The Faculty Lounge

Lawyers, Zeal, and the Unpopular Client (Part V)

Guest post by Michael Ariens:

            This is the fifth and final post related to the idea that American lawyers have a duty to representing unpopular clients, for the sake of both those clients and in the interests of a public that despises those clients. These stories come from my book, The Lawyer’s Conscience: A History of American Lawyer Ethics (2023).

            In a sympathetic 1970 magazine portrait of lawyer William Kunstler, he declared, “I am not a lawyer for hire. I only defend those I love.” The editors of the ABA Journal opined that Kunstler’s position was “anti-professional.” The profession’s “ideal is to provide competent counsel for any person with a legitimate cause.” A lawyer’s decision to represent the unpopular client to the best of the lawyer’s ability was “a badge of honor,” as it demonstrated independence from the community which the lawyer served.  This independence from the passions of the community demonstrated lawyers served as “guardians of the law” who “play a vital role in the preservation of society.” Representing only those one loved tied the lawyer to the views and values of one’s client, a position lawyers traditionally rejected.

            The editorial received mixed reviews from lawyers, a number of which were published in letters to the editor. Some argued that the profession’s ideal was largely rejected in everyday practice. This was due in significant part to the focus of lawyers on monetary rewards rather than concern about “the public good.” Others embraced the ideal.

            This division among lawyers was partly a result of one’s interpretation of recent historical events. Not long after the crisis of representing the unpopular client during the Second Red Scare dissipated, a similar crisis arose in finding lawyers to represent those arrested for pressing issues of civil rights, particularly in southern states. A 1961 report of an ABA committee hostile to the civil rights movement acknowledged, “persons under criminal charges in certain sections of the South have been deprived of their right to effective counsel because of the refusal of lawyers of the Caucasian [sic] race to appear in the defense of colored [sic] defendants.” In June 1963, President John F. Kennedy hosted a gathering of a number of lawyers regarding this problem. The result of this meeting was the creation of the Lawyers’ Committee for Civil Rights under Law.

            The creation of the Lawyers’ Committee had no effect on the inability of civil rights proponents to find lawyers to represent them in Mississippi in 1963. Hundreds unsuccessfully sought lawyers in order to vindicate their first amendment rights; all “local lawyers refused to represent black activists.” Local lawyers refused to defend the unpopular client because they feared for the physical safety of themselves and their families, as well as economic ruin.

Taboo Trades Podcast: Payment, Exploitation, & Clinical Trials with Holly Fernandez Lynch

In this episode, Holly Fernandez Lynch and I continue our discussion of clinical research ethics with co-hosts Rahima Ghafoori and Caroline Gozigian (UVA Law '23). In this Part 2 of our interview, we focus on questions of payment, exploitation, and trust. As a reminder, in Part I, Holly introduced the basic regulatory framework governing clinical trials, with a focus on laws and rules impacting payment. She also discussed the benefits of and concerns about human challenge studies, and shared some historical examples.

 

 

Holly Fernandez Lynch, JD, MBE, is Assistant Professor of Medical Ethics in the Department of Medical Ethics and Health Policy at the Perelman School of Medicine (PSOM), University of Pennsylvania. She has a secondary appointment as an Assistant Professor of Law at the University of Pennsylvania Carey Law School.

A lawyer and bioethicist by training, Professor Fernandez Lynch’s scholarly work focuses on Food and Drug Administration (FDA) pharmaceutical policy, access to investigational medicines outside clinical trials, clinical research ethics, and the ethics of gatekeeping in health care. Her specific areas of expertise include Institutional Review Board (IRB) quality, payment to research participants, research prioritization, pre-approval access pathways (e.g., Expanded Access, Emergency Use Authorization, and Right to Try), and efforts to balance speed and certainty in drug approvals, including pathways that rely on post-approval trials such as accelerated approval.

Beat It on Down the Line

"Beat It on Down the Line" was written by the great Jesse Fuller, who performed it as a one-man band on 12-string guitar, harmonica, kazoo, high-hat cymbal, and fotdella (a six-string upright bass of his own invention and construction, played with his right foot). It was covered by the Grateful Dead on their first album, and most covers since have been of the Dead's version.

