Ethics

Howard Erichson and Benjamin Zipursky, ?Consent Versus Closure.?   (nod to Mass Tort Litigation Blog)  Abstract:

Claimants, defendants, courts, and counsel are understandably frustrated by the difficulty of resolving mass tort cases. Defendants demand closure, but class certification has proved elusive and non-class settlements require individual consent. Lawyers and scholars have been drawn to strategies that solve the problem by empowering plaintiffs? counsel to negotiate package deals that effectively sidestep individual consent. In the massive Vioxx settlement, the parties achieved closure by including terms that made it unrealistic for any claimant to decline. The American Law Institute?s Principles of the Law of Aggregate Litigation offers another path to closure: it proposes to permit clients to consent in advance to be bound by a settlement with a supermajority vote. This article argues that, despite their appeal, both of these strategies must be rejected. Lawyer empowerment strategies render settlements illegitimate when they rely on inauthentic consent or place lawyers in the untenable position of allocating funds among bound clients. Consent, not closure, is the touchstone of legitimacy in mass tort settlements.

Daniel Medwed, ?Emotionally Charged: The Prosecutorial Charging Decision and the Innocence Revolution.?  Abstract:

Efforts to rectify wrongful convictions in the United States arguably represent a new civil rights movement for the twentieth-first century. Since 1989, post-conviction DNA testing has exonerated over two hundred inmates, their innocence proven beyond a shadow of a doubt through science, and at least three hundred other innocent prisoners have gained their freedom in cases lacking the magic bullet of DNA. Studies of these cases reveal that specific factors tend to cause wrongful convictions in the first place. Misbehavior by prosecutors - especially involving the suppression of exculpatory evidence - has emerged as one of those factors.

This Symposium directly (and commendably) tackles the problem of under-disclosure of evidence by prosecutors. Encouraging prosecutors to adhere more closely to existing disclosure rules advances the ends by fairness by boosting the capacity of the defense to prepare for trial. Increased disclosure can also bolster the accuracy of criminal adjudications by minimizing the risk that innocent criminal defendants will be wrongfully convicted; armed with exculpatory and other evidence, the innocent are better positioned to reject plea offers and mount solid defenses at trial. In short, more disclosure in more cases in a more timely fashion is a good idea.

Yet any discussion about prosecutorial disclosure is incomplete without paying some attention to an equally vital moment in the pretrial process: the initial decision to charge a suspect with a crime whatsoever. The mere decision to charge tends to set in motion a sequence of events that inexorably lead to either a plea offer or a trial - even where the case is weak and where the prosecution has complied fully with its disclosure duties. This Essay grapples with the topic of prosecutorial charging decisions in light of the ?Innocence Revolution.? Part I of the Essay explores the rules and practices surrounding prosecutorial charging decisions, pointing out some of the flaws in this regime that may accidentally lead to charging innocent suspects with crimes. Next, Part II proposes a series of modest reforms to the charging process designed to reduce the possibility that the innocent will face criminal charges at all.

Drury Stevenson, ?IOLTA Problems in the Post-Kelo World.?  This is a topic I had thought was "old and cold," but I learned a lot about how IOLTA's work, their politics, their economics, etc., from Stevenson's article, which, by the way, lays out all the competing views even-handedly.  Abstract:

IOLTA programs are a very popular mechanism for funding legal services for the poor, and are now operating in every state. As a result, however, IOLTA has become the most frequent and widespread instance of government takings of private property in America. The post-Kelo era has seen increasing legislative restrictions on takings, and the post-Kelo reforms in several states appear to have inadvertently made their respective IOLTA programs illegal by banning all takings where the government immediately gives the taken property to another private party (in this case, private poverty-law foundations and legal aid clinics).

IOLTA takings also highlight a puzzling gap in our legal system between eminent domain law and administrative law. Eminent domain law tends to downplay the importance of procedure itself for government actions, often allowing states to proceed without regard to procedural due process as long as the victims of takings can bring inverse condemnation actions after the fact. Administrative law, in contrast, includes a long line of Supreme Court precedents that emphasize the importance of procedure itself as a component of due process and fairness; state infringements on the ?property interests? of individuals can face reversal simply because an agency failed to provide a fair hearing beforehand.

The ensuing discussion also reaches three inherent tensions or puzzles with public funding of legal services for the poor: crowding-out effects, monopoly/single-payer system problems, and the moral hazard problems with providing free lawyers for the poor. This article addresses, apparently for the first time, these three (rather significant) concerns as they pertain to IOLTA or legal services in general. I offer some modest policy reforms in response to these issues.