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Abstract:
This document contains information about submitting essays and articles to general online law review supplements. It covers 21 general online law reviews. This document will be updated on an annual basis and as law schools create new online law review supplements.

law reviews, law journals, articles, submissions, law schools, law

Abstract:
In 1982, Alton Logan was convicted of first degree murder based upon being the trigger man in a robbery gone wrong at a Chicagoland McDonald's. What the jury who convicted Logan did not hear was that another man, Andrew Wilson, confessed to the crime Logan allegedly committed. The problem was that Wilson confessed to his attorneys, public defenders Dale Coventry and Jamie Kunz, who confirmed with the relevant authorities that they were bound by the rules of professional responsibility not to disclose their client's confession. Coventry and Kunz did prepare an affidavit detailing Wilson's guilt and in fact planned to come forward if Logan were given the death penalty. Ironically, two holdouts on the jury seemingly spared Logan's life by voting against capital punishment, but in fact dealt him the same fate that would befall the affidavit, being locked up (Logan in a prison cell; the affidavit in a lock box). Pained by pangs of guilt, the public defenders convinced Wilson to allow them to reveal his guilt after his death, resulting in Logan's eventual release from prison twenty-six years after he entered.

How does such an injustice occur? Until recently, the Model Rules of Professional Responsibility prohibited an attorney from disclosing client information relating to a completed crime in which the attorney's services were not used, meaning that an attorney could not disclose that his client committed a crime for which another man was charged or convicted. And while the ABA amended Model Rule 1.6(b)(1) in 2002 to permit attorneys to reveal client information to prevent reasonably certain death or substantial bodily harm, the few commentators to address the issue have curtly concluded that this exception would still not apply to the wrongful incarceration scenario presented by the preceding example. Conversely, Massachusetts Rule of Professional Responsibility 1.6(b)(1) permits attorneys to disclose client information to, inter alia, prevent the wrongful execution or incarceration of another. This article argues that the 25 states which have adopted some form of amended Model Rule 1.6(b)(1) can and should read a similar wrongful incarceration/execution exception into their existing Rules while the remaining 24 states (and the District of Columbia) which have not adopted some form of amended Model Rule 1.6(b)(1) should create such an exception and can do so while causing less violence to the rationales behind attorney-client confidentiality than existing exceptions.

Professional Responsibility, Confidentiality, Ethics, Wrongful Incarceration

Abstract:
In its 1990 opinion in Maryland v. Buie, the Supreme Court held that as an incident to a lawful (home) arrest, officers can 'as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched.' While this holding was actually dictum, thereafter courts categorically concluded that Buie authorizes suspicionless searches of sufficiently large spaces not only in arrest rooms, but also in rooms immediately abutting arrest rooms and connected to arrest rooms by hallways.

Buie was one of three Supreme Court opinions expansively reading the scope of searches incident to lawful arrests after it circumscribed their scope in 1969 in Chimel v. California. The other two opinions were Belton v. New York and Thornton v. United States, and, in its 2009 opinion in Arizona v. Gant, the Court expressly overruled Belton and rebuked Thornton as an application of Chimel, which it reaffirmed as continuing to define the boundaries of searches incident to lawful arrests. This article argues that, even without Gant, courts should have realized that they had grossly misconstrued the scope of suspicionless Buie searches, and that now, defendants and appellants should be able to raise Arizona v. Gant to argue that the reaffirmation of Chimel and the destruction of the Belton fiction together invalidate the suspcionless Buie search.

Search Incident to a Lawful Arrest, Fourth Amendment

Abstract:
In the common law days, parties seeking to prove the contents of documents were required to produce the original documents or account for their non-production. Pursuant to the Best Evidence Rule, if such parties neither produced the originals nor accounted for their non-production, courts prevented them from proving their contents through secondary evidence such as handwritten copies or testimony. With the invention of new technologies such as the process of xerography, however, states in the twentieth century began enacting exceptions to the Best Evidence Rule which allowed for the admission of duplicates created without manual transcription even when proponents could not account for the non-production of originals. Enacted in 1975, Federal Rule of Evidence 1003 is consistent with the emerging state trend as it indicates that "[a] duplicate is admissible to the same extent as the original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original." This article contends that courts have both failed to adopt a consistent approach to Rule 1003(1) challenges and that the scatter shot approach which they have taken has resulted in an improperly narrow construction and application of the exception. It argues that courts should instead determine whether parties opposing the admission of duplicates raise genuine questions as to the authenticity of originals by applying the same test that they use to determine whether parties opposing motions for summary judgment raise genuine issues of fact for trial.

