Traditionally, discussions of prosecutorial discretion focus on charging and plea bargaining decisions. But on occasions when new evidence casts doubt on a convicted defendant's guilt, questions of prosecutorial discretion take on comparatively greater importance. When there is an inadequate...

Scholars have failed to arrive at a unifying theory of prosecution, one that explains the complex role that prosecutors play in our democratic system. This Article draws on a developing body of legal scholarship on fiduciary theory to offer a new paradigm that grounds prosecutors' obligations in...

This brief response to an essay by Monroe Freedman primarily addresses the question of whether Lord Brougham reconsidered his famous statement about aggressive, client-oriented advocacy late in his career. The article suggests that there is indeed a basis for concluding that such reconsideration...

This Article explores the possible role of the attorney disciplinary process in discouraging prosecutorial conduct that contributes to false convictions. It asks what the impact would be, for better or worse, of disciplining prosecutors for incompetence when they fail to exercise reasonable care...

When the organized bar talks about “access to justice,” it tends to look exclusively at civil justice and to emphasize the need for lawyers in civil cases. This overlooks criminal justice and the essential role of lawyers in working to secure it. When the organized bar promotes criminal...

The U.S. Department of Justice recently reevaluated its prosecutors’ pretrial disclosure practices in light of its highly-publicized discovery failure in the prosecution of U.S. Senator Ted Stevens. Based on its working group’s recommendations, the Department undertook several new...

This Article addresses a range of problems arising from the failure of state courts to analyze the relationship among different forms of judge-made law governing lawyers. Ordinarily, state supreme courts promulgate disciplinary codes and local court rules governing lawyers practicing in their...

This Article focuses on the relationship between corporations and their employee constituents in the context of corporate internal investigations, an unregulated multi-million dollar business. The classic approach provided in the 1981 Supreme Court opinion, Upjohn v. United States, is contrasted...

This Article examines permissive rules of professional conduct - that is, rules providing that lawyers "may" engage in particular conduct - and the implications of these rules for other law governing lawyers. One might assume that, when a professional code explicitly authorizes lawyers to engage...