Are premarital agreements categorically unfair? Critics of premarital agreements cling to the (unfounded) belief that premarital agreements are categorically one-sided, coercive, and designed to benefit the wealthier spouse — usually the man. Courts, legislators, and scholars have too often relied on assumptions about premarital agreements without delving in to the facts. They have looked almost everywhere to support their views, except for the one place that really matters: the actual agreements. The result, predictably, is a paternalistic system predicated on a near religious belief that women who sign premarital agreements are uneducated, unsophisticated, economically dependent actors who need the state to protect them from the overreaching of their husbands and their own stupidity. For the few women this paternalistic system might protect, it harms a great many more by reinforcing negative stereotypes and eroding individual autonomy. This paper builds on my previous work and offers something that has been sorely lacking in the field — empirical data. This paper presents my initial findings of a study involving all of the premarital agreements between opposite-sex couples recorded in Jefferson Parish, Louisiana between January 1, 2013 and December 31, 2016 — a total of 474 premarital agreements. My findings cast considerable doubt upon many of the stereotypes about the parties that enter into premarital agreements. The quintessential stereotype of a couple with a premarital agreement is the rich businessman and his (much) younger “trophy” bride. For the couples in this study, however, large age discrepancies are the exception rather than the rule. We have long assumed that premarital agreements are most common in second marriages. Although that is generally true for the couples in this study, the reality is a good deal more nuanced. Nearly a quarter of the agreements in this study were entered into by two spouses with no prior marriages. Longstanding assumptions about substance and procedure are also challenged by my study. We have been suspicious of premarital agreements that are signed shortly before the wedding out of fear that they result from duress or coercion. Yet, the vast majority of the couples in this study signed their agreements shortly before their weddings. Isn’t it more likely that these couples procrastinated rather than coerced? We have long assumed that premarital agreements involve the waiver of property rights and spousal support by the poorer spouse for the benefit of the richer spouse. Again, the data paint a more complex and interesting picture.
This essay represents one of several Case Studies to be published soon as the Movement Lawyering Roundtable Symposium by Hofstra Law Review. The Case Studies were developed within a roundtable of movement lawyers, community organizers, and legal ethics experts convened in March, 2018 by the Monroe H. Freedman Institute for the Study of Legal Ethics at Hofstra University’s Maurice A. Deane School of Law. This Case Study addresses the ethical tensions encountered by movement lawyers and community organizers engaged in public interest litigation. The Study consists of three topics, with resulting ethics analyses of the issues that arise in the differing settings. The first involves questions of financing the broad work of a community organizing client, while honoring the mandates of the rule of professional conduct prohibiting a lawyer from offering financial assistance to clients in litigation. The second issue addressed how lawyers might share attorneys’ fees awards with community groups who are ongoing clients. The third issue pivots to questions of how movement lawyers might counsel community organizations about disagreements with other pro bono lawyers representing the clients. Each of these sets of legal ethics issues arises in movement lawyering practice, and can be confounding. This essay seeks to offer guidance to lawyers navigating these sometimes delicate ethical waters.
Courts lack consistency and coherence in admissibility decisions regarding expert testimony based on economic models. Legal commentators have addressed the issue, but their conclusions range from treating questions about economic models as law to treating them as routine fact-finding. Evidence law bases admissibility upon the standards of the relevant field, and a substantial body of scholarship by economics methodologists conceives of models as tropes and economists as storytellers. Accordingly, models should be evaluated in the context of their use and by their target audience, which in complex litigation is the jury. The economics scholarship therefore supports a lower admissibility threshold because challenges to the choice of underlying studies, excluded variables, and simplifying assumptions go to credibility.
Every judge has a duty to do justice, which is found not only the oath the judge takes, but also in the Code of Judicial Conduct. The American Bar Association (ABA) Criminal Justice Standards Regarding the Special Functions of the Trial Judge provides more specific guidance including the responsibility to safeguard the rights of the accused and the public’s interest in the fair administration of criminal justice.