Evidence, Best Evidence Rule, Authentication, Duplicates

Abstract:
In two recent opinions, courts authorized the impeachment of witnesses through cross-examination regarding their immigration statuses. They allowed such impeachment pursuant to Federal Rule of Evidence 608(b), which only permits specific act impeachment if based upon acts that are directly probative of (un)truthfulness. This essay argues that immigration status is an improper subject for impeachment because it is most akin to trespassing, which is not an impeachable offense under Rule 608, and fundamentally dissimilar from the acts related to crimen falsi, which are generally the only impeachable offenses under the Rule.

Moreover, even if immigration status were an impeachable offense under Rule 608, courts should foreclose immigration interrogation for impeachment purposes because of its capacity to divide and prejudice jurors and discourage illegal aliens from bringing legitimate lawsuits for fear of being deported. Finally, if an attorney seeks to impeach a witness based upon his immigration status or his alleged commission of some immigration-related crime, such as fraudulently obtaining documentation, the witness should be able to invoke his Fifth Amendment privilege against self-incrimination.

Impeachment, Immigration, Cross-Examination

Abstract:
It is well established that the presence of a biased juror is a structural defect not subject to a harmless error analysis; however, courts repeatedly have precluded criminal defendants from proving such bias by applying Rule of Evidence 606(b) to prevent jurors from impeaching their verdicts through allegations of racial, religious, or other prejudice by jurors. Court also routinely have held that application of the Rule in such cases does not violate the Sixth Amendment right to an impartial jury based upon the Supreme Court's conclusion in Tanner v. United States that the Rule did not violate the right to a competent jury.

Criminal defendants, however, should be able to rely upon another Sixth Amendment right to allow them to present post-trial juror testimony regarding racial, religious, or other bias by jurors. Since its 1967 opinion in Washington v. Texas, the Supreme Court has declared that the Compulsory Process Clause renders unto criminal defendants the "right to present a defense" and has found that courts violate this right by applying rules of evidence in a manner that is arbitrary or disproportionate to the purposes that they were designed to serve. This article argues that when courts preclude jurors from impeaching their verdicts through evidence of juror racial, religious, or other bias, they apply Rule 606(b) in a way that is arbitrary and disproportionate to the purposes that the Rule is designed to serve and thus violate criminal defendants' right to present a defense.

Jury Impeachment, Right to Present a Defense, Compulsory Process Clause, Juror Bias

Abstract:
With one exception, every Federal Rule of Evidence dealing with propensity character evidence or evidence which can be misused as propensity character evidence makes it either: (a) as difficult to admit such evidence in civil trials as it is in criminal trials, or (b) more difficult to admit such evidence in civil trials than it is in criminal trials. The "mercy rule" falls into this latter category as it allows criminal defendants to inject the issue of character into their trials while a similar luxury is not afforded to civil parties. Before 2006, however, a substantial minority of courts extended the "mercy rule" to civil parties in quasi-criminal cases because they were in most respects similar to criminal cases. Congress finally shut the door to this practice based upon the serious risks of prejudice, confusion, and delay that propensity character evidence engenders.

These same risks, however, support treating civil parties in quasi-criminal cases the same as criminal defendants under the felony impeachment rule. That rule, Rule 609(a)(1), makes it much more difficult for courts to exclude the felony convictions of civil parties than it is for them to exclude the felony convictions of testifying criminal defendants. It is thus the only Federal Rule of Evidence which makes it easier to admit evidence which can be misused as propensity character evidence in civil trials than it is in criminal trials. Courts should correct this anomaly by treating civil parties in quasi-criminal cases the same as criminal defendant under the Rule.

