Category: Courts

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Stanford Law Review, 64.3 (2012)

Stanford Law Review

Volume 64 • Issue 3 • March 2012

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Of Law and Self-Loathing

“I’m a self-loathing law student,” confessed one of the students in my Critical Race Theory seminar this week. Several others immediately owned up to the same affliction. I will stipulate that self-loathing is probably not an affect we all should strive to achieve. But I was heartened anyway.

Twenty-five years ago when I began teaching law, my social-justice-minded students regularly veered from rage and tears at moral wrongs to a defiant hope. They sustained themselves and one another with a faith that the arc of the moral universe is long but it bends toward justice, as Dr. King is thought to have said. And they ultimately placed their trust in law and especially the courts.

My students were not alone. Even by the mid-1980s, many of us lawyers and law professors were still recovering from the collective daze of delight induced by the Second Reconstruction and the Warren and Burger Court eras. Of course, we were already in the throes of affirmative-action backlash and judicial retrenchment; colorblind constitutionalism was shaped before our very eyes; and even as a law student I had studied Harris v. McRae in my equal protection class and learned that the formal declaration of a constitutional right is not the same as the economic security needed to exercise it. Yet the romance, the belief that getting the courts to pronounce a legal right was a mighty blow for justice, lingered on.

Maybe it was the continued influence of the post-war “idea of America as a normative concept,” as Edward Purcell  put it in 1973: the incorporation throughout social and political debate of “terms that were analytically confused but morally coercive – patriotism, Americanism, free enterprise system, mission, and, most grossly, ‘we’re number one.’” In the culture of legal academia, this logic translated into a faith in the jurisprudence of legal process. In my little corner of the world we were all reading Democracy and Distrust and trying to locate neutral principles. The faith that procedural fairness, at least, could be achieved despite a lack of consensus about the good life reinforced a belief in the American rule of law as an unshakable bulwark of democratic fairness. That sentiment was entwined with a professional loyalty to the law: to have gone to law school was in itself a statement about one’s commitment to the law as the royal (I mean “democratic”) road to justice.

So when critical legal studies, feminist legal theory, and then critical race theory hit the academy around this time, the crits (like the Legal Realists before them) were accused of “nihilism” and shown the door. Critical legal theory was not just a disloyalty to the civil rights movement but to the rule of law itself. It was subversive, in those mid-1980s days, to pass around The Hollow Hope  and to insist, as the crits were loudly doing, that “reification” and “legitimation” were basic functions of legal reasoning. The trust that the system works – or, at least, could work if we got it right – was now being dubbed “legal liberalism” by the crits, and being skewered in massively long and ponderous articles about fundamental contradictions. But the critics could be challenged by asking them where their “positive program” was. And they could (sometimes) be silenced by demands that they leave the law altogether.

For the crit project seemed deeply and radically anti-law. We junior professors, reading their work and sometimes contributing to it, felt like outlaws (which brought with it a sense of being dangerous and cool, along with a sense of vulnerability heightened by our lack of tenure and the material consequences of being perceived as a nihilist). At the same time, interestingly, the practice of teaching was not too different for us as it was for our older Legal Process colleagues. It was all about puncturing our students’ illusions, showing them the indeterminacy of legal reasoning and teaching them how to surf on it, questioning the use of words like “fairness.” It was just that we had no shining neutral-principles machine to lift from the bottom of Pandora’s box at the end of the day.

I don’t mean to suggest that legal liberalism and faith in the rule of law as central to the American way ever died. At a conference at Santa Clara Law School last week on race and sexuality, some of the lawyers and academics gathered there bemoaned a “politics of civil rights” that has somehow placed marriage equality at the top of the LGBT agenda. The charge was familiar: too many lawyers and non-lawyers alike believe that “gay is the new black;” that the civil rights movement brought about racial equality and “now it’s our turn;” that if we prove we are just like them, we’ll all be free. The rush to assimilate to mainstream institutions and practices throws under the bus, as usual, those most vulnerable to premature death – those without the racial, economic, and bodily privileges (and/or the desire) to get married, move to the suburbs, and blend in.

What was different was that an alternative position, the “politics of dispossession” as Marc Spindelman named it, was also on the table – not as a stance that made one’s commitment to the law suspect from the get-go, but as an accepted ground for lawyering. When thinking about sexuality we might want to begin, under this politics, not with marriage but with the kids doing sex work on International Boulevard in Oakland, as Margaret Russell pointed out. And, after decades of critical theory, it was taken as a truth in that room — if an inconvenient one — that to do this would mean instantly coming up against poverty, racism, and violence, forms of suffering law is not well positioned to ameliorate.

