University of Colorado Law Review
Volume 77, Issue 1, Winter 2006
FOREWORD
In our lead article, Tortured Legal Ethics: The Role of the Government
Advisor in the War on Terrorism, Jesselyn Radack, a former legal
advisor to the Department of Justice's Professional Responsibility Advisory
Office, who famously blew the whistle on the FBI's interrogations on John
Walter Lindh and the Justice Department's effort to suppress her criticism,
argues that the ABA Model Rules of Professional Responsibility should
be amended to address circumstances where government attorneys advise
instead of advocate. She argues that a government lawyer's ethical responsibilities
should be evaluated using the "evolving standards of decency"
doctrine commonly associated with Eighth Amendment jurisprudence. Applying
this standard, the "public interest" approach, instead of the
"agency" approach, more appropriately defines the role of a
government lawyer in advisement circumstances. Finally, Ms. Radack outlines
her proposed revision of the ABA Model Rules.
In our second article, Freedom of the Press in Wartime, Professor
David A. Anderson addresses the as yet limited reach of the First Amendment's
Press Clause and argues that the federal courts should enforce the press's
right to wartime theatre access. In other important areas, Congress and
the President have sufficiently protected the press's access to information,
but no such legislative or executive protections exist for the press during
wartime. Professor Anderson argues that given the importance of wartime
news and the conflicting interests inherent to the law-making branches,
the federal courts should fashion a constitutional solution creating a
limited but important expansion of the Press Clause. This would require
that the government allow members of the press access to the theatre of
battle during wartime.
Intimate Homicide: Gender and Crime Control, 1880-1920, by Professor
Carolyn B. Ramsey, challenges the perceived gendered differences in punishment
for intimate homicide during the late nineteenth and early twentieth centuries.
The prevailing wisdom was that women received disproportionately severe
punishment for intimate homicide due to then-existing criminal doctrines
favoring men. Professor Ramsey's research of intimate homicide prosecutions
from 1880 to 1920 in New York and Colorado finds this assumption misplaced.
Instead, prosecutors, judges, and ultimately jurors were more likely to
employ contrary gender stereotypes, equating women with moral purity to
find mitigating factors for their actions. In effect, a different kind
of gendered attitude led male decision-makers to assume that women were
driven to commit their crimes by the morally questionable actions of their
partners.
In our first student comment, Appellate Review of a "Strong Basis
in Evidence" in Public Contracting Cases, Nicki Herbert examines
the controversy over whether the "strong basis in evidence"
test, required for an affirmative action program in public contracting
cases to be constitutional, concerns a finding of fact or a finding of
law. The circuits are split, with some applying the "clearly erroneous"
standard customary upon review of a finding of fact and others applying
the de novo review standard customary for findings of the law. Ms. Herbert
argues that the policies underlying Rule 52(a) of the Federal Rules of
Civil Procedure should require appellate courts to view these questions
as issues of fact, conveying commensurate deference on the factual determinations
of the district court.
Our second student comment, Permissive Discrimination and the Decline of Religion Clause Jurisprudence: The Wearing Out of the Joints, by Karl Schock, considers the effect the Supreme Court's recent decision in Locke v. Davey has on First Amendment jurisprudence. He finds that Locke establishes a new doctrine of "permissive discrimination," which creates a loophole for facial discrimination previously considered unconstitutional under existing Establishment Clause precedent. Mr. Schock concludes that Locke and other recent Court holdings have effectively left religious liberties unprotected and thus subject to the whims of both state and private actors.
Finally, Drury Stevenson reviews John Gibbon's new book Forensic Linguistics: An Introduction to Language in the Justice System. Professor Stevenson finds that Gibbon's thoughtful and often amusing analysis of linguistics specific to law can serve as an excellent introduction into the otherwise obtuse and even incomprehensible language of the law. He also commends Gibbons on his deconstruction, finding that the words lawyers use often speak to the relative influence of the actors using them.
JUDD R. CHOATE
Editor-in-Chief
University of Colorado Law Review