Unusually, this post begins with two audio clips because (1) I cannot find a video of Fuller performing this song, and (2) I really like the tambourine coming in on the third verse of the Dead's recording -- at 1:44. It is probably my single favorite moment in the entire Grateful Dead oeuvre -- which for some reason was not used in their live performances. There is also a video clip of Fuller at the bottom of this post.

Symposium Announcement—The Federal Income Tax: Racially Blind but Not Racially Neutral

Lawyers, Zeal, and the Unpopular Client (Part IV)

Guest post by Michael Ariens:

            This is the fourth of five posts related to the idea that American lawyers have a duty to representing unpopular clients, for the sake of both those clients and in the interests of a public that despises those clients. These stories come from my book, The Lawyer’s Conscience: A History of American Lawyer Ethics (2023).

            Philip Graham, the newspaper publisher trained in law at Harvard, spoke to the members of the Association of the Bar of the City of New York in late 1951. He reminded his audience that they were crucial to protecting individual liberty. That duty included representing those accused of conspiring to overthrow the government, as in United States v. Dennis, and those accused of associating with Communists. Graham concluded “the legal profession has substantially failed to meet its proper obligations of supporting individual freedom.” Graham lay the blame on the commercialization of the legal profession, as too many lawyers considered themselves “a part of his client rather than a part of the law.” If this was the route lawyers were going to take, Graham argued they needed to dispense with the charade that they were “guided by a sense of public responsibility higher than the ordinary self-interest of the business men and merchants.”

Poker Strategy

Poker often resembles litigation, in that both involve decision making with incomplete information. When it comes to strategy, poker players have an advantage over lawyers, because they play, observe, or simulate nearly identical hands dozens or hundreds of times in nearly experimental conditions. Here is an example of poker wisdom, explaining how mistakes are made and how to avoid them:

 

Lawyers, Zeal, and the Unpopular Client (Part III)

Guest post by Michael Ariens:

            This is the third of five posts related to the idea that American lawyers have a duty to representing unpopular clients, for the sake of both those clients and in the interests of a public that despises those clients. These stories come from my book, The Lawyer’s Conscience: A History of American Lawyer Ethics (2023).

            The January 1948 issue of the ABA Journal re-published a December 2, 1947 letter to the editor of the Boston Globe by Supreme Court Justice Felix Frankfurter. Frankfurter wrote praising the professional life of the recently-deceased Boston lawyer, Arthur D. Hill. Frankfurter wrote to clarify in the public record the circumstances of Hill’s decision to agree to serve as counsel to Nicola Sacco and Bartolomeo Vanzetti during “the final stages of that affair.” (They were executed in 1927.) Frankfurter, then a Harvard Law School professor, believed the defendants were innocent. In Frankfurter’s rendition, their lawyer William Thompson needed to withdraw because he “had exhausted his energy in his powerful devotion to the cause of the men.” Some appellate process could be taken on behalf of Sacco and Vanzetti, and Frankfurter was asked to inquire whether Hill would be willing to represent the convicted defendants. Frankfurter recounted that when he approached Hill, he informed him that his work “would have to be solely as an exercise of the public profession of the law, for it would have to be done without a fee.”   Hill agreed it was “a perfectly honorable thing” to assess the record and determine whether a lawyer might proceed to press any remaining legal issues. The unpopularity of Sacco and Vanzetti in Massachusetts was irrelevant to his assessment.

            Hill looked at the record and agreed to represent the men. In The Legacy of Sacco & Vanzetti (1948), the authors conclude that, though the record is fragmentary, Hill spoke “with great force” in requesting a new trial. He was unsuccessful.

