Legal Ethics and the Government Lawyer

All litigation presents to some degree, real though not always perceived, a conflict between each attorney\u27s responsibility as a representative of his or her client and as an officer of the court. Winning the case and seeing that justice is done must be inconsistent goals for counsel on at least one side in a case, if not on both. However substantial this problem may be regarded, it is certainly more complex for counsel for the government. Unlike a private attorney subject to dismissal for ignoring a client\u27s wishes, counsel for the government often has, subject to the variables of intragovernmental relations, the power to take a course of action or accept a settlement contrary to the wishes of the agency officials involved. In addition, government counsel owes some arguable duty to the opposing party, not only as a citizen and taxpayer of the entity for which he or she works, but also because that party seeks to invoke the same laws as those which he or she is committed, in theory if not by oath, to enforce. The relationship of agency officials to government counsel is not that of client and attorney in any ordinary sense, for the identities and desires of those officials may vary with popular opinion, the vote of the electorate, or the whims of their superiors, while the law to which both officials and counsel owe their allegiance remains unaltered. Although attitudes on this problem vary significantly among and within government law offices, the general practice of government counsel seems to be to refrain from making any independent judgment on the merits of the agency\u27s position, or to argue for that position even when the lawyer believes it is wrong

Platform Accountability: Gonzalez and Reform

Section 230(c)(1) was adopted for the purpose of distinguishing between conduct of third parties and conduct of internet companies themselves. Its familiar language provides that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” The last four words are central to the limitation on the defense created by the statute; it is only regarding information created by “another” that the defense may be available. Section 230(e)(3) makes clear that even a partial role played by an internet company in the creation of harmful material would fall outside the protections of the statute. Section 230(f)(3) defines the term “information content provider” as “any person or entity that is responsible, in whole or in part, for the creation or development of information provide through the Internet or any other interactive computer service.

The Myth of Legal Ethics

The moral platitudes found in the Code of Professional Responsibility have little to do with legal ethics as actually enforced

Review of Labor and Employment Law Decisions from the United States Supreme Court\u27s 2010-11 Term

In the 2010-11 term, the U.S. Supreme Court decided nine significant labor and employment cases. Although some of these cases affected only the construction of a specific statute or constitutional provision, several of them addressed issues likely to affect the interpretation and implementation of a wide range of federal employment laws. Most of these decisions, rather than definitively resolving a question, raise a range of new issues likely to be litigated for years to come. Thus, for practitioners and academics alike, recognizing the new questions that have now been raised is at least as important as understanding what matters the Court put to rest

The Varieties of Numerical Remedies

This article seeks to provide a coherent account of why the federal courts have used numerical remedies and an analysis of the types of cases in which they should do so. Part I describes the evolution of court ordered numerical remedies in Title VII and other employment cases and discusses the appellate courts\u27 failure to establish any clear standards for adopting and framing such remedies. Part II argues that this lack of a coherent set of standards is due to a failure to recognize that the lower courts have been utilizing numerical remedies in six quite distinct types of cases, each with its own rationale. The analysis delineates both the differing circumstances under which each of these six types of numerical remedies is warranted and the differences in the forms of such orders that are appropriate in each case. Part III urges that the trial courts, in deciding whether to order or deny numerical relief, should analyze more carefully the rationale and evidence on which that proposed relief is based, and that, where this has occurred, the appellate courts should subject such orders or denials only to the limited scrutiny appropriate to other factually based determinations

The Capital Punishment Conundrum

A Review of Life in the Balance: Procedural Safeguards in Capital Cases by Welsh S. Whit

Perpetuation of Past Discrimination

Part I of this Article offers several justifications for providing remedies for present harms that are caused by past acts of discrimination. Part II describes the different ways in which past discrimination can cause a present injury, and suggests for each way the appropriate legal standard for deciding when there is a present constitutional violation. Part III discusses the problems likely to arise in administering the suggested standards, and concludes that these problems are not inherently different from those involved in ordinary discrimination cases

Judges Against Juries—Appellate Review of Federal Civil Jury Verdicts

This Article seeks to assess the treatment of civil jury verdicts by the federal courts of appeals during the two decades in which the Supreme Court has refused to scrutinize the actions of the circuit courts. Part I summarizes the manner in which the Supreme Court, prior to 1968, aggressively enforced the seventh amendment. Part II, focusing on a one-year period between the fall of 1984 and the fall of 1985, describes the actions of the courts of appeals in resolving the 208 reported cases in which a party challenged the sufficiency of the evidence to support a jury verdict. That analysis demonstrates that appellate reversals of jury factfinding, once a relatively rare event, are now occurring in almost half of all such federal civil appeals. Part III describes the standards currently being utilized by federal appellate courts in passing on requests for judgments nonobstante veredicto (judgment n.o.v.) and explains how those standards diverge from pre-1968 Supreme Court precedents. Part IV discusses the criteria now relied on by the appellate courts in overturning jury verdicts as excessive and analyzes the manner in which those criteria differ from the approach that prevailed prior to 1968