Habeas Corpus and the Right to Effective Assistance of Counsel

My new article on habeas corpus and the right to effective assistance of counsel is now out: Bypassing Habeas: The Right to Effective Assistance Requires Earlier Supreme Court Intervention in Cases of Attorney Incompetence, 25 Fed. Sent. Rep. 110 (2012).  Here is the abstract:

This article considers the interplay between habeas corpus law and the Sixth Amendment right to effective assistance of counsel. Certain peculiarities of federal habeas have given a schizophrenic character to recent Supreme Court decisions on ineffective assistance. At the same time that the Court has displayed a new willingness to extend Sixth Amendment protections to the plea-bargaining arena, the Court has also evinced a particular hostility to ineffective assistance claims arising in habeas. The present article identifies the roots of this schizophrenia in the Court’s 2000 decision in Williams v. Taylor. The Court’s trajectory from Williams to the present suggests that, absent a significant ideological makeover, the Court is unlikely in habeas cases to bring greater vigor and clarity to the right to effective assistance. The Court and advocates pushing the Court to adopt stronger Sixth Amendment protections should thus focus their efforts on cases emerging directly from state-court systems, rather than on collateral post-conviction challenges in federal court.

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Congratulations to the 2013 Jenkins Honors Moot Court Competitors

The Jenkins Honors Moot Court Competition is an appellate moot court competition for Marquette law students. Students are invited to participate based on their performance in the fall Appellate Writing and Advocacy course at the Law School.

Congratulations to the participants in the 2013 Jenkins Honors Moot Court Competition:

Todd Allen
Michael Beckman
Codi Carstens
Kelly Cavey
Nicholas Chmurski
Stephen Cox
Michael Crane
Alexander Golubiewski
Andy Gordon
Krystal John
Kevin Jolivette
Paul Jonas
Brittany Kachingwe
Hans Lodge
Tea Norfolk
Kerri Puig
Kaitlyn Reise
Brendon Reyes
Jessica Shank
Joy Sisler
Martin St. Aubin
Robert Steele

Students will begin writing their appellate briefs in January with the rounds of oral argument commencing later this spring. The competition includes three preliminary oral argument rounds and a semifinal and final round.

The Jenkins competitors are fortunate to have the opportunity to argue before distinguished members of the bench and bar from Wisconsin and beyond.

The competition is named after the James G. Jenkins, the first Marquette Law School dean.

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Time for the NHL to Consider Contraction

With the National Hockey League lockout now well into its second 100 days, and with chances of there being a 2012-13 season looking more and more remote, some NHL owners are apparently thinking about expanding the number of teams in the league from 30 to 32. The most frequently mentioned locations for new teams are Seattle and Quebec.

Apparently, the idea is that the labor dispute will be settled eventually, and that current owners could make up for some of their losses by dividing up sizeable expansion fees from the two new teams.

In reality, the best thing for the NHL would be to contract back to 21 teams, the number it had between 1979 and 1991, which is increasingly looking like the league’s golden age.

In 1979, the then 17-team NHL agreed to add four teams from its former competitor, the World Hockey Association. For the next twelve seasons, the league played with three 5-team and one 6-team divisions. The growing popularity of NHL hockey in the early 1990’s led the league to somewhat ambitiously add nine teams between 1991 and 2000. In retrospect, this decision to expand the league into new markets in the southern half of the United States is a major source of the league’s current financial problems.

The league simply has too many teams and too many teams in markets that will not support major league hockey.

How would one decide which nine teams to jettison and which 21 to keep? The goal could be reached by simply eliminating the nine post-1991 expansion teams, but that would overlook the fact that a few of the expansion teams—the San Jose Sharks, the Ottawa Senators, and the Minnesota Wild—are among the league’s more financially successful teams.

Fortunately, the recent Forbes Magazine franchise value evaluations provide the data that makes such a determination fairly simple.

According to Forbes, there are currently 20 NHL franchises with valuations of more than US $200 million, ranging from the Toronto Maple Leafs (worth an estimated $1b) to the Winnipeg Jets (worth $200m). Similarly, there were 20 franchises that had revenues during the 2011-12 season in excess of $95 million, ranging from Toronto ($200m) to Buffalo ($95m).

