Ripe for Resolution: Ending Taxpayer Expenditures on Pointless Litigation

By Adjunct Professor Paula Mitchell

This post originally appeared in the Courts and Procedure section on Verdict by Justia.

When the Supreme Court decided Ryan v. Gonzales earlier this year, it created an interesting dilemma for federal courts in death-penalty states.  The Court held that federal courts are not required to stay habeas corpus proceedings for death row inmates who are mentally incompetent and unable to assist counsel in their post-conviction proceedings.  "Where there is no reasonable hope of competence, a stay is inappropriate and merely frustrates the State's attempts to defend its presumptively valid judgment."  Whether to grant a stay was left to the discretion of the district court.

Typically, a defendant who has been sentenced to death spends decades on death row challenging his conviction and sentence in direct appeals and habeas corpus proceedings, in both state and federal courts.  During that time, it is not uncommon for a condemned inmate to experience a decline in his or her mental competency due to any number of factors, including the mental deterioration that comes with years of living in harsh conditions or in solitary confinement.  Before Gonzales, when capital habeas proceedings were pending before a federal district court, and the inmate (or, "petitioner") was unable to assist his counsel in those proceedings, the district court would frequently "stay" the proceedings to provide the inmate with an opportunity to seek mental health care intended to return him or her to competency so that the petitioner could assist his or her counsel.

After Gonzales, however, federal courts are directed to deny requests for stays in state capital cases where there is "no reasonable hope of competence."  This leads to an absurd result.  Petitioner's counsel will now have to continue pursuing costly habeas corpus litigation of the merits of their mentally incompetent clients' constitutional claims.  If the petitioner's claims are successful and his conviction or sentence or both are reversed, the state will be unable to retry the case in most cases, due to the inmate's lack of competency.  In most states, those petitioners will remain on death row, even though their convictions or sentences were found to be constitutionally infirm and they are entitled to a new trial. And if the state prevails and the federal court upholds the conviction and sentence, those seriously mentally ill inmates will remain on death row, even though the state will in many, if not most, cases never carry out those death sentences because the inmates will not, in all likelihood, ever regain competency and become eligible for execution.  (SeeFord v. Wainwright, where the U.S. Supreme Court held that "the Eighth Amendment prohibits a State from carrying out a sentence of death upon a prisoner who is insane.  Whether its aim be to protect the condemned from fear and pain without comfort of understanding, or to protect the dignity of society itself from the barbarity of exacting mindless vengeance, the restriction finds enforcement in the Eighth Amendment.").

How Asia Works: Success and Failure in the World's Most Dynamic Region by Joe Studwell

By Professor Jeffery Atik

This post originally appeared on Attravero: Jeff Atik's Commentary on International Banking and Finance.

Pity Joe Studwell. He has written a very intelligent, very thoughtful book. You might not agree with much of it; I have my doubts about his recipe. But there is little doubt what the book is: an exercise in economic history, with a focus on a peculiar developmental pathway followed by a few highly successful (generally northern) east Asian countries and not followed by certain (largely southern) east Asian countries. And geography has nothing to do with these diverging outcomes.

So poor Studwell delivers this intelligent book to his editor - one imagines - who decides it needs a snazzy title. Regardless of whether the title describes Studwell's book. Studwell writes about 'How Certain Asian Countries Developed' - not about 'How Asia Works'. He has very little to say in How Asia Worksabout how any of Asia works today - again, he is an economic historian. And he makes no claim within the book's pages that Asia is 'the World's most dynamic region.' Poor Studwell.

He can take comfort from having written a provocative book, which challenges much of the prevailing orthodoxy in developmental economics. And he's obviously willing to horrify both left and right - praising Robin Hood-esque land reform (but not agricultural collectivization), autocratic leaders who impose export discipline on their cronies, and the elegant effectiveness of capital controls.

Studwell examines the East Asian development successes (Japan, Korea, Taiwan, and China) and the laggards (Malaysia, Indonesia, Thailand, and the Philippines). The winning path, according to Studwell, involves three distinct phases ("one, two, three," he calls these in his concluding chapter). These three phases are a recipe for developmental success, they form the "same stretch of the river" that poor countries must navigate.

