ZiefBrief

Prof. Hussey Freeland Reconceives the Role of the Lawyer

A lawyer is an "officer of the court," many say, tossing off the phrase blithely, without really thinking about what — if anything — it might mean.

But here at USF, law professor Deborah M. Hussey Freeland has thought deeply about the concept of "officer of the court," and she breathes new life into this familiar trope in her latest article, "What Is a Lawyer? A Reconstruction of the Lawyer as an Officer of the Court," 31 Saint Louis University Public Law Review 425 (2012).

In the abstract, she states:

This paper engages with the central question in legal ethics concerning the lawyer's role, analyzing this fundamental question in terms of professional identity. Literature in this debate frames the lawyer either as a professional who exists entirely to serve her client (the "standard conception"), or as a professional whose primary duties are to the legal system. I reposit and examine the lawyer's professional identity as an officer of the court — an identity marginalized by those who favor the standard conception — noting that the phrase was coined to draw attention to a supplanting threat to legal professionalism. Providing a uniquely detailed examination of U.S. Supreme Court jurisprudence and of U.S. judicial system structure and function, this investigation yields strong and consistent evidence that the lawyer's identity as an officer of the court is the actual, legal standard conception of the lawyer, as well as the defining basis of her identity — her sine qua non.

The full text of What Is a Lawyer? is freely available on SSRN.

Professor Kaswan on Environmental Justice and Greenhouse Gas Cap-and-Trade

Professor Alice Kaswan recently authored the post, "Environmental Justice and GHG Cap-and-Trade: It's More than  a Complaint," on the CPRBlog.  An excerpt from Professor Kaswan's post:

California environmental justice groups filed a complaint last week with the federal Environmental Protection Agency arguing that California’s greenhouse gas (GHG) cap-and-trade program violates Title VI of the federal Civil Rights Act, which prohibits state programs receiving federal funding from causing discriminatory impacts.  They allege that the cap-and-trade program will fail to benefit all communities equally, and could result in maintaining and potentially increasing GHG emissions (and associated co-pollutant emissions) in disadvantaged neighborhoods that already experience disproportionate pollution.

While the complaint reflects real concerns about the distributional impact of a GHG cap-and-trade program on associated co-pollutants, it’s important to keep the complaint in perspective.  Neither it, nor previous lawsuits, present the multi-faceted set of environmental justice arguments on GHG cap-and-trade.

 

Professor Hing on Immigration Rights for Same-Sex Couples

Professor Bill Hing speaks out about immigration rights for same-sex couples on ImmigrationProf Blog today.  An excerpt from his post: 

President Obama’s bold endorsement of same-sex marriage sends a strong immigration-reform message to Congress: it's time to allow U.S. citizens lawfully married to same-sex partners the opportunity to apply for lawful immigrant status. Under current law, prospective immigrants who want to immigrate through marriage can only do so if they are parties to a heterosexual relationship. . . . 


The way out of this inequity is the Uniting American Families Act (UAFA).  UAFA would allow U.S. citizens and lawful permanent residents to sponsor their same-sex partners for immigration to the United States. The bill (and its predecessor) has been introduced into every subsequent Congress since the year 2000. Every year support has increased, and in the last Congress, more co-sponsors than ever before were garnered. In the 111th Congress (2009-2010), there was a record-breaking 135 co-sponsors in the House. And today there are more than 20 co-sponsors in the Senate. UAFA would amend the immigration laws by simply adding the term "permanent partner" in sections where "spouse" appears, thus ensuring that a non-citizen permanent partner may receive the same immigration benefits that a non-citizen spouse now receives. 

Hing on Arizona's Immigration Law, SB 1070

Professor Hing just contributed the following essay, "Like It Or Not, Arizona's SB 1070 Is About Racial Profiling," on Huffington Post.  An excerpt from his post:

In the Obama administration's challenge to Arizona's anti-immigrant SB 1070, Department of Justice lawyers avoided arguing that any of the law's provisions, including the requirement that state police check the documents of suspected undocumented immigrants, invite racial profiling.

The technocrat lawyer in me might understand this strategy, reasoning that it's too soon to know if Latinos will be targeted by SB 1070 (although there's plenty of evidence already). The cynic in me believes that the Obama administration stayed away from racial profiling allegations because that claim falls too close to home. The framework for SB 1070 mirrors the federal immigration enforcement laws and guess what, ICE engages in racial profiling every day. The immigration historian in me, however, understands that SB 1070 is in fact all about racial profiling given the institutionalized racism under which the law and its copycat statutes across the country have emerged.

