Legal Ethics
The Myth of Prosecutorial Accountability After Connick v. Thompson: Why Existing Professional Responsibility Measures Cannot Protect Against Prosecutorial Misconduct
This Essay takes the Supreme Court’s recent decision in Connick v. Thompson as a point of departure for examining the efficacy of professional responsibility measures in combating prosecutorial misconduct. John Thompson, the plaintiff in Connick, spent fourteen years on death row because prosecutors concealed exculpatory blood evidence from his defense attorneys. In rejecting Thompson’s attempt to hold the New Orleans District Attorney’s Office civilly liable for failing to train its prosecutors in proper discovery procedures, the Connick Court substantially narrowed one of the few remaining avenues for deterring prosecutorial misconduct. Implicit in the Court’s reasoning was a belief that district attorneys' offices should be entitled to reasonably rely on professional responsibility measures to prevent prosecutorial misconduct. This Essay subjects that premise to a searching critique by surveying all fifty states’ lawyer disciplinary practices. Our study demonstrates that professional responsibility measures as they are currently composed do a poor job of policing prosecutorial misconduct. However, we also take seriously the Supreme Court’s insistence that those measures should function as the primary means of deterring misconduct. Accordingly, in addition to noting the deficiencies of professional responsibility measures, we offer a series of recommendations for enhancing their effectiveness.
Uniform Ethical Regulation of Federal Prosecutors
120 Yale L.J. 144 (2010). Federal prosecutors are subject to a bewildering array of ethical regulations ranging from state ethical codes to local rules adopted by federal courts to the internal policies of the Department of Justice. The inconsistent and overlapping application of these ethical rules has led to regulatory confusion that has inhibited the development of clear ethical expectations for federal prosecutors. To ensure the consistent enforcement of federal criminal law, a uniform system of ethical regulation–dividing regulatory authority amongst the courts, the Department of Justice, and a yet-to-be-created independent ethical review commission–should be adopted to replace the existing regulatory framework.
Integrity and the Incongruities of Justice: A Review of Daniel Markovits's A Modern Legal Ethics: Adversary Democracy in a Democratic Age
119 Yale L.J. 1948 (2010).
Corruption in Our Courts: What It Looks Like and Where It Is Hidden
118 Yale L.J. 1900 (2009). Recent surveys and events indicate that judicial corruption could be a significant problem in the United States. This Note builds an economic model of bribery to better understand the incentives behind this pernicious phenomenon. It then compiles a data set of discovered incidents of judicial bribery in the United States to test the effectiveness of our anti-judicial-corruption institutions. This analysis suggests that our institutions are particularly ineffective at preventing and uncovering judicial bribery in civil disputes and traffic hearings.
Deterring E-Discovery Misconduct with Counsel Sanctions: The Unintended Consequences of Qualcomm v. Broadcom
Legal Ethics Symposium
The Pocket Part is proud to present our final symposium issue of the academic year, examining reoccuring and novel issues surrounding the ethical responsibilities faced by lawyers.
Executives Do Not Need Waivers and Companies Should Not Offer Them: A Response to Mark Kressel
The Efficient Performance Hypothesis
116 Yale L.J. 568 (2006) Notable American jurists and scholars have advanced an approach to contract enforcement that would render breach legally and morally uncontestable, assuming compensation follows. Much of the justification for this endeavor has rested upon claims of judicial and economic efficiency. But efficiency neither favors nor disfavors this conception of contract, formalized by the efficient breach hypothesis. This Essay develops an alternative approach to contract enforcement, expressed as the efficient performance hypothesis. The alternative approach predicts the same efficiency as the traditional one, but differs starkly in terms of its ethical understanding of contractual obligation. The efficient breach hypothesis supposes that the promisor has the legal right--not merely the power--to choose to perform or pay damages. That right belongs to the promisee under the efficient performance hypothesis. These discrete conceptions of promissory obligation do not exhaust the possibilities of course, but taken together the hypotheses suggest that other conceptions of legal and moral obligation may be employed within an efficient enforcement framework.
Gideon in White/Gideon in Black: Race and Identity in Lawyering
114 Yale L.J. 1459 (2005) Traditionally, poverty lawyers, criminal defenders, and clinical teachers have overlooked John Hart Ely's theory of judicial review in teaching the lawyering process and in representing impoverished clients and their communities. But the egalitarian themes of Ely's work on judicial review, reflected in his early contribution to Gideon v. Wainwright and his service as a public defender, resonate deeply with the practice of lawyering for the poor and the disenfranchised. Indeed, Ely saw the good lawyer as mindful of racially motivated inequality and unequal access in both law and politics. Nonetheless, situated within the advocacy traditions of liberal legalism, his vision of lawyering defined race consciousness and racial equality narrowly, eschewing the notion of race-contingent identity and community as dignity-based process values linked to cultural, social, and political standing. Although constrained by legal process considerations of lawyer role, institutional function, and political legitimacy, Ely's defense of minority equality rights and political access norms can be read to extend the reach of liberal lawyering by supporting antisubordination axioms of democratic empowerment and minority collaboration. Ely's fusion of democracy and equality in legal process bridges constitutional theory and clinical practice to offer an enriching vision of progressive lawyering in impoverished, crime-ridden communities.
