Providing Dispute Resolution Expertise to the Community

As schools and other public institutions struggle for funding, law schools and their students have new opportunities to fill unmet needs by providing consulting expertise in facilitation and dispute resolution. Such partnerships can provide valuable service for the institutions while giving students a chance to apply their skills to issues in nearby communities

Resolving Disputed Elections Through Negotiation

Published in cooperation with the American Bar Association Section of Dispute Resolutio

Lafler and Frye: A New Constitutional Standard for Negotiation

The Sixth Amendment guarantees [i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense. In 1984, the Supreme Court in Strickland v. Washington established the standard for ineffective assistance of counsel that is a violation of this right. In a pair of decisions handed down in 2012, Lafler v. Cooper and Missouri v. Frye the Supreme Court extended the holding in Strickland to cover ineffective assistance by defense counsel in the plea-bargaining phase. Recognizing that pleas account for ninety-five percent of all criminal convictions, the court stated that the negotiation of a plea bargain . . . is almost always the critical point for a defendant and defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires. What might these responsibilities be, and how might we determine them? This paper argues that by holding that there is a constitutional minimum standard for counsel in the plea-bargaining context, the court has effectively created a negotiation competency bar for criminal defense attorneys. This paper will look to existing and potential sources of standards for negotiation competency in plea-bargaining to determine how lower courts can and should shape the scope of this right in the future. Part II of the paper examines the Frye and Lafler decisions in light of the Supreme Court\u27s previous rulings on ineffective assistance of counsel claims and in particular the assistance of counsel during the plea-bargaining stage. It shows that the Court went further than just considering the individual errors by defense counsel in each case to make a broader ruling that extends ineffective assistance jurisprudence to the larger negotiation context of plea bargains. It asserts that while the Court has been reluctant to establish exact standards for defense counsel\u27s role in the plea-bargaining process,\u27 establishing these standards will be critical for lower state and federal courts to define the scope of the right and address the multiple ills of plea-bargaining caused by counsel\u27s bad incentives. As previous cases state that the “proper standard for [measuring] attorney performance is that of reasonably effective assistance,” as guided by \u27prevailing professional norms\u27 and consideration of \u27all the circumstances\u27 relevant to counsel\u27s performance this paper then explores what sort of prevailing professional norms and circumstances can provide guidance in this area. Part III looks to existing standards of professional practice, such as the ABA\u27s Model Rules of Professional Conduct, as a first source of guidance for plea negotiators. This part also looks to other ABA Standards such as the ABA Standards for Criminal Justice, as courts have adopted these standards in defining ineffective assistance in other areas, and concludes that these provide guidance for plea bargain negotiations as well. It also looks at other types of behavior that have been determined to be ineffective assistance of counsel in the trial context and draws analogies to behavior in the negotiation context. Just as counsel at trial need to prepare to a reasonable standard, we can analogize to the amount of preparation required in the context of a negotiation of a plea bargain. Part III concludes with a brief overview of popular and scholarly literature on negotiation theory, and pulls common threads, such as the need to for legitimate standards and knowledge of alternatives that may be helpful in the plea context