 

Kaswan on Clean Air Act and Greenhouse Gases

Professor Kaswan recently authored the post, Applying the Clean Air Act to Greenhouse Gases: What Does It Mean for Traditional Pollutants?, on the CPRBlog. An excerpt from Professor Kaswan's post:

In a recently published article, Climate Change, the Clean Air Act, and Industrial Pollution, published in a UCLA Journal of Environmental Law and Policy symposium on the Clean Air Act and GHG regulation, I take up a slice of the complex debate about the value of the CAA.  I explore how using the Clean Air Act to reduce GHGs from stationary sources, including industrial and fossil-fuel electrical generating facilities, would affect many other pollutants, termed co-pollutants. Though co-pollutant impacts are only one of many relevant factors, the inquiry helps shed light on the benefits and drawbacks of the Clean Air Act as a climate policy mechanism, both on its own terms and in comparison with a frequently proposed alternative – a cap-and-trade program. The article reveals that there are no easy answers, and contributes to a more nuanced understanding of the CAA in particular and climate policy choices more generally.

Professor Freiwald Blogs About Cell Site Location Data

USF Law professor Susan Freiwald has just started a stint as a guest contributor at Concurring Opinions (ranked among the top 10 law blogs) this week. Her first blog post, Fifth Circuit Considers Constitutionality of Cell Site Location Data is a primer on topic that has grown more timely of late in light of information uncovered by the ACLU and reported extensively in the New York Times.

Prof. Freiwald specifically addresses a pending case before the Fifth Circuit which could add some clarity to the question of under what circumstances government agents will be required to seek a probable cause warrant for cell phone location data. She is eminently qualified to write on the subject having submitted an amicus brief in the case.

This blog post is only the first of a series of posts that will be appearing in Concurring Opinions by Prof. Friewald on the topic. Scholars and citizens with and interest in civil liberties and digital privacy will be interested in following what promises to be a lively series of posts.

Fortieth Anniversary Edition of The Paper Chase

USF Law has long enjoyed a close association with John Osborn, the author of The Paper Chase, the quintessential story of life as a first year law student at Harvard in the 1970's. As a professor of law and Distinguished Scholar in Residence  he has taught on wills and estate planning as well as a very popular course on the law in literature. To mark the Fortieth Anniversary of publication, The Paper Chase is being republished in a new edition with a brand new preface by the author. While much has changed in law schools and legal education in the last four decades, this book should still resonate with anyone who has lived through the rigors of an American legal education.

Though it hasn't been easy to find a new copy of The Paper Chase the last few years, this new edition is available in both a high quality trade paper back print edition as well as a digital edition readable on you Kindle, iPad or other compatable e-readers.

Freiwald's Fourth Amendment Arguments Sway Court

A U.S. District Court Judge has sided with compelling constitutional law arguments made by USF Law Professor Susan Freiwald and the Magistrate Judge in the decision below. In a single-page Order on Objections, Judge Lynn Hughes of the Southern District of Texas noted Professor Freiwald's amicus brief, along with a brief submitted by the EFF and ACLU, as an aid in arriving at his decision.

This most recent action arises out of an opinion by Magistrate Judge Stephen Smith of U.S. District Court in the Southern District of Texas. He denied the government access to a cellphone subscriber’s data absent a search warrant. Judge Smith's decision noted that cellphone tracking could allow the government to compile a "digital dossier" tracking a cellphone users movements and activities. To read the full decision click here.

The present Order is in response to the government's appeal of Judge Smith's decision. In her amicus brief Professor Freiwald urged the court to treat such records as deserving the full protection of the 4th Amendment of the U.S. Constitution. Such protected records could only be released to investigators who have received a warrant issued on probable cause. As the court put it, cell phone location records "... would show the date, time, called number, and location of the telephone when the call was made. These data are constitutionally protected from intrusion."

This decision is sure to generate discussion, starting with an entry in a Wall Street Journal blog: Judge Declares Law Governing Warrantless Cellphone Tracking Unconstitutional

Click here to read full order (.pdf).

Click here to read Professor Freiwald's full amicus brief (.pdf)

Professor Hing on Mexico's Economy

Professor Bill Hing's post, "Control the Border: Invest in Mexico," was published on Huffington Post this week. 

US Court of Appeals Protects Privacy of Stored E-Mail Thanks in Part to Prof. Freiwald

As noted in a previous blog entry on Zief Brief, USF professor Susan Freiwald co-filed an amicus brief in United States v. Warshak [PDF of the 12/14/10 decision], a case in which the Government seized over 27,000 of the defendant's private e-mails without bothering to get a warrant. This week the 6th Circuit issued an important ruling that extends significant constitutional protection for an individuals stored e-mail messages. In addressing the constitutional issues behind their decision the court quoted directly from Fourth Amendment Protection for Stored E-Mail, an article co-authored by Professors Freiwald and Patricia Bellia of Notre Dame School of Law. Professor Freiwald has posted a complete analysis of the decision and its important implications for the future at the blog Concurring Opinions in the post Sixth Circuit Brings Fourth Amendment Protection to Stored Email. Kudos to Prof. Freiwald for the part she played in this process.