The T-Rex Without Teeth: Evolving Strickland v. Washington and the Test for Ineffective Assistance of Counsel

In Strickland v. Washington the United States Supreme Court formulated the test for determining whether counsel in a criminal case is ineffective. When the Court decided Strickland it created a doctrine of enormous proportions, but with little impact–a legal tyrannosaurus rex without teeth. In the last decade, by using American Bar Association (“ABA”) standards to evaluate counsel’s performance, the Court has given the T-Rex some sizable incisors. The purposes of this article are to: (1) determine how frequently the United States Supreme Court uses ABA standards in its decisions and describe briefly for what purposes the Court uses those standards; (2) describe in some detail the decision of Strickland v. Washington and its test for determining whether counsel was ineffective; (3) describe the decisions of Williams v. Taylor, Wiggins v. Smith, and Rompilla v Beard, and their implications on the test formulated in Strickland as to how the ABA standards relate to defense counsel’s duty to investigate; (4) report on the ABA’s efforts to discover and describe the causes of ineffective assistance; and (5) suggest changes that tighten the Strickland test, giving it more traction as a guide for the courts in measuring counsel’s performance.

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What Federalism & Why? Science Versus Doctrine

The Constitution does not use the words federal or federalism. It gives Congress a set of powers and prohibits the national government, the states or both from doing some things. The Court has inferred principles of federalism from those provisions. The political science community has treated the advantages of federalism as contingent on whether federalism deepens or diffuses conflict or opens competition for power. The United States Supreme Court’s approach does neither; it has been trying to clarify and police a very different boundary. Even on its own terms, however, the Court’s justifications do not work – a problem made clearer by reference to the empirically based work of political science. The result is that the Court’s focus misses entirely the kinds of questions which might affect the security of the union or the quality of American democracy. The first section of the essay describes the Court’s efforts to create a categorical federalism and its explanations for its approach. The second section makes clear that there are alternative approaches to federalism, in the absence of which further analysis would be pointless. The third section of the essay outlines major lines of inquiry by political scientists and their conclusions. Finally, the essay compares the Court’s definitional federalism and its explanations for its approach with the concerns of political scientists. This essay concludes that the Supreme Court’s categorical federalism is at best irrelevant and at worst a barrier to contemporary conflict resolution.

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The Disability History Mystery: Assessing The Employer’s Reasonable Accommodation Obligation in “Record of Disability” Cases

The Americans with Disabilities Act (“ADA”)’ prohibits employers from discriminating against a “qualified individual with a disability,” which the Act defines as “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” Consistent with this definition, the ADA not only prohibits employers from intentionally discriminating against qualified individuals because of their disabilities’-what is sometimes referred to as garden variety disparate treatment–but also makes it unlawful for employers to fail to make reasonable accommodations for such individuals’ “known physical or mental limitations.”

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