The first stage requires equitable land distribution to absorb labor and capture the productivity gains associated with moving to garden-style agriculture by small family landowners. The magic here is that everyone works - and most start at the same base. Garden intensity agriculture yields very low returns on labor but enhanced returns on land - it permits the accumulation of small surpluses that can be used to fund imports of necessary technology.

Rebuilding and Restoring the Golden State

By James Gilliam, Guest Alumni Blogger

Given the poverty crisis plaguing California, I was excited to have the opportunity recently to attend a Community Legislative Briefing hosted by The California Partnership -- of which the ACLU of Southern California is a proud member -- a diverse coalition of health, human service, labor, low income, immigrant rights and civil rights community-based organizations that have come together to fight poverty in our state.

The ACLU of Southern California believes that economic justice and civil liberties are inextricably intertwined. Indeed, basic economic rights are an essential prerequisite for the full and fair functioning of democracy in the United States and for the development and flourishing of civil liberties. So, we were excited to host this diverse group of community members, lawmakers, and advocates to discuss various policy proposals that, if enacted, will all come together to rebuild and restore our Golden State.

Budgets are about choices and priorities. Will California choose to reinvest in safety-net programs after $15 billion in health and human services programs were slashed in the last four years alone? Will California choose to expand its already bloated prison system instead of prioritizing cost-effective and evidence-based alternatives to incarceration that strengthen public safety while reducing over-incarceration? Will California choose to close the widening income inequality gap by passing and implementing common-sense policy changes?

The Importance of Writing Assignments in Evidence Courses

By Associate Professor Kevin Lapp

This is one of a series of guest posts on teaching Evidence at EvidenceProf Blog.

As I said before, Evidence strikes me as an ideal second-year course to incorporate skills exercises into the curriculum, so that students don't just learn the rules, but learn how practicing lawyers prepare for and resolve Evidence law issues. Aided by the problem-based approach of many Evidence textbooks, it's quite easy in the classroom to provide students with the facts of a case and some proposed testimony and to then have one or more students argue for the admissibility of the testimony while others argue for exclusion. This gets them to do the important work of applying the rule they've just learned, has the benefit of them doing so while in role as a lawyer with a particular goal, and ensures that they hear and consider both sides of the issue.

Yet, while many evidentiary issues arise in the middle of witness testimony, and require the quick-thinking objections and oral argument skills that can be developed via classroom discussion or exercises, a lot of evidentiary issues are resolved pretrial via motions in limine. And it is quite a challenge to include legal writing exercises in the Evidence course curriculum for a host of reasons. But I think it is a challenge that deserves to be confronted and overcome. Simply put, no student should leave an Evidence course without having drafted a short motion in limine.
There are several reasons for including a motion in limine assignment (beyond the fact that they are a important component of actual practice).

Latest on Universities and Slavery

The following originally published on The Faculty Lounge.

Loyola Law School Professor Yxta Maya Murray's article "From Here I Saw What Happened and I Cried: Carrie Mae Weems' Challenge to the Harvard Archive" has just appeared in volume 8 of Unbound: Harvard Journal of the Legal Left. It tells the really interesting story of a dispute between the artist Carrie Mae Weems and Harvard's Peabody museum over the use of photographs that Louis Agassiz took of enslaved people that he hoped would support the theory of poly-genesis that he embraced (along, I might note with Alabama's Josiah Nott). The article explores Agassiz' purpose in collecting the pictures, their re-discovering in the 1970s at Harvard, and the controversy over their use. While I usually emphasize Harvard's contributions to the anti-slavery cause, this story reminds us again of the connections between Harvard and racial thought in the pre-Civil War era.

