Volume 10, Issue 4 - May 2012

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The Ohio State Journal on Dispute Resolution, in collaboration with the Moritz College of Law's Program on Dispute Resolution, is pleased to bring you Volume 10, Issue 4, of the Mayhew-Hite Report on Dispute Resolution and the Courts.

Plea Bargaining, Just as it Ever Was?

Cynthia Alkon

Newspaper articles and constitutional scholars have called the recent U.S. Supreme Court cases of Missouri v. Frye and Lafler v. Cooper “landmark” and “game-changing” as the cases held that defendants have a right to competent assistance of counsel during plea bargaining.  Beyond the constitutional and appellate court implications, will these cases make a difference in the day-to-day practice of plea bargaining?  My first reaction, as a former Deputy Public Defender in Los Angeles was to scoff and say, “no way!”  Any competent defense lawyer knows better than to do as Frye’s lawyer and fail to convey an offer, which is a basic ethical duty of all lawyers. Likewise, every first-year law student should understand how wrong Lafler’s lawyer was to advise his client that the prosecutor would not be able to prove an attempted murder charge because the four shots he fired landed below the victim’s waist and not above.  However, on further reflection, I think these cases may lead to some changes in plea bargaining practice, in large part due to how judges and prosecutors are reacting.

Plea bargaining is a highly informal and unr ...
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The Expanding Role of Judges in Settlement and Beyond

Linda Chatman Thomsen, Seth Rosenbloom, David Polk & Wardwell LLP

1931 PLI/Corp 415

Traditionally, there have been defined limitations on the judges’ role in reviewing settlements. Judges review settlements in special civil contexts where the parties may be vulnerable or nonparties may be at risk. Consent judgments may also lead judges to engage in review. In the criminal context, judges have to approve plea bargains, which are basically settlements. However, several recent judicial decisions have challenged the usual limitations on judges’ roles in reviewing ...
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Missouri v. Frye, 132 S.Ct. 1399 (2012)*

The Sixth Amendment’s guarantee of “assistance of counsel” for the defense of an accused has long been held to mean that a criminal defendant has a right to the effective assistance of counsel.  The Supreme Court has interpreted this right as extending to all “critical” stages of a criminal proceeding.  In Missouri v. Frye, the Court examined the issue of whether the Sixth Amendment’s guarantee of effective assistance of counsel encompasses the negotiation and consideration of plea offers.

In Frye, the defendant was accused of driving with a revoked license—an offense for which Frye had been convicted three times before.  The prosecution extended two alternative plea recommendations.  First, the prosecution proposed a three-year sentence with a guilty plea to a felony charge including no probation recommendation and a suggestion that Frye serve ten days “shock time” in jail.  Alternatively, the prosecution suggested the reduction of Frye’s charges to a misdemeanor and a ninety-day jail sentence if Frye agreed to plead guilty. Each recommendation was formal and included an expiration date.  Defense counsel allowed both offers to ...
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Lafler v. Cooper, 132 S.Ct. 1376 (2012)*

The decision in Lafler v. Cooper will change the criminal plea-bargaining system. The Court held that criminal defendants have a Sixth Amendment right to effective assistance of counsel during plea negotiations, including when a defendant rejects a plea bargain because of bad legal advice. In Lafler, the attorney mistakenly informed the defendant that the state could not establish intent to murder, a necessary element of its case, because the defendant had shot the victim below her waist. Due to his attorney’s advice, the defendant rejected a guilty plea and was later convicted at trial.  The defendant was sentenced to a much longer prison term than the plea offer. 

In a five-four majority decision, Justice Kennedy reasoned that the right to effective counsel extends to the plea bargaining process because plea bargaining is so pervasive in the justice system. The Court rejected the argument that a fair trial remedies defense counsel’s ineptitude during plea-bargaining, because the negotiation of a plea is during a “critical stage” of the criminal proceeding for a defendant. Id. at 1385. Justice Scalia dissented, claiming the decision i ...
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Ohio State Journal on Dispute Resolution Wins Prestigious ADR Writing Awards
The Ohio State Journal on Dispute Resolution was recently honored by the CPR Institute for three articles published in the 26th Volume. The Journal won Outstanding Original Professional Article and two Outstanding Original Student Articles. [Read More]

