Volume 75, Number 3

June 2000

The Role of Standby Counsel in Criminal Cases: In the Twilight Zone of the Criminal Justice System

Anne Bowen Poulin

In this Article, Professor Anne Poulin explores the role of standby counsel appointed to assist pro se defendants in criminal cases. Many courts and attorneys assume that acting as standby counsel entails less work than serving as lead counsel and that an active standby counsel would threaten the defendant’s right to selfrepresentation. Professor Poulin argues instead that a properly functioning standby counsel actually shoulders a greater burden than normal, following the case from pretrial procedures through sentencing, and not only providing assistance when the defendant asks, but also remaining alert for issues that the defendant missed. Professor Poulin concludes that a standby counsel must act as a shadow counsel, preparing the case as full as if she were the lead counsel.

The Private Role in Public Governance

Jody Freeman

In this Article, Professor Freeman proposes a conception of governance as a set of negotiated relationships between public and private actors. Under this view, public and private actors negotiate over policy making, implementation, and enforcement, thereby decentralizing the decision-making process. Recognizing the pervasive and varied roles played by private actors in all aspects of governance, Professor Freeman challenges the public/private distinction in administrative law and invites a reconsideration of the traditional administrative law preoccupation with the accountability of “public” actors. The Article offers theoretical support for the new conception, drawing on both public choice theory and critical legal studies to argue that there is neither a purely private realm, nor a purely public one-only negotiated relationships between public and private actors. Professor Freeman’s argument proceeds through a series of empirical examples that demonstrate the roles played by private actors in a variety of administrative contexts, including health care delivery and prison management, as well as regulatory standard-setting, implementation, and enforcement. Professor Freeman not only invites administrative law to reckon with private power, but challenges the field’s almost uniform defensiveness toward private actors. She further argues that actors do not merely exacerbate the legitimacy crisis in administrative law; they may also be regulatory resources, capable of producing accountability. From the perspective of the new conception, public and private actors together produce accountability through a combination of traditional and nontraditional mechanisms. This notion of “aggregate” accountability produced through horizontal negotiation is offered as a contrast to the formal, hierarchical approach to accountability that dominates administrative law. Professor Freeman concludes by proposing a new administrative law agenda that places public/private interdependence at the heart of the inquiry.


Section 302 of the LMRA: Make Way for the Employer-Paid Union Representative

Christopher J. Garofalo

In 1947, Congress enacted section 302 of the Labor Management Relations Act in order to regulate payments from employers to the union representatives of their employees. Whether originally intended by Congress or not, section 302 has been applied to the common labor practices of allowing employers to pay employees for part-time or full-time leave in order to work for their union. A split among the various circuit courts of appeals has developed as to whether these payments fall within an exception to section 302’s general prohibition and remains unresolved after the Supreme Court dismissed certiorari after the settlement of Caterpillar, Inc. v. International Union, UAW. In this Note, Christopher Garofalo argues that courts have struggled with the text of section 302 in order to allow payments for what, he argues, are beneficial and useful labor practices. However, Garofalo maintains that their interpretations of section 302 have created standards which are ultimately unworkable because they cannot distinguish beneficial from harmful practices in a principled way. Since the current statute’s textual limitations make it difficult to protect against conflicts of interest and corruption while allowing union representatives to be paid by employers, Garofalo concludes that a legislative solution is preferable to a judicial one and proposes an amendment to section 302 that constructively would resolve the issue.

Not in Front of the Children: Prohibition on Child Custody as Civil Branding for Criminal Activity

Deborah Ahrens

During the past twenty years, several states have implemented statutory and common law presumptions against child custody for persons convicted of selected crimes. In this Note Deborah Ahrens argues that these measures represent an effort to mark convicted persons socially, rather than an attempt to protect children. Because the “best interest of tire child” standard currently permits courts to take into account any factors which affect child well-being when awarding custody, and because conduct considered under new law includes conduct outside the parenting ambit, statutory and common law presumptions operate to brand convicted persons as “other.” Ahrens analogizes new child custody provisions to other forms of collateral civil punishment for convicted persons, including disenfranchisement and deportation. The Note concludes that because these legal measures assume that the sort of person who would commit a crime is the sort of person who would harm a child-absent any evidence that the parent poses a danger to the child-parents convicted of selected crimes are unjustly denied child custody.