Lynn A. Baker (Texas) & Ernest A. Young (Texas), Federalism and the Double Standard of Judicial Review, 51 Duke L.J. 75 (2001)
Unfinished. Not entirely helpful. Basically, federalism is good, federalism wasn't being enforced before, thank god federalism is being enforced now. Of course, that can be argued with - it's not that federalism wasn't being enforced, it's that the boundary lines were drawn very expansively, and Congress never crossed over them.
Interesting references
Peter M. Shane, Federalism's Old Deal: What's Right and Wrong With Conservative Judicial Activism, 45 Vill. L. Rev. 201 (2000)
Dan Braveman, Enforcement of Federal Rights Against States: Alden and Federalism Non-Sense, 49 Am. U. L. Rev. 611 (2000)
John Gibbons, Our Federalism, 12 Suffolk U. L. Rev. 1087 (1978)
Monday, April 23, 2007
Inside the Federalism Cases: Concern About the Federal Courts
Ann Althouse (Wisconsin), Inside the Federalism Cases: Concern About the Federal Courts, 574 Annals Am. Acad. Pol. & Soc. Sci. 132 (2001)
Thinks that the federalism decisions are really about wanting to lessen the burden on the federal courts, cut the caseload. Also refers to the Congress "taking advantage" of the Court's relative hands-off attitude, and that causing a Court backlash. Not much of real use, I think.
Thinks that the federalism decisions are really about wanting to lessen the burden on the federal courts, cut the caseload. Also refers to the Congress "taking advantage" of the Court's relative hands-off attitude, and that causing a Court backlash. Not much of real use, I think.
Jurisdictional and Separation of Powers Strategies to Limit the Expansion of Federal Crimes
John S. Baker, Jr. (LSU), Jurisdictional and Separation of Powers Strategies to Limit the Expansion of Federal Crimes, 54 Am. U. L. Rev. 545 (2005)
Basically, new federal crimes are bad, just politically motivated. It's not really Congress's sphere to do these things. It's not entirely clear that his analysis of Morrison and Lopez gibes with mine / what I think is right, e.g. lots of references to "commercial," when I think he should really be saying "economic."
There is, on p.564, an expression of the idea that if the jurisdictional hook can't be proved, then the court should dismiss for lack of jurisdiction. That's great - that's a little bit of support for the syllogism, isn't it? And it's particularly great, because he just kind of assumes - it's just a relatively blithe statement, not really worked out, which is precisely what I want to support the idea that people just understand this. See also p. 565.
The only real use is in the paragraph above - I think I don't really understand Baker's argument, though.
Interesting references
John E. Nowak & Ronald D. Rotunda, Constitutional Law Section 3.3 (6th ed. 2000) - constitutional limitations on federal congressional power turn into limitations on court jurisdiction
Basically, new federal crimes are bad, just politically motivated. It's not really Congress's sphere to do these things. It's not entirely clear that his analysis of Morrison and Lopez gibes with mine / what I think is right, e.g. lots of references to "commercial," when I think he should really be saying "economic."
There is, on p.564, an expression of the idea that if the jurisdictional hook can't be proved, then the court should dismiss for lack of jurisdiction. That's great - that's a little bit of support for the syllogism, isn't it? And it's particularly great, because he just kind of assumes - it's just a relatively blithe statement, not really worked out, which is precisely what I want to support the idea that people just understand this. See also p. 565.
The only real use is in the paragraph above - I think I don't really understand Baker's argument, though.
Interesting references
John E. Nowak & Ronald D. Rotunda, Constitutional Law Section 3.3 (6th ed. 2000) - constitutional limitations on federal congressional power turn into limitations on court jurisdiction
Should Liberals Fear Federalism?
Lynn A. Baker (Texas), Should Liberals Fear Federalism?, 70 U. Cin. L. Rev. 433 (2002)
Liberals should favor judicial enforcement of states' rights. Two functions: provides "outlier" or "minority" states protection from homogenization (see Raich); mediates the tensions between different individual rights. Thus, judicial enforcement increases diversity, and thus increases aggregate social welfare (there's a missing step there - how does diversity automatically mean better social welfare?).
Gives three reasons why the federalism revolution suffers from an image problem: relations to liberal diversity values isn't understood; historical linkage of states' rights to slavery obscures the issue; and the recent configuration of political forces isn't viewed in historical context.
Not of too much value, I guess, though perhaps as a counterpoint to things like Rubenfeld, i.e. "Not everyone thinks the revolution is bad for liberal values."
