Parking Garage Quietly Marks the 225th Anniversary of the Northwest Ordinance

This post is authored by J. Gordon Hylton and Jane Casper.

July 13, 2012 marked the 225th anniversary of the signing of the Northwest Ordinance.

As some users of the Eckstein Hall Parking Garage know, excerpts from the text of the 1787 Northwest Ordinance are transposed on the walls of the Tory Hill/Clybourn Street floor of the garage and on the elevator doors on the same level. (The Magna Charta excerpts are on the walls of the underground garage’s other level.)

The Northwest Ordinance was one of the first landmarks of constitutional government in the United States. It “organized” the Northwest Territory, the first United States territory, and it set down a series of guidelines that would dramatically affect the development of the “western” United States.

The Northwest Territory included the present day states of Ohio, Indiana, Illinois, Michigan, Wisconsin, and part of Minnesota, and its passage was made possible by the willingness of eastern states, particularly Virginia, to cede their western land claims to the national government.

The Ordinance dictated that new states would be created from the Territory when the population warranted; it abolished African-American slavery in the region during the territorial stage; it propagated the first bill of rights issued by the United States government; it committed the policy of the United States to the support of public schools (and religion generally); and it established the “gridded township” system of development advocated by Thomas Jefferson that defines to political organization of states like Wisconsin to this very day.

At the same time the Congress was enacting the Northwest Ordinance in New York City, our so-called “Founding Fathers” were meeting in Philadelphia and were in the process of drafting the Constitution that would replace the Articles of Confederation. That the Northwest Ordinance was unaffected by the ratification of the new Constitution was confirmed on August 7, 1789, when new President George Washington signed into law a re-enacted Northwest Ordinance (which contained only minor alterations).

Plans are in the works for a festive event in the summer of 2014 to celebrate the 225th anniversary of the signing of the re-enacted Ordinance.

 

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Observations on Lafler and Frye: Little Relief in Sight for Defendants Whose Lawyers Botched Plea Negotiations

In a pair of much-noted decisions last March, the Supreme Court held that the constitutional right of defendants to effective assistance of counsel is not limited to trial representation, but also extends to plea bargaining.  More specifically, in Lafler v. Cooper, the Court addressed the case of a man who was convicted at trial after his lawyer advised him to turn down a generous plea deal on the basis of what seems to have been an egregious misunderstanding of the law; the Court held that the original offer must again be made available to the defendant.  Meanwhile, in Missouri v. Frye, the Court addressed the case of a man whose lawyer failed to tell him of a pending plea offer until after the offer had expired; the Court held that the lawyer’s performance fell below the constitutionally required minimum, but remanded for a determination as to whether the defendant had actually been prejudiced by his lawyer’s incompetence.

To read Justice Scalia’s two dissents in these cases, one might think the Court had radically broken from precedent and opened up plea bargaining to constitutional scrutiny for the first time.  In truth, the principle that the Constitution guarantees minimally competent legal representation at what is without question the most important phase of contemporary criminal litigation follows naturally from the Court’s earlier decisions and has been widely recognized in the lower courts for years.  Nor is there anything novel about the Court imposing constitutional standards on the plea-negotation process; the Court began doing so in the 1970′s.

In fact, Lafler and Frye remind me of one of the Court decisions from that era, Henderson v. Morgan (1976).  The comparison is not meant as a compliment.  

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Should the American Bar Association Accredit Foreign Law Schools?

At this week’s annual meeting in Chicago, the American Bar Association’s Committee on Legal Education and Admission to the Bar will debate the question of whether or not non-United States Law Schools should be able to apply for ABA accreditation.

In the early 1920’s, the ABA, on its own incentive, began to accredit American law schools. Although ABA certification initially gave accredited law schools nothing more than a reputational boost, in the post-World War II period, a growing number of states decided to limit their bar examinations to graduates of ABA-approved law schools. Moreover, in 1952, the United States Department of Education certified the ABA as the nationally recognized accreditation authority for law schools. Today most states require law school graduates to be graduates of ABA-accredited law schools before they can take the state’s bar examination.

The American model of legal education has been highly influential around the world. Canadian law schools now operate on what is essentially an American model, and Australian schools have made significant moves in that direction. Moreover, entrepreneurs have established U.S.-style law schools in other countries where the ordinary model of legal education differs from that in the United States.

One such school is the Peking University School of Transnational Law in Shenzhen, China. The Peking law school was founded in 2007, with the intention of making it possible to obtain a U.S. style legal education in China. From the start, the school has been led by a former University of Michigan Law School dean, Jeffrey Lehman, who serves as dean and chancellor, and by Steven Yandle, formerly a long-time associate dean at the University of Virginia and Yale Law Schools.

The Peking School has adopted an American admissions model. Only students who possess a bachelor’s degree in a subject other than law are admitted to the law school, and all applicants must take the LSAT-STL, a variation of the LSAT. The law course does, however, last four years rather than three, and graduates receive both a J.M. degree (which qualifies them for practice in China) and a J.D. degree (authorized by the Chinese government, and designed to qualify them for practice in the United States). The school opened in the fall of 2008, with classes taught in both Chinese and English. All 53 of the school’s initial students were from mainland China. This first class graduated this past fall, and the fifth class will be admitted this fall.

The current ABA debate was prompted by the Peking University law school’s application for ABA accreditation in 2010. It is the first, and so far only, non-U.S. school to make such an application.

In 2010, an ABA Committee, appointed to consider the question, recommended that the ABA’s Council on Legal Education seriously consider extending its accreditation function to foreign law schools, so long as they were constructed on the U.S. model. However, in 2011, a second committee, which solicited public comments on the proposal, reached a contrary conclusion.

Persistent efforts on the part of the Peking law school have brought the issue back before the ABA for a third time in three years.

Advocates of expanded accreditation cite to the increased globalization of law practice and the value of such a system in determining which foreign lawyers are eligible for admission to the bar in the United States. Opponents emphasize the difficulty in administering such a system, the danger that it would stretch ABA financial resources too thin, and that it would lead to increased competition for American law students seeking jobs in a lawyer-saturated marketplace.

 

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