Category Archives: Law

This Looks Good

Rachel E. Barkow, Institutional Design And The Policing Of Prosecutors: Lessons From Administrative Law, 61 Stan. L. Rev. 869 (2009).

Federal prosecutors wield enormous power. They have the authority to make charging decisions, enter cooperation agreements, accept pleas, and often dictate sentences or sentencing ranges. There are currently no effective legal checks in place to police the manner in which prosecutors exercise their discretion. As a result, in the current era dominated by pleas instead of trials, federal prosecutors are not merely law enforcers. They are the final adjudicators in the 95% of cases that are not tried before a federal judge or jury. In a government whose hallmark is supposed to be the separation of powers, federal prosecutors are a glaring and dangerous exception. They have the authority to take away liberty, yet they are often the final judges in their own cases. One need not be an expert in separation-of-powers theory to know that combining these powers in a single actor can lead to gross abuses. Indeed, the combination of law enforcement and adjudicative power in a single prosecutor is the most significant design flaw in the federal criminal system. Although scholars have made persuasive cases for greater external controls on prosecutors, these calls for reform are unrealistic in the current political climate. The solution must be sought elsewhere.

This Article looks within the prosecutor’s office itself to identify a viable corrective on prosecutorial overreaching. In particular, by heeding lessons of institutional design from administrative law, this Article considers how federal prosecutors’ offices could be designed to curb abuses of power through separation-of-functions requirements and greater attention to supervision. The problems posed by federal prosecutors’ combination of adjudicative and enforcement functions are the very same issues raised by the administrative state—and the solutions fit equally well in both settings. In both instances, individuals who make investigative and advocacy decisions should be separated from those who make adjudicative decisions, the latter of which should be defined to include some of the most important prosecutorial decisions today, including charging, the acceptance of pleas, and the decision whether or not to file substantial assistance motions. Using this model from administrative law would not only be effective, it would also be more politically viable than the leading alternative proposals for curbing prosecutorial discretion.

Administrative law values are not inevitably good, but they are often good.

Posted in Administrative Law, Law: Criminal Law | Comments Off on This Looks Good

Jan Paulsson to Join UM Law Faculty

Jan PaulssonI’m very pleased to announce a major appointment by the our law school: starting next year, international arbitration scholar and arbitrator extraordinaire (and repeat University of Miami Visiting Professor) Jan Paulsson, will join our faculty as the first holder of the new Michael Klein Chair in Law.

This is a big deal for us in several ways.

First, Jan is globalization personified: born a Swedish national, he grew up in Africa but attended high school in California, eventually wound up at Yale Law School. He has worked primarily in Paris, most recently as the head of the Paris-based arbitration practice of one of London’s (and Europe’s) leading law firms, Freshfields Bruckhaus Deringer. He has extensive contacts and experience in Europe, the Middle East, Latin America, and the Caribbean (and for all I know the rest of the world too).

Second, Jan is arguably the leading arbitration advocate, and arbitrator, of his generation although Jan himself would be far too modest to claim any such thing. Multi-lingual, he is also an incredible multi-tasker, holding or having held many of the key jobs in the international arbitration world, including the Presidency of the London Court of International Arbitration and the World Bank Administrative Tribunal while moonlighting every few years as an on-the-spot arbitrator for the Olympic Games (someone has to be on tap to decide doping challenges). He has also written very extensively in the field, authoring two scholarly books and a slew of articles, as well as editing or contributing to the major practitioner works in his field. Indeed, I'm told that when he joins us Jan will be the most-cited member of the faculty.

Third, he’s coming to Miami to head up a new institute that will focus on international arbitration, with a particular focus on Latin America. I will have more to say about this in the future, but I think there's every reason to believe that under his leadership we should be able to build something world-class.

International arbitration is something of a poor stepchild in the US academy – we in the US are neither the primary users of it nor do we supply a particularly large share of the leading advocates (at least in private law), arbitrators, or scholars – although we do have a few domestic stars. But my sense is that US legal academics in particular do not have a visceral sense of the extent to which arbitration has come to play an essential role in the settlement of international commercial and financial disputes. (This may be because we have a reasonably functional domestic legal system or because historically so much of our trade was domestic.)

At UM we already have a healthy international arbitration curriculum, but bringing Jan Paulsson to Miami as the head of a new center will put us in the first rank of the US institutions focused on this increasingly important area of transnational law. Starting next year we will be offering an LL.M. concentration in arbitration as part of our comparative and international LL.M programs.

But to top it all, it turns out that Jan Paulsson is a very nice person – so when I say it's going to be a pleasure to have him on our faculty, that's no formality.

Formality can, however, be found below, where I quote the official announcement being issued by the law school today.

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Posted in Arbitration Law, Law School, U.Miami | 4 Comments

Law Students Take Note!

Attention all law students: Why all lawyers – even criminal law types – need to understand administrative law. It's not just me saying it.

Tragically, half of the law students in the US graduate without taking Administrative law, which is rarely a required course. Many, many of them are sorry later.

Of the courses I teach, it's Administrative Law that students most frequently come back years later and thank me for.

Yes, it's a very hard subject. Yes, it's not on the bar exam. But you need it.

Administrative Law is rarely oversubscribed in any law school. Sign up now.

Posted in Administrative Law | 1 Comment

Funniest Headline of the Day

Spotted via Kos, Effect Measure : Bush administration is protecting privacy and constitutional rights — of tomatoes.

The headline is actually slightly unfair, at least as to the constitutional rights part, but it's still funny.

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ICDR Miami

I'm at the ICDR's 6th Annual Miami International Arbitration Conference today, so I won't post much if anything.

One big change from when I was in practice: much more talk, and even a significant number of rules, about ethics. Other than that, lots of little changes….

Posted in Arbitration Law, Talks & Conferences | Comments Off on ICDR Miami

Wrong APA

There I was getting all excited by this teaser link at Brian Leiter's blog, “How the APA Stole Christmas”.

Someone writing about the Administrative Procedure Act? In the holidays? What fun!

But no, it's about the American Philosophical Association job fair. Which, incidentally, sounds much worse than the AALS's version.

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