Cribbing a little from the article:

In the same year as the enactment of the 1850 Fugitive Slave Act, Agassiz toured South Carolina plantations and decided to defend his polygenesist position by resuming his collecting habit. But this time he would collect live people, not animals, bones, or plants. For this purpose he enlisted Dr. Robert Gibbes, a Morton acolyte, who led Agassiz on a tour of the plantations. On this expedition Agassiz selected Delia, Jack, Renty, Drana, and others for their supposedly instructive appearances. He ordered Gibbes to "gather corroborative photographic evidence" of them, and then retreated to Harvard. Gibbes hired one J.T. Zealy to take nude pictures of them at Zealy's studio in the two attitudes that make up the series, being headshots and full body shots. The record of what happened to the pictures here dwindles. .... [T]he daguerreotypes fade from history until their discovery in the Peabody attic in 1976.

Agassiz would trigger Carrie Mae Weems' show, From Here I Saw What Happened. Weems found much to comment on with photo-metrists like Galton. ... Inspired by Georges Cuvier's 1815 dissection of Sarah Baartman, the original, doomed Hottentot Venus, Galton conducted his own infamous study of yet another "Venus." He encountered this second goddess on his journeys, and measured her every square inch with a sextant. In 1859, when his cousin, Charles Darwin, had published The Origin of Species, Galton's enthusiasm for measuring racial attributes merged with a conviction in White supremacy he felt was assured by Darwin's work. Back in Europe, Galton expanded on his practice of measuring people he believed resided on the lower reaches of the Great Chain of Being.

The Org: The Underlying Logic of the Office by Ray Fisman and Tim Sullivan

By Professor Jeffery Atik

It feels odd to be composing this review of Ray Fisman and Tim Sullivan's The Org in the days following Ronald Coase's passing. Coase was an unusually creative and influential thinker - one who identified some basic truths of organizational life that had not been generally recognized: the kind of simple things that, once pointed out, cannot fail to be seen.

Coase and the work that followed Coase form much of the subject matter of The Org, a book-length meditation by Ray Fisman and Tim Sullivan on the science of the organization. Indeed, Fisman and Sullivan launch the book with the story behind Coase's posing of the grand question: "Why orgs?" Young Coase travels to Chicago, meets with managers, and reads the Chicago phone book. He is struck by the range of scale and activities pursued by the firms he finds. Why then, asks Coase (and ask Fisman and Sullivan), are some activities conducted within firms and others between firms (that is, via the market)? Coase's answer (transaction costs) may or may not be correct ('transaction costs' always seemed to me to be a convenient label for a still elusive explanation, almost a tautology); what is important is the question.

Organizations are mysterious. We fit them on like suits of clothing - and instinctively know how to push and pull their levers. Fisman and Sullivan focus on what happens within the firm - how organizations compel human agents (because that's what we are) to pursue organizational goals. The resort to organization is by and large a given. At this point, they collect the principal/agent mysteries that form much of the challenge to understanding how firms work. Fisman and Sullivan do not confine themselves to business organizations in The Org - indeed their best coverage involves organizations that are not business firms: the Baltimore police department, Methodist churches and the military.

With Evidence, Balancing Coverage and Class Time

By Associate Professor Kevin Lapp

This is one of a series of guest posts on teaching Evidence at EvidenceProf Blog.

A comment by Frederick Moss to a prior post raised the important question of coverage in an Evidence course. Even for those with the luxury of 4 credit hours each week, there simply isn't enough class time to cover the material and accomplish all that might be accomplished in a law school course.  I'm happy to entertain thoughts on what content gets bumped when the clock is running out - burdens of proof; trial mechanics; the best evidence rule; authentication; scientific evidence. Personally, I haven't yet found room for a one-hour lesson on the limits of eyewitness testimony, which I would love to add to my course.

But coverage is not just a content issue. As the push for more practical training continues (a push I endorse), there is no reason for doctrinal courses to ignore practice skills. Indeed, in these leaner times, doctrinal courses may be the best place to insert practical training into the curriculum. And in my mind, the Evidence course is a perfect place for law school to include lawyering skills alongside the learning of fundamental doctrine. I'm trying to incorporate some skills mini-exercises throughout my course (such as in-role oral arguments in class, and short writing assignments akin to motions in limine), but making time for those requires bumping topics that I already decided couldn't get bumped.