they appreciate the power of lawyers to enhance the lives of others who need our nation to have a government of laws and not a government of individuals.

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FAN 56.1 (First Amendment News) Constitutional & Criminal Law Experts File Brief Defending Gov. Rick Perry — First Amend. & Other Defenses Raised

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This morning an amicus brief was filed in the case of Ex Parte James Richard “Rick Perry” (App. Ct., 3rd Jud. Dist.); this is how it opens:

Amici are an ideologically diverse coalition of experts in the fields of constitutional and criminal law—including former judges, solicitors general, prosecutors, criminal defense lawyers, constitutional litigators, and professors on both sides of the aisle. They represent virtually the entire political spectrum and have no personal or political stake in this case. They submit this brief for one simple reason: They are committed to the rule of law, and do not wish to see the law tarnished or distorted for purely partisan political purposes.

Gov. Rick Perry

Gov. Rick Perry

The case, recall, involves Texas Governor Rick Perry and his threat to veto a bill if a state political official did not do what he asked. He then vetoed the bill. A grand jury thereafter indicted the Governor and charged him with two felonies.

One count alleged that the Governor violated Texas law when he vetoed a bill that would have funded the continued operation of the Public Integrity Unit of the Travis County District Attorney’s office.

The other count alleged that the Governor violated Texas law by “threatening” to use his veto powers if a government official did not resign her post (this in connection with his call  for the resignation of Travis County D.A. Rosemary Lehmberg, a Democrat, who had been convicted of drunk driving).

 See here re video of Gov. Perry’s Aug. 16, 2014 press conference

See here re Feb. 23, 2015 Defense’s objections to bill of particulars & amended indictment

Counsel for Gov. Perry on appeal: Tony BuzbeeDavid Botsford & Thomas R. Phillips (Appellant’s brief here)

Now, 18 noted constitutional and criminal law experts are rallying to Gov. Perry’s defense in an amicus brief filed  in a Texas appellate court by James C. Ho, Prerak Shah, Bradley G. Hubbard and Eugene Volokh. The brief in support of an application for a writ of habeas corpus makes two basic arguments:

  1. “Count I of the Indictment Should Be Dismissed, Because it is Both Unconstitutional and Barred by Legislative Immunity,”
  2. “Count II of the Indictment Should Be Dismissed, Because it Criminalizes Speech Protected by the First Amendment of the U.S. Constitution.”

The 18 who signed onto the amicus brief are:

  • Floyd Abrams (First Amendment lawyer)
  • Michael Barone (Resident Fellow at the American Enterprise Institute)
  • Ashutosh Bhagwat (UC Davis law professor)
  • Jeff Blackburn (Founder and Chief Counsel of the Innocence Project of Texas)
  • Paul Coggins (former U.S. Attorney for the Northern District of Texas)
  • Alan Dershowitz (Harvard law professor)
  • Raul A. Gonzalez (Former Justice, Texas Supreme Court)
  • James C. Ho (Former Texas Solicitor General & former Chief Counsel to U.S. Senate Subcommittee on the Constitution)
  • Daniel Lowenstein (Emeritus UCLA law professor)
  • Michael W. McConnell (Stanford law professor)
  • John T. Montford (Former District Attorney for Lubbock County, TX)
  • Michael Mukasey (Former U.S. Attorney General & former federal court judge)
  • Theodore B. Olson (Former Solicitor General of the United States)
  • Harriet O’Neill (Former Justice, Texas Supreme Court)
  • Nathaniel Persily (Stanford law professor)
  • Kenneth W. Starr (Former U.S. Solicitor General & former federal court appellate judge)
  • Johnny Sutton (Former U.S. Attorney for the Western District of Texas), and
  • Eugene Volokh (UCLA law professor)

The two statutes under which Gov. Perry was indicted are reminiscent of the old Soviet Union — you know, abuse of authority. The idea of indicting him because he threatened to veto spending unless a district attorney who was caught drinking and driving resigned, that’s not anything for a criminal indictment. That’s a political issue. — Alan Dershowitz (Aug. 18, 2014)

Free Speech Claims

James C. Ho (lead counsel)

James C. Ho (lead counsel)

The amicus brief argues that Count II of the indictment — that Gov.Perry violated the law by “threatening” to use his veto powers if a government official did not resign — violates his free speech rights under the Texas and U.S. Constitutions.  “[H]e has every right to do just that,” they contend.

Core Political Speech: “A political official,” they add, “has the right to threaten to perform an official act in order to persuade another government official to engage in some other official act. That is not a crime—it is core political speech. See, e.g., Watts v. United States, 394 U.S. 705, 707 (1969) (‘What is a threat must be distinguished from what is constitutionally protected speech.’).”