A total of 21 teams appear on these two lists. Nineteen are on both, with only Colorado (21st in terms of revenue) and Buffalo (22nd in terms of estimated value) appearing on one list but not the other. The nine franchises that appear on neither of these lists are the logical ones to eliminate.

The nine “to be folded” franchises are, in descending order of value according to the Forbes estimates: Anaheim Ducks, Tampa Bay Lightning, Florida Panthers, Nashville Predators, Carolina Hurricane, New York Islanders, Columbus Blue Jackets, Phoenix Roadrunners, and St. Louis Blues.

Six of the nine are post-1991 expansions teams, and Phoenix is a transformed beyond recognition version of the original Winnipeg Jets, since restored to Winnipeg in the form of the transferred Atlanta Thrashers. The other two teams, the New York Islanders and the St. Louis Blues, have been around for a much longer time.

The Islanders were founded in 1970, and a decade later began one of the greatest runs in North American sports history. The team won four consecutive Stanley Cups from 1980 to 1983, and almost won a fifth title, before losing in the Cup finals to Wayne Gretzky’s Edmonton Oilers in the 1984. However, for the past 20 years, the Isles have been one of the Sad Sacks of the NHL, qualifying for only 6 of the last 21 Stanley Cup play-offs and only one of the past seven.

Attendance has also tumbled as it has become clear that New York is not a good enough hockey town to support three NHL teams. The Islanders ranked dead last in the NHL in revenue last year with a total that was less than 80% of that garnered by the 29th ranked team (Phoenix).

The St. Louis Blues date back to 1967, when they were part of a decision to increase the size of the league from six teams to twelve. Thanks to a decision to put all of the expansion teams in their own division, the Blues played in the Stanley Cup finals their first three seasons in the NHL (1968 to 1970), but have not been back to the finals since. In most years, they have made the post-season, but they have usually exited early on. In the past 25 years, they have won only two division titles, and have a post-season series record of 12-19.

Losing the St. Louis franchise would be disappointing for me personally. I was a Blues season ticket holder from 1991 to 1993, and I have followed the team ever since. However, it is hard to deny the facts: the Blues are the least valuable franchise in the NHL, and their value has been declining rapidly. To flourish, the NHL needs to get rid of franchises like the Blues, and St. Louis will do fine without the team.

What would be left if these nine teams were eliminated? Simply an NHL on a much sounder financial footing with a much higher caliber of play (as only 70% of current players would still be in the league, with their less talented teammates returned to the minor leagues or to Europe).

Imagine the following divisional line-ups.

Northern Division: Montreal Canadiens, Boston Bruins, Ottawa Senators, Toronto Maple Leafs, Buffalo Sabers.

Eastern Division: New York Rangers, Pittsburgh Penguins, Philadelphia Flyers, Washington Capitals, New Jersey Devils

Midwest Division: Detroit Red Wings, Chicago Black Hawks, Dallas Stars, Minnesota Wild, Winnipeg Jets, Colorado Avalanche

Western Division: Vancouver Canucks, Los Angeles Kings, Calgary Flames, Edmonton Oilers, San Jose Sharks

With one-third of the teams in Canada and only three “warm weather” cities (LA, San Jose, and Washington), the league’s “old-time hockey” feel would be restored.

Dramatic contractions have occurred before in American sports history. In 1890, there were three major league baseball leagues with 24 teams. Multiple teams in single cities were the norm. After a negotiated settlement, the total was reduced to two leagues and 16 cities in 1891. In 1892, it was further reduced to one league and 12 teams, and in1900, to eight teams.

Similarly, between 1926 and 1927, the number of teams in the National Football League was reduced from 22 to 12. In 1950, the NFL and the competing All America Football Conference combined, and in doing so reduced the total number of teams from 18 in 1948 to 13 in 1950, and 12, in 1951. The National Basketball Association began play with 17 teams in 1949, but reduced the number of teams to 11 the following year and to eight in 1953-54.

In each case, teams were eliminated to insure the economic profitability of the remaining clubs.

Obviously, it would not be an easy task to buy out the nine NHL franchises identified for contraction. According to the Forbes estimates the combined value of the nine franchises is $1.43 billion. On the other hand, it is telling that the combined value of the nine weakest franchises is significantly less than the value of the Maple Leafs and Rangers ($1.75 billion), the two most valuable franchises.

Continue ReadingTime for the NHL to Consider Contraction