               Frankfurter believed the lesson of Hill’s decision to represent two very unpopular clients demonstrated the best of the American legal profession. His letter ended with a long quotation of what Frankfurter said Hill told him: Hill declared that he would take a $50,000 retainer to represent a wealthy person convicted of murder who sought some legal relief. In this case, “I do not see how I can decline a similar effort of Sacco and Vanzetti simply because they are poor devils against whom the feeling in the community is strong and they have no money with which to hire me. I don’t particularly enjoy proceedings that will follow, but I don’t see how I can possibly refuse to make the effort.”

Odetta [UPDATED]

Odetta Holmes was born in Birmingham and grew up in Los Angeles. After an early career in regional musical theater, she became one of the most important figures in the folk music revival of the 1950s and 1960s, beginning with performances at the Blue Angel in New York City and the hungry i in San Francisco. Her fans included Bob Dylan, Harry Belafonte, and Rosa Parks. Martin Luther King once called her "the Queen of American Folk Music." There is a big surprise in the update at the bottom of the post.

Hiring Announcement: Western State College of Law at Westcliff University (Dean of the College of Law)

From an email message that I received earlier today:

The Western State College of Law (WSCL) at Westcliff University invites applications and nominations for the position of Dean of the College of Law. Western State seeks a visionary Dean with the highest academic standards who will provide active and engaged leadership, have an unwavering commitment to faculty, staff, and students, and work to enhance the successes and outcomes of the College in key areas of education, scholarship, and practice. As the chief administrative officer and academic leader of the College, the Dean sets the standards for intellectual engagement and accomplishment by providing strategic vision for operational leadership of the academic programs. WSCL seeks an accomplished leader who fosters innovation and collaboration in a shared governance environment.

POSITION SUMMARY AND RESPONSIBILITIES

Reporting to the Chief Academic Officer/Vice President for Academic Affairs, the Dean will provide vision and leadership to develop and implement a strategic plan to ensure that the College continues to serve its students and the region with programs of the highest quality and effectiveness including the admissions objectives, academic quality, market-driven distinctiveness, and economic performance. With input from the faculty, the Dean is responsible for academic program development and review, faculty recruitment, development and evaluation of faculty, and student relations. The Dean is expected to show clarity in presentations, treat students and colleagues with respect and compassion, and demonstrate an ability to work with a variety of people and issues. The Dean should be objective, manage differing viewpoints, and be flexible while serving as an ambassador in the surrounding community, nationally, and internationally.  

PREFERRED QUALIFICATIONS

• An earned J.D. and eligibility for appointment as a tenured professor of law
• Previous, successful administrative experience in a law school, and/or corporate setting, including personnel and budgetary experience, and the ability to work with upper administration as a team member to shape the College’s future
• A high level of energy and clear desire to serve as the College’s chief recruiter of students
• Evidence of effective community involvement and leadership, and a demonstrated ability to forge partnerships and build productive relationships with both campus and legal community constituencies
• Demonstrated commitment to student centeredness and optimization of student learning
• Broad knowledge of a wide range of legal disciplines, academic trends, and law school enrollment issues.
• Demonstrated commitment to the principles of student and faculty diversity
• Dedication to excellence in teaching, research, and service, and a commitment to strategic planning as a means of innovative program development
• A skilled communicator with exceptional interpersonal skills who can represent the College externally to raise awareness and prominence of programs

Hiring Announcement: Loyola University New Orleans College of Law

From an email message that I received recently:

Loyola University New Orleans College of Law is now accepting applications for one or more tenure-track or tenured positions to begin August 1, 2023.  Currently, Loyola’s curricular needs include constitutional law, human rights law, maritime law, torts, and business and corporate law courses.  We especially welcome applications from candidates who will add to the diversity of our educational community and who have demonstrated expertise in working with a diverse student body.  If you are interested in applying, please send your curriculum vitae, cover letter, and a statement about how you can promote diversity, equity, and inclusion to resumes@loyno.edu.  All ranks will be considered.  