An Old Judicial Role for a New Litigation Era
113 Yale L.J. 27 (2003) Because litigation has changed so dramatically in the last half century, scholars tend to view contemporary civil procedure as raising new problems that require new solutions. We have overlooked that many of these problems can be explained, and even resolved, using an age-old judicial role. There are two contexts in particular in which scholars have identified problems with judicial practices, but have been unable to agree on solutions. One is pretrial practice, where controversy abounds over the management strategies judges use to cope with overzealous litigants and overcrowded dockets. The other is class action litigation, where debate focuses on judicial review of proposed settlements and the judge's duty to protect absent class members. Although scholars have explored the tradeoffs posed by current practices and proposed reforms in both areas, they have lacked a framework with which to connect these problems or build a consensus for reform. This Article suggests that the framework we need has been available all along. Our best hope of understanding, and ultimately resolving, these controversies lies in a model of judging that prevailed for centuries and was captured by Lon Fuller in the 1950s. Although scholars rarely invoke tradition expressly, their debates over pretrial practice and class action litigation often boil down to a debate over the value and vitality of the traditional judicial role. Fuller identified two core elements of the traditional judicial role: Judges must rely on parties to frame disputes and on legal standards to help them resolve disputes. Scholars have overlooked that judges today sometimes respect these two characteristics and sometimes do not, and that it is precisely where judges stray furthest from tradition--and proceed without the litigant input or legal criteria to which they are accustomed--that judicial conduct triggers controversy. There are powerful reasons why judges should remain faithful to their traditional role even as they update it to respond to new challenges. Judges should do so not for tradition's sake, but rather because their traditional role reflects their core institutional competence, their place in the constitutional structure, and the considered judgment of two centuries of judges who faced problems surprisingly similar to those that judges confront today. This Article explores the institutional, constitutional, and historical underpinnings of the traditional judicial role, highlighting overlooked parallels between the new problems judges face in pretrial practice and class action litigation today and old ones that judges confronted, and largely overcame, in nineteenth-century trial practice and twentieth-century administrative law.
Sacrifice, Atonement, and Legal Ethics
113 Yale L.J. 219 (2003) Lawyers surely understand sacrifice. The business of representation requires a willingness to subjugate, at least temporarily, one's own priorities, beliefs, and comforts to those of another. Today, that willingness is tested and demanded with unprecedented force. Corporate litigators toil around the clock to perfect their clients' cases. Public defenders stagger under the heaviest caseloads their mandate and conviction will permit. In nearly every legal market, heightened competition has tipped the balance of power toward clients and caused practitioners to surrender more of their autonomy and time. Examined more closely, however, the increasingly routine actions of attorneys are only sacrifices in a certain sense of the word--they are the exchange of one thing for something else. Corporate lawyers are richly compensated. The public defender's reward is in a different but no less valuable currency. In either case, the aggregate benefits that accrue to the lawyer roughly compensate her for her costs. This is a truism of the rational-actor school of economics, and there is no reason to suppose it does not generally prevail. There is another brand of sacrifice, less common but equally familiar, perfected by American litigators of the last century: the representation of a worthy but unpopular cause or group. John Quincy Adams was an early exemplar; Clarence Darrow, Charles Houston, and others belong in the same category. But note that each of these names is well-known to us. Many of them were famous before their landmark efforts, but in no case--and this seems generally true of lawyers who take similar stands--were their careers damaged or derailed by their "sacrifice." The notoriety of an unpopular case, successfully defended, redounds to the defender at least in magnitude. Then, as popular opinion catches up to the moral or legal vanguard, the pioneers are vindicated, lionized, and ultimately rewarded. None of this is meant to demean the actions, accomplishments, or intentions of either everyday or exemplary lawyers. Those who do good, be it good work or good works, should be rewarded. Besides, the willingness to act on another's behalf, whatever the expected reward, requires at least a modicum of humility. Most poignantly, the civil society in which we now live testifies to the worthy sacrifices that lawyers as a class of professionals have made. But these sacrifices, although critical to our understanding of what a lawyer is and should be, are not the type that I propose to discuss here. The incentives to work harder for a client, or to take on a worthy cause, are well established and well understood. Such sacrifices are rational and, above all, they are human--the kind of sacrifice in which I am interested is arguably not. My subject is vicarious sacrifice, the relinquishment by one person of a right or good for the sole benefit of someone else. Within that category, I focus on substitutionary sacrifice--the imposition of oneself in the place of another. More specifically still, this Note examines the voluntary assumption by one person of the cost or penalty attributable to the other. With this last qualification, I touch on another concept generically familiar to lawyers--atonement. In its most colloquial sense, atonement simply means repayment, and as such, the law customarily demands atonement for its breach--through compensatory damage awards, for example. There is, however, a deeper and more technical understanding of the word. Theologians and religious ethicists have defined atonement as a complex process encompassing some or all of repentance, apology, reparation, penance, and forgiveness. The goal toward which this progression aims is not merely the repayment