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Rape shield laws have played an important role in protecting complainants and jurors from some of the most pernicious and ill-founded assumptions about sexual autonomy and consent. Yet the development and application of these rules have left many thorny questions. The policy debate has now shifted from whether and how the accuser's prior sexual conduct should be admitted to prove consent or lack of credibility due to what was once termed "unchastity" (now universally condemned and rightly prohibited) to whether and how the accuser's prior sexual conduct should be admitted to support a more specific and logically relevant argument for dishonesty. That is, when prior sexual conduct itself involves dishonest behavior, the defendant is not offering the prior incident to support a general character trait for mendacity because the complainant has been sexually active; rather, the defendant is arguing that the complainant has a character trait for untruthfulness because the accuser has lied. One narrow but critical question we need to confront as evidence and rape law progress during the "Me Too" movement is whether the jury, in assessing a complainant's credibility in a rape prosecution, should be allowed to hear about prior false allegations of sexual assault made by the accuser. This article focuses on rape shield rules throughout the United States, highlighting how these evidence rules have been stretched beyond their original purpose to prevent a defendant from raising incidents in the accuser's sexual history that may be highly pertinent to a jury's determination of who they should believe. Specifically, it addresses limitations courts have placed on inquiring into prior false allegations (PFA) of sexual assault by the accuser to prove lack of credibility in the present case. The author argues that some courts in the United States have mistakenly weighed the accuser's privacy interests and the court's interests in protecting the jury from being confused or misled ahead of the defendant's fundamental right to a fair trial. The thesis of this article is that interpreting rape shield rules to require the exclusion of prior false allegations of rape jeopardizes the ascertainment of the truth. Yet the state of the law at the intersection of prior false allegation evidence, rape shield rules and the Sixth Amendment protections for confrontation and compulsory process leaves the admissibility of this particular type of evidence highly contested and uncertain. The confusing and in places incoherent state of the case law on PFA-both definitional and procedural-underscores the need for a clarity that only a legislative solution can provide. This article proposes a "next wave" of reform of rape shield rules that specifically addresses this form of proof, and that appropriately balances the interests of victims, defendants, and the judicial process.

With growing consensus that legal education is in turmoil if not in crisis, law schools need to take advantage of industry upheaval to catalyze innovation in the way they train their students. Curriculum reform, long the "third rail" of faculty politics, is now essential if some law schools are going to survive the present tsunami of low enrollments and stagnant hiring. One cautiously optimistic note within this doomsday symphony is that law school deans are now in extremely strong bargaining positions with their faculties and boards of trustees with respect to curriculum innovation. In this essay, the author proposes a pivotal reform to the third year curriculum involving team-taught "Advanced Legal Problem Solving" workshops in subject specific areas, and describes the precise structure, content and staffing of such capstone courses. He argues that such workshops would significantly enhance the preparation of law students for entry into the profession, and would create an efficient and cost-effective route for law schools to satisfy rigorous new ABA accreditation standards regarding experiential learning and outcomes assessment.

This article stakes out an ethical argument in favor of prosecutorial leadership on sentencing reform. Prosecutors have a duty as "ministers of justice" to go beyond seeking appropriate conviction and punishment in individual cases, and to think about the delivery of criminal justice on a systemic level ― promoting criminal justice policies that further broader societal ends. While other authors have explored the tensions between a prosecutor's adversarial duties and "minister of justice" role in the context of specific litigation, few have explored what it means to be an "administer" of justice in the wider political arena. The author sets forth a new construct of what is required for a prosecutor to be a neutral, nonpartisan "administer of justice" in her legislative and public advocacy activities. Applying this paradigm to the ongoing national debate about sentencing reform, the author argues that a prosecutor's administrative responsibilities as a leader in the criminal justice establishment and her fiduciary responsibilities as a representative of the sovereign should compel her to join in the effort to repeal mandatory minimum sentencing provisions for most drug and non-violent offenses. Not only are mandatory sentences in most instances unduly harsh, coercive, and inefficacious, but they allow for an arbitrary and discriminatory application that is essentially unreviewable by courts. The author distinguishes this argument against mandatory minimum penalties from the so-called "Smart on Crime" movement, by grounding a prosecutor's duty to promote sentencing reform in ethical reasoning as opposed to pragmatic or cost-savings considerations. Even with robust political support from some of this nation's most conscientious prosecutors, state legislatures are unlikely to repeal or cut back on all mandatory minimum sentences. Some mandatory prison terms ― for crimes such as murder, repeat offense OUI, and aggravated sexual offenses — will likely stay on the books notwithstanding the advocacy recommended above. A second question the author addresses in this article is how an ethical prosecutor should make plea bargaining decisions in the face of mandatory minimum prison terms retained by the legislature. While there has been substantial legal scholarship to date that has decried the manner in which mandatory minimum penalties have transferred sentencing discretion from judges to prosecutors, beyond that descriptive lament there has been very little attention paid to how exactly prosecutorial discretion might be more meaningfully constrained through internal self-regulation. Prosecutors can mitigate many of the harsh and unjust consequences of mandatory minimum sentences by instituting and publishing clear office policies governing when line prosecutors may dismiss or reduce charges that carry them. The author proposes specific guidelines that state prosecutors should adopt to ensure a consistent and even-handed application of mandatory minimum penalties, so that line prosecutors do not abuse the substantial discretion that has been afforded them in the plea bargaining process.