The College of Law is located in one of the most culturally diverse cities in the United States, with unique cuisine, museums, historical sites, and a flourishing arts and music community.  New Orleans is the seat of the United States Fifth Circuit Court of Appeals, United States District Court for the Eastern District of Louisiana, Louisiana Supreme Court, Louisiana Fourth Circuit Court of Appeal, as well as other lower courts.  The College of Law has a student population of approximately 500 students, over forty faculty members, active clinics that have spearheaded numerous social justice reform efforts, and summer programs in Europe and Central America.  Its location in Louisiana, one of the world’s best known “mixed jurisdictions,” provides unique opportunities for comparative and international law scholarship.

Loyola University is an educational institution dedicated to fostering intellectual achievement, personal development, and social responsibility, and it is committed to the human dignity and worth of every person.  Loyola University strongly encourages applications from individuals who will bring diversity to the community.

Barry Law Seeks Faculty

This just in:

Barry University School of Law is seeking to fill one or more full-time, tenure-track faculty positions beginning in the Fall 2023 semester. Areas of particular interest include Legal Research and Writing (LRW), Constitutional Law, Florida Civil Practice, Florida Constitutional Law, Tax, and Wills, Trusts, & Estates. Candidates with a focus in other doctrinal areas may also be considered. 

Applications will be accepted on a rolling basis. Please email application materials, including a cover letter, CV, and scholarly agenda, to Appointments Committee Co-Chair Wes Henricksen, Associate Professor of Law, at whenricksen@barry.edu. In your email, please indicate which course or courses you are most interested in teaching.

 

OCU Law Seeks Dean

This just in:

Oklahoma City University (OCU) seeks nominations and applications for the dean of Oklahoma City University School of Law. 

Established in 1904, the OCU School of Law is situated in the state capital and operates in a historic building located in downtown Oklahoma City which was fully renovated less than 10 years ago to accommodate a growing student population.  This facility provides an outstanding learning environment offering facilities for study, state of the art technology classrooms, a courtroom, and space designed to promote interaction between students and faculty.  The building is in close proximity to many government agencies, law firms, and service organizations and has played an important role in the life of the city for decades and, because of this, well represents the School of Law’s tradition of more than a century of service and leadership in the community.

With a full-time faculty of 21, and an enrollment of 453 students, the School of Law offers a learning environment that is challenging and supportive.  The School of Law houses three clinics: the state’s first and only Innocence Clinic, in which students work under the supervision of a clinical professor on the cases of actual inmates who have viable claims of wrongful conviction; the American Indian Wills Clinic, in which students assist tribal members with basic estate-planning documents; and the Norick Municipal Law Research Clinic, in which students work with city attorneys on legal issues facing a large metropolitan area with a rapidly developing urban core.   In addition, the School of Law also houses the Judge Alfred P. Murrah Center for Homeland Security Law and Policy.  The center examines the unique legal issues central to protecting and securing the nation with a focus on the prevention of domestic terrorism.  The School of Law will also lead the planning and serve as the host for the Sovereignty Symposium in 2023.  Originally an initiative overseen by the Oklahoma Supreme Court, this center was established in 1988 and is now a responsibility of the Law School. 

 

Fred Slabach Named Dean of University of Mississippi School of Law

University of Mississippi School of Law has announced that Fred Slabach will be the new dean of its law school.  He is currently President and university professor at Texas Wesleyan University.  Slabach, who holds a JD from University of Mississippi School of Law and an LLM from Columbia University will take over on July 1.

Lawyers, Zeal, and the Unpopular Client (Part II)

Guest post by Michael Ariens:

            This is the second of five posts related to the idea that American lawyers have a duty to representing unpopular clients, for the sake of both those clients and in the interests of a public that despises those clients. These stories come from my book, The Lawyer’s Conscience: A History of American Lawyer Ethics (2023).

             In an April 1851 speech, thirty-five-year-old Boston lawyer Richard Henry Dana Jr. attacked Daniel Webster for his support of the slavery-protecting Compromise of 1850. Dana charged Webster had entered into a corrupt bargain with Boston’s elite, who kept Webster “in a state of endless servitude.” Cotton Whigs attacked Dana. In June, the Boston Daily Advertiser published an unsigned article suggesting economically retaliate against Dana by boycotting his services. Its author was George Hillard, a lawyer who served the Brahmins who wanted Dana punished. The following month lawyer Rufus Choate, Webster’s friend and a zealous representative of his paying clients, called out Dana at a social dinner of the [Joseph] Story Association. Dana was one of those “babblers of the law” who should remember the fate of Socrates.

