Virtual Book Club

We add a new feature to the Marquette Law School Faculty Blog this semester: a virtual book club.  Over the course of the semester, participants will read and post about a particular book.  The book this semester will be The Invisible Constitution by Laurence Tribe (left).  From the publisher’s description:

As everyone knows, the United States Constitution is a tangible, visible document. Many see it in fact as a sacred text, holding no meaning other than that which is clearly visible on the page. Yet as renowned legal scholar Laurence Tribe shows, what is not written in the Constitution plays a key role in its interpretation. Indeed some of the most contentious Constitutional debates of our time hinge on the extent to which it can admit of divergent readings.

In The Invisible Constitution, Tribe argues that there is an unseen constitution — impalpable but powerful — that accompanies the parchment version. It is the visible document’s shadow, its dark matter: always there and possessing some of its key meanings and values despite its absence on the page. As Tribe illustrates, some of our most cherished and widely held beliefs about constitutional rights are not part of the written document, but can only be deduced by piecing together hints and clues from it.

Joining me in commenting on the book will be: Rebecca Blemberg, Bruce Boyden, Rick Esenberg, Melissa Greipp, Gordon Hylton, Julian Kossow, Mike McChrystal, Chad Oldfather, and Phoebe Williams.  I look forward to reading what my colleagues will have to say over the course of the semester.

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Client Fraud and the Lawyer

 

As the disaster in the financial markets continues to unfold, greed and avarice – the usual suspects – are being overshadowed by pervasive fraud as a prime mover.  We have, of course, the infamous Bernie Madoff and now the “mini-Madoffs” upon whom we can heap large helpings of blame, but deceit, misrepresentations, and fraud seemingly resonate throughout the markets, as illustrated by the subprime scandal, the mortgage mess, and the flood of worthless consumer debt.  And what was the role of lawyers in all this?  Financial transactions of this sort inevitably involve lawyers at some stage.  Investigations and lawsuits may soon give us a clearer picture of the role lawyers may have played in exacerbating the nightmare, but the question for today is whether lawyers could have, or should have, acted to prevent any of this.  And my focus is not Sarbanes-Oxley or securities regulations, but on the fundamentals of lawyers’ professional responsibility.

Lawyers are not permitted to “assist” or “further” crimes or frauds committed by their clients.  To do so – provided anyone finds out – eviscerates the venerable lawyer-client privilege and exposes both lawyer and client to civil and criminal remedies. This is comfortably familiar and uncontroversial.  But what of the lawyer who is aware of a client’s fraud but who arguably has done nothing to assist or further it?  Assume further that the fraud is on-going and not a past act.  What is the lawyer’s duty or professional responsibility, especially considering that lawyers are enjoined not to disclose client confidences or privileged communications without client consent (and the reality is that few clients will approve of their lawyer’s whistle-blowing)?

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In Defense of To Kill a Mockingbird

One of my favorite legal movies is To Kill a Mockingbird.  The movie is an adaptation of the Pulitzer Prize-winning novel by Harper Lee.  I disagree with my esteemed colleague Professor Daniel Blinka’s recent blog that he’d “rather leave the planet than read or watch To Kill a Mockingbird – Finch loses the big case and gets his client killed; nice job!”  I just watched the movie again for about the 50th time!  The movie was clearly a fiction, but it symbolized for me a cultural acknowledgement of an ugly chapter in our history where racism interfered with an equitable disbursement of justice.  The movie depicted the era of southern lynchings, Jim Crow laws and the civil rights movement.  Justice, particularly in the south, was not meted out in a colorblind manner.

The movie starred Gregory Peck as attorney Atticus Finch who represented an African American man, Tom Robinson, who was wrongfully accused of raping a White woman in a southern Mississippi town.  The evidence clearly established that Robinson had not committed any crime against the alleged victim.  Rather, the facts indicated that the alleged victim’s father had physically assaulted her after witnessing her kissing Robinson.  Notwithstanding the evidence, the all-White jury convicted Robinson.  Hence, Professor Blinka was correct that Finch lost the case.  However, the movie would have less emblematic of the times if the jury had acquitted Robinson.  Five very high-profile real life murders during this era reflected the impossibility of Finch’s task.  An all-White jury exonerated the suspects of the 1955 murder of Emmett Till in about one hour even though the evidence established their likely involvement in the murder.  Medgar Evers, a civil rights pioneer, was killed in Mississippi during 1963.  The evidence pointed to the guilt of the primary suspect; however, two all-White juries deadlocked on his guilt.  The suspect was finally convicted during 1994.  The civil rights workers James Chaney, Andrew Goodman and Michael Schwerner were brutally murdered in 1964.  No one was charged with these murders until 2005 even though suspects had been implicated shortly after the deaths. 

I was born and raised in an integrated community in upstate New York after these killings.  The movie To Kill a Mockingbird was my first exposure to the tumultuous civil rights period.  I watched the movie for the first time as a child with my parents. The movie had an immediate impact on me.  I experienced a range of emotions – anger, shock, confusion and sadness. The sadness, anger and shock resulted from the conviction and subsequent death of Robinson.  The confusion resulted from the death of the movie’s villain, the alleged victim’s father, at the hands of a meek neighbor, and the sheriff’s decision to cover up the murder.  Irrespective of the flaws in the court system, the sheriff was obligated to arrest the neighbor.  However, I was also inspired after watching the movie.  Finch made a great personal sacrifice to represent Robinson, including placing his children in harm’s way.  This fictitious character inspired me to become an attorney, to help the disadvantaged and to be willing to make personal sacrifices for a cause.  Consequently, while To Kill a Mockingbird was clearly a fictional tale, I will, indeed, watch it for the 51st time when I crave inspiration! 

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