Liberals should favor judicial enforcement of states' rights. Two functions: provides "outlier" or "minority" states protection from homogenization (see Raich); mediates the tensions between different individual rights. Thus, judicial enforcement increases diversity, and thus increases aggregate social welfare (there's a missing step there - how does diversity automatically mean better social welfare?).
Gives three reasons why the federalism revolution suffers from an image problem: relations to liberal diversity values isn't understood; historical linkage of states' rights to slavery obscures the issue; and the recent configuration of political forces isn't viewed in historical context.
Not of too much value, I guess, though perhaps as a counterpoint to things like Rubenfeld, i.e. "Not everyone thinks the revolution is bad for liberal values."
Radicals in Tweed
Saikrishna Prakash (San Diego), Radicals in Tweed Jackets: Why Extreme Left-Wing Law Professors are Wrong For America, 106 Colum. L. Rev. 2207 (2006)
Review essay of Sunstein's Radicals in Robes. Sunstein apparently argues for minimalism in the book, but Prakash says that minimalism is only Sunstein's argument because the "wrong" people are in power. If this were Brennan and Marshall running the court, Sunstein wouldn't be arguing for slow, incremental steps. Sunstein is a consequentialist. He wants good outcomes, and he prescribes methods by which to get them, or at least by which to slow the flow of bad ones.
Moreover, says Prakash, minimalism isn't even a theory of decisionmaking.
Review essay of Sunstein's Radicals in Robes. Sunstein apparently argues for minimalism in the book, but Prakash says that minimalism is only Sunstein's argument because the "wrong" people are in power. If this were Brennan and Marshall running the court, Sunstein wouldn't be arguing for slow, incremental steps. Sunstein is a consequentialist. He wants good outcomes, and he prescribes methods by which to get them, or at least by which to slow the flow of bad ones.
Moreover, says Prakash, minimalism isn't even a theory of decisionmaking.
Unpacking Show Trials
Jeremy Peterson (Law Clerk, Aldisert, 3d Cir.), Unpacking Show Trials: Situating the Trial of Saddam Hussein, 48 Harv. Int'l L.J. 257 (2007)
Breaks down show trials into two elements: increased probability of conviction from government planning and control; focus on the audience outside rather than the defendant inside. I disagree with both elements: show trials could be civil, and show trials could be for the purpose of acquittal.
Breaks down a bunch of characteristics of show trials. Talks about whether Saddam's trial was a show trial (it was; gee, you think?).
I don't really buy most of the argument, and I think a better dichotomy can be drawn between show and political trials. Perhaps just going back to Kirchheimer for a lot of it, but also Eric Posner might have some good things to say in his paper.
This was the paper that inspired me to want to write my own in this area, because it's really kind of inadequate. As for other examples to examine: Lynne Stewart, Scooter Libby.
Interesting references
Leora Belsky, Transformative Justice: Israeli Identity on Trial (2004)
Georgia Wralstead Ulmschneider, Rape and Battered Women's Self-Defense Trials as "Political Trials": New Perspectives on Feminists' Legal Reform Efforts and Traditional "Political Trials" Concepts, 29 Suff. U. L. Rev. 85 (1995)
Breaks down show trials into two elements: increased probability of conviction from government planning and control; focus on the audience outside rather than the defendant inside. I disagree with both elements: show trials could be civil, and show trials could be for the purpose of acquittal.
Breaks down a bunch of characteristics of show trials. Talks about whether Saddam's trial was a show trial (it was; gee, you think?).
I don't really buy most of the argument, and I think a better dichotomy can be drawn between show and political trials. Perhaps just going back to Kirchheimer for a lot of it, but also Eric Posner might have some good things to say in his paper.
This was the paper that inspired me to want to write my own in this area, because it's really kind of inadequate. As for other examples to examine: Lynne Stewart, Scooter Libby.
