SelectedWorks @ Chapman University Dale E. Fowler School of Law
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Protecting the Right to Effective Assistance of Capital Postconviction Counsel: The Scope of the Constitutional Obligation to Monitor Counsel Performance
No full textThis article is an outgrowth of an idea developed by the author in a prior article, The Right to Effective Assistance of Capital Postconviction Counsel: Constitutional Implications of Statutory Grants of Capital Counsel, 2003 Wisconsin Law Review 31. The prior article argued that the government\u27s decision to provide capital postconviction counsel triggers a due process-based obligation to make the right to counsel meaningful, which essentially means that the right to counsel must include the right to effective assistance of counsel. In the postconviction context, the effectiveness guarantee requires that the government must monitor counsel\u27s performance to ensure, to the extent possible, the actual delivery of competent assistance.
This article explores the scope of the government\u27s constitutional obligation to monitor the performance of capital postconviction counsel. It explains that the due process-based meaningfulness requirement continues to govern the analysis, so just as the government must ensure that the right to capital postconviction counsel is meaningful, it must also ensure that the system of monitoring it employs is meaningful. The article examines four key aspects of monitoring and explains how to make each aspect constitutionally meaningful. The four aspects are: the proper monitoring entity, the proper monitoring standard, the type of information to look for during the monitoring process, and the proper method of gathering such information. The article argues that a constitutionally meaningful monitoring system need not (and likely cannot) be designed to detect each and every error committed by counsel. Instead, the monitoring system must be designed to detect and remedy objectively identifiable problems with counsel\u27s performance. Such a system will allow detection of a fairly wide range of errors, yet at the same time will not impose too high of a cost on the government in terms of delay and lack of finality. Ultimately, meaningful monitoring will increase attorney competence and reduce the likelihood that capital inmates will have to bear the burden of attorney error
Verifiable Offers and the Relationship between Auctions and Multilateral Negotiations
No full textWe use the experimental method to compare second-price auctions with \u27verifiable\u27 multilateral negotiations in which the sole buyer can credibly reveal to sellers the best price offer he currently holds. Despite the two institutions\u27 seeming equivalence, we find that prices are lower in verifiable multilateral negotiations than in second-price auctions. The difference occurs because low-cost sellers in negotiations often submit initial offers below the second-lowest cost. We also compare the two institutions to previously studied first-price auctions and multilateral negotiations with non-verifiable offers. Second-price auctions yield the highest prices, followed in order by verifiable negotiations, non-verifiable negotiations and first-price auctions
No Longer Little Known But Now a Door Ajar: An Overview of the Evolving and Dangerous Role of the Alien Tort Statute in Human Rights and International Law Jurisprudence
No full textHuman rights’ and other international law activists have long worked to add teeth to their tasks. One of the most interesting avenues for such enforcement has been the Alien Tort Statute (“ATS”). The ATS has become the primary vehicle for injecting international norms and human rights into United States courts – against nation-states, state actors, and even private individuals or corporations alleged to actually or in complicity or conspiracy been responsible for supposed violations of international law. This Symposium Article provides an overview of the ATS evolution (or revolution), discusses the most recent significant development in the evolution arising from some long-awaited guidance from the U.S. Supreme Court, and briefly sets forth the bases for concern that injecting international law into United States jurisprudence presents a number of dangers – on constitutional, legal, policy, and economic grounds. Whether recent developments at the U.S. Supreme Court have curbed the procession of the ATS human rights revolution or simply added further indeterminacy into its progression is still up for debate. There are several problems with this trend toward enforceability and applicability of “customary international law” or otherwise “foreign” law in U.S. courts. The litigation trend has infirmities related to the Constitution, foreign policy, national security, and the public policies supporting economic development and its concomitant effect on the advance of democracy and political liberty. The principal goal of this Symposium Article is to reexamine some of these concerns in light of the ongoing ATS evolution. Only Congress or more concrete guidance from the U.S. Supreme Court can truly define the ATS’s future. Where the ATS door will swing in the future remains uncertain
Sociopolitical Trends in Mental Health Care: The Consumer/Survivor Movement and Multiculturalism
No full textPredictions, Projections, and Precautions: Conveying Cautionary Warnings in Corporate Forward-Looking Statements
No full textThis article discusses the problems that are created when corporate insiders make public predictions about the future prospects of their business. Investors crave these types of forward-looking corporate disclosures because investors use them to make judgments about the future profitability of companies. Corporations, however, are often reluctant to make predictions and projections because sometimes the predictions fail to come true, and investors may then sue corporations for misleading the market. Congress enacted a controversial statutory safe harbor designed to encourage corporations to make forward-looking statements. The safe harbor immunizes corporations from liability so long as they include meaningful cautionary warnings disclosing the risks that could cause actual results to differ from the insiders\u27 predictions.
Recent large-scale corporate scandals have caused investors to question whether it is appropriate to have a statutory safe harbor that allows a corporate executive to publicly paint a rosy picture of the company while knowing the business is in serious jeopardy. Because no clear standards exist for determining what constitutes a truly meaningful warning, it has become increasingly problematic to allow corporations to rely on cautionary warnings to protect corporations from liability. This article addresses this problem and discusses the nature of effective risk communication in the corporate context. Professor Ripken draws on insights from the duty to warn doctrine in tort law to develop a richer understanding of risk communication in consumer and securities markets. Professor Ripken ties these concepts into a more fundamental debate over the efficacy of warning law and the ability of financial markets to incorporate risk statements efficiently in the pricing of securities. Using the psychological research on cognitive and motivational constraints, biases, and heuristics, the article proposes guidelines for constructing warning statements that are more meaningful and instructive
Verifiable Offers and the Relationship between Auctions and Multilateral Negotiations
No full textWe use the experimental method to compare second-price auctions with \u27verifiable\u27 multilateral negotiations in which the sole buyer can credibly reveal to sellers the best price offer he currently holds. Despite the two institutions\u27 seeming equivalence, we find that prices are lower in verifiable multilateral negotiations than in second-price auctions. The difference occurs because low-cost sellers in negotiations often submit initial offers below the second-lowest cost. We also compare the two institutions to previously studied first-price auctions and multilateral negotiations with non-verifiable offers. Second-price auctions yield the highest prices, followed in order by verifiable negotiations, non-verifiable negotiations and first-price auctions
