Article Preview: Courts and Informal Constitutional Change in the States

The Constitution is at the heart of our state and individual rights and is the foundation of our very nation.  When considering constitutional law, the Federal Constitution is the document that most frequently comes to mind.  However, each individual state has its own state constitution that governs its residents simultaneously with the Federal Constitution.  As Professor Marshfield indicates, “[s]tate constitutions are often lost in the shadow of the Federal Constitution.”  Although this may accurately describe society’s general understanding of constitutional law, a state’s constitution is an equally important mechanism providing protections of constitutional rights to state residents.  The progression of judicial rulings by the Supreme Court of the United States as a form of constitutional change may sound familiar.  Comparably, state constitutions also experience constitutional change, as illustrated in Professor Marshfield’s forthcoming article Courts and Informal Constitutional Change in the States.

Professor Marshfield states that “constitutional change occurs when the supreme rules that bind political actors are modified.”  He further references two differing methods of constitutional change: informal and formal amendment.  The process of formal amendment occurs through explicit change to the text of the constitution, in and of itself.  Conversely, informal amendment occurs through a change in a constitutional law that does not result in a change to the text itself.  The judicial rulings of the Supreme Court of the United States, discussed above, are one example of informal amendment as a method of constitutional change.  Another example of constitutional change through informal amendment is a “super-statute,” which is legislatively created and separate from the text of the Constitution, such as the Civil Rights Act of 1964.  Constitutional change by way of formal or informal amendment occurs at the state level at a much more frequent ratio than at the Federal level.

Professor Marshfield conducted a study of informal and formal amendments to state constitutions through the creation of an original database of constitutional changes across all fifty states between the years 1970 and 2004.  He began this study by reviewing opinions of the highest courts in all fifty states through a Westlaw search and by narrowing his search to cases revealing a “red flag,” indicating that the case is no longer “good law.”  This type of search allowed him to review judicial opinions that have been overturned by the same state high court on a point of constitutional law.  Professor Marshfield admits that this method of study may be inconclusive in revealing informal constitutional change because a state court may bring about significant constitutional change without actually overturning its own precedent.  Nevertheless, this method captures countless instances of informal amendment by state high courts.  He additionally reviewed the reports created by the Council of State Governments in order to identify formal amendments to state constitutions.

Marshfield’s study reveals that state constitutions have been formally amended approximately 2,887 times, compared to the Federal Constitution which has only been formally amended twenty-seven times.  Further, the study identified 589 cases in which state courts have informally changed state constitutional law.  Professor Marshfield’s study also analyzed the subject-matter of state judicial rulings by coding the cases overturning state constitutional law by the category of constitutional law, which illustrates that the leading subject-matter resulting in change is individual rights.  Approximately half of the cases address criminal procedure issues including double jeopardy and state limitations on the right to a jury trial.  Other cases address civil rights such as gender classifications and equal protection.

Despite the common misconception that state constitutional change occurs minimally through informal amendment because of the high frequency of change through formal amendment, reality indicates that state constitutions are frequently amended through judicial rulings.  Professor Marshfield’s study raises several important questions regarding the correlation between constitutional rights and informal amendment by state courts and the interaction between formal and informal amendment.  One potential theory is that courts are “comfortable” developing jurisprudence on constitutional rights because doing so seems to fit within the role of the judiciary.  Moreover, it is evident that voters generally support judicial decisions regarding individual rights and prefer state court rulings on such issues rather than formal amendments.  One may reasonably conclude, based on the evidence within Professor Marshfield’s study, that state courts “remain active in the evolution of constitutional rights.”

Contributing Editor: Raquel Muscioni 

Be sure to read Professor Marshfield’s article Courts and Informal Constitutional Change in the States, which will appear in Volume 51, Issue 3 of the New England Law Review.

Article Preview: Re-Reading Alafair Burke’s The Ex

There can be no doubt that the legal profession is frequently depicted in popular culture. Take a look at the front page of any major newspaper, and you will invariably find stories depicting the latest political development, sensational trial, or other legal phenomena. But in recent decades, law-and-literature, as a discipline, has been described as “ailing” and in need of a “cure.” The law-and-literature movement has been criticized and the presence of humanities courses in law schools has declined.

In his forthcoming article, I. Bennett Capers, a professor of law at Brooklyn Law School, comments on the role of Alafair Burke’s novel The Ex within the law-and-literature movement. The Ex is a legal thriller in which Olivia Randall, one of New York City’s best defense attorneys, takes on the case of an old boyfriend who has been accused in a triple homicide. Through its use of the law as grounding for its entertainment value, Capers argues The Ex is not only a product of the law-and-literature movement, but also a statement that the movement may still be alive and thriving.

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Article Preview: Kooks, Crooks, Brutes or Rhadamanthine Opacities: Some Thoughts on the Depiction of Judges in Popular Fiction

In fictitious literary and cinematic works, American judges are often portrayed as unethical, corrupt, eccentric, or simply brutal; however, the overwhelming majority of American judges are doing their difficult jobs fairly well. In his Article, Kooks, Crooks, Brutes or Rhadamanthine Opacities: Some Thoughts on the Depiction of Judges in Popular Fiction, U.S. District Judge Michael A. Ponsor takes issue with the cynical light cast on American judges and explains why such a view exists.

