The Constitutional Limits of Client-Centered Decision Making

The Constitutional Limits of Client-Centered Decision Making

Todd A. Berger *

Some years ago in a courtroom in Philadelphia, I found myself in a rather troubling predicament. My client threatened to stab me with a pen. I was his defense attorney. My client had been charged with a gunpoint robbery. He was picked out of a random photo array by the complainant a few days after the incident occurred. If we lost the trial, he was going to receive a sentence of at least ten to twenty years in prison.

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*Associate Professor, Syracuse University College of Law. I am extremely grateful to the 2015 Clinical Writers‘ Workshop for giving me the opportunity to present this particular piece. I owe a special thanks to Professors Keith Findley, Jenny Roberts, Vida Johnson, and Joy Radice. Additional thanks are owed to Professors Lauryn Gouldin, Ann Pfeiffer, Jason Hoge, J.C. Lore, and Aliza Milner. I am extremely grateful to Megan Brooks, Victoria Radcliffe, and Cory Schoonmaker for their excellent research assistance. Lastly, a special thank you is owed to Hedimay Berger and Beverly Beaver for their editing, feedback, and general willingness to discuss this article far more than either of them would have liked.

The Constitutional Limits of Client-Centered Decision Making

Truth or Doubt? An Empirical Test of Criminal Jury Instructions

Michael D. Cicchini *

Lawrence T. White **

The Constitution protects a criminal defendant from conviction unless the government can prove guilt beyond a reasonable doubt. However, the Constitution does not require that trial courts use any particular set of words when defining reasonable doubt for the jury. Instead, a broad range of jury instructions have been deemed constitutionally acceptable, provided they do not diminish or dilute the government‘s high burden of proof.

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*Criminal Defense Lawyer, Cicchini Law Office, LLC, Kenosha, Wisconsin. J.D., 1999, Marquette University Law School; C.P.A., 1997, University of Illinois Board of Examiners; M.B.A., 1994, Marquette University Graduate School; B.S., 1990, University of Wisconsin-Parkside.

**Professor and Chair of Psychology, Beloit College; Director, Beloit College‘s Law & Justice Program. Ph.D., 1984, University of California, Santa Cruz; M.A.,1979, California State University at Fresno; B.A., 1975, Whittier College.

The Constitutional Limits of Client-Centered Decision Making

Clarence Thomas, Fisher v. University of Texas, and the Future of Affirmative Action in Higher Education

Scott D. Gerber *

I was flattered to be invited to participate in a February 21, 2014, symposium at the University of Chicago Law School sponsored by the Midwest Black Law Students Association about “Affirmative Action: Past, Present & Future.” The organizers said that they invited me because they thought I would say something different from my colleagues at the event. They were correct. After all, academia is dominated by the Left, and racial preferences are the sacred cow of the Left, whereas I am a libertarian who sincerely believes that racial preferences are unconstitutional. More importantly, Clarence Thomas thinks they are unconstitutional, and he is coming closer with each passing Term to convincing a majority of his colleagues on the U.S. Supreme Court of this fact.

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*Professor of Law, Ohio Northern University Pettit College of Law. I thank Roger Clegg and George Dent for comments on a draft of this article. I also thank Eric Segall and his faculty colleagues at Georgia State University College of Law for inviting me to present it there on March 31, 2014, and Brown University‘s Political Theory Project for hosting me while I edited it. The article is dedicated to Peg Cain, my wonderful administrative assistant who retired in December 2013 after nearly four decades of great work at Ohio Northern University.

The Constitutional Limits of Client-Centered Decision Making

Causation in Whistleblowing Claims

Nancy M. Modesitt *

Whistleblowing cases have continued to increase in number in recent years as state and federal legislatures have added protections for employees who disclose illegal or wrongful activity by their employers.1 But even as the number of cases continues to climb, cohesive and coherent doctrines applicable in whistleblowing litigation have failed to emerge. A significant reason for this is that much of whistleblower protection is statutory in nature, and federal statutes vary greatly from state statutes, even as state statutes differ. A second reason is that courts have drawn upon doctrines developed under Title VII of the Civil Rights Act of 1964 in deciding whistleblowing cases, and Supreme Court decisions as well as statutory amendments have frequently altered legal standards in these cases. And a third reason is that there are overlapping common law and statutory protections, which result in the potential for different whistleblowing doctrines to develop, even within a single state.

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*Associate Professor of Law, University of Baltimore School of Law. Many thanks to Richard Moberly, Jennifer Pacella, and Anuj Desai for their thoughtful suggestions and comments. I deeply appreciate the efforts of my research assistants, Jacquelyn LaHecka and Rafiq Gharbi, as well as the continued support of the law school that made this article possible.

The Constitutional Limits of Client-Centered Decision Making

Filling Federal Court Vacancies in a Presidential Election Year

Carl Tobias*

Scholars and politicians who closely track the federal judicial selection process appreciate that confirmations slow and ultimately halt over presidential election years, a phenomenon which has greater salience in a chief executive’s last administration. That policy comprises numerous strands. Important are the conventions—which have permitted the approval of many superb, uncontroversial district court nominees routinely through the fall of most presidential election years and in certain lame duck sessions—while allowing a number of capable, mainstream appellate nominees to manage consideration until the August Recess. The traditions derive from respect for voters’ preferences expressed in the elections, the incoming chief executive, who should have the opportunity to fill vacant judicial posts, and new senators, who must discharge their constitutional responsibility to provide advice and consent on selections.

 

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*Williams Chair in Law, University of Richmond School of Law. Thanks to Peggy Sanner and Katie Lehnen for fine ideas, Leslee Stone for excellent processing as well as Russell Williams and the Hunton Williams Summer Endowment Fund for generous, continuing support. The data in this piece were current when the piece went to print on April 25, 2016. Remaining errors are mine.

The Constitutional Limits of Client-Centered Decision Making

Equity and Feasibility Regulation

Dov Waisman* 

 

Two major approaches to regulating industrial health risks have emerged over the past fifty or so years. Feasibility analysis—the approach required by parts of the Clean Air Act of 1970 (Clean Air Act), the Clean Water Act of 1972 (Clean Water Act),  and the Occupational Safety and Health Act of 19704 (OSH Act)—says to reduce risks to the maximum extent possible without threatening the existence or competitive stability of the regulated industries. By contrast, cost-benefit analysis (CBA)—the approach that has dominated regulatory policy since the Reagan administration—says to reduce risks to the point at which net social benefits would be maximized, that is, to invest in risk reduction up to (but not beyond) the point at which further investment would cost more than it would save in accident costs.

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* Associate Professor of Law, Southwestern Law School. A.B., Harvard College; M.A., Philosophy, U.C. San Diego; J.D., U.C.L.A. I am indebted to Alan Calnan, Michael Dorff, David Driesen, Dave Fagundes, Johann Frick, Barbara Fried, Ezra Goldschlager, Warren Grimes, Danielle Kie Hart, Aaron James, Greg Keating, Hila Keren, David Neumark, Shira Sergant, and Byron Stier for their feedback and support. My thanks also to participants in the 2014 Harvard-Stanford-Yale Junior Faculty Forum and the 2015 Southern California Junior Law Faculty Workshop. I thank Andy Lugo and Sharrel Gerlach for excellent research assistance. Of course, any errors are mine.

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