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Prof. Sundby on Zealous Representation

May 3, 2011 Leave a comment

Scott SundbyProfessor Scott E. Sundby, the Sydney and Frances Lewis Professor of Law, recently published his article, The Conundrum of Zealous Representation, 8 Ohio St. J. of Crim. L. ___ (2011), in a forthcoming edition of the Ohio State Journal of Criminal Law.

Professor Sundby’s article uses Sharon Davies’s book, Rising Road: A True Tale of Love, Race, and Religion in America, to discuss the ethical line between “zealous” to “overzealous” representation. The book recounts the fascinating tale of a murder that commanded national attention in 1920. Edwin Stephenson, a methodist minister, murders a Catholic priest upon learning that the priest had just married the minister’s 18 year-old daughter to a Catholic man. Adding to the emotional turmoil surrounding the case, the murder and the ensuing trial take place in Birmingham, Alabama during a time when anti-Catholic fervor is sweeping across the South. Stephenson’s defense attorney was Hugo Black, a rising star in the Alabama bar with a personal grudge against the district attorney.

Professor Sundby analyzes Hugo Black’s actions during the trial – especially his willingness to engage in tactics that draw off of the religious and racial overtones of the murder – as a way of thinking about what constitutes “zealous” representation of a client. By looking at how Black conducted the defense – building from vigorous cross-examination on up to a courtroom display that Davies quite rightfully terms “extraordinary” for its inflammatory potential – Prof. Sundby asks the question of whether Black at some point crossed an ethical line from “zealous” to “overzealous” representation.

You can find Prof. Sundby’s article on SSRN here.

Congratulations to Professor Sundby.

Prof. Sundby on the Exclusionary Rule

March 30, 2011 Leave a comment

Scott SundbyProfessor Scott E. Sundby, the Sydney and Frances Lewis Professor of Law, recently published his article, The Majestic and the Mundane: The Two Creation Stories of the Exclusionary Rule43 Tex. Tech L. Rev. 391 (2010), in the Texas Tech Law Review, as part of their Fourth Amendment Search & Seizure Symposium.

In the article, Prof. Sundby discusses the two distinct “creation stories” behind the exclusionary rule in American jurisprudence, as found in Herring v. United States, 555 U.S. 135 (2009). Chief Justice Roberts and Justice Ginsburg articulated dramatically different visions of the exclusionary rule and its judicial heritage. Justice Roberts, writing for the five-justice majority, framed the exclusionary rule as simply a judicial rule designed solely to deter police misconduct. In her dissent, Justice Ginsburg alluded to a very different vision, a “more majestic” conception of the exclusionary rule. Prof. Sundby explores the rhetorical and historical arc of these two competing creation stories in identifying when the majestic conception lost its dominance and the evidentiary rule conception gained preeminence.

You can find Prof. Sundby’s article on SSRN here.

Congratulations to Professor Sundby on this publication.

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