Self-Love and the Judicial Power to Appoint a Special Prosecutor Symposium on Special Prosecutions and the Role of the Independent Counsel

Judicial appointment of private attorneys as special prosecutors has occurred and is permitted to occur in a variety of contexts other than when the executive branch is faced with a potential or actual conflict of interest. Until recently, the Second Circuit Court of Appeals and, of course, district courts within the Second Circuit, have interpreted Rule 42(b) of the Federal Rules of Criminal Procedure to permit judicial appointment of a private attorney to prosecute conduct allegedly violative of a court order as criminal contempt. Courts have been most active in appointing private attorneys as special prosecutors in cases involving counterfeit trademark products. This discussion will focus on three major areas of disagreement between the Court and Justice Scalia in Young v. U.S. ex rel Vuitton et Fils: (1) the scope of the contempt power, (2) the role of the judge in contempt proceedings, and (3) the Court\u27s justification for its holding. At its core, the disagreement stems from the definition of judicial power embodied in article III of the Constitution. For Justice Scalia, the role of the prosecutor is inconsistent with the judge\u27s role as a neutral adjudicator. He believes neutrality is the essence of the judicial function and, thus, judicial power. The judicial power is the power to decide, in accordance with law, who should prevail in a case or controversy. \u27 This includes the power to act as a neutral adjudicator but does not include the power to prosecute

Attorney-Client Privilege, Ethical Rules, and the Impaired Criminal Defendant, The

Attorneys who represent possibly incompetent defendants charged with criminal conduct face difficult ethical issues, implicating professional duties of loyalty, zealous representation, and confidentiality-as an ethical question and as a matter of the law of evidence. The principles of agency underlying the attorney-client relationship are also implicated when the defendant\u27s capacity is in doubt. In the ordinary criminal case, the client has at least implicitly authorized his lawyer\u27s conduct. But if the defendant is impaired, the client may not have the mental capacity to authorize the attorney\u27s actions. Defense counsel representing the possibly incompetent criminal defendant will often be the only one with relevant information about her client\u27s incapacity. This information, related in confidence, may suggest that the client has difficulty in rationally understanding the charges against him and cannot assist his counsel. Under current rules, limited options are available to the defense attorney. She is required to alert the court to the possibility that her client is incompetent, but the attorney- client privilege, ethical rules, and the criminal defense attorney\u27s role, as presently understood, do not allow the attorney to disclose her client\u27s confidences. This prohibition results in trials or in guilty pleas by defendants who may not be competent to proceed, thus, violating due process. Such an outcome is contrary to the fundamental values of justice in our criminal adversary system. This Article argues that the importance of competence to the proper functioning of the adversary system requires that the criminal defense attorney be permitted to disclose client statements for the purpose of determining incompetence. Part II reviews Medina v. California, in which the Supreme Court suggested that a criminal defense attorney could testify about a client\u27s competency at competency hearings. Part III explores the legal standard of competency, its application to the criminal defendant, and the elusiveness of the concept of rationality. Part IV examines the attorney-client relationship. Part V discusses the attorney- client privilege and the ethical rules relative to competency proceedings. Finally, Part VI argues that an exception to the attorney-client privilege and the ethical rules is warranted in order to permit the criminal defense attorney to disclose client confidences which impact the client\u27s competence and explores the implications of this exception

Self-Love and the Judicial Power to Appoint a Special Prosecutor Symposium on Special Prosecutions and the Role of the Independent Counsel

Judicial appointment of private attorneys as special prosecutors has occurred and is permitted to occur in a variety of contexts other than when the executive branch is faced with a potential or actual conflict of interest. Until recently, the Second Circuit Court of Appeals and, of course, district courts within the Second Circuit, have interpreted Rule 42(b) of the Federal Rules of Criminal Procedure to permit judicial appointment of a private attorney to prosecute conduct allegedly violative of a court order as criminal contempt. Courts have been most active in appointing private attorneys as special prosecutors in cases involving counterfeit trademark products. This discussion will focus on three major areas of disagreement between the Court and Justice Scalia in Young v. U.S. ex rel Vuitton et Fils: (1) the scope of the contempt power, (2) the role of the judge in contempt proceedings, and (3) the Court\u27s justification for its holding. At its core, the disagreement stems from the definition of judicial power embodied in article III of the Constitution. For Justice Scalia, the role of the prosecutor is inconsistent with the judge\u27s role as a neutral adjudicator. He believes neutrality is the essence of the judicial function and, thus, judicial power. The judicial power is the power to decide, in accordance with law, who should prevail in a case or controversy. \u27 This includes the power to act as a neutral adjudicator but does not include the power to prosecute

Oscillatory processes in the theory of particulate formation in supersaturated chemical solutions

We study a nonlinear problem which occurs in the theory of particulate formation in supersaturated chemical solutions. Mathematically, the problem involves the bifurcation of time-periodic solutions in an initial-boundary value problem involving a nonlinear integro-differential equation. The mechanism controlling the oscillatory states is revealed by combining the theory of characteristics for first order partial differential equations with the multi-time scale perturbation analysis of a certain third order system of nonlinear ordinary differential equations

Bifurcation of Localized Disturbances in a Model Biochemical Reaction

Asymptotic solutions are presented to the nonlinear parabolic reaction-diffusion equations describing a model biochemical reaction proposed by I. Prigogine. There is a uniform steady state which, for certain values of the adjustable parameters, may be unstable. When the uniform solution is slightly unstable, the two-timing method is used to find the bifurcation of new solutions of small amplitude. These may be either nonuniform steady states or time-periodic solutions, depending on the ratio of the diffusion coefficients. When one of the parameters is allowed to depend on space and the basic state is unstable, it is found that the nonuniform steady state which is approached may show localized spatial oscillations. The localization arises out of the presence of turning points in the linearized stability equations

Efficient Logging in Non-Volatile Memory by Exploiting Coherency Protocols

Non-volatile memory (NVM) technologies such as PCM, ReRAM and STT-RAM allow processors to directly write values to persistent storage at speeds that are significantly faster than previous durable media such as hard drives or SSDs. Many applications of NVM are constructed on a logging subsystem, which enables operations to appear to execute atomically and facilitates recovery from failures. Writes to NVM, however, pass through a processor's memory system, which can delay and reorder them and can impair the correctness and cost of logging algorithms. Reordering arises because of out-of-order execution in a CPU and the inter-processor cache coherence protocol. By carefully considering the properties of these reorderings, this paper develops a logging protocol that requires only one round trip to non-volatile memory while avoiding expensive computations. We show how to extend the logging protocol to building a persistent set (hash map) that also requires only a single round trip to non-volatile memory for insertion, updating, or deletion

Systematic Power Counting in Cutoff Effective Field Theories for Nucleon-Nucleon Interactions and the Equivalence With PDS

An analytic expression for the ${}^1S_0$ phase shifts in nucleon-nucleon scattering is derived in the context of the Schr\"odinger equation in configuration space with a short distance cutoff and with a consistent power counting scheme including pionic effects. The scheme treats the pion mass and the inverse scattering length over the intrinsic short distance scale as small parameters. Working at next-to-leading order in this scheme, we show that the expression obtained is identical to one obtained using the recently introduced PDS approach which is based on dimensional regularization with a novel subtraction scheme. This strongly supports the conjecture that the schemes are equivalent provided one works to the same order in the power counting.Comment: 6 pages; replaced version has corrected typos (We thank Mike Birse for pointing them out to u