This essay analyzes the challenges to legal education and what those challenges may mean both to ... more This essay analyzes the challenges to legal education and what those challenges may mean both to clinical legal education and to clinical scholarship. Since the Great Recession, several law schools have closed, some have merged, and still other law schools approved by the American Bar Association (ABA) have been found out of compliance with ABA Accreditation Standards and either have been directed to take specific remedial action, have been placed on probation, or have lost ABA-approval. While enrollment has rebounded at some law schools, other law schools have continued to experience much smaller entering classes than the entering class in Fall 2010. These developments should be part of the conversation about clinical legal education and clinical scholarship, and this essay examines the effects of the Great Recession on law schools’ budgets, staffing, law school admissions, and overall enrollment. This essay concludes with some observations about the future of clinical legal education and clinical scholarship.
In theory, at least, many subscribe to the belief that it is better to let 10 or 100 guilty perso... more In theory, at least, many subscribe to the belief that it is better to let 10 or 100 guilty persons go free rather than convict an innocent person. Indeed, the American criminal justice system provides criminal defendants a panoply of important rights, including the right to effective assistance of counsel, in large part to ensure that the innocent are not convicted of crimes that they did not commit. But defense counsel is there not only to protect the innocent, but also to ensure that, if the defendant is found guilty after trial or if the defendant pleads guilty before trial, he or she will receive a fair sentence. In practice, however, too many criminal defendants receive lackluster representation, and few ever actually exercise their right to trial. Instead, our current criminal justice system is plea-bargain-driven, and the vast majority of state and federal criminal offenders plead guilty—approximately 97% of federal cases and 94% of state cases are resolved by guilty pleas rather than trials. Commenting on the prevalence of negotiated guilty pleas, the U.S. Supreme Court has stated that “plea bargaining is . . . not some adjunct to the criminal justice system; it is the criminal justice system.” Why, then, are criminal defense lawyers able to persuade the vast majority of their clients to plead guilty, even those who are actually innocent? Put simply, it is because our system punishes so severely those who go to trial and lose. If we are serious about both minimizing the conviction of the innocent and sentencing reform, we must address this reality. This essay, therefore, focuses on two pernicious features of our current criminal justice system—misuse of plea bargaining and misuse of informants—that explain why so few criminal defendants exercise their right to trial. We conclude with proposals that might ameliorate those features of our system.
ABSTRACT Hardly a month goes by when there is not news of another defendant who, after a lengthy ... more ABSTRACT Hardly a month goes by when there is not news of another defendant who, after a lengthy incarceration, is exonerated based on DNA evidence. Investigation into exonerations reveals that uncorroborated jailhouse informant testimony and the concealment of exculpatory evidence required to be disclosed to the accused under Brady v. Maryland and prevailing ethical rules are major contributing causes of wrongful convictions. When combined, false jailhouse informant testimony and the prosecutor's obligations under Brady sidetrack procedural justice whenever they occur and, when the accused is factually innocent, lead to the denial of substantive justice by convicting the innocent. In this article, the author explores these causes of wrongful convictions, their legal, ethical, and societal ramifications, and offers a number of pragmatic measures that prosecutors, defense lawyers, and judges can take immediately to respond to the injustice of false jailhouse informant (snitch) testimony and Brady violations.The author begins with a short discussion of the problem of wrongful convictions and the roles that false snitch testimony and prosecutorial misconduct play in convicting the innocent. In order to shape effective remedies to prevent wrongful convictions, it is necessary to understand the scope of the problem and the nature of causes of wrongful convictions. The author then outlines a number of realistic measures that head prosecutors, trial and appellate judges, and defense lawyer should take to prevent false snitch testimony and Brady violations. The author's goal in outlining these practical, low cost or no-cost recommendations to counter the prejudicial effects of snitch testimony and Brady violations is to generate interest by the countless good prosecutors, defense lawyers, and judges who could prevent wrongful convictions through their daily work.
... Although clinical legal education is an established part of Ameri-can legal education, few co... more ... Although clinical legal education is an established part of Ameri-can legal education, few commentators have considered how the ethi-cal issues governing lawyers' conflicts of interest and competency apply in the law school clinic context. ...
ABSTRACT There has been a growing interest in empirical research on law firms and lawyer conduct ... more ABSTRACT There has been a growing interest in empirical research on law firms and lawyer conduct for more than a decade. Recent studies have reached the same conclusion as studies from the 1960s and 1970s – the ethical culture in the law office is critical to the ethical behavior of the individual lawyers in the office.With this in mind, the question becomes this: What should the legal profession do to encourage better law firm management to promote ethical behavior? In ASSESSING LAWYERS' ETHICS, Adrian Evans maintains that law societies and bar associations could improve lawyers' ethical behavior through various strategies to assess their ethics. Evans moves the discussion from "what went wrong?" to "how can we fix it?"ASSESSING LAWYERS' ETHICS is a welcome contribution to literature focused on understanding and improving the ethical conduct of lawyers. This review of Evans' book focuses on the empirical findings underlying his recommendations and analyzes the positions Evans takes.