In this way, lawyering for social justice is a contradiction. Not in the “nihilist” sense, the law-as-a-tool-of-the-ruling-class notion that those who want justice ought to give up their bar cards and go protest in the streets. (My friend Norma Alarcón once identified this romantic position as the desire to “be out in the jungle with Che.”) Rather, the politics of dispossession begins with recognizing that the law is not designed to go to root causes; that fundamental changes in the ground rules, which is what the most vulnerable need, come from organizing;  and that lawyering isn’t useless, but that it looks different if it is prison abolition you want and not a marriage license.

More abstractly, the understanding in that room was that, as Patricia Williams said to the crits in one of the founding texts of critical race theory, law is both inadequate and indispensable in the struggle for justice. Post-legal-liberalism lawyering begins here.

What’s also new is that this commitment to living in the contradiction — accepting the tension between law and justice as a place to work rather than as a source of despair — is increasingly expressed not only by battle-scarred veterans at academic conferences but by law students. The desire to make positive social change has not gone away among my students. They still hope and expect that law can be used in the service of justice. But along with a waning of faith in the courts, they express an increasingly sophisticated awareness of the limits of the law more generally. They know, already, that justice and law are not the same. The task is no longer disillusioning them, but helping them develop the skills for finding what works and what doesn’t.

Okay, so “self-loathing” is probably not the best way to say it. But this wry recognition of the imperfection of law seems to me nevertheless an improvement over the wounded attachment to law as a portal to justice that seemed to mark so many progressive law students a generation ago. As the same student said later in the conversation that day, “That’s my contradiction, and I’m sticking to it.” There’s a wisdom there that’s heartening.

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Stanford Law Review Online: The Dead Past

Stanford Law Review

The Stanford Law Review Online has just published Chief Judge Alex Kozinski’s Keynote from our 2012 Symposium, The Dead Past. Chief Judge Kozinski discusses the privacy implications of our increasingly digitized world and our role as a society in shaping the law:

I must start out with a confession: When it comes to technology, I’m what you might call a troglodyte. I don’t own a Kindle or an iPad or an iPhone or a Blackberry. I don’t have an avatar or even voicemail. I don’t text.

I don’t reject technology altogether: I do have a typewriter—an electric one, with a ball. But I do think that technology can be a dangerous thing because it changes the way we do things and the way we think about things; and sometimes it changes our own perception of who we are and what we’re about. And by the time we realize it, we find we’re living in a different world with different assumptions about such fundamental things as property and privacy and dignity. And by then, it’s too late to turn back the clock.

He concludes:

Judges, legislators and law enforcement officials live in the real world. The opinions they write, the legislation they pass, the intrusions they dare engage in—all of these reflect an explicit or implicit judgment about the degree of privacy we can reasonably expect by living in our society. In a world where employers monitor the computer communications of their employees, law enforcement officers find it easy to demand that internet service providers give up information on the web-browsing habits of their subscribers. In a world where people post up-to-the-minute location information through Facebook Places or Foursquare, the police may feel justified in attaching a GPS to your car. In a world where people tweet about their sexual experiences and eager thousands read about them the morning after, it may well be reasonable for law enforcement, in pursuit of terrorists and criminals, to spy with high-powered binoculars through people’s bedroom windows or put concealed cameras in public restrooms. In a world where you can listen to people shouting lurid descriptions of their gall-bladder operations into their cell phones, it may well be reasonable to ask telephone companies or even doctors for access to their customer records. If we the people don’t consider our own privacy terribly valuable, we cannot count on government—with its many legitimate worries about law-breaking and security—to guard it for us.

Which is to say that the concerns that have been raised about the erosion of our right to privacy are, indeed, legitimate, but misdirected. The danger here is not Big Brother; the government, and especially Congress, have been commendably restrained, all things considered. The danger comes from a different source altogether. In the immortal words of Pogo: “We have met the enemy and he is us.”

Read the full article, The Dead Past by Alex Kozinski, at the Stanford Law Review Online.

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Viewpoint, Voting, and Structuring the Electorate

I am delighted to join the blogging community of Concurring Opinions for the month of April.  Thanks to Solangel Maldonado and Daniel Solove for their gracious invitation.

Denying voting rights to citizens with felony convictions has gotten a bad rap. The reason it’s not worse is because that rap is based on only half the story.  Anyone familiar with the complexion of our prison population knows that felon disfranchisement laws extend striking racial disparities to the electoral arena.  Less known, however, is that citizens with felony convictions are excluded from the electorate, in part, because of perceptions about how this demographic might vote or otherwise affect the marketplace of ideas.  In other words, citizens with felony convictions are denied the right to vote because of their suspected viewpoint.

