In May 2018, the U.S. Supreme Court issued its opinion in the case of McCoy v. Louisiana , holding that defendants have a constitutional right to maintain their innocence at trial. Under McCoy , lawyers may not concede their clients’ guilt during trial when their clients insist on maintaining innocence, even if doing so would be a reasonable tactical decision. In this paper, we show how the case implicates an array of common problems concerning lawyer-client disagreement, and we argue that the Model Rules of Professional Conduct offer deficient guidance in this area. In particular, in relying on lawyer withdrawal as a remedy for lawyer-client disagreement, the Model Rules neglect to recognize that lawyers may have an obligation to stick with their clients despite serious disagreements over aspects of the representation. The Rules also gloss over the considerable administrative burden associated with withdrawal. After delineating some problems with the Model Rules’ approach to lawyer-client disagreement, we propose a set of revisions to the Model Rules that address the ethical and practical concerns we elaborate.

The Supreme Court’s constitutional regulation of the American death penalty has yielded a plethora of doctrines that have shaped an alternative criminal justice process that is (mostly) limited to capital cases. Many of these doctrines offer a vision and practice of “roads not taken” in the ordinary criminal justice process that would be attractive improvements in that larger system. We consider three of these doctrines: (1) more searching review of the proportionality of sentencing outcomes; (2) imposition of a requirement of individualized sentencing that has led to the investigation and presentation of in-depth evidence in mitigation; and (3) greater regulation of the adequacy of defense counsel that has moved closer to a “checklist” model of mandated practices. Each of these doctrines was born and developed under the Court’s “death is different” regime of constitutional regulation, and each of them has to some limited extent moved beyond the strictly capital context into the broader criminal justice process. We explain how these alternative models present attractive improvements for the broader noncapital system—a view that casts the Court’s regulation of the American death penalty as a progressive laboratory that can yield alternative, more protective, and more idealized processes for the ordinary criminal justice system. Yet we also caution that the “differentness” of death—and of juvenile offenders, the noncapital context to which the Court is most likely to import its death penalty innovations—can also serve to normalize and entrench the less protective, less idealized practices that exist outside of these realms.