The intersection of intellectual disability and the death penalty is now clearly established. Both under the U.S. Supreme Court’s constitutional decisions and under the terms of many state statutes, individual defendants who have that disability cannot be sentenced to death or executed. It now falls to trial, appellate, and post-conviction courts to determine which individual criminal defendants are entitled to the law’s protection. This Article attempts to assist judges in performing that task. After a brief discussion of the Supreme Court’s decisions in Atkins v. Virginia, Hall v. Florida, and Moore v. Texas, it analyzes the component parts and terminology of the clinical definition of intellectual disability. It then offers more detailed discussion of a number of the clinical issues that arise frequently in adjudicating these cases. For each of these issues, the Article’s text and the accompanying notes attempt to provide judges with a thorough survey of the relevant clinical literature, and an explanation of the terminology used by clinical professionals. Our purpose is to help those judges to become more knowledgeable consumers of the clinical reports and expert testimony presented to them in individual cases, and to help them reach decisions that are consistent with what the clinical literature reveals about the nature of intellectual disability and best professional practices in the diagnostic process.
Every day in criminal courts across the country, thousands of people enter guilty pleas within hours of their arrest at their initial appearance or arraignment before a judge. The practice is so rampant that it has spawned its own phrase -- “meet ‘em, greet ‘em, and plead ‘em” -- that derisively, but accurately, captures the routine. At this critical moment in time, none of the institutional players -- judge, prosecutor or defense counsel -- has engaged in any kind of factual or legal investigation of the charges, or knows much of anything about the defendant, the arresting officer, or any potential victim or witnesses. And yet, the majority of misdemeanor cases will end then and there. While all institutional players bear responsibility for the blight of meet, greet, and plead, this Article focuses on whether defense counsel is providing constitutionally required effective assistance pursuant to the Sixth Amendment and adhering to the standards of professional behavior outlined in the American Bar Association’s (“ABA”) Standards for Criminal Justice. The ABA Standards for Criminal Justice are becoming more directly relevant when courts consider whether counsel provided constitutionally required effective assistance. After many years of minimizing the impact of the standards when analyzing whether an attorney’s performance met constitutional muster, the Supreme Court now seems more inclined to take the Standards into active consideration and almost imbue them with constitutional heft. As courts look to the ABA Standards to define the parameters of effective assistance in the plea bargaining context, it is essential that the Standards take every occasion to finally, clearly, directly and unequivocally condemn meet, greet, and plead. This Article examines the latest incarnation of the ABA Standards for the Defense Function adopted in 2015 and its impact on meet, greet, and plead. The revisions presented an opportunity, if not a necessity, to make clear that defense counsel should not recommend to a client that he accept a guilty plea at arraignment, and that counsel should advise a client more affirmatively to reject any guilty plea offered at arraignment. In the final analysis, the new standards send mixed messages and are a lost opportunity to finally rid the criminal justice system of the very symbol of assembly-line justice.
Clemency is routinely described by decision makers as an “extraordinary” power, which legitimates our capital punishment system and provides a “fail-safe” through which miscarriages of justice can be remedied. Out of step with this lofty rhetoric, however, are many of the practical realities of capital clemency representation. Among other obstacles, attorneys who represent death-sentenced clients in clemency routinely meet with considerable difficulty in securing adequate funding to perform competently and persuasively at this critical phase of a capital case. This is due, at least in part, to the haphazard way in which
Eric Segall’s Originalism as Faith provides both a history of the originalist movement in constitutional interpretation and a critique of that movement from the perspective of legal realism. This Review Essay summarizes Segall’s main argument: as originalism has abandoned deference to the political branches, it has become indistinguishable from its nemesis, living constitutionalism. Emptied of substance, originalism becomes nothing more than an expression of faith. Segall makes his argument very convincingly, evidencing both his knowledge of originalism in all its variants and his mastery of constitutional doctrine. This Essay offers two ways in which Segall’s exemplary work might be supplemented. First, it teases out the various meanings that “faith” can have in this context, ranging from quasi-religious belief to myth to ideology to political credo. Second, it offers two alternative narratives as supplements to Segall’s legal realist critique. Originalists insist that their approach has “bite,” which they contend distinguishes it from unprincipled living constitutionalism. In the alternative, Jack Balkin reconciles originalism and living constitutionalism. Legal decision-makers, following his “living originalism,” may be legal realists, but their construction of the Constitution must be constrained by their duties of good faith and fidelity to the Constitution. Originalism with bite and living originalism provide theoretical responses to Segall’s challenges, but their positions must also accord with the reality of constitutional adjudication. Segall challenges originalists to reconcile their faith in unelected judges with a Constitution designed to provide governmental accountability through democratic processes. If they cannot do so, originalism is not a true account of our judicial processes but a fable designed to disguise a new version of legislation by the judiciary as the neutral application of legal rules.