Picking up on this point earlier this year, Michael Dorf highlighted a dispute between Republican presidential candidates Mitt Romney and Rick Santorum about which of them held the most conservative position concerning the voting rights of citizens convicted of a felony.  Inventing a criminal persona named Snake, Dorf queried what issues might provoke such a person to vote: Lower protections for private property or public safety? Redistribution of public resources from law enforcement to education, health, or recreation?  Elimination of certain criminal laws?  I can fathom many other lawful motivations for voting.  However, as Dorf points out (and decidedly rejects), the underlying objection to allowing citizens with felony convictions to vote is based on an assumption that, if they could vote, they would express self-serving and illegitimate interests. In other words, the viewpoint that felons would express through voting has no place in the electoral process.

I have always assumed that my viewpoint was precisely what I and other voters are supposed to express at the ballot box.  Whether that viewpoint is shared, accepted, condoned or vehemently disdained and abhorred by others is irrelevant to the right to vote.  Not so for citizens with felony convictions.  This group of citizens is presumed to possess deviant views that justify their exclusion from the electorate and the denial of a fundamental right. Read More

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Jamal Greene on How the World Would Not End if the Supreme Court Did Not Tell Congress What to Do on ACA

Jamal Greene has an insightful essay over at Slate on the Supreme Court’s role in ruling on ACA’s constitutionality.  I thought I’d add his essay to the mix for the superb round up of guests my co-blogger Gerard gathered together this week.  Here is Professor Greene’s essay:

This week, challengers to the Affordable Care Act are asking the Supreme Court to say that the Constitution does not permit the government to require Americans to purchase health insurance. Lawyers for the government are asking the court to say the opposite. The court should say neither. Read More

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Prelude to Next Week’s Oral Argument: Henry and Stearns on Commerce Games and the Individual Mandate

In preparation for Monday’s oral argument on the constitutionality of the Affordable Care Act’s individual mandate (and our online symposium), I wanted to recommend an insightful article written by my colleagues Leslie Meltzer Henry and Maxwell Stearns (both of whom I’ve blogged about here, here, and here) entitled Commerce Games and the Individual Mandate, 100 Georgetown Law Journal 1117 (2012).  I’m going to include the abstract below.  Yesterday, Professors Henry and Stearns published a terrific op ed in the Baltimore Sun arguing for the constitutionality of the individual mandate.

While the Supreme Court declined an early invitation to resolve challenges to the Patient Protection and Affordable Care Act (ACA or the Act), a split between the United States Courts of Appeals for the Sixth Circuit (sustaining the ACA’s “individual mandate”) and the Eleventh Circuit (striking it down) ultimately compelled the Court to grant certiorari in a series of cases challenging the constitutional validity of the new federal health care law. In addition to deciding the fate of this centerpiece of the Obama Administration’s regulatory agenda, the Court’s decision will likely affect Commerce Clause doctrine—and related doctrines—for years or even decades to come.

Litigants, judges, and academic commentators have focused on whether the Court’s “economic activity” test, as set forth in United States v. Lopez, permits the individual mandate. This Article approaches the constitutionality of that provision from a novel perspective, one that proves essential in applying past Commerce Clause decisions, including Lopez, to the ACA and in appreciating the real stakes involved in upending the individual mandate. By analyzing the Court’s Commerce Clause jurisprudence through the lens of game theory, we expose common features of games that have resulted in limiting state powers on the dormant side of Commerce Clause doctrine, and in sustaining and restricting congressional powers on the affirmative side. Applying such games as “the prisoners’ dilemma,” “the driving game,” and “the battle of the sexes” yields critical insights about the nature and limits of state and federal regulatory powers.

Our game-theoretical analysis shows that although debates have centered on the role of the individual mandate in solving a micro-level separating game among low-risk individuals who do not purchase insurance and high-risk individuals who cannot afford it, a more compelling account focuses on the Act’s role in solving a macro-level separating game played among the states. By comparing the ACA to several important historical policy splits among states—public accommodations laws, abortion funding, the death penalty, civil remedies for violent crimes against women, and same-sex marriage—we demonstrate that the Act, including the individual mandate, fits well within those cases for which congressional commerce power is justified to avoid the risk that competing state policies will force other states into a problematic separating game, thereby undermining the selected regulatory policy. Our analysis reconciles congressional power to implement the ACA with the post-New Deal expansions and recent retrenchments of Congress’s Commerce Clause powers, and compellingly reconciles the dormant and affirmative sides of the Supreme Court’s Commerce Clause jurisprudence.

