John Blume, Samuel F. Leibowitz Professor of Trial Techniques and Director, Cornell Death Penalty Project

Sheri Lynn Johnson, James and Mark Flanagan Professor of Law

(with coauthor Bren dan Van Winkle)

“Atkins v. Virginia at Twenty: Still Adaptive Deficits, Still in the Developmental Period,” Washington and Lee Law Review, vol. 28, no. 1 (forth coming 2022).

In 2002, in Atkins v. Virginia, the U.S. Supreme Court held that persons with intellectual disability could not be executed. The Court determined that imposing the ultimate punishment on individuals with intellectual disability was disproportionate and thus was cruel and unusual punishment barred by the Eighth Amendment. But it continues to happen. This article examines how recalcitrant state courts and legislatures, relying primarily upon a single, ill-advised sentence in the Atkins decision, have created procedural and substantive obstacles that often effectively nullify the constitutional ban and how the federal courts, often equally recalcitrant, have, for the most part, refused to intervene.

Maggie Gardner, Professor of Law
(with coauthors William S. Dodge and Christopher A. Whytock)

“The Many State Doctrines of Forum Non Conveniens,” Duke Law Journal, vol. 72 (forthcoming 2022).

Forum non conveniens is not as “ancient” or as monolithic as U.S. courts often assume. The doctrine, which permits judges to decline to hear cases they believe would more appropriately be heard in another sovereign’s courts, is often used today by both state and federal courts to dismiss claims brought by or against local businesses. The Supreme Court, however, only adopted a general doctrine of forum non conveniens in 1947; the doctrine’s “deep roots in the common law” are thought instead to be planted in the states.

This article tests that account by surveying the forum non conveniens doctrines of all fifty states and the District of Columbia. What the authors found should change how judges, practitioners, and scholars view the doctrine. First, forum non conveniens in the states does not have a “long history”—it is a twentieth-century phenomenon. Second, before the 1950s, no states permitted dismissal of claims brought against local defendants. Third, state experience with forum non conveniens has been and continues to be highly variable. Most states adopted a forum non conveniens doctrine only after the Supreme Court did; many initially rejected it; and half a dozen still prohibit its use in cases involving in-state plaintiffs or in-state causes of action. Idaho has not recognized the doctrine at all.

In addition to these doctrinal lessons, the states’ experience with forum non conveniens provides a useful case study for examining what we term “procedural federalism,” meaning the interactions between state and federal institutions that affect procedural development.

Procedural federalism reminds us that the procedure we have is not necessarily the “best” procedure we could conceive, while drawing our attention to pockets of divergence that may offer promising reforms. More broadly, it suggests a different approach to history than the one currently ascendent in federal courts and commentary. The iterative nature of procedural federalism makes clear that doctrines like forum non conveniens do not have perfect pasts, needing only to be rediscovered to be understood properly. Rather, procedural history is useful because it can help us understand how we ended up with the doctrines we have today, in order to better evaluate where we should go next.

Valerie P. Hans, Charles F. Rechlin Professor of Law
(with coauthor Shari Seidman Diamond)

“Fair Juries,” University of Illinois Law Review (forthcoming 2022).

High-profile jury trials have catapulted concerns about jury fairness to the center of public consciousness. Despite the jury’s sound performance in most cases, we can do better. What enables fair juries starts long before the public hears the jury’s verdict. The critical phases that are essential to seating fair juries and decisions on what the jury will see and hear during the trial are often hidden from view. This article comprehensively analyzes each of these phases and finds deficiencies that can undermine the promise of a fair jury. The first vital phase is obtaining a representative pool of prospective jurors, a group of individuals from which the trial jury will be drawn. Many jurisdictions fall short in meeting that necessary first goal, handicapping the ability of subsequent steps to assemble a fair jury. The second key phase involves selecting individuals from the pool of qualified individuals to serve as members of the trial jury. However, racism and other implicit and explicit biases combined with insufficient procedural protections may taint this part of the jury selection process. The third phase is the trial itself, where judges are often challenged to
support appropriate fact finding, provide clear legal guidance, and manage potential biases that can undermine fairness. This article proposes a set of critically important reforms that will strengthen jury selection and trial procedures in each of these phases, optimizing fair juries now and into the future.

Michael Heise, William G. McRoberts Professor in the Empirical Study of Law
(with coauthor Gregory C. Sisk)

“Cracks in the Wall: The Persistent Influence of Ideology in Establishment