Interesting references
Leora Belsky, Transformative Justice: Israeli Identity on Trial (2004)
Georgia Wralstead Ulmschneider, Rape and Battered Women's Self-Defense Trials as "Political Trials": New Perspectives on Feminists' Legal Reform Efforts and Traditional "Political Trials" Concepts, 29 Suff. U. L. Rev. 85 (1995)
Saturday, April 14, 2007
Clear Statement Rules
William N. Eskridge, Jr. (Yale) & Philip P. Frickey (Boalt), Quasi-Constitutional Law: Clear Statement Rules As Constitutional Lawmaking, 45 Vand. L. Rev. 593 (1992). (excerpts from 621-22 & 638-40 on pgs 615-16 of Federal Courts casebook)
Key quote: "The Court's new super-strong clear statement rules are extraordinarily countermajoritarian: they not only pose the possibility of ignoring legislative expectations, but they also make it quite hard for Congress to express its expectations . . . . The decision [in Dellmuth] suggested a certain judicial haughtiness and uncooperativeness that is surely inconsistent with the humble due process of lawmaking rationale for the Court's super-strong clear statement rules."
Key quote: "The Court's new super-strong clear statement rules are extraordinarily countermajoritarian: they not only pose the possibility of ignoring legislative expectations, but they also make it quite hard for Congress to express its expectations . . . . The decision [in Dellmuth] suggested a certain judicial haughtiness and uncooperativeness that is surely inconsistent with the humble due process of lawmaking rationale for the Court's super-strong clear statement rules."
Tuesday, March 27, 2007
Guilty: The Collapse of Criminal Justice
Harold J. Rothwax (New York State Supreme Court, ret. (?)), Guilty: The Collapse of Criminal Justice (1996).
Amazon link.
The (now former?) Judge Rothwax wrote this book in response to his feelings that, as the title indicates, the American criminal justice system was collapsing. He was hardly alone in his crusade - hell, Bill Clinton signed the AEDPA, didn't he? (And only eight dissenting votes in the Senate, though the House had more sense.) That "voice in the crowd" aspect of the book is probably its major problem. Nothing Rothwax says is new or surprising (although maybe that's the ten-years-later perspective - googling his name brings up a lot of pages that show that there was apparently quite a bit of controversy over the book at the time it was published). He thinks juries are bad and so are unbending rules. He doesn't like excluding evidence. He thinks defendants should be forced to testify. And so on.
As to unbending rules, I would have at first said the same thing. After chapter 2 of Harsh Justice, though, I'm not so sure - Whitman presents rigidity as exemplifying and implementing American ideals of equality in the criminal justice system. There's no chance for certain people, particulary high-status people, to get better treatment (or, of course, for low-status people to get worse treatment) if the rules are strict and unbending.
Back to the book, it seems like a problem is that he's wedded to one or two values of the criminal justice system, like finding the truth, or retribution / victim satisfaction. But there are other values at work. E.g., he doesn't seem all that concerned for the rights of the accused, dismissing most efforts to put the defendant on equal ground with the prosecutor as turning criminal justice into a "sporting contest".
Now, maybe that's a bit unfair, because he's certainly not advocating going back to the lynch mobs of not-so-long-ago, but he is willing to make sacrifices, largely because of the "probability screens" set up so that by the time someone reaches trial, they've already been found "probably guilty" a number of times (investigation, indictment, etc.).
He makes a number of semi-naive comparative points, e.g. "in France, they use lay judges." It's not clear whether he's even read as much of the comparative literature as I have (which is not very much) - for instance, the things that point out that the lay judges don't really participate very much, that they pretty much vote with the lead judge, and so forth. He kind of uses comparative law in the classic way that gets comparativists dismissed: he says "look how much better is over there" and moves on.
Oh, and he loves the OJ Simpson trial, in the sense that it gives him examples for almost all of his points. (Also, Peter Neufeld, Barry Scheck's right-hand-man at the Innocence Project, makes a couple of very unflattering appearances, both in Rothwax's court and in the OJ trial.)
Amazon link.
The (now former?) Judge Rothwax wrote this book in response to his feelings that, as the title indicates, the American criminal justice system was collapsing. He was hardly alone in his crusade - hell, Bill Clinton signed the AEDPA, didn't he? (And only eight dissenting votes in the Senate, though the House had more sense.) That "voice in the crowd" aspect of the book is probably its major problem. Nothing Rothwax says is new or surprising (although maybe that's the ten-years-later perspective - googling his name brings up a lot of pages that show that there was apparently quite a bit of controversy over the book at the time it was published). He thinks juries are bad and so are unbending rules. He doesn't like excluding evidence. He thinks defendants should be forced to testify. And so on.
As to unbending rules, I would have at first said the same thing. After chapter 2 of Harsh Justice, though, I'm not so sure - Whitman presents rigidity as exemplifying and implementing American ideals of equality in the criminal justice system. There's no chance for certain people, particulary high-status people, to get better treatment (or, of course, for low-status people to get worse treatment) if the rules are strict and unbending.