Moritz College of Law Hosts Regional Mediation Competition
The Ohio State University Moritz College of Law hosted Region 7 of the ABA Representation in Mediation Competition March 9-11, 2012. Twelve teams from across the Midwest competed over two days for the honor of becoming Regional Champion and advancing to the National Competition in Washington, D.C. [Read More]

Moritz Honors Three Students with ADR Writing Prize
The Moritz College of Law recently honored three students with the 2012 Nancy H. Rogers Prize in Dispute Resolution Scholarship. The awards were presented on April 24th at a ceremony presided over by Dean Alan Michaels. [Read More]

Record Number of Students Receive Certificate in Dispute Resolution
A record 20 students received the Moritz College of Law Certificate in Dispute Resolution in 2012. The Mortiz College of Law has one of the top 5 dispute resolution programs in the country, and the Certificate in Dispute Resolution is a way for students interested in dispute resolution to distinguish themselves as knowledgeable and particularly committed to this area of law. Students who complete the requirements for the certificate are honored by the College of Law with a special notation on their transcript as well as a separate document, which certifies the student as having advanced knowledge and practical experience in the field of dispute resolution. [Read More]

Student Team Places Second in National BLSA Competition
The team of Kwame Christian, ’13, and Chris Bordenave, ’12, once again represented Moritz at a national negotiation competition, and achieved an impressive result. The team was First Runners Up at the 6th Annual National Black Law Students Association (NBLSA) International Negotiation Competition, held at the NBLSA National Convention in Washington, D.C., from March 7 - 11, 2012. [Read More]

Schwartz Lecture Explores Gender and Negotiations in the Workforce
The annual Schwartz Lecture on Dispute Resolution this year featured Deborah Kolb, who spoke on “Negotiating in the Shadow of Organizations: Doing Well by Doing Good.” Dr. Kolb is the Deloitte Ellen Gabriel Professor for Women and Leadership (Emerita) and Distinguished Research Fellow at the Center for Gender in Organizations at the Simmons School of Management. Dr. Kolb is an internationally renowned scholar on gender and negotiations, and commonly presents to audiences and women executives worldwide. [Read More]


Welcome to the fourth issue of the 2011-2012 Mayhew-Hite Report. The tenth volume of the Report so far has addressed the proposed Arbitration Fairness Act, mediation in the domestic violence context, and the disconnect between the executive and judicial branches in interpreting domestic arbitration statutes. In this last issue, the Report focuses on the effects that the recently decided Frye and Lafler decisions might have on the plea bargaining process and also addresses the role of judges in reviewing settlements.

I hope you, the reader, have found the Report to be a useful and ...
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A Horse of a Different Color: Binding Arbitration and the FTC’s Interpretation of the Magnuson-Moss Warranty Act’s “Informal Dispute Settlement Procedures”

Jennifer Hart 

On September 19, 2011, the Ninth Circuit held in Kolev v. Euromotors West/The Auto Gallery that the Federal Trade Commission’s Rule 703, which prohibits pre-dispute binding arbitration of warranty claims, was not pre ...
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Moritz Program on Dispute Resolution
Widely regarded as one of the nation's finest programs in the area of Alternative Dispute Resolution, the Moritz ADR program was established in recognition of the need for future lawyers to be trained in an array of dispute resolution methods beyond litigation, including negotiation, mediation, and arbitration. [Program Home]

Ohio State Journal on Dispute Resolution
The Ohio State Journal on Dispute Resolution ("JDR") is a student-initiated, student-run publication and is the official law journal of the American Bar Association's Section on Dispute Resolution. [JDR Home]

The Caucus
The Caucus is a monthly e-newsletter that highlights the scholarship and accomplishments of the Moritz Program on Dispute Resolution faculty and students. [The Caucus Home]

Indisputably is a blog operated by law professors from around the United States concentrating on issues involving dispute resolution. [Indisputably Home]

Bridge Initiative @ Mershon and Moritz
The Bridge Initiative, which combines resources from Moritz College of Law and the Mershon Center for International Securities Studies, is an indispensable resource for those doing research in issues involving dispute resolution. [Bridge Initiative Home]

Ohio State Journal on Dispute Resolution
The Ohio State University
Moritz College of Law
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Columbus, Ohio 43210-1391
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