There is no such thing as a low-stakes misdemeanor. The misdemeanor sentence itself, which can range from time served to up to twelve years in some jurisdictions, is often significant. But the collateral consequences of such a conviction can be far worse, affecting a person’s work and home lives for decades, and sometimes for the rest of their lives. As a result of misdemeanor convictions, defendants can be fired from their jobs, barred from future employment in many fields, deported, evicted from public housing together with their entire family, and refused housing by private landlords. Under most theories of punishment, a judge at sentencing does not simply look back to the crime and its circumstances but also looks forward at the defendant’s future. Judges imposing sentences in misdemeanor cases should focus forward much more heavily than back, and should consider the collateral effects of a misdemeanor conviction on the defendant’s future. Viewed through that more expansive lens, and given the broad discretion of judges in misdemeanor sentencing and lack of existing guidance for that discretion, the sentencing function of judges in misdemeanor cases is in serious need of study and reform. This Article’s goal is two-fold. First, it contextualizes judicial responsibility for misdemeanor sentencing in the realities of the lower criminal courts, where a number of structural and systemic barriers — including violations of the right to counsel and pressures on judges to move cases along rapidly — affect but do not excuse the way judges go about sentencing. Second, the Article calls for judges to undertake “informed misdemeanor sentencing,” which draws on principles of proportionality and parsimony in determining the just sentence in a misdemeanor case. Accordingly, judges should explicitly acknowledge the many serious collateral consequences an individual suffers after any penal sanction, and incorporate those into the sentencing process to ensure that punishment is proportionate. In addition, judges should bring parsimony into the sentencing process by making more use of deferred adjudication as well as expungement and related mechanisms for mitigating the unintended effects of a misdemeanor conviction.
Black Lives Matter, Occupy Wall Street, the global justice/anti-globalization movement, the radical environmental movement of the 1990s, and other organizations have moved away from traditional hierarchical models of leadership within their movements in favor of more horizontal, “leader-full” structures or network models. More horizontal or network models have been used even when a group of people is engaged in what might ordinarily be considered “service” work, like disaster recovery and feeding the hungry. Relatedly, organizers of mass mobilizations may engage the support of lawyers even before these actions crystallize into a movement or formally structured organization—as informal governance structures exist in the planning and execution of these mobilizations. One example is the Ferguson Legal Defense Network, which formed under the direction of trusted lawyer contacts amidst the mass mobilizations in Ferguson in the aftermath of the police killing of Michael Brown Jr. This short contribution examines some of these non-traditional, social movement-based lawyer-client relationships, evaluates the accompanying professional responsibility challenges, and offers preliminary approaches. These challenges—though not insurmountable—require thought and a foundational understanding of the goals and methods of social movement organizations.
Thank you very much. It is terribly nice for me to be here at Hofstra. Thirty years ago, as the original Sentencing Guidelines were going into effect, I spoke here to highlight some of the key compromises we as Commissioners reached in writing them. Ten years later, in 1998, I revisited the Guidelines at the Roman L. Hruska Institute in Nebraska to discuss their history and to offer my recommendations for discussion following a decade of their application. I am here today to commemorate the history of the original Sentencing Guidelines, and to again offer my suggestions to Congress, the Department of Justice, and to the current United States Sentencing Commission. While much has changed since the Guidelines were considered in those speeches, my suggestions remain the same.