Parade of Horribles: “The consequences of allowing Governor Perry to be prosecuted under this law would be both far-reaching and devastating. The prosecution’s theory of the case would criminalize a vast swath of constitutionally protected—and exceedingly common—political speech.”

Facially Invalid: “The vast amount of protected speech that would be deemed criminal under the prosecution’s theory reveals another fundamental problem with this Count: the statute is unconstitutionally overbroad and therefore facially invalid.”

Government Speech?: “[T]he speech of elected officials at issue here is simply not government speech as defined by the Garcetti line of cases. Indeed, common sense demands that it not be government speech. Does the special prosecutor truly believe that the Legislature could, with a veto-proof majority, prevent the Governor from saying anything at all on particular topics? Of course not—yet that is precisely what the Legislature could do if Governor Perry’s speech were deemed government speech.”

 After offering various other free speech challenges, the authors of the amicus brief point out that

Last year, President Obama threatened to issue various executive orders if Congressional Republicans refused to pass comprehensive immigration reform. . . . The President later followed through on that threat. To be sure, those executive actions are highly controversial and are currently the subject of litigation. But no one could seriously argue that President Obama’s political statements regarding those actions are unprotected by the First Amendment and subject to potential criminal prosecution. So too here.

Mincing no words, the brief urges: “This Court should announce—right now—that it is unconstitutional to prosecute Governor Perry for his protected political speech.”

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UCLA Law Review Vol. 62, Issue 3

Volume 62, Issue 3 (March 2015)
Articles

Fixing Public Sector Finances: The Accounting and Reporting Lever James Naughton & Holger Spamann 572
Less Enforcement, More Compliance: Rethinking Unauthorized Migration Emily Ryo 622
Decriminalization, Police Authority, and Routine Traffic Stops Jordan Blair Woods 672

 

Comments

Not Whether Machines Think, But Whether Men Do Jane Stack 760
Fighting for a Place Called Home: Litigation Strategies for Challenging Gentrification Hannah Weinstein 794
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Is Using USNews Ranking in Making Hiring Decisions Discriminatory?

That’s what Drexel 3L William Hanrahan claims in a newly filed complaint against Dechert LLP.  According to Hanrahan, though he ranks #4 in Drexel’s class, Dechert (and other large firms) hire disproportionately from higher ranked schools, and consequently refused to hire him.  Why is that a problem? Well, here’s what the complaint says:

screenshotHanrahan, who suffers from “Asperger’s Syndrome, an Autism Spectrum Disorder, and a concomitant non-verbal learning disability,” also argues that Drexel accepted more students than other local schools with disabilities, and that refusal to hire from Drexel tends to disproportionately screen out non-disabled candidates.

I’m not an expert in this area of the law, but I thought the complaint provided an interesting set of facts for discussion. My uninformed view is that the chain of causation (disability –> lower LSAT –> lower-ranked school –> fewer job offers) isn’t incredible, but that it’s hard to imagine a judge forcing firms to discount rankings (which, after all, aren’t entirely or even mostly based on student credentials) when making hiring decisions.

 

Improving Lawyers’ Efficiency, the Guantanamo Way

John Patrick Leary has a great series of posts called “Keywords for an Age of Austerity.” While he hasn’t yet taken on the term “efficiency,” it’s something we hear a lot from “Legal Rebels” nowadays. I found the following passage from an interview with philosopher Johanna Oksala very insightful on one intersection between law and efficiency:

In [my book Foucault, Politics, and Violence] I [discuss] new interrogation techniques – including waterboarding – that were introduced at Guantanamo Bay detainee camp in 2002. Philip Sand shows in his book Torture Team that what made these new, considerably more aggressive interrogation techniques possible was not the suspension of international law, but an interpretation of it that made it consistent with pregiven policy aims: the effective gathering of intelligence for national security. The law was respected by the state, but it was used strategically: the policy should have been drawn up around the law, but instead the legal advice was fitted around the policy. Legality was subsumed under efficiency and professionalism.

What’s said here of government as a client applies as well in many recent situations where firms’ corner-cutting policies were taken to lawyers, who appeared far more interested in “efficient” outcomes for their employers or clients than in bounding their actions by law. They also appeared willing to fit their ideal of “professionalism” to that overriding pursuit of efficiency. So we should be a bit cautious when we hear, bandied about, terms like “efficiency,” “innovation,” “putting the client first,” et al. in discussions of the future of the profession. Scratch the surface, and you’ll often find a definition of each that is partial, self-serving, or even Orwellian.