At the outset of his Article, Judge Ponsor readily admits that there are issues of incompetence and corruption within the judicial branch of the government, but explains that the judicial branch, as a whole, is the most respected and approved branch of government. Judge Ponsor identifies several works of impressive contemporary literature that highlight the negative aspects of the judiciary. Specifically, Judge Ponsor highlights the negative depictions of judges in novels, such as A Time to Kill and To Kill a Mockingbird, and explains that, while these depictions of judges may be entertaining, they are unflattering, incorrect, and problematic.

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Article Preview: Lawyering Practice: Uncovering Unconscious Influences Before Rather Than After Errors Occur

It will likely come as no shock that most lawyers will inevitably face ethical challenges shortly after they begin to practice law. The types of ethical dilemmas faced by new attorneys, and the manner in which those ethical challenges are resolved, is largely dependent on the environment in which the new attorney has chosen to work. Associate Dean Catherine O’Grady’s recent legal scholarship has focused on the ethical decision-making of new attorneys working in private law firms. In her latest article, A Behavioral Approach to Lawyer Mistake and Apology, Associate Dean O’Grady argues that senior lawyers in law firms should examine ethical missteps made by lawyers through the lens of social psychology. By focusing on behavioral principles of psychology, Associate Dean O’Grady believes, senior lawyers in law firms will be in a better position to address ethical lapses after they occur and to prevent their recurrence by developing leadership models that allow them to pass their insights on to the firm’s new lawyers.

In Professor Wallace J. Mlyniec’s response to O’Grady’s article, titled Lawyering Practice: Uncovering Unconscious Influences Before Rather Than After Errors Occur, Professor Mlyniec argues that Associate Dean O’Grady’s after-the-fact approach to rectifying ethical lapses should be coupled with more robust training and contemporaneous reflection. Professor Mlyniec, drawing from his experience as a long-time clinical law professor, maintains that training that allows for reflection by new attorneys prior to beginning work on a client matter will make the attorney cognizant of problematic ethical and professional issues before they arise. Professor Mlyniec argues that a deterrence-oriented training model, although costly and time-consuming, will increase the probability that ethical issues are dealt with before they come to fruition. This model will allow firms to better prevent any potential damage arising from ethical and professional lapses of the firm’s new attorneys.

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Article Preview: Intentional Infliction of Emotional Distress & The Hulk Hogan Sex Tape

Most people know that, in 2016, Terrence “Hulk Hogan” Bollea was awarded $140 million by a Florida jury after successfully suing Gawker Media, LLC for invading his privacy when it released a video of Hogan having sex with a friend’s wife. However, it often goes overlooked that Hogan was also successful in a separate cause of action for intentional infliction of emotional distress (IIED). Professor Clay Calvert explores this aspect of Hogan’s case in his Article, Intentional Infliction of Emotional Distress & The Hulk Hogan Sex Tape: Examining a Forgotten Cause of Action in Bollea v. Gawker Media, the Gap It Reveals in IIED’s Constitutionalization, and a Path Forward for Revenge Porn Victims.

At the outset of his Article, Professor Calvert explores Florida’s legal definition of IIED and its elements, as applied in Bollea. He also describes the constitutional layer of protection for defendants in speech-based IIED claims added by the U.S. Supreme Court in Hustler Magazine v. Falwell and Snyder v. Phelps. Specifically, Professor Calvert utilizes the decisions reached in Falwell and Snyder to explain the tension between IIED and the freedom of speech protected by the First Amendment. Professor Calvert asserts that while these cases strengthened First Amendment protections, they alternatively narrowed the circumstances in which an IIED claim can prevail.

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Article Preview: A Behavioral Approach to Lawyer Mistake and Apology

Why do new attorneys make mistakes? How can new attorneys remedy these mistakes and avoid them in the future? How can law firms provide the guidance necessary to assist new attorneys in their transition to the profession? In her article, A Behavioral Approach to Lawyer Mistake and Apology, Associate Dean Catherine Gage O’Grady utilizes testimonials from practicing attorneys, principles from behavioral psychology, and examples from the medical profession to answer those questions; and she provides a detailed behavioral analysis of lawyering and legal ethical decision-making.

Associate Dean O’Grady begins her article by reviewing several concepts, such as overconfidence bias and cognitive dissonance, that are fundamental to an understanding of behavioral psychology. She argues that these concepts lead to mistakes in the law firm setting, and she provides several examples of how the concepts may affect new attorneys. For example, Associate Dean O’Grady states that confirmation bias—“the tendency to focus on information that confirms our decisions and to undervalue information that cuts the other way”—may lead a new attorney to make significant mistakes while performing legal research. This is because a new attorney will focus his or her research efforts to confirm legal conclusions already reached, even if those conclusions were wrong from the beginning. She also argues that cognitive dissonance—“a state of tension that occurs when a person realizes she is holding two psychologically inconsistent idea or beliefs”—can also result in lawyering mistakes. Associate Dean O’Grady poses the example that when a new attorney, who thinks of him- or herself as timely and organized, is suddenly faced with a new failure to stay organized or respond to client emails, he or she will experience cognitive dissonance and will likely make excuses for these mistakes. The new attorney, therefore, will be unable to acknowledge his or her mistakes.