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Stanford Law Review Online: Animus Thick and Thin

Stanford Law Review

The Stanford Law Review Online recently published an Essay by Nan D. Hunter entitled Animus Thick and Thin: The Broader Impact of the Ninth Circuit’s Decision in Perry v. Brown. Professor Hunter argues that the Perry decision will have a more far-reaching impact than most commentators have suggested, both in defining the role of animus in equal protection analysis and in establishing the courts’ role in checking popular initiatives that deny rights to minorities:

The only problem with this analysis for marriage equality supporters is that, despite the principle that courts should resolve constitutional disputes on the narrowest possible grounds, the “taking away” portion of the rationale strikes some as too outcome driven and transparently invented for the goal of providing the Supreme Court with a plausible rationale for denying certiorari. From this view, the opinion’s political strength will also be its greatest doctrinal weakness.

I disagree on two counts. First, I read the opinion as being far more nuanced than it has been given credit for, and believe that its elaboration of the role of animus in judicial review is an important contribution to equal protection doctrine. Second, critics are missing a deeper point: the greatest political strength of the Perry opinion lies not in the short-term question of whether the Supreme Court will accept review, but in its contribution to the more enduring issue of how courts can balance their role of serving as an antimajoritarian check on populist retaliation against minorities while also preserving the values of popular constitutionalism.

She concludes:

[A]lthough initially the panel opinion in Perry would affect only Proposition 8, its larger contribution may be the creative way that it addresses the persistent, intractable conundrum of America’s countermajoritarian difficulty. The opinion does this in part by taking animus seriously as one of the criteria for heightened rational basis review and in part by creating a modest curb on popularly enacted state constitutional amendments. If the Ninth Circuit grants rehearing en banc, the opinion will be vacated, but one hopes that its contribution to the evolution of equal protection law will endure.

Read the full article, Animus Thick and Thin: The Broader Impact of the Ninth Circuit’s Decision in Perry v. Brown by Nan D. Hunter, at Stanford Law Review Online.

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Kovarsky on Martinez and the Roberts Post-Conviction Project

Lucky for us, my brilliant colleague Lee Kovarsky took some time out of his whirlwind schedule to help walk us through the Supreme Court’s post-conviction decision in Martinez v. Ryan.  I’ve blogged about Professor Kovarsky before–he is an expert on habeas corpus whose newest work, entitled “A Constitutional Theory of Habeas Power,” will be published by the Virginia Law Review.  He is also amidst writing a textbook  for Foundation Press entitled “Federal Habeas Corpus: Executive Detention and Post-Conviction Litigation” (forthcoming 2013) (with Brandon Garrett).  Professor Kovarsky recently argued a habeas case before the Fifth Circuit and helped write the ABA Amicus Brief in Martinez.

Martinez and the Roberts Post-Conviction Project*

I. Overview

Almost under the radar, the Roberts Court has reconfigured the way this country conducts post-conviction review. Years from now, we may consider a case decided this Tuesday, Martinez v. Ryan, a seminal entry in that shift. Perhaps Martinez was reported so sparingly because it was so complicated, but its complexity shouldn’t obscure its importance. (Stephen Vladeck has a characteristically insightful explanation of Martinez up on SCOTUSBLOG.)

The “Roberts Post-Conviction Project” has two moving parts. First, the Project involves a series of decisions promoting state collateral review as the “main event” for post-conviction challenges. Second, and at the same time, the Project has generated incentives for states to provide more process and better lawyers in those proceedings. The Project is hardly a return to thick, Warren-era habeas review of state criminal procedure, but it does slightly moderate one rhetorical excess of Rehnquist post-conviction jurisprudence—the proposition that state judges are always as good as their federal counterparts at enforcing federal constitutional rights.

Criminal process for convicted state prisoners subdivides roughly into the following phases: (1) direct appellate review of the conviction; (2) a state post-conviction disposition subject to state appellate review; and (3) a federal habeas proceeding with federal appeals. For decades, Congress and the Supreme Court have been recalibrating federal habeas review to defer to state post-conviction outcomes. Most recently, in Cullen v. Pinholster (2011), the Supreme Court held that (generally) federal habeas relief could issue only on evidence presented to a state post-conviction court.

The problem is that, for decades, state post-conviction review—the first place that a prisoner may assert many important constitutional challenges to a conviction—has been a legal swamp of vague rules, spotty process, and substandard representation. Many prisoners litigate state post-conviction claims pro se, and many counseled prisoners enjoy no constitutional entitlement to competent representation. Even for strong constitutional claims, forfeiture often follows a state prisoner’s failure to successfully navigate unthinkably complex state post-conviction law either (1) without representation or (2) with a bad lawyer that the state underpays.