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Iconic or Scandalous: Olivia Pope and Annalise Keating – Black Women Lawyers on Prime Time TV

Welcome to the second decade of the twenty-first century, there are now two black women lawyers on Thursday prime time television thanks to screen writer, director and producer Shonda Rhimes. Rhimes, an increasingly powerful player in the broadcast world, first garnered widespread acclaim in 2005 as the creator and executive director of the long-running medical drama Grey’s Anatomy and its spin-off, Private Practice (2007-2013). In 2010 she entered the legal terrain with Scandal, about a high-powered Washington, D.C. political fixer who is having an affair with the married President of the United States. The fixer, Olivia Pope, is a well-educated and well-connected lawyer who runs a crisis management firm, Pope and Associates. Scandal started its fourth season on Thursday.

By the way, Olivia Pope, played by Kerry Washington, and Shonda Rhimes, the producer, are black women. So unsurprisingly a flurry of anticipatory articles and posts appeared when ABC announced Rhimes’ latest production, How to Get Away with Murder, which also aired Thursday immediately after Scandal. Annalise Keating (played by Viola Davis) is a tenured black woman law professor who also runs her own law firm. (Isn’t this a no, no under the ABA rules?) But anticipation quickly turned into controversy when New York Times television critic, Alessandra Stanley, started her article about the new show with: “When Shonda Rhimes writes her autobiography, it should be called ‘How to Get Away With Being an Angry Black Woman.’” Oops, so perhaps we have not progressed that far in race relations after all.

Stanley’s column set-off a firestorm on the internet. One of the most interesting critiques of Stanley’s troubling discussion of Rhimes and black women actors was posted by Margaret Lyons on Vulture.com.  Even Rhimes sent a few tweets.  The result was an apology from the Times’ Public Editor  and the obligatory “non-apology” from Stanley.

This much discussed controversy, however, is not the subject of my post. I am more concerned about the content of Scandal and How to Get Away with Murder than with how the executive producer and female actors are described by critics. As I celebrate the emergence of Kerry Washington and Viola Davis, as lawyers in starring roles on prime time television, I worry, not about whether these shows are breaking old well-worn stereotypes about black women as angry and sexually permissive, but rather whether my students will see these fictional women lawyers as legal icons to be emulated.
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To Define the Beginning of Human Life or Not, That Is the Question

Twice a month I meet with some of my students for a critical reading.  In our last January meeting, we decided to commemorate Roe by re-exploring Judith Jarvis Thomson’s  seminal article A Defense of Abortion. Thomson’s defense of induced abortion by exploring our moral duties in the unrealistic case one found oneself kidnapped and plugged in to a virtuous violinist who is sick and needs one’s kidneys for nine months in order to heal has been highly criticized. Nonetheless, every time I read it or discuss it, I find how enlightening her thought experiment still is, as it confronts us with our set of moral beliefs and its incongrueties with our policy stances. Moreover, it makes me always ponder about our lack of a well-thought and coherent abortion regulating scheme.  But that is a topic for a different post. Today, I would like to concentrate on a related matter that stemmed from my discussion of Thomson’s article with my students.

By the end of our conversation my students and I were inquiring whether it was possible to assert a defense of stem cell research/therapy even taking for granted the right of life of the embryos, as Thomson did in her paper. It seemed obvious for almost all of us that using embryos for those purposes would be considered a blatant deprivation of the embryo’s right to life and an impermissible use of another person’s body; and thus, could not be sustained under Thomson’s argument. So we decided to try to come up with a scenario similar to Thomson’s violinist that could aid us in exploring the moral adequacy of stem cell research/therapy.

An appropriate thought experiment eluded our not so brilliant minds. We did not want to come up with a fallacious and common place thought experiment such as the one of the burning building test  in which one is forced to decide who to rescue first: twenty 8-cell embryos kept in a freezer or a baby in peril. We were not looking to formulate an experiment tilted to one side like the burning building test, in which the “incomplete human character” of the embryo is made self-evident by the “inescapable instinct” to rescue the “actual” human being. However, the truth is that it is quite difficult to come up, in a couple of minutes, with a reasonable possible scenario in which all the circumstances of stem cell research/therapy are replicated in a way that could sensibly help us assess our moral agency.

