Professor Joshua A. T. Fairfield, the Director of the Frances Lewis Law Center, recently published his article, “Do-Not-Track” as Contract, 14 Vand. J. Ent. & Tech. L. 545 (2012), in the Vanderbilt Journal of Entertainment & Technology Law.
In the article, Professor Fairfield discusses a do-not-track option in web browsing. While there could be support and enforcement under the Federal Trade Commission, Prof. Fairfield ultimately concludes that the FTC does not have the political will or technological ability to do so currently. Prof. Fairfield argues that instead, users should utilize the power of contract law to impose a do-not-track option on corporations. If websites are able to impose their rules on users, Fairfield concludes that users can likewise impose their rules on websites.
Professor Timothy S. Jost, the Robert L. Willett Family Professor of Law, recently had his article, Is Medicaid Constitutional? posted on the New England Journal of Medicine’s Perspective Blog.
The article discusses the expansion of Medicaid by the Affordable Care Act (ACA). Under the ACA, Medicaid coverage was brought to cover all adults under 65 who have an income below 138% of the federal poverty level. Through 2016, the federal government will pay 100% of this expansion but will phase down to 90% by 2020. The part under question is the requirement that states cover the newly eligible population to receive any federal Medicaid funding. The 26 states bring the lawsuit argue that this requirement is paramount to coercion that turns mere pressure into compulsion. Prof. Jost discusses the potential ramifications should the Court find the Medicaid expansion too coercive and the impact may very well expand beyond the health care arena.
The rift between legal theory and the practice of law can be wide and deep. As the director of the Washington and Lee Criminal Justice Clinic and also through his own scholarship, Professor J.D. King has endeavored to bridge this chasm.
Professor King opened the doors of the W&L Criminal Justice Clinic in 2009. Clinic students serve as court-appointed attorneys for indigent criminal defendants facing misdemeanor charges in local criminal courts. Under Virginia’s third-year practice rule, Professor King supervises the work of 8-10 students each year. Together these students will represent approximately 75 clients per year. Most students will conduct at least one trial during their time in the clinic. The mission of the clinic is two-fold in Professor King’s view: “To provide a level of representation that is second to none, and to allow the students to truly take ownership of a case from start to finish.”
According to King, clinical education complements traditional courses in a number of ways. First, it teaches students how to develop facts. “Facts are messier in real life than they appear in first year case books,” King says. “Students in the clinic learn how to investigate, develop, and present the facts from an advocacy perspective that they don’t generally see in the classroom. Second, the clinical experience promotes “critical self-reflection. Not only do students learn how to think and act like lawyers, but they are explicitly trained to reflect on their practices with an eye towards improving their performance the next time around.” Finally, King hopes that “the clinic will impart some lessons about social justice. . . how the system can be structured in a way that makes it very difficult for people to achieve justice or fairness, and what lawyers can do to change that.”
After graduating from the University of Michigan Law School, King began his legal career knowing that he wanted to represent poor people charged with crimes. After a two-year federal clerkship, he landed a prestigious E. Barrett Prettyman Fellowship at Georgetown University Law Center, where he represented clients facing criminal charges in the D.C. courts, and supervised law students as part of Georgetown’s Criminal Justice Clinic. He then moved to the Public Defender Service for D.C., where he represented indigent clients on charges ranging from shoplifting to homicide and everything in between. During his time at the Public Defender Service, King also served as a Supervising Attorney in the Trial Division in addition to handling his own cases.
King’s scholarship has flowed directly from his professional experience with the issues involved in ethics and criminal defense. “There is a dearth of high-level scholarship that explains what one should actually do. . . when confronted with these situations, “ he explains. His first article Candor, Zeal, and the Substitution of Judgment: Ethics and the Mentally Ill Criminal Defendant, 58 Am. U. L. Rev. 207 (2008) examines the ethical dilemmas faced by a criminal defense attorney who represents a mentally impaired client. King argues that granting defense attorneys more leeway in fulfilling their role of zealous advocate would enhance the ultimate aim of dignity and due process in the criminal justice system.
Another article, forthcoming in the Harvard Civil Rights-Civil Liberties Law Review is entitled, Beyond “Life and Liberty”: The Evolving Right to Counsel. It takes a broad look at misdemeanor convictions in the United States and the traditional doctrine that holds there is no constitutional right to counsel unless incarceration is actually imposed. Recently, however, there has been an explosion in the numbers of these low-level prosecutions as well as an increase in the severity of collateral consequences, such as deportation or loss of public housing. Given these trends, King argues that this traditional view needs to be modified to allow for a broader right to court-appointed representation for misdemeanor defendants.
In his quest to marry theory and practice together, King has found a sweet spot of education and practice. “I love coming to work every day.”
Last week, Professor Mark A. Drumbl, Class of 1975 Alumni Professor of Law and Director of the Transnational Law Institute, posted on the Oxford University Press Blog about child soldiers. The piece addresses the two points that Prof. Drumbl believes are overlooked in the recent coverage of Kony 2012: (1) what does justice mean for child soldiers, and (2) what contribution does Kony 2012 make to the prevention of child soldiering worldwide?