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Nov 4

What are a criminal defendant’s 6th Amendment rights in a world of plea incentivizing?

Imagine the following scenario: John Doe has been accused of narcotics sales by Assistant District Attorney Brown. Mr. Brown meets Mr. Doe’s court-appointed attorney, Jack Smith, and offers a plea bargain which would result in a maximum sentence of 2 years.

As it is his Office’s policy to incentivize pleas prior to indictment, Mr. Brown makes the plea offer available only until the matter is presented to a grand jury in two weeks. As the deadline for acceptance of the plea offer approaches, Mr. Smith is on vacation and his colleague, Ms. Jones, handles the case instead. As Mr. Smith has failed to adequately document prosecutor Brown’s plea offer, Ms. Jones tells Mr. Doe that his choices are to plead guilty as charged or go to trial. Mr. Doe pleads guilty and receives a 7 year sentence.

This unfortunate scenario and its corollary, going to trial on defense counsel’s flawed evaluation of the strength of the prosecution’s case, play out with maddening frequency in courtrooms all over the country. Their Sixth Amendment implications were argued to the United States Supreme Court on October 31, 2011 in Lafler v. Cooper and Missouri v. Frye. Read more

Nov 4

Why do we fear the rise of single-sex public education in America?

Recent statistics suggest that single-sex public schooling is on the rise in America. Academic and practitioners alike have rushed to criticise this trend, with some even suggesting that we are entering a new era of educational segregation. This post considers the movement against single-sex public schools in America, and asks why so few similar backlashes have occurred outside the United States.

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Nov 3

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A Few Angles on the Affordable Care Act and the Commerce Clause

The Supreme Court is likely to grant certiorari in the Affordable Care Act cases in the next few weeks, including on the issue of whether the Act falls within Congress’s Commerce Clause powers. Amicus briefs filed in the courts of appeals delve into some of the less well-known aspects of the Commerce Clause question, illuminating legal and policy considerations the Court may well take into account in its eventual decision.

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Nov 3

Senate Committee wants to prohibit criminal trials for terrorists

Congress wants to force the administration to try suspected terrorists in military commissions, rather than criminal courts. Last week, 13 Senate Democrats asked that the provision be removed from the defense bill, echoing concerns from the Obama administration that it would take away the executive branch’s flexibility in fighting terrorists.

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Nov 2

A state for Palestine

The United Nations Educational Scientific and Cultural Organization (UNESCO) granted full membership for Palestine on Monday. It’s definitely strange for an organ of the U.N. to recognize a state before the Security Council does, but it’s not the end of the world, right? Well, if you’re the U.S. or Israel, maybe it is. Israel called it a “tragedy,” and the U.S. is threatening to pull its funding of UNESCO.

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Nov 2

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Occupy Wall Street and the Homeless

An increasing number of homeless have joined Occupy sites, and divisions have arisen about whether, and how much, the protestors should welcome those poorest comrades among them. If there is one unifying theme amidst the fractured messages of the Occupy Wall Street movement, it is that the protestors represent the 99% of Americans who are not the very rich. Yet by an apathy to the plight of the homeless, the movement risks merely representing the 99% of Americans who are not the poorest of the poor.

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Nov 1

ACS Speakers Series: Oren Bar-Gill – Consumer Protection: Lessons from Psychology, Economics and the Law

NYU Professor Oren Bar-Gill visited ACS on Tuesday to consider the debate over legal consumer protection techniques with an eye on behavioral economics. In the first half of his presentation, Bar-Gill identified myriad instances of irrational consumer behavior, and in particular focused on the notion of present bias, or the idea that consumers often make suboptimal financial decisions when terms at the beginning of a contract seem more favorable. Market forces compel sellers to exploit behavioral error, leading to inefficiencies and unprotected consumers. To combat this, the law can: (1) do nothing (2) employ “hard paternalist” strategies or (3) embrace “soft paternalism,” Bar-Gill’s method of choice. The law of hard paternalism bans specific products and practices. For example, the 2009 CARD act prohibited various credit card practices including double-cycle billing, interest rate increases on first-year and existing balances, and excessive late fee charges. Bar-Gill’s concern is that in response to these tactics, credit card companies may simply raise overall interest rates. Soft paternalism, meanwhile, can be enacted in two forms: simple disclosures that reduce complicated considerations to a single intelligible number that consumers can more easily digest, and complete disclosures targeting intermediary organizations, such as cell phone sites that disclose and compare various plans to help frame consumers’ decisions. Soft paternalism, Bar-Gill explained, is also thought to be a more politically palatable legislative technique.

What do you think?

  • Should consumer protection advocates favor “hard” techniques that immediately curtail certain corporate practices, or is Bar-Gill’s preferred method of “soft” influence a more effective solution?
  • When regulators reduce complicated contracts to a single number for the sake of intelligibility, do consumers necessarily lose valuable information?
  • How significant are the political advantages of pursuing soft paternalism over hard paternalism?
Please feel free to discuss and add your own questions in the comments section.

Nov 1

Sexual harassment allegations against Herman Cain not a ‘witch hunt’

Two weeks after Anita Hill’s allegations were commemorated with speeches and conferences, Politico exposed sexual harassment allegations against Herman Cain, another black conservative leader. However, the two intervening decades have brought many changes in the response to sexual harassment allegations, and Cain should address the allegations in a serious, forthright manner.

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Oct 28

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The Constitution’s Political Deficit

There is a worrisome democratic deficit in our constitutional scheme, as well as two other problems that impact detrimentally our democratic commitments: a political deficit and a legal deficit. Our current dilemma exists not only because our written Constitution clearly tilts against representative democracy; our constitutional practices also tilt against politics, democratic or otherwise, and the ordinary law – legislation – that is its product.

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Oct 28

Blueford v. Arkansas: Double Jeopardy on Trial

Blueford was charged with capital murder, first degree murder, manslaughter, and negligent homicide. The jury unanimously found against the two greater offenses, but mistrial was granted based on a deadlock as to manslaughter. Does Double Jeopardy prohibit the re-trial of a defendant on greater offenses if the jury has deadlocked only on lesser offenses?

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