This essay analyzes the challenges to legal education and what those challenges may mean both to ... more This essay analyzes the challenges to legal education and what those challenges may mean both to clinical legal education and to clinical scholarship. Since the Great Recession, several law schools have closed, some have merged, and still other law schools approved by the American Bar Association (ABA) have been found out of compliance with ABA Accreditation Standards and either have been directed to take specific remedial action, have been placed on probation, or have lost ABA-approval. While enrollment has rebounded at some law schools, other law schools have continued to experience much smaller entering classes than the entering class in Fall 2010. These developments should be part of the conversation about clinical legal education and clinical scholarship, and this essay examines the effects of the Great Recession on law schools’ budgets, staffing, law school admissions, and overall enrollment. This essay concludes with some observations about the future of clinical legal education and clinical scholarship.
In theory, at least, many subscribe to the belief that it is better to let 10 or 100 guilty perso... more In theory, at least, many subscribe to the belief that it is better to let 10 or 100 guilty persons go free rather than convict an innocent person. Indeed, the American criminal justice system provides criminal defendants a panoply of important rights, including the right to effective assistance of counsel, in large part to ensure that the innocent are not convicted of crimes that they did not commit. But defense counsel is there not only to protect the innocent, but also to ensure that, if the defendant is found guilty after trial or if the defendant pleads guilty before trial, he or she will receive a fair sentence. In practice, however, too many criminal defendants receive lackluster representation, and few ever actually exercise their right to trial. Instead, our current criminal justice system is plea-bargain-driven, and the vast majority of state and federal criminal offenders plead guilty—approximately 97% of federal cases and 94% of state cases are resolved by guilty pleas rather than trials. Commenting on the prevalence of negotiated guilty pleas, the U.S. Supreme Court has stated that “plea bargaining is . . . not some adjunct to the criminal justice system; it is the criminal justice system.” Why, then, are criminal defense lawyers able to persuade the vast majority of their clients to plead guilty, even those who are actually innocent? Put simply, it is because our system punishes so severely those who go to trial and lose. If we are serious about both minimizing the conviction of the innocent and sentencing reform, we must address this reality. This essay, therefore, focuses on two pernicious features of our current criminal justice system—misuse of plea bargaining and misuse of informants—that explain why so few criminal defendants exercise their right to trial. We conclude with proposals that might ameliorate those features of our system.
ABSTRACT Hardly a month goes by when there is not news of another defendant who, after a lengthy ... more ABSTRACT Hardly a month goes by when there is not news of another defendant who, after a lengthy incarceration, is exonerated based on DNA evidence. Investigation into exonerations reveals that uncorroborated jailhouse informant testimony and the concealment of exculpatory evidence required to be disclosed to the accused under Brady v. Maryland and prevailing ethical rules are major contributing causes of wrongful convictions. When combined, false jailhouse informant testimony and the prosecutor's obligations under Brady sidetrack procedural justice whenever they occur and, when the accused is factually innocent, lead to the denial of substantive justice by convicting the innocent. In this article, the author explores these causes of wrongful convictions, their legal, ethical, and societal ramifications, and offers a number of pragmatic measures that prosecutors, defense lawyers, and judges can take immediately to respond to the injustice of false jailhouse informant (snitch) testimony and Brady violations.The author begins with a short discussion of the problem of wrongful convictions and the roles that false snitch testimony and prosecutorial misconduct play in convicting the innocent. In order to shape effective remedies to prevent wrongful convictions, it is necessary to understand the scope of the problem and the nature of causes of wrongful convictions. The author then outlines a number of realistic measures that head prosecutors, trial and appellate judges, and defense lawyer should take to prevent false snitch testimony and Brady violations. The author's goal in outlining these practical, low cost or no-cost recommendations to counter the prejudicial effects of snitch testimony and Brady violations is to generate interest by the countless good prosecutors, defense lawyers, and judges who could prevent wrongful convictions through their daily work.
... Although clinical legal education is an established part of Ameri-can legal education, few co... more ... Although clinical legal education is an established part of Ameri-can legal education, few commentators have considered how the ethi-cal issues governing lawyers' conflicts of interest and competency apply in the law school clinic context. ...
ABSTRACT There has been a growing interest in empirical research on law firms and lawyer conduct ... more ABSTRACT There has been a growing interest in empirical research on law firms and lawyer conduct for more than a decade. Recent studies have reached the same conclusion as studies from the 1960s and 1970s – the ethical culture in the law office is critical to the ethical behavior of the individual lawyers in the office.With this in mind, the question becomes this: What should the legal profession do to encourage better law firm management to promote ethical behavior? In ASSESSING LAWYERS' ETHICS, Adrian Evans maintains that law societies and bar associations could improve lawyers' ethical behavior through various strategies to assess their ethics. Evans moves the discussion from "what went wrong?" to "how can we fix it?"ASSESSING LAWYERS' ETHICS is a welcome contribution to literature focused on understanding and improving the ethical conduct of lawyers. This review of Evans' book focuses on the empirical findings underlying his recommendations and analyzes the positions Evans takes.
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