Table of Contents

'Power and Greed and the Corruptible Seed': Mental Disability, Prosecutorial Misconduct, and the Death Penalty

Michael L. Perlin, New York Law School

Testing, Diversity, and Merit: A Reply to Dan Subotnik and Others

Andrea Anne Curcio, Georgia State University - College of Law
Carol L. Chomsky, University of Minnesota - Twin Cities - School of Law
Eileen R. Kaufman, Touro College - Jacob D. Fuchsberg Law Center

What’s Your Problem?

Kathleen Elliott Vinson, Suffolk University Law School

Social Media Snooping and Its Ethical Bounds

Agnieszka McPeak, University of Toledo College of Law

Social Media and the Lawyer's Evolving Duty of Technological Competence

Benjamin P. Cooper, University of Mississippi School of Law


"'Power and Greed and the Corruptible Seed': Mental Disability, Prosecutorial Misconduct, and the Death Penalty" Free Download
NYLS Legal Studies Research Paper

MICHAEL L. PERLIN, New York Law School

The Supreme Court’s death penalty jurisprudence is based in large part on the assumption that jurors can be counted on to apply the law in this area conscientiously and fairly. All our criminal procedure jurisprudence is based in large part on the assumption that prosecutors and judges will act fairly. I believe that these assumptions are based on nothing more than wishful thinking, and that the record of death penalty litigation in the thirty-eight years since the “modern? penalty was approved in Gregg v. Georgia gives the lie to them.

This article focuses solely on the role of prosecutors in this process, and the extent to which prosecutorial misconduct has contaminated the entire death penalty process, especially in cases involving defendants with mental disabilities. This is an issue known well to all those who represent such defendants in death penalty cases but, again, there is startlingly little literature on the topic. It is misconduct that is largely hidden and ignored. The article begins with some brief background on issues that relate to the treatment of persons with mental disabilities in the criminal justice system in general. It then discusses prosecutorial misconduct and the outcomes of that misconduct, with special attention to a cohort of appellate decisions in unheralded and rarely (if ever) discussed published cases that, in almost every instance, sanction such misconduct. Next, it demonstrates how some prosecutors purposely flaunt the canons of ethics in the prosecution of defendants with mental disabilities in death penalty cases, and then will discuss some solutions raised by scholars to (at least, partially) cure this problems, and concludes with some modest suggestions of my own.

"Testing, Diversity, and Merit: A Reply to Dan Subotnik and Others" Free Download
University of Massachusetts Law Review, Vol. 9, p. 206, 2014

ANDREA ANNE CURCIO, Georgia State University - College of Law
CAROL L. CHOMSKY, University of Minnesota - Twin Cities - School of Law
EILEEN R. KAUFMAN, Touro College - Jacob D. Fuchsberg Law Center

The false dichotomy between achieving diversity and rewarding merit frequently surfaces in discussions about decisions on university and law school admissions, scholarships, law licenses, jobs, and promotions. "Merit" judgments are often based on the results of standardized tests meant to predict who has the best chance to succeed if given the opportunity to do so. This Article criticizes over-reliance on standardized tests and responds to suggestions that challenging the use of such tests reflects a race-comes-first approach that chooses diversity over merit. Discussing the firefighter exam that led to the Supreme Court decision in Ricci v. DiStefano, as well as the LSAT and Bar Exam, the Article questions the way standardized tests are used in making critical gateway decisions. It argues, consistent with Title VII, that racially disparate test outcomes should prompt inquiry into whether better ways exist to determine merit. Based on studies indicating that cognitive tests predict academic and workplace success for a relatively small percentage of test-takers, and on research into assessing a wider range of skills in many fields, the Article suggests we can both better predict who will succeed as future lawyers and reduce the impact of test score racial disparities by modifying law school admissions and bar licensing processes. The Article concludes that questioning over-reliance on cognitive tests to measure merit will lead to the development of better assessment measures with more diverse outcomes, more fairness for all applicants, and more comprehensive decision-making processes that better reflect true merit.

"What’s Your Problem?" Free Download
Stetson Law Review, Forthcoming
Suffolk University Law School Research Paper No. 14-15

KATHLEEN ELLIOTT VINSON, Suffolk University Law School

Monday morning a corporate client asks you to draft a press release announcing a recall of one of its toys that contained lead paint, alerting its customers, but cautiously avoiding any admissions of liability. The following day, a different client, who professes his innocence, asks whether he should accept a guilty plea with a reduced sentence or risk going to trial. The next day, a client asks you to review an offer to settle an allegation of copyright infringement for downloading a movie. Then, in another case, a supervisor asks you to argue a motion to dismiss a complaint, but there appears to be no legal or factual basis to support the motion. Finally, on Friday, a landlord seeks your help when one of his tenants accuses another tenant of sexual harassment. These are just some of the types of problems lawyers could face in just one week. Would law students know how to solve them? No matter what the legal issue or setting, understanding and applying a problem-solving methodology and focusing on the client in each case can help prepare students for practice. Students engaged in problem solving in law school benefit from experiencing the primary role of a lawyer: a problem-solver, enabling students to see the connection between legal knowledge, theory, and skills to help achieve a client’s goals.

"Social Media Snooping and Its Ethical Bounds" Free Download
Arizona State Law Journal, 2014 Forthcoming

AGNIESZKA MCPEAK, University of Toledo College of Law

Social media has entered the mainstream as a go-to source for personal information about others, and many litigators have taken notice. Yet, despite the increased use of social media in informal civil discovery, little guidance exists as to the ethical duties — and limitations — that govern social media snooping. Even further, the peculiar challenges created by social media amplify ambiguities in the existing framework of ethics rules and highlight the need for additional guidance for the bench and bar.

This article offers an in-depth analysis of the soundness and shortcomings of the existing legal ethics framework, including the 2013 revisions to the American Bar Association’s model rules, when dealing with novel issues surrounding informal social media discovery. It analyzes three predominant ethics issues that arise: (1) the duty to investigate facts on social media, (2) the no-contact rule and prohibitions against deception, and (3) the duty to preserve social media evidence. While the first two issues can be adequately addressed under the existing framework, the rules fall short in dealing with the third issue, preservation duties. Further, even though the existing ethics rules can suffice for the most part, non-binding, supplemental guidelines, or “best practices,? should be created to help practitioners and judges navigate the ethical issues created by new technology like social media.

"Social Media and the Lawyer's Evolving Duty of Technological Competence" Free Download
Legal Ethics, Vol. 17, No. 3, 2014, Forthcoming

BENJAMIN P. COOPER, University of Mississippi School of Law

Can lawyers advise their clients what to post on social media and to "clean up" what they have previously posted? This short article, which will appear as the Correspondent's Report from the United States in the journal Legal Ethics, argues that the lawyer's duty of competence requires that they know how to answer these questions. The article also discuss two recent ethics opinions that help lawyers fulfill that duty.


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Legal Ethics & Professional Responsibility eJournal

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