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2020: Paul Smith
No full textThe Law School faculty celebrated Paul Smith’s outstanding contributions to the law at a lunch-hour talk in his honor. As he presented the award, Dean A. Benjamin Spencer said that Professor Smith “truly represents the epitome of the citizen lawyer ethos and the striving for excellence that we instill here at William & Mary Law School. Photo by David F. Morrill.https://scholarship.law.wm.edu/mwmedallion/1054/thumbnail.jp
Extrajudicial Statements and Prejudice in the Digital Age: Creating Factors to Preserve the Balance Between Attorney and State Interests in Trial Litigation
Get PDFAs social media’s prevalence and usage grows within the United States, people and organizations capitalize on new media to send news to users. In 2017, 67 percent of people consumed their news from social media websites, and the rate continues to grow. Local and national news sources bring newsworthy stories to active users on social media sites such as Twitter, where users can communicate and interact with one another to promote ideas and spread information. These online accounts cover not only mundane, day-to-day news, but also salacious stories relating to civil and criminal lawsuits.
In April 2018, attorney Neal Katyal used his Twitter account to advocate for his client leading up to oral argument before the Supreme Court in Trump v. Hawaii. Katyal posted personal statements voicing his opinion about the case and retweeted posts linking to news articles and amicus briefs that supported his argument. With nearly 284,000 followers, many people could view and perceive the arguments Katyal would make at oral argument. Katyal’s persistent tweeting enabled him to have “extra” argument time in the court of public opinion, as advocates are allowed only a specific number of minutes to argue before the Supreme Court.
Attorneys also post statements on Twitter referring to criminal cases when an alleged offender stands trial for a crime in a local venue. Scholars and practitioners voice additional concerns about an attorney’s extrajudicial statements made during criminal trials in local venues because laypeople serve on juries. The media’s publishing of a lawyer’s out-of-court comment could prejudice jurors before and during a trial. Because of this concern, the American Bar Association (ABA) enacted Model Rule of Professional Conduct 3.6 (Rule 3.6), which attempts to limit the types of speech attorneys can make while involved in litigation.
fair trial and its own interest in the fair administration of justice, courts and disciplinary boards must balance these interests against an attorney’s First Amendment free speech right when determining whether an attorney has violated Rule 3.6. Comment 1 to Rule 3.6 notes that a lawyer’s statements have value, as a lawyer is often in the best position to disseminate pertinent case-related information to the public. Attorneys may need to release this information to expose government abuse, ensure that citizens remain safe, or promote discussions about changing public policy. To effectively balance these rights, the standard described in Rule 3.6 requires courts and disciplinary boards to consider various factors in determining whether an attorney’s statement results in a “substantial likelihood of prejudice” to the proceeding. By requiring courts to consider the factors, the ABA and the adopting states ensure that the rule is narrowly tailored to protect as much attorney speech as possible while still promoting state and defendant interests.
For over thirty years, these factors have enabled decision makers to balance these rights effectively when faced with attorney statements published in traditional media outlets. Yet in a new age of Internet communication and social media, the original factors noted in the ABA rule and comments do not sufficiently protect attorney speech posted on online forums. This Note argues that a new technological-focused comment to Rule 3.6 will remedy this problem.
In today’s online world, scholars and practitioners constantly remind attorneys to take caution when posting statements online, because confidential and inappropriate information will spread across the web and reach large numbers of people at accelerated speeds. With this perception prevalent within the legal community, a judge—ruling on a case involving attorney statements made on social media—could find that there is a substantial likelihood that the online statements will prejudice a trial.
Although Internet communications and social media outlets give users the opportunity to spread information to more people at faster rates, it does not necessarily follow that all attorney statements posted online about litigation will be seen by potential jurors within the court’s jurisdiction. Numerous factors make it less likely that a potential juror will see an online statement, including the attorney’s social media account privacy settings, the attorney’s number of followers, the functions the attorney uses on a specific medium to make a statement more searchable, and the ability of a potential juror to be inundated with statements from nonfollowers.
This Note argues that by creating a new, additional comment to Rule 3.6 that lists the factors to consider when faced with an attorney’s social media statement, judges will be in a better position to determine if an attorney’s statement reaches and prejudices a jury. The inclusion of such factors can aid decision makers who may be unfamiliar with how attorneys can protect information on social media. The new considerations, designed for a new age of social media use, can help shift back into place the balancing of rights that judges have achieved when applying the rule to statements presented in traditional media.