of an outstanding debt, but the complete restoration of the preexisting relationship. Accordingly, atonement demands a willingness from the injured and the injurer to recognize both the harm that has been caused and the sufficiency of the remedy. It ultimately seeks to blot out the existence--and all recollection of the existence--of the injury. Several legal commentators have examined the theological doctrine of atonement and applied it to various legal fields, most frequently and naturally in the area of criminal justice and the study of alternative modes of punishment. In each case, the version of atonement the scholar adopts requires that the wrongdoer initiate and participate in the atonement process. Indeed, this is the prevailing approach of the law. Justice and economics suggest we should extract the repayment from the one who has perpetrated the harm. I do not intend to challenge that approach as a general matter. It is not, however, the model I propose to investigate here. The atonement that interests me is the payment by one person of a debt or penalty attributable to another. Stated more precisely, it is the vicarious and substitutional sacrifice by one person of her rights or goods to atone for the harm caused or debt owed by another. This description is sufficiently technical; it is not necessary for the purposes of this Note to describe fully a detailed and dogmatic version of either sacrifice or atonement. Unlike the commentators referred to above, I am not interested in systematically applying a specific doctrine to a particular field of law. Instead, this Note seeks simply to introduce to the scholarship on legal ethics a previously foreign idea: vicarious sacrificial atonement, a theological concept I apply here to mean the satisfaction by lawyers personally of the penalties imposed as a result of their clients' violation of procedural rules during the course of litigation. I suggest that an ethic of vicarious sacrificial atonement is both a viable and a valuable aspirational norm toward which legal ethics should point. Viable because the core values served by vicarious sacrificial atonement correspond closely to those privileged by our secular legal system. Valuable because such acts of atonement, even if only isolated--even if only contemplated--could benefit the legal profession in at least three plausible and practical ways: by increasing the social and professional respect accorded to lawyers; by restoring client counseling as the focus of the attorney-client relationship; and by chilling client misbehavior, thereby strengthening the justice system for all players. Rather than venture further into already deep water, I take a step back in Part I to examine briefly the origins and underlying values of vicarious sacrificial atonement. In Part II, I analyze a familiar ethical dilemma to determine the extent to which these concepts and values are currently embodied in the codes and norms of legal ethics. Finally, in Part III, I present in more detail some of the values, goals, and criticisms of the aspirational model alluded to above. A caveat at the outset is in order. A full treatment of this subject is well beyond the scope of this Note and my ability. The concepts herein are drawn from philosophy, psychology, civics, religion, and many other fields (including the practice of law) in which I have no expertise. I want only to introduce the idea of vicarious sacrificial atonement in order to start a conversation among scholars with credentials better suited than mine to develop the rudimentary thoughts presented here.
Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional?
112 Yale L.J. 1011 (2003) This Article suggests that legal models that have been traditionally invoked in the context of fashioning responses to emergencies may not always be adequate. Rather, there may be circumstances when the appropriate method of tackling grave threats entails going outside the legal order, at times even violating otherwise accepted constitutional principles. The "Extra-Legal Measures" model proposed in the Article informs public officials that they may act extralegally when they believe that such action is necessary for protecting the nation in the face of calamity provided that they openly and publicly acknowledge the nature of their actions. It is then up to the people to decide how to respond to such actions. The actor may be held to the wrongfulness of her actions and required to make legal and political reparations. Alternatively, the people may act to approve, ex post, the extralegal actions of the public official. The process leading up to such ratification (or rejection) of those actions promotes deliberation after the fact, as well as establishes the individual responsibility of each member of the relevant community for the actions taken on behalf of the public during the emergency. That very process, with its uncertain outcomes, also serves an important function of slowing down any possible rush to use extralegal powers by governmental agents. By separating the two issuesÜaction and ratificationÜthe model adds an element of uncertainty hanging over the head of the public official who needs to decide how to act. That uncertainty raises the cost of taking an extralegal course of action. While going outside the legal order may be a "little wrong," it is advocated in the Article in order to facilitate the attainment of a "great right," namely the preservation not only of the constitutional order, but also of its most fundamental principles and tenets. The model promotes, and is promoted by, ethical concepts of political and popular responsibility, morality, and candor.
Method and Principle in Legal Theory
111 Yale L.J. 1757 (2002) The Practice of Principle is an excellent book that practically overflows with interesting and original arguments. Coleman is a superb analytical philosopher, as every page of the book attests. This is one of the most important contributions to legal theory to come along in a long time. Coleman's substantive views on both tort theory and jurisprudence reflect the richness and the complexity of the social phenomena, and he advances powerful arguments to support them. But the arguments would be even stronger if Coleman followed through on the logic of his pragmatic holism and abandoned the artificial restrictions he imposes on the use of moral argument in legal theory. Although this change in methodology is warranted in its own terms, the effect of adopting it could only be to enhance both the moral and theoretical appeal of Coleman's views.