impeachment, character evidence, quasi-criminal cases

Abstract:
This document contains a listing of blogs by anyone who might be involved in the education of students at law schools in the United States: full time professors, adjunct professors, deans, legal writing instructors, law librarians, etc. This document also contains a list of new blogs/bloggers and statistics I compiled from the blog census (Updated 9/28/2009).

blogs, law schools

Abstract:
All federal courts (and most state courts) agree that when a criminal defendant pleads nolo contendere and subsequently becomes a civil defendant, his plea is inadmissible against him pursuant to Federal Rule of Evidence 410 and Federal Rule of Criminal Procedure 11(f). Conversely, courts are sharply divided over whether this same criminal defendant would be entitled to the protection of the Federal Rules (and corresponding state codes) if he became the plaintiff in a subsequent civil proceeding.

This article argues that courts holding that Federal Rule of Evidence 410, Federal Rule of Criminal Procedure 11(f), and corresponding state codes do not protect civil plaintiffs who previously pleaded nolo contendere are doing so based on blatant disregard for the 1979 amendments to the Federal Rules. Worse, even after ignoring these amendments, these courts still arrive at this conclusion only by contorting the Rules until their substantive protections are lost amid semantic gymnastics employed for the specious argument that evidence introduced for the benefit of one party is somehow not introduced against the other party. Further, in creating this dichotomy, these courts create potentially anomalous results such that attempts by non-pleading parties to admit prior nolo contendere pleas for the same purpose are either covered or not covered by the Rules based upon arbitrary reasons.

nolo contendere pleas, plea bargaining, evidence, criminal procedure

Abstract:
If a rule is only as good as its exceptions, and a reporter is only as good as her sources, then, according to a recent Supreme Court of Pennsylvania opinion, Pennsylvania's reporter's privilege is the best of privileges and the worst of privileges. In that opinion, the justices failed to carve a crime-fraud exception out of Pennsylvania's reporter's privilege - its "Shield Law" - despite having previously read a similar exception into every other evidentiary privilege. Ironically, this alleged act of judicial passivism transformed the Shield Law into both a shield and a sword and mischaracterized the purposes served by the attorney-client privilege and all other evidentiary privileges. According to the court, the Shield Law is exceptional, and thus exceptionless, because it is directed toward the public end of protecting the free flow of information to society while the attorney-client privilege, like all professional privileges, is intended for the private benefit of the client. This essay argues, however, that as the United States Supreme Court recognized in Jaffee v. Redmond, all evidentiary privileges must serve two masters, private interests and public ends, and crime-fraud exceptions do not undercut those public ends but bolster them.

Attorney-Client Privilege, Reporter's Privilege

Abstract:
In his concurring opinion in Coit Independence Joint Venture v. Federal Savings and Loan Insurance Company, 489 U.S. 561, 589 (1989), Justice Scalia wrote that

[w]hat is enough to suggest a congressional intent to defer the maturing of a federal cause of action is not enough to suggest a congressional intent to override state law. We have repeatedly said that federal law pre-empts state law in traditional fields of state regulation only when 'that was the clear and manifest purpose of Congress....'

This statement makes sense. Under the doctrine of preemption, Congress enacts federal legislation that supersedes any existing state and local laws in a particular field and proscribes any future state and local regulation of that field. Conversely, when Congress includes a jurisdictional exhaustion requirement in a statute pursuant to its Article III powers, it does not supercede federal court jurisdiction.

Courts have created the doctrine of prudential or administrative exhaustion, which is the requirement that potential litigants exhaust available administrative remedies before they can bring suit in federal court. Because this requirement is prudential, federal courts can still, in their discretion, hear claims brought before a litigant exhausts her administrative remedies in certain circumstances, such as when she can prove agency bias.

By statute, however, Congress can include in a statute a jurisdictional exhaustion requirement, which makes the exhaustion of administrative remedies a jurisdictional prerequisite to bringing suit in federal court. In most cases, then, jurisdictional exhaustion merely delays federal court jurisdiction in cases where a litigant can show a justifiable reason for failure to exhaust available administrative remedies. Why, then, does it seem that some courts are actually requiring a greater showing of Congressional intent to include a jurisdictional exhaustion requirement than the showing of Congressional intent required for preemption?

Exhaustion, Preemption