Efforts in Boston to enforce the Fugitive Slave Act, an odious part of the Compromise of 1850, had failed by mid-1851. Now Secretary of State, Webster “ordered” United States Attorney George Lunt to enforce the Act. Lunt proceeded by obtaining grand jury indictments against ten men, including two lawyers, Robert Morris and George Davis. Morris and Davis had represented the alleged fugitive Shadrach Minkins in a so-called rendition proceeding. Minkins had successfully escaped re-enslavement with the aid of members of Boston’s Black community. Morris was the only Black lawyer in Massachusetts, and his indictment for aiding and abetting Minkins’s escape appeared intended to serve as a warning to that community. Dana represented each of the four persons eventually tried in the “rescue” cases. He and fellow counsel John Hale succeeded in each case. In Davis’s case, the indictment was dismissed before trial. Morris’s case initially ended in a mistrial. In his November re-trial, Morris was acquitted.

Dana represented all of the rescue case defendants for $400, a steep discount, and represented alleged fugitives without pay. One of those fugitives was Anthony Burns, who had been taken before a rendition commissioner in May 1854. Dana learned of these events, found Burns, and asked whether Burns wished to be represented, and if so, whether by Dana. Burns later agreed. Dana was unsuccessful, but one of his biographers characterized his actions as “extraordinary trial advocacy.”

On the evening of the day in which Burns boarded the ship marking his enslavement, Dana was walking home when he was attacked by a paid would-be killer. Dana was struck with an iron bar just above the eye; he not only survived, but continued to practice law.

Rob Vischer Named President of University of St. Thomas

The University of St. Thomas has announced that its new president will be Rob Vischer.  Vischer has served as dean of the university's law school from 2013-2022.  He assumed the St. Thomas Presidency on January 1, 2023.

Hiring Announcement: University of Oregon School of Law (Visiting Professors)

From an email message that I received earlier today:

The University of Oregon School of Law seeks applications for visiting professors for academic year 2023-24.

We anticipate having several curricular needs, and have particular interest in potential visitors who teach in the following areas: torts, constitutional law, administrative law, and a range of environmental law upper-level elective courses such as climate change law, energy law, and natural resources law.

Lawyers, Zeal, and the Unpopular Client (Part I)

Guest post by Michael Ariens:

            This is the first of five posts related to the idea that American lawyers have a duty to representing unpopular clients, for the sake of both those clients and in the interests of a public that despises those clients. These stories come from my book, The Lawyer’s Conscience: A History of American Lawyer Ethics (2023).

In 2011, President Barack Obama declared that May 1, since the late 1950s celebrated as “Law Day,” would be dedicated to “The Legacy of John Adams: From Boston to Guantanamo.” “Boston,” of course, meant the 1770 Boston Massacre, and John Adams’s legacy concerned his work representing Captain Thomas Preston and the eight soldiers accused of murdering five Bostonians. Adams, then in his mid-thirties, was one of three lawyers representing Preston, including Robert Auchmuty, a loyalist, and Josiah Quincy Jr., a patriot who died in 1775 at thirty-one. They obtained an acquittal for Preston, in part a result of successful cross-examinations of witnesses, which placed into doubt the claim that Preston had ordered the soldiers to fire. The following month, Adams and Quincy represented the eight soldiers. Six were acquitted, and two convicted of manslaughter, the punishment for which was branding on the thumb rather than hanging. Although loyalists, including lieutenant governor Thomas Hutchinson, voiced some suspicions that Adams was “not so faithful as he ought to be” in defending the soldiers, the received wisdom was that Adams had served his unpopular clients well by zealously defending them in extraordinarily lengthy trials. Shortly before Adams died in 1826, a Massachusetts lawyer and writer concluded, “it required no little independence, to appear in defence [sic] of the prisoners, when the popular sentiment was so highly adverse to his side of the case.” This became the standard story: Adams’s zealous defense of unpopular clients represented the “apogee of the American legal profession.”

