April 2012 Vol. 110 No. 6 THE REVIEW
ARTICLES

Agency and Equity: Why Do We Blame Clients for Their Lawyers' Mistakes?

Adam Liptak

If you were to ask a child whether it would be fair to execute a prisoner because his lawyer had made a mistake, the answer would be no. You might even get a look suggesting that you had asked a pretty stupid question. But judges treat the issue as a hard one, relying on a theory as casually accepted in criminal justice as it is offensive to principles of moral philosophy.

This theory holds that the lawyer is the client's agent. What the agent does binds the principal. But clients and lawyers fit the agency model imperfectly. Agency law is built on the concepts of free choice, consent, and loyalty, and it is not unusual to find lawyer-client relationships in which some or all of these elements are missing.

Let us put to one side the ideal case: a sophisticated client with money. That client presumably chooses a good lawyer, monitors and controls the lawyer's work, and fires her if she turns out to be disloyal or incompetent. The lawyer in that case really is the instrument of her client's will, and so the client may fairly be tagged with the lawyer's errors.

Now consider a client who is poor, uneducated, mentally troubled, scared, or imprisoned-or perhaps all of these things at once. And then add to this mix a lawyer who is not retained but a volunteer or assigned by the state. Does it still make sense to consider such a lawyer an authentic agent of the client?

The splendid reviews collected here are all concerned with aspects of what justice means, and they generally take for granted that courts can sort things out. But that presupposes competent advocacy that actually advances the interests of those involved. For instance, both Habeas for the Twenty-First Century — a valuable book by Nancy J. King and Joseph L. Hoffman — and Eve Brensike Primus's sometimes skeptical review of it share the common ground that, as Professor Brensike Primus puts it, "there is a crisis of counsel" for indigent criminal defendants.

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A Crisis in Federal Habeas Law

Eve Brensike Primus
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A Tale of Two Sciences

Erin Murphy
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Restoring Restitution to the Canon

Douglas Laycock
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Cute Prickly Critter With Presbyopia

Don Herzog
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The Great American Tax Novel

Lawrence Zelenak
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Climate Justice

Daniel A. Farber
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Regulating by Repute

David Zaring
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The Institutions of Antitrust Law: How Structure Shapes Substance

William E. Kovacic
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Detention Debates

Deborah N. Pearlstein
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Facades of Justice

Norman W. Spaulding
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Renegotiating the Social Contract

Jennifer S. Hendricks
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Theorizing American Freedom

Anthony O'Rourke
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Race and Constitutional Law Casebooks: Recognizing the Proslavery Constitution

Juan F. Perea
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Context and Trivia

Samuel Brenner
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Becoming a Legal Scholar

Samuel W. Buell
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NOTES

When Good Enough is Not Good Enough

Karl Stampfl

According to conventional wisdom, the state of statutory interpretation is not strong. Its canons of construction — noscitur a sociis, ejusdem generis, expressio unius est exclusio alterius, reddendo singula singulis, and more than a few others — are a morass of Latin into which many law students and even judges have sunk. Its practitioners are unprincipled. Its doctrines are muddied. Its victims are many. In short, the system is broken — unless, of course, it is not.

In The Language of Statutes: Laws and Their Interpretation, Lawrence M. Solan slices through the rhetoric, the fighting, and the law-review-article histrionics in an attempt to show that the system actually works pretty well. Solan admits that there are hard cases (p. 4). He even outlines how and when those hard cases are likely to arise, drawing on his expertise in cognition and linguistics (p. 4). But he argues that those hard cases are the exceptions (p. 4); to him, the easy cases are the rule (pp. 4-5).

Part of the problem, Solan writes, is that hardly anyone ever talks about those easy cases. Instead, commentators focus only on the difficult interpretive choices that reach the Supreme Court. Solan claims that this vantage point obscures the reality of the situation, which is that there is usually no dispute as to how a law will apply. Those are the easy cases. When the text of a statute reads "No vehicles allowed in the park" and the defendant has driven his pickup truck onto the Great Lawn, the rule clearly and neatly applies. The parties recognize that the statute applies. The case settles or the defendant pleads, and everyone goes home. No one writes law review articles about these cases.

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