Lafler and Frye: A New Constitutional Standard for Negotiation

The Sixth Amendment guarantees [i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense. In 1984, the Supreme Court in Strickland v. Washington established the standard for ineffective assistance of counsel that is a violation of this right. In a pair of decisions handed down in 2012, Lafler v. Cooper and Missouri v. Frye the Supreme Court extended the holding in Strickland to cover ineffective assistance by defense counsel in the plea-bargaining phase. Recognizing that pleas account for ninety-five percent of all criminal convictions, the court stated that the negotiation of a plea bargain . . . is almost always the critical point for a defendant and defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires. What might these responsibilities be, and how might we determine them? This paper argues that by holding that there is a constitutional minimum standard for counsel in the plea-bargaining context, the court has effectively created a negotiation competency bar for criminal defense attorneys. This paper will look to existing and potential sources of standards for negotiation competency in plea-bargaining to determine how lower courts can and should shape the scope of this right in the future. Part II of the paper examines the Frye and Lafler decisions in light of the Supreme Court\u27s previous rulings on ineffective assistance of counsel claims and in particular the assistance of counsel during the plea-bargaining stage. It shows that the Court went further than just considering the individual errors by defense counsel in each case to make a broader ruling that extends ineffective assistance jurisprudence to the larger negotiation context of plea bargains. It asserts that while the Court has been reluctant to establish exact standards for defense counsel\u27s role in the plea-bargaining process,\u27 establishing these standards will be critical for lower state and federal courts to define the scope of the right and address the multiple ills of plea-bargaining caused by counsel\u27s bad incentives. As previous cases state that the “proper standard for [measuring] attorney performance is that of reasonably effective assistance,” as guided by \u27prevailing professional norms\u27 and consideration of \u27all the circumstances\u27 relevant to counsel\u27s performance this paper then explores what sort of prevailing professional norms and circumstances can provide guidance in this area. Part III looks to existing standards of professional practice, such as the ABA\u27s Model Rules of Professional Conduct, as a first source of guidance for plea negotiators. This part also looks to other ABA Standards such as the ABA Standards for Criminal Justice, as courts have adopted these standards in defining ineffective assistance in other areas, and concludes that these provide guidance for plea bargain negotiations as well. It also looks at other types of behavior that have been determined to be ineffective assistance of counsel in the trial context and draws analogies to behavior in the negotiation context. Just as counsel at trial need to prepare to a reasonable standard, we can analogize to the amount of preparation required in the context of a negotiation of a plea bargain. Part III concludes with a brief overview of popular and scholarly literature on negotiation theory, and pulls common threads, such as the need to for legitimate standards and knowledge of alternatives that may be helpful in the plea context

Improving the Uniform Partition of Heirs Property Act

Johnny Rivers was born and had lived his whole sixty-nine-year life on the same seventeen-acre tract on Clouter Creek near the Cainhoy Peninsula of Charleston, South Carolina. His father owned the land since 1888, and his family had worked the land and paid taxes, never missing a tax payment. He thought he and his family would live on the land for the rest of his life. However, in 2000, he received a letter telling him he was the subject of a legal action called a partition.” A family member who was a part owner of the land and whom Rivers had never met decided he wanted to sell his interest in the land. The court would later order the Rivers family to sell the land and accept the auction bid of an investor for $910,000, of which Rivers received less than 4$30,000. Unfortunately, Rivers, and many other property owners for which this is an all-too-common occurrence, had no idea that this sort of result is possible. Most assume that because they live on the land, or pay taxes, or because the land ownership is divided among many co-owners, no one can force them to leave. However, it is exactly because of this last characteristic-the fractionalized ownership of land among many related individuals-a condition known as heirs property that the Rivers\u27 land, and so many other pieces of property, are vulnerable. Since any co-owner in this situation can seek an order from a court for the land to be divided, and because courts routinely divide the value of the land not by splitting it into parcels ( partition in kind ), but by auctioning it at a forced sale and distributing the proceeds ( partition by sale ), co-owners in this situation can be forced off their own land despite their familial, financial, or historical connection to it

Resolving Civil Forfeiture Disputes

Under a legal process known as civil asset forfeiture, state and federal laws allow law enforcement officials and the government to seize assets from individuals who are not charged with a crime if the property is suspected of being involved in criminal activity. This is true even if the owner of the property is not charged with the underlying crime. Indeed, in 2014, The Washington Post analyzed 400 cases in seventeen states that were examples of civil forfeiture during traffic stops. Police stopped motorists under the pretext of a minor traffic infraction, analyzed the intentions of motorists by assessing nervousness, and requested permission to search the vehicle without a warrant. In most cases, officers did not even make an arrest. However, that same study found that between September 11, 2001 and September 2014, the Department of Justice\u27s (DOJ\u27s) equitable sharing program, which allows local law enforcement to share in the proceeds of property seized through civil forfeiture, was responsible for nearly 62,000 seizures of cash without warrants or criminal indictments filed against the owners. Of the $2.5 billion forfeited as a result, state and local agencies received$1.7 billion and federal agencies received $800 million. As this Article will show, civil forfeiture disputes regarding cash are some of the most difficult to resolve due to the psychological and structural nature of these disputes. However, as these disputes arise fairly frequently, tools are needed for judges and the judicial system as a whole to resolve them. While legislative action could help resolve these disputes by changing the legal framework within which they occur, until that time, judges are tasked with resolving civil forfeiture actions