 Though the standard story has occasionally been questioned, it has largely held up, as demonstrated by President Obama’s declaration. But in praising Adams, lawyers have glossed over some of his tactics in representing the soldiers. In particular, few have noted his attack on the victims in his closing argument in behalf of the soldiers. The victims, Adams told the jury, constituted a “motley rabble of saucy boys, negroes and molattoes, Irish teagues and out landish [sic] Jack tarrs.” “Negroes and molattoes,” “Irish teagues” (likely a slur against Roman Catholics), and “Jack tarrs” (sailors) were not true members of the Boston community. Adams also made false declarations regarding the behavior of one of those victims, Patrick Carr, “a native of Ireland.” Adams wrongly accused Carr of threatening the soldiers when no evidence of any such threats was offered. Adams was wrongly accused by Hutchinson of too little ardor; playing on the passions and prejudices of the jury in an effort to obtain acquittals, Adams may have demonstrated too much ardor for his clients’ cause.

Fordham JCFL Volume XXVIII: Call for Submissions Update

The Fordham Journal of Corporate & Financial Law has extended its call for submissions for the Spring 2023 Issue of Volume XXVIII to February 3^rd, 2023. 

As one of the premier student-edited business law journals in the country, the Journal ranks among the top-five specialty journals in banking and financial law, and among the top-ten specialty journals in corporate and securities law. The Journal welcomes articles and essays addressing important issues in antitrust, banking, bankruptcy, corporate governance, capital markets, finance, mergers and acquisitions, securities, and tax law and practice in the United States.

Please send all submissions to either our Scholastica page or our email at jcfl@fordham.edu. For more information regarding submissions, please visit our website. If you have any questions, please contact Brendan Finnerty, Senior Articles Editor, at bfinnerty6@fordham.edu.

You Are My Flower

Unlike the many traditional songs collected by the original Carter Family, "You Are My Flower" was written by A.P. Carter. It was released by Decca in 1939. 

It is a little surprising to see Maybelle flat picking, rather than her usual Carter Family style finger picking. This clip is mostly historical interest, the others are more tuneful.

 

Earl Scruggs finger picks guitar with Mother Maybelle playing the autoharp (unfortunately, mostly off screen).

Advice from Gender & Law Journal Editors: Tips for Prospective Authors—US Feminist Judgments Webinar 1/20/23

Advice from Gender & Law Journal Editors: Tips for Prospective Authors

Live Zoom Webinar Sponsored by the U.S. Feminist Judgments Project

January 20, 2023 2-3 pm Eastern/11am-12n Pacific

advance registration required (here; free)

Specialty law journals are important outlets for legal scholars working on gender-related issues. What are gender journal editors looking for when they review articles? How can authors improve their chances of receiving an offer of publication? What is the best time to submit an article to a gender journal? What role do the author’s cover letter and CV play in the selection process? Hear from current student editors at three journals—the Harvard Journal of Law & Gender, the Michigan Journal of Gender & Law, and the Yale Journal of Law and Feminism—with answers to these questions along with advice and tips for navigating the submission process. 

 

Moderators: Bridget J. Crawford (Pace) & Kathryn M. Stanchi (UNLV)

 

Participating Editors: Renée Mihail, Yale Law ’24; Hannah Mezzacapa, Michigan Law ’23; Addie Davies, Harvard Law ‘23

 

The webinar is free  and open to all with pre-registation (here). The event is co-sponsored by the Elisabeth Haub School of Law at Pace University and the William S. Boyd School of Law at the University of Nevada, Las Vegas, together with The Feminism and Legal Theory Project, The Vulnerability and the Human Condition Initiative, the Institute for Feminist Legal Studies at Osgoode, and the AALS Section on Women in Legal Education.