And federal habeas law imposes all sorts of severe penalties when state post-conviction representation goes predictably awry. For instance, the federal limitations statute was—until recently—unforgiving about lost portions of the limitations period attributable to even the most appalling state post-conviction representation. Moreover, at least pre-Martinez, when incompetent state post-conviction representation forfeited a claim on a state procedural ground, that claim would be inexcusably defaulted on federal habeas review.

The Court heard Martinez v. Ryan on October 4, 2011. Twenty-four State Attorneys General signed an Amicus Brief in support of Arizona, as did the United States. By mid-March 2012, the Court had still failed to announce a decision. It was clear that something serious was happening, but nobody had a good sense of what that something was. As it turns out, the prisoner won pretty big. Although the opinion stopped short of announcing a constitutional right to a state post-conviction attorney, its decision will nonetheless improve the representation provided at that phase of criminal process.

Kennedy wrote, and was joined by Roberts, Ginsburg, Breyer, Alito, Sotomayor, and Kagan. (Scalia and Thomas dissented.) The head count is a pleasant surprise for those who remain skeptical that Roberts and Alito are willing to break meaningfully from Scalia and Thomas on the harsh application of procedural rules on federal habeas review. Read More

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Stanford Law Review, 64.2 (2012)

Stanford Law Review

Volume 64 • Issue 2 • February 2012

Articles
National Security Federalism in the Age of Terror
Matthew C. Waxman
64 Stan. L. Rev. 289

Incriminating Thoughts
Nita A. Farahany
64 Stan. L. Rev. 351

Elective Shareholder Liability
Peter Conti-Brown
64 Stan. L. Rev. 409

Note
Harrington’s Wake:
Unanswered Questions on AEDPA’s Application to Summary Dispositions

Matthew Seligman
64 Stan. L. Rev. 469

Comment
Boumediene Applied Badly:
The Extraterritorial Constitution After Al Maqaleh v. Gates

Saurav Ghosh
64 Stan. L. Rev. 507

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Stanford Law Review Online: Physical and Regulatory Takings

Stanford Law Review

The Stanford Law Review Online has just published an Essay by Richard A. Epstein entitled Physical and Regulatory Takings: One Distinction Too Many. In light of Harmon v. Kimmel—a case challenging New York’s rent control statute on petition to the Supreme Court—Epstein provides a succinct economic takedown of uncompensated regulatory takings in four distinct areas: rent control, support easements, zoning, and landmark preservation statutes. In suggesting a unified approach to eminent domain whether the taking is physical or regulatory, he writes:

Unfortunately, modern takings law is in vast disarray because the Supreme Court deals incorrectly with divided interests under the Takings Clause of the Fifth Amendment, which reads: “nor shall private property be taken for public use, without just compensation.” The Supreme Court’s regnant distinction in this area is between physical and regulatory takings. In a physical taking, the government, or some private party authorized by the government, occupies private land in whole or in part. In the case of a per se physical taking, the government must pay the landowner full compensation for the value of the land occupied. Regulatory takings, in contrast, leave landowners in possession, but subject them to restrictions on the ability to use, develop, or dispose of the land. Under current law, regulatory takings are only compensable when the government cannot show some social justification, broadly conceived, for its imposition.

Thus, under current takings law, a physical occupation with trivial economic consequences gets full compensation. In contrast, major regulatory initiatives rarely require a penny in compensation for millions of dollars in economic losses. . . .

The judicial application of takings law to these four different partial interests in land thus destroys the social value created by private transactions that create multiple interests in land. The unprincipled line between occupation and regulation is then quickly manipulated to put rent control, mineral rights, and air rights in the wrong category, where the weak level of protection against regulatory takings encourages excessive government activity. The entire package lets complex legal rules generate the high administrative costs needed to run an indefensible and wasteful system. There are no partial measures that can fix this level of disarray. There is no intellectual warrant for making the categorical distinction between physical and regulatory takings, so that distinction should be abolished. A unified framework should be applied to both cases, where in each case the key question is whether the compensation afforded equals or exceeds the value of the property interest taken. The greatest virtue of this distinction lies not in how it resolves individual cases before the courts. Rather, it lies in blocking the adoption of multiple, mischievous initiatives that should not have been enacted into law in the first place. But in the interim, much work remains to be done. A much-needed first step down that road depends on the Supreme Court granting certiorari in Harmon v. Kimmel.

Read the full article, Physical and Regulatory Takings: One Distinction Too Many by Richard A. Epstein, at the Stanford Law Review Online.