Improving the Uniform Partition of Heirs Property Act

Johnny Rivers was born and had lived his whole sixty-nine-year life on the same seventeen-acre tract on Clouter Creek near the Cainhoy Peninsula of Charleston, South Carolina. His father owned the land since 1888, and his family had worked the land and paid taxes, never missing a tax payment. He thought he and his family would live on the land for the rest of his life. However, in 2000, he received a letter telling him he was the subject of a legal action called a partition.” A family member who was a part owner of the land and whom Rivers had never met decided he wanted to sell his interest in the land. The court would later order the Rivers family to sell the land and accept the auction bid of an investor for $910,000, of which Rivers received less than 4$30,000. Unfortunately, Rivers, and many other property owners for which this is an all-too-common occurrence, had no idea that this sort of result is possible. Most assume that because they live on the land, or pay taxes, or because the land ownership is divided among many co-owners, no one can force them to leave. However, it is exactly because of this last characteristic-the fractionalized ownership of land among many related individuals-a condition known as heirs property that the Rivers\u27 land, and so many other pieces of property, are vulnerable. Since any co-owner in this situation can seek an order from a court for the land to be divided, and because courts routinely divide the value of the land not by splitting it into parcels ( partition in kind ), but by auctioning it at a forced sale and distributing the proceeds ( partition by sale ), co-owners in this situation can be forced off their own land despite their familial, financial, or historical connection to it

Providing Dispute Resolution Expertise to the Community

As schools and other public institutions struggle for funding, law schools and their students have new opportunities to fill unmet needs by providing consulting expertise in facilitation and dispute resolution. Such partnerships can provide valuable service for the institutions while giving students a chance to apply their skills to issues in nearby communities

Judicial Participation in Plea Bargaining: A Dispute Resolution Perspective

There is a common perception that judges do not or should not play a role in the criminal plea bargaining discussions between prosecutors and defense counsel. However, in many state jurisdictions, judicial participation is allowed or even encouraged by statute or by case law. This Article briefly summarizes some of the issues with the plea bargaining process, including how structural issues with the way defense counsel are appointed and compensated, along with the power of prosecutors, makes good representation for defendants less likely. By then performing a fifty-state survey of rules for judicial participation in plea bargaining, the Article explicates both advantages and disadvantages of judicial participation in the plea process. Most importantly, it makes five recommendations for how states can involve judges in the plea process to retain the advantages while minimizing the disadvantages of judicial participation: having a separate judge or magistrate judge manage the plea process, recording plea bargains for future review, ensuring judges take a facilitative role during the plea process, involving defendants in the process where possible, and holding plea bargains in an informal setting

Standards of Legitimacy in Criminal Negotiations

Scholarship on negotiation theory and practice is rich and well-developed. Almost no work has been done, however, to translateto the criminal context the lessons learned about negotiationfrom extensive empirical study using the disciplines of econom-ics, game theory, and psychology. This Article suggests that de-fense lawyers in criminal negotiations can employ toolsfrequently useful to negotiators in other arenas: neutral criteria as a standard of legitimacy. Judges sometimes exercise a type of discretion analogous to prosecutorial discretion. When they do so, they offer an independent, reasoned, and publicly available assessment of the factors that a prosecutor ought to consider in deciding whether to grant leniency. In negotiations, defense lawyers can use these guidelines offered by judges as a soft limitation on the largely unchecked power of prosecutors. Judges have been reluctant, however, to exercise the power clearly assigned to them, and defense lawyers have been slow to recognize the value of the guidance that judges have provided