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Article Preview: Moral Courage in Indigent Defense

Why do some individuals act more ethically than others, even in similar situations? This is the question Professor Tigran Eldred explores in his article, Moral Courage in Indigent Defense. Professor Eldred narrows this question to a familiar domain from his past work, the many ethical challenges that defense lawyers are confronted with while representing indigent clients.

Professor Eldred’s article—a response to Associate Dean Catherine Gage O’Grady’s article, A Behavioral Approach to Lawyer Mistake and Apologyfocuses around the phenomenon of “moral courage,” the ability of some lawyers to act ethically in the face of pressure to the contrary. He seeks to answer why some lawyers resist the temptations against subpar performance and also offers knowledge on what can be done to encourage greater acts of moral courage by others. While Associate Dean O’Grady’s article focuses on mistake recognition and acknowledgement, Professor Eldred focuses on why people are able to act ethically despite pressures to do otherwise.

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Article Preview: Ain’t Misbehaving: Behavioral Ethics and Rest’s Model of Moral Judgment

Lawyers and law students are taught how to spot ethical issues through analysis of hypothetical situations. When it comes to recognizing our own ethical mistakes, there appears to be a disconnect between the ability to apply that knowledge to theoretical situations and to use it to resolve situations in practice.

In their article Ain’t Misbehaving: Behavioral Ethics and Rest’s Model of Moral Judgment, authors Milton C. Regan, Jr. and Nancy L. Sachs respond to Associate Dean Catherine Gage O’Grady’s analysis of the “dynamics that can affect new lawyer’s ability to recognize that they have made a mistake and their willingness to acknowledge it to others.” As both Associate Dean O’Grady and the authors point out, these kinds of mistakes can have significant ethical implications if the mistaken attorney cannot or will not acknowledge the impact of her error. In order to assist in the process of acknowledgment and avoid ethical issues, Regan and Sachs propose a framework for guiding these issues to their appropriate conclusion. Regan and Sachs find value in the union of psychology and ethics to guide the thinking of a new lawyer deciding whether to acknowledge her mistake to others and the ethical violations that can arise from that choice.

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Article Preview: Lawyers, Impression Management and the Fear of Failure

Lawyers often struggle to recognize and learn from their mistakes. Associate Dean Catherine Gage O’Grady has made the argument in her article, A Behavioral Approach to Lawyer Mistake and Apology, that this is a result of cognitive biases, and offered insight about how law firms might respond to facilitate learning, professional growth, and stronger ethics. In his Response Article, Lawyers, Impression Management and the Fear of Failure, Donald C. Langevoort not only supports O’Grady’s position, but also presents additional reasons to pay close attention to the insight provided by Associate Dean O’Grady.

At the outset of his response article, Langevoort suggests that researchers who attempt to predict lawyers’ behavior face challenges when relying on cognitive or social psychology understandings. Specifically, he points out that the means by which information is gathered and used by psychological experimentation is inherently problematic. Langevoort recommends that researchers should contemplate taking additional and, in his view, necessary steps before offering predictions and suggestions about the behavior of lawyers. Although he strongly urges researchers to follow his recommendations, Langevoort acknowledges that doing so may be difficult because lawyers often fail to cooperate with researchers.

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Contributing Author Profile: Eric J. Gouvin

The New England Law Review is honored to announce that Eric J. Gouvin will be contributing to On Remand this spring.

Gouvin, Dean of Western New England University School of Law, has contributed to corporate law scholarship and entrepreneurship education since 1991, when he first became a member of Western New England’s faculty. In addition to teaching numerous courses in corporate, transactional, and entrepreneurship law for the past twenty-five years, Dean Gouvin established both the Small Business Clinic and the Center for Innovation & Entrepreneurship at Western New England.

Dean Gouvin’s strong interest in corporate and entrepreneurship law has extended throughout the New England region and beyond. He currently serves on the Board of Editors for the Kauffman Foundation’s eLaw website, on the entrepreneurial ecosytem committee of the Economic Development Council of Western Massachusetts, and on the board of the Harold Grinspoon Charitable Foundation’s Entrepreneurship Initiative. Dean Gouvin has also taught in Lithuania and France as a visiting professor, presented in China as a Fulbright Specialist, and delivered papers in England, Belgium, Greece, France, and Canada. His scholarly work often provides an international or comparative law perspective.

Before joining the faculty at Western New England, Dean Gouvin represented Fortune 500 companies and closely held businesses at the Portland, Maine firm of Bernstein, Shur, Sawyer and Nelson. He earned his B.A. from Cornell University; J.D. and LL.M. from Boston University; and M.P.A. from Harvard University.

Contributing Author: Christine L. Vana