In applying Rule 3.6 to social media statements, a judge must first understand how courts have applied Rule 3.6 to traditional media statements and the factors that make traditional media statements different from social media statements. Part I discusses Rule 3.6 and explains how courts apply the rule to statements that lawyers make in traditional-media outlets. Part II describes the problems that derive from a judge’s application of Rule 3.6 to statements lawyers make online. Part III lists and describes new factors for a judge to consider when ruling on a case that involves an attorney’s social media statements. Using these factors, a judge achieves a better balance between an attorney’s speech interests and a state’s interest in obtaining fair and just proceedings. Lastly, Part IV analyzes counterarguments and assures readers that new factors will not unjustly promote lawyer speech interests at the expense of state interests
The Harmonization Myth in International Intellectual Property Law
Get PDFThere is a dominant narrative in international intellectual property ( IP ) law of ever-increasing harmonization. This narrative has been deployed in ways descriptive, prescriptive, and instrumental: approximating the historical trend, providing justification, and establishing the path forward. Appeals to harmonization are attractive. They evoke a worldwide partnership and shared sacrifice to meet the goals of innovation and access to technology through certainty, efficiency, and increased competition through lowered trade barriers. Countries with strong IP protections consistently and successfully tout the importance of certainty and lower trade barriers when seeking new and stronger protections from countries with lower levels of protection. Yet the harmonization narrative is a myth. Harmonization can account for only some attributes of international IP law development, and even those are often better explained by a maximalist account of IP protection. Maximization of IP rights better explains much of the substance of international IP law development, including the Agreement on Trade-Related Aspects of Intellectual Property Rights ( TRIPS ), which sets floors but not ceilings for IP protections.
Maximization is particularly evident in the forum-shifting behavior that has resulted in a proliferation of IP commitments in investment, bilateral, and regional trade treaties in the years since the TRIPS Agreement went into effect. These commitments often increase IP protection in signatory countries in ways that bring them out of harmony with the majority of the world. As a result, prior commitments to harmonization are discarded for maximization.
Through the lens of duration, this Article describes the harmonization narrative and its strength leading up to the TRIPS Agreement before showing the explanatory superiority of a maximization narrative, even in the provisions of TRIPS. Next, the Article shows how maximization of IP has driven many of the post-TRIPS treaties and agreements at the expense of harmonization. Recognizing maximization instead of harmonization as the chief explanatory story has a number of implications for the future of international IP law. It challenges the normative presumption that all countries should have the same level of IP protection and weakens arguments that countries ought to sacrifice their own national agendas in order to bring their IP protection into harmony with other countries. Ultimately, correctly identifying the trajectory of international IP law allows scholars and stakeholders to address complicated problems with realistic expectations, rather than attractive but flawed rhetoric
Recounts and Ballot Challenges in the 2020 Presidential Election: Legal Expert Provides Insights
Get PDFPopular Sovereignty and the Doctrine of Plenary State Legislative Power
Get PDFUnlike the federal legislature, state legislatures possess plenary power, except insofar as they are limited by state constitutions. Though state plenary power is rooted in the legal authority of popular sovereignty, the doctrine of plenary state legislative power dulls democratic power by eliminating a potential right to local self-governance and by inducing courts to underenforce constitutional limits on state legislatures. These trends do not square with our democratic intuitions or with our desire to have a sense of efficacy, energy, and power in our own ability to influence the laws of our communities. This Article suggests that the doctrine of state legislative plenary power as it is reflected in contemporary case law is inconsistent with historical conceptions of popular sovereignty that dominated intellectual life at our country’s founding. It urges courts, scholars, and the public to give renewed attention to the intellectual underpinnings of popular sovereignty and imagines what it might look like for a state’s citizens to actively and independently decide which powers they cede to their state legislatures—and which they retain for themselves
Thomas McSweeney on the Professionalization of the Common Law
No full textIn this episode, Thomas J. McSweeney, Professor of Law at William & Mary Law School, discusses his book Priests of the Law: Roman Law and the Making of the Common Law\u27s First Professionals, which is published by Oxford University Press. McSweeney begins by describing the English legal system of the 11th and 12th centuries. He explains the relationship between the early common law, Roman or civil law, and canon law. He discusses the influence of Roman law on early common law scholars, as they conceptualized the common law and professionalized the judiciary. And he reflects on the historical influence of their work