Archive for the 'Slip Opinions' Category
In 1963, the Supreme Court held in Gideon v. Wainwright that the Sixth Amendment requires states to provide indigent criminal defendants with legal representation, noting that “any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” Today, in some states, one would think that Gideon had never been handed down. In Mississippi, for example, the state provides no money for non-capital cases, and cash-strapped counties must shoulder the burden of funding indigent defense. As a result, a pre-trial defendant may spend months in jail before his case is resolved, and court-appointed lawyers routinely meet their clients for the first time on their trial day.
Categories: Slip Opinions | Posted: October 22, 2008
Just over ten months have passed since the December 1, 2007 effective date of the Restyling Amendments to the Federal Rules of Civil Procedure. The purpose of this essay is to give an overview of how the Restyled Rules have performed so far. Ten months of experience with the Restyled Rules teaches that, while the Restyling Amendments are not merely stylistic changes as their drafters promised, they are not likely to create as many problems as their critics feared they would.
Categories: Slip Opinions | Posted: October 20, 2008
The struggle between Hillary Clinton and Barack Obama to make history as either the first woman or first African-American president resurrects the unfortunate historic battle between sex and race. The current debate presents striking parallels to the battle for voting rights after the Civil War when infighting between abolitionists over race and sex created deep separatism that pitted allies against each other and diluted their political strength. The potential fallout from this false dichotomy today threatens political credibility and social justice and demands a rethinking of the alleged opposition.
Categories: Slip Opinions | Posted: June 1, 2008
In his 2007 confirmation hearing before the Senate Judiciary Committee considering his nomination to be Attorney General of the United States, Judge Michael Mukasey refused to address the legality of waterboarding. In my opinion there is no reasonable dispute about this matter. The laws of the United States make waterboarding unlawful in no uncertain terms.
Categories: Slip Opinions | Posted: May 10, 2008
DNA evidence has freed at least 209 convicted people. Sometimes DNA evidence exonerates a person. Other times, it does not. When it does not exonerate, a prosecutor must decide whether to persist in further prosecution of the defendant. I propose a fresh, but simple, solution for prosecutors who face such choices. To protect the interests of defendants and victims, and to assuage society’s need for fair and accurate outcomes, prosecutors should re-present these cases to a grand jury. The grand jury is an easily convened neutral party that can dispassionately evaluate the evidence, old and new, and determine whether a new trial is warranted.
Categories: Slip Opinions | Posted: April 2, 2008
Decision makers within business entities are often forced to choose between minimum legal compliance and attempting to comply with their own intuitions about what is right. When making difficult decisions, business management and counsel should follow their ethical intuitions, rather than attempting to minimally comply with their legal duties. This approach is not meant to underplay the role of attorneys in determining the legal requirements placed upon business entities. However, founding decisions on ethical intuitionism, rather than mere legal compliance, helps to better protect businesses from legal liability and public scorn.
Categories: Slip Opinions | Posted: March 10, 2008