First, we would need to come up with a scenario in which we have a “human being” in a permanent frozen state (e.g. a cryogenized virtuous violinist) in which the conditions necessary for a successful life require a willing human host that is either related to the cryogenized violinist or has the authorization of his guardian to serve as a host for nine months.  Second, we must come up with a particular circumstance (e.g. a military operation) that would force the guardian of the cryogenized violinist to choose between using the frozen body to help in the recovery of a sick non-cryogenized human being (e.g. a  young Science Nobel laureate) whose only real, feasible and cost efficient chance to a healthy life is using that frozen body at the expense of eliminating all possible chances of an uncertain future life for the cryogenized violinist or leaving the cryogenized violinist frozen for an indefinite period of time and allowing for the sick non-cryogenized Nobel laureate to die. Finally, we would need to come up with the circumstances that led the cryogenized violinist to be treated as a surplus human being and at the same time be treated as the raw materials for the creation of future equally virtuous violinists (e.g. the practice of cloning virtuous musicians).  Furthermore, the example would need to consider the possibility of making the cryogenized violinist for the sole purpose of healing the sick non-cryogenized laureate (e.g. the possibility of the world coming to an end if the Nobel laureate does not find a solution to the problem before he dies from her sickness).

The end result is a very absurd, unrealistic and perhaps too intricate thought experiment.  Yet, exploring the limits of such an experiment may be a possible way to coming up with a defense of stem cell research/therapy even when one grants the right of life of the embryos.  Nonetheless, I would like to pose that the absurdity and illusory nature of these thought experiments suggest that we should face the inevitable: we must delimit when human life begins if we truly would like to come up with a moral/ethical regulation of stem cell research/therapy. This inescapable moral question is more evident when we contrast our legal stances and nation’s practices on issues like torture, war, death penalty, abortion, euthanasia and justification and necessity defenses.  The system is manifestly incoherent.

I do believe that a sensible answer will only come when we legally embrace the fact that life – and by extension human life – exists in a continuum. Law should echo that reality. A coherent and ethical sound system can only arise after we legally recognize that there is a point in that continuum in which life becomes human and that there are different stages before that point in which life is a subject of certain rights but not the same rights a human life is a subject thereof. Laws should define that moment and those stages. There is no moral reason to avoid doing so. As there is no ethical rationale either to treat totipotent, pluripotent, multipotent, oligopotent, unipotent cells, fully developed human beings not capable of living on their own, and born human beings in the same way.  Furthermore, our history and legal system have always made distinctions on how we treat the right to life of human beings based on particular deontological assumptions.

Our inquiry into how to regulate stem cell research/therapy should not be made under the assumption that embryos are in fact human beings and subjects of the same rights. A valid answer to this recent human reality must be based on a rigorous analysis of moral questions such as: 1. When does a life become a human life?; 2. Which type of rights is a non-human life entitled to?; 3. Are there different stages of a non-human life?; 4. Are those stages deserving of a differentiated right treatment?; 5. What are our moral duties to a human life?; 6.  What are our moral duties to a non-human life and it corresponding stages?; and 7. Under which circumstances are we relieved from those duties to human and non-human lives? These questions should be guiding our legislative process regarding scientific inquiries and not biased assumptions as to what constitutes human life.

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Gatekeeping and the Economic Value of a Law Degree (Part 2)

LincolnIn my last post, I discussed how the commentary on Michael Simkovic and Frank McIntyre’s “The Economic Value of a Law Degree” has illuminated a separate and worthwhile avenue for further research—namely, whether the presence of powerful gatekeepers who oversee the practice of law should make us confident that the value of the law degree will be relatively stable.

Most helpful in this regard has been Deborah Merritt’s post regarding the impact of the typewriter on lawyer education requirements.  At the risk of putting words into her mouth, Merritt observed that the typewriter may have contributed to the decision of the New York bar to make attendance at a three-year law school a prerequisite to bar admission and, therefore, that S&M were too hasty in concluding that people misconceived the typewriter to be a threat to the value of the law degree.

My earlier post explained that we must be careful not to conflate structural changes in the law degree’s value with structural changes in the credentials that one will need to become a lawyer.  By keeping the two separate, we can better understand how the gatekeepers to the industry might be able to insulate the value of the degree from exogenous forces.

In this second post, I’d like to offer some final observations on gatekeeping.  I begin with the acknowledgement that the effects of gatekeeping extend well beyond the population of degree holders, though S&M had perfectly valid reasons for focusing on that population.  Thereafter, I return to the relationship between gatekeeping and nostalgia, highlighting the strange role that the late Abe Lincoln played in the adoption of education requirements.  To finish up, I briefly explain how gatekeeping measures have long been—and will continue to be—a tempting tool for those with the power to wield them. Read More