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.

If It's Summer It Must Be Time for Law Review Topics

Along with newly-admitted first years seeking summer reading ideas, another sign of the impending school year is an uptick of ZiefBrief visitors arriving from the results of Google searches for "law review topics."

Our general advice remains:

• Set aside the 19th-Century mindset of the first year, and spend some time thinking about what drew you to law school in the first place. What aspects of the law are most interesting to you? This is an essential step. You've got to care about your topic because you'll spend an inordinate amount of time working on your comment or note.
• Read the news — general news and legal news — and think about what legal issues underlie the stories you are seeing.
• As soon as you have a glimmer of an idea, sit down with Chapter 2 ("Inspiration: Choosing a  Subject & Developing a Thesis") of Elizabeth Fajans & Mary R. Falk, Scholarly Writing for Law Students: Seminar Papers, Law Review Notes, and Law Review Competition Papers, 4th ed. This is the very best and most practical advice we've seen for taking the smallest seed of an idea and growing a full-fledged topic from it.

In the end, while we can't give you the perfect topic, we can suggest places to look for inspiration, and we've collected links to some useful sources in the Zief Library's research guide, Finding a Topic for Your Law School Paper or Law Review Comment/Note.

Professor Kaswan on EPA's Source Performance Standards

Professor Alice Kaswan published the post, Greenhouse Gas Standards for New Power Plants: Glass Half-Full and Half-Empty, on the CPRBlog this week:

EPA deserves praise for setting a strong standard and proposing it notwithstanding political heat. . . . While attention is properly focused on what EPA has accomplished, it is important not to lose sight of what could be better. One concern is the standard’s flexibility: it lets new power plants (presumably coal-fired) violate the standard now and catch up in the future (presumably through the installation of carbon capture and storage (CCS)). . . . A second, and more fundamental concern, is EPA’s silence on existing power plants. 

 

Professor Julie Nice on Equal Protection for Gays and Lesbians

Professor Julie Nice, guest columnist for JURIST, explains the significance of a recent California federal district court case, Golinski v. United States Office of Personnel Management.  From the article: 

What is stunning about the Golinski decision is what it reveals about how far gay rights have come. In this rather run-of-the-mill employment benefits dispute, a federal district court's methodical application of judicial reasoning from recent gay rights victories has resulted in a sweeping ruling in Golinski's favor.

Professor Hing on Lessons from Japanese Internment

Huffington Post published Professor Bill Hing's essay, Lessons to Remember from Japanese Internment: 

This Sunday, February 19, marked the 70th anniversary of Executive Order 9066, which authorized the internment of Japanese Americans during World War II. On that day in 1942, then-President Franklin Delano Roosevelt signed Executive Order 9066, setting the wheels in motion for one of the largest violations of civil liberties in the country's history. The forced exclusion of those of Japanese descent from the West Coast -- most of whom were American citizens -- and their mass incarceration in American concentration camps provides a lesson in human rights abuse that, unfortunately, the nation tends to forget too conveniently.

Professor Donovan on the New Cambodian Civil Code

Professor Donovan recently contributed a post to the East Asia Forum on Cambodia's historic adoption of a new Civil Code:

[t]he code is a major step forward for Cambodia. It is a cosmopolitan, internationalist document, exhibiting the influence of pre-existing Cambodian law as well as that of Japanese and French law. One knowledgeable Cambodian observer even sees common-law influence in the section of the code dealing with the basic rules of contract. . . . In short, the new code is a healthy hybrid which should serve Cambodia well. It promises far greater security under the rule of law than the Cambodian people have previously known.

Professor Hing on Prop 8 and Immigration Reform

Professor Bill Hing recently posted on Proposition 8, Perry v. Brown, and immigration reform on Huffington Post: 

The federal Ninth Circuit Court of Appeals' decision striking down California's Proposition 8 attempt to take away marital rights from same-sex couples 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.

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)

The Bluebook Slammed by Richard Posner

I think it's safe to say that Judge Posner hasn't been particularly fond of the Bluebook for quite some time (he called the 16th edition a "grotesque 255 pages long"), and that is especially true for the new 511-page 19th edition.  Here are a few choice quotes from his review of the 19th edition in Yale Law Review:

The Bluebook: A Uniform System of Citation exemplifies hypertrophy in the
anthropological sense. It is a monstrous growth, remote from the functional
need for legal citation forms, that serves obscure needs of the legal culture and
its student subculture.

[N]eedless to say, I have not read the nineteenth edition. I have dipped into it, much as one might dip one’s toes in a pail of freezing water. I am put in mind of Mr. Kurtz’s dying words in Heart of Darkness — ‘The horror! The horror!’ — and am tempted to end there.

The basic rule of abbreviating, ignored by the authors of The Bluebook, is to avoid nonobvious abbreviations: don’t make the reader puzzle over an abbreviation, as The Bluebook does routinely. . . . It’s as if there were a heavy tax on letters, making it costly to write out Coast Guard Court of Criminal Appeals instead of abbreviating it “C.G. Ct. Crim. App.”

I imagine Judge Posner would have similar harsh words for ALWD, which has now grown to a monstrous and unwieldy 661 pages. 

 

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.