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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An Interview with Professor Edward Fallone

[Editor’s Note: This blog is the second in a series of interviews with faculty and staff at the Law School.]

Professor Edward Fallone is a graduate of Boston University, where he majored in Spanish Language & Literature. He holds a J.D. from Boston University. Following law school, he was an associate at a Washington, D.C. law firm where he practiced corporate law and white collar crime. He joined the Marquette faculty in 1992. He has also taught international criminal law at the Marquette summer law programs at the University of Brisbane and Justus Liebig University Law School in Giessen, Germany. His current research interests involve issues of constitutional interpretation and judicial methods. In addition to his work at the Law School, he is of counsel at a Milwaukee law firm and has held leadership roles in Milwaukee’s Hispanic and immigrant community.

Question: How did you become interested in law and teaching law?

Oddly enough, I became interested in law teaching because I absolutely hated one of my law professors. I was very interested in Corporate Law, and I found the class readings on insider trading and hostile takeovers to be fascinating. But my professor in that course was extremely boring, and he taught mostly by reading the teacher’s manual out loud to the class. I remember sitting in that class and thinking to myself, “I could do a better job than him.” Of course, nowadays when I am teaching a class I often look out over the faces of my students and I wonder if any of them are thinking the same thing.

Question: What do you most enjoy about teaching law students?

I like being in the classroom. I have never considered teaching to be a one way conduit of information. In my opinion, a class discussion can be just like an intelligent conversation over dinner, and it can be just as entertaining (without the wine, however). When a class goes well, the topics of the conversation can be wide-ranging and unexpected. If the students are prepared for class and engaged, then I have fun. Of course, this doesn’t happen every class period. Sometimes a particular subject matter lends itself to a more one-sided lecture format. Sometimes the students are unprepared. However, there are enough good days to make the job rewarding.

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