The legal profession is facing profound and perhaps irreversible changes. Whether you view these striking demographics as a "crisis" likely depends on the location of your perch. If you are a tenured professor at a T14 law school or a senior partner at an NLJ 250 firm, you may view the trends we have been discussing today as cyclical corrections. If you are an unemployed graduate looking for work or an untenured professor at a lower-tier school that is struggling to stay afloat, you may be more likely to view these trends as permanent and paradigm shifting. While applications to American law school have been steadily dropping since 2005, the last three years have seen the most dramatic changes. Between 2010 and 2012, the total number of applicants to U.S. law schools decreased by 25%. This year alone -- 2012-2013 -- the number of applicants dropped another 19%. By 2014, the legal academy may for the first time face an open enrollment situation where the total number of available seats exceeds the number of applicants. Most law schools have responded to this sharp application decline in one of two ways. Many schools have dramatically reduced their class sizes, which entails foregoing tuition revenue. Lower gross revenue means schools must seek out opportunities to cut costs. Other schools have kept their class sizes relatively stable by offering more scholarship assistance to attract students (essentially increasing their discount rates). This approach too requires expenditure cuts, because absent additional non-tuition sources of funding (such as gifts or endowment) spending more money on scholarships means spending less money on something else. Law schools cannot make up for this lost revenue by continuing to raise their tuitions at rates that far outpace inflation. A continued upward spiral in tuition threatens to further exacerbate the downward spiral in applications. On average, law school tuition in the United States increased 375% at private law schools and 820% at public law schools between 1985 and 2009. During this 25 year period, law schools on average increased their tuition between 6-15% each year, while inflation averaged only 3%. By way of comparison, tuition for MBA students at our nation's top management schools increased only 80% in the past decade, an average increase of 4-6% per year. Reining in the law school tuition spiral is critical to restoring consumer confidence in the value of the product we are selling -- especially in a climate where the job prospects for the graduates of some law schools are increasingly bleak. Legal educators are now engaged in some very difficult and painful conversations about the financial model of legal education. Schools that take an ostrich-like approach to this challenge risk becoming obsolete or irrelevant. What follows are seven proposed changes to the structure of legal education that could simultaneously reduce overall costs to law students, and improve the quality of their education. Quality is not always synonymous with price. With vision and lots of hard work, it may be possible to do more with less. Three of my proposals will require amendments to ABA accreditation standards. The political and institutional climate now seems ripe to make these reforms. Many ABA accreditation standards are perceived to impede experimentation and innovation in legal education, and to primarily benefit academics (who largely have captured the accreditation process) over students and the practicing bar. The President of the American Bar Association has recently appointed a "Task Force on the Future of Legal Education" that is looking at the structural and economic models of legal education, and the impact of rising tuition and falling employment rates on crushing student debt. The Task Force is soliciting comments and testimony from all sectors of the profession, and some of its members have predicted "bold" and perhaps even "radical" reform. My hope is that several of the proposals presented at today's symposium will be submitted for consideration by the Task Force in the critical months ahead.

In a criminal justice system where guilty pleas are the norm and trials the rare exception, the issue of how much discovery a defendant is entitled to before allocution has immense significance. This article examines the scope of a prosecutor's obligation to disclose impeachment information before a guilty plea. This question has polarized the criminal bar and bedeviled the academic community since the Supreme Court's controversial decision in United States v. Ruiz (2002). A critical feature of the debate has been the enduring schism between a prosecutor's legal and ethical obligations – a gulf that the American Bar Association recently widened by issuing a controversial opinion interpreting Model Rule of Professional Conduct 3.8(d) to impose obligations on prosecutors well beyond the requirements of the due process clause. The author addresses the controversial subject of impeachment disclosures from both an institutional and a substantive perspective. A great deal of legal scholarship aims directly at the content of proposed law reform without considering the threshold and pivotal question of what institution is best situated to administer those duties imposed. The author argues that as a matter of institutional competence and legitimacy, the courts are far better equipped to enforce criminal discovery obligations through rules of procedure than bar disciplinary authorities are capable of doing through attorney conduct rules. With regard to the substantive issue - that is, how much impeachment evidence should be turned over by a prosecutor before a guilty plea - the author proposes a categorical approach to impeachment disclosures that will mediate the tension between the defendant's interest in accurately assessing the strength and weaknesses of the government's case, and the state's interest in protecting the privacy and security of potential witnesses.