Back to the book, it seems like a problem is that he's wedded to one or two values of the criminal justice system, like finding the truth, or retribution / victim satisfaction. But there are other values at work. E.g., he doesn't seem all that concerned for the rights of the accused, dismissing most efforts to put the defendant on equal ground with the prosecutor as turning criminal justice into a "sporting contest".
Now, maybe that's a bit unfair, because he's certainly not advocating going back to the lynch mobs of not-so-long-ago, but he is willing to make sacrifices, largely because of the "probability screens" set up so that by the time someone reaches trial, they've already been found "probably guilty" a number of times (investigation, indictment, etc.).
He makes a number of semi-naive comparative points, e.g. "in France, they use lay judges." It's not clear whether he's even read as much of the comparative literature as I have (which is not very much) - for instance, the things that point out that the lay judges don't really participate very much, that they pretty much vote with the lead judge, and so forth. He kind of uses comparative law in the classic way that gets comparativists dismissed: he says "look how much better is over there" and moves on.
Oh, and he loves the OJ Simpson trial, in the sense that it gives him examples for almost all of his points. (Also, Peter Neufeld, Barry Scheck's right-hand-man at the Innocence Project, makes a couple of very unflattering appearances, both in Rothwax's court and in the OJ trial.)
Sunday, March 18, 2007
Public Legal Reason
Lawrence B. Solum (Illinois), Public Legal Reason, 92 Va. L. Rev. 1449 (2006)
Download here.
Couldn't get through it. I'm starting to get the idea that legal philosophy isn't really my thing. On the other hand, maybe I just need a lot more background before I try to start diving into a debate such as the one Solum is engaged in here.
Download here.
Couldn't get through it. I'm starting to get the idea that legal philosophy isn't really my thing. On the other hand, maybe I just need a lot more background before I try to start diving into a debate such as the one Solum is engaged in here.
Criminal Law Comes Home
Jeannie Suk (Harvard), Criminal Law Comes Home, 116 Yale L.J. 2 (2006); Cheryl Hanna (Vermont), Because Breaking Up Is Hard to Do, 116 Yale L.J. Pocket Part 92 (2006), http://www.thepocketpart.org/2006/10/12/hanna.html
Download here.
Describes the way modern prosecutors' offices deal with domestic violence, especially focusing on orders of protection. These orders can not only help prevent violence in themselves (when they are obeyed), but can also serve as proxies for conviction of domestic violence: prosecuting domestic violence is often difficult because the victim isn't always terribly cooperative; prosecuting for violation of an order of protection is as simple as proving that the defendant was in the home from which he's been banned (or made a phone call, or sent an email, or took whatever conduct is prohibited by his particular order).
The interaction between these orders and burglary has been interesting, as violation of the order of protection has been used not only to satisfy the first element of burglary, unlawful entry, but also the second, intent to commit a crime once inside. The former seems rather uncontroversial. The latter doesn't seem to be widespread, but does raise certain issues.
The point of the piece is more to sketch the process and raise some of the questions we should be asking without attempting to answer them. (That said, the tone of the article does seem to express skepticism about the uses of these orders, something Hanna picks up on in her response, which essentially seemed to say, "It's worth it.") Some of those questions include issues of governmental invasion of the home and the very definition of the home itself (particularly in the burglary context: obviously you can't burglarize your own home, but if you've been banned therefrom, is it still your home? Suk states, at 33, "A protection order may prohibit a person from going to a particular place, but it is not a declaration that the property in question is not his home; he could be formally prohibited from a place that remains his home." But what meaning does a home have if one cannot enter it? How can a home serve as the "spatial metaphor of private refuge from crime" (at 24) if one cannot enter it?).
There are also issues of autonomy that are (apparently) now-classic problems in domestic violence prosecution: are we infringing the autonomy of the victims with automatic prosecution, etc.?
There's also the issue of de facto divorce: when a protection order is created, it means that, while the victim and defendant might still be legally married, but if they cannot live or act in any way as a married couple, then they have be de facto divorced by the State. Class issues also come into play here since most prosecutions in this area happen in poor communities and often involve people of color.
It seems that a comparative perspective could be enormously useful in following up, particularly given the issues of privacy, autonomy, state control over the family and home, and gender equality raised by these procedures.
Aside: There's a reference to Blackstone (at 23) quoting Roman law as to the inviolability of the home - that's interesting because of the idea that this is more of an American conception of privacy / autonomy / liberty - what happened that this idea didn't get carried over with the many others to European law?