Several recent high-profile cases have illustrated flaws with the government's discovery practices in criminal cases and have put prosecutors across the country on the defensive about their compliance with disclosure obligations. The conviction of former Alaska Senator Ted Stevens on ethics charges was set aside after it was revealed that federal prosecutors withheld notes of an interview with a key government witness; one member of the Stevens prosecution team who was under investigation for contempt subsequently committed suicide. The Supreme Court remanded a double murder case from Tennessee for potential resentencing after it was revealed that state prosecutors had withheld substantial evidence of inconsistent statements made by government witnesses. Chemical giant W.R. Grace and three of its high-level executives were acquitted on criminal environmental charges in Montana after a federal judge gave blistering jury instructions criticizing the prosecution team for failing to disclose the depth of their relationship with a star whistleblower. In each of these cases, prosecutors drew the ire of the judiciary for their cavalier approach to discovery and their lack of attention to the constitutional rights of defendants. These stories and others have made the public more attuned than ever before to the prevalence and pernicious consequences of prosecutorial misconduct.

Using the Mike Nifong disciplinary case in North Carolina as a focal point, the author examines the disciplinary rules pertaining to public speech by attorneys during the pendency of an adjudicatory proceeding. The author argues that in light of the Supreme Court's 2002 decision in Republican Party of Minnesota v. White, certain provisions of Model Rules of Professional Conduct, Rules 3.6 and 3.8, may violate the first amendment, at least as applied to an elected prosecutor speaking during a political campaign. While former District Attorney Nifong made several statements to the media during the so-called "Duke Lacrosse" investigation that were clearly overzealous and impermissible even under the narrowest reading of the pertinent disciplinary rules, other public statements that Nifong made and was later disciplined for may have been protected by the first amendment, had the respondent raised a constitutional challenge in his North Carolina Disciplinary Commission proceeding. The author uses the Nifong disbarment case as a lens through which to examine current ethical restrictions on attorney speech, and to highlight provisions that might be vulnerable to a constitutional challenge.

In this article the author explores how domestic violence prevention efforts have been adversely impacted by the Supreme Court's new "testimonial" approach to the confrontation clause. Examining the Court's trilogy of cases from Crawford to Davis and Hammon, the author argues that the introduction of certain forms of hearsay in criminal cases has been drastically limited by the court's new originalist approach to the Sixth Amendment. The author explains how state spousal privilege statutes often present a significant barrier to obtaining live testimony from victims of domestic violence. The author then argues that state legislatures should reconsider their spousal privilege rules in light of Crawford —many of which are poorly conceived, confused, and outdated—and should reform these statutes to add a spousal crimes exception to both the adverse testimonial privilege and the confidential communication privilege.

A critical issue facing the criminal justice system today is how best to promote ethical behavior by public prosecutors. The legal profession has left much of a prosecutor's day-to-day activity unregulated, in favor of a general, catch-all admonition to "seek justice." In this article the author argues that professional norms are truly functional only if those working with a given ethical framework recognize the system's implicit dependence on character. A code of professional conduct in which this dependence is not recognized is both contentless and corrupting. Building on the ethics of Aristotle and modern philosophers Alasdair MacIntyre and Bernard Williams, the author argues that virtue theory can help bridge the gaps in prosecutorial ethics where other forms of moral reasoning fail. The author analyzes three especially difficult ethical problems frequently confronted by prosecutors in the field. He demonstrates not only that the Model Rules of Professional Conduct and the ABA Criminal Justice Standards fail to answer any of these complex questions, but also that future attempts to more closely regulate how prosecutors should act in any of these nuanced situations are unlikely to succeed. The author argues that honesty, fairness, courage, and prudence are the primary virtues that citizens have a right to expect of their public prosecutors. He then demonstrates how these four key virtues might provide important guidance to conscientious prosecutors striving to do what is right. The author concludes by offering several insights into how the field of virtue ethics might inform both the structure and organization of government law offices, and the manner in which individual prosecutors working within these offices might perceive and fulfill their professional roles.