Download here.
Describes the way modern prosecutors' offices deal with domestic violence, especially focusing on orders of protection. These orders can not only help prevent violence in themselves (when they are obeyed), but can also serve as proxies for conviction of domestic violence: prosecuting domestic violence is often difficult because the victim isn't always terribly cooperative; prosecuting for violation of an order of protection is as simple as proving that the defendant was in the home from which he's been banned (or made a phone call, or sent an email, or took whatever conduct is prohibited by his particular order).
The interaction between these orders and burglary has been interesting, as violation of the order of protection has been used not only to satisfy the first element of burglary, unlawful entry, but also the second, intent to commit a crime once inside. The former seems rather uncontroversial. The latter doesn't seem to be widespread, but does raise certain issues.
The point of the piece is more to sketch the process and raise some of the questions we should be asking without attempting to answer them. (That said, the tone of the article does seem to express skepticism about the uses of these orders, something Hanna picks up on in her response, which essentially seemed to say, "It's worth it.") Some of those questions include issues of governmental invasion of the home and the very definition of the home itself (particularly in the burglary context: obviously you can't burglarize your own home, but if you've been banned therefrom, is it still your home? Suk states, at 33, "A protection order may prohibit a person from going to a particular place, but it is not a declaration that the property in question is not his home; he could be formally prohibited from a place that remains his home." But what meaning does a home have if one cannot enter it? How can a home serve as the "spatial metaphor of private refuge from crime" (at 24) if one cannot enter it?).
There are also issues of autonomy that are (apparently) now-classic problems in domestic violence prosecution: are we infringing the autonomy of the victims with automatic prosecution, etc.?
There's also the issue of de facto divorce: when a protection order is created, it means that, while the victim and defendant might still be legally married, but if they cannot live or act in any way as a married couple, then they have be de facto divorced by the State. Class issues also come into play here since most prosecutions in this area happen in poor communities and often involve people of color.
It seems that a comparative perspective could be enormously useful in following up, particularly given the issues of privacy, autonomy, state control over the family and home, and gender equality raised by these procedures.
Aside: There's a reference to Blackstone (at 23) quoting Roman law as to the inviolability of the home - that's interesting because of the idea that this is more of an American conception of privacy / autonomy / liberty - what happened that this idea didn't get carried over with the many others to European law?
The Legal Meaning of "Commerce" in the Commerce Clause
Robert G. Natelson (Montana), The Legal Meaning of "Commerce" in the Commerce Clause, 80 St. John's L. Rev. 789 (2006)
Download here.
I didn't feel the need to read the entire paper because the final forty or so pages seem to be a summary of the evidence that the legal meaning (as contrasted with the common/lay meaning) of "commerce" at the time of the Founding was precisely the same as the lay meaning: exchange, transport, etc. That is, the things that we've expanded "commerce" to include (manufacturing, e.g.) were not included in the meaning of "commerce" in the minds of the lawyers of the time any more than they were in the minds of the non-lawyers.
This is of course important because there were quite a large number of lawyers involved in the drafting of the Constitution.
The above isn't meant to slight the work done by Natelson, since it's clear he did a ton of work - he states, though, that every single source he read said the same thing: "commerce" has the meaning described above, and thus I felt that simply reading the conclusion was plenty for my purposes.
Interesting references
Randy E. Barnett (Georgetown), The Original Meaning of the Necessary and Proper Clause, 6 U. Pa. J. Const. L. 183 (2003).
Download here.
I didn't feel the need to read the entire paper because the final forty or so pages seem to be a summary of the evidence that the legal meaning (as contrasted with the common/lay meaning) of "commerce" at the time of the Founding was precisely the same as the lay meaning: exchange, transport, etc. That is, the things that we've expanded "commerce" to include (manufacturing, e.g.) were not included in the meaning of "commerce" in the minds of the lawyers of the time any more than they were in the minds of the non-lawyers.
This is of course important because there were quite a large number of lawyers involved in the drafting of the Constitution.
The above isn't meant to slight the work done by Natelson, since it's clear he did a ton of work - he states, though, that every single source he read said the same thing: "commerce" has the meaning described above, and thus I felt that simply reading the conclusion was plenty for my purposes.
Interesting references
Randy E. Barnett (Georgetown), The Original Meaning of the Necessary and Proper Clause, 6 U. Pa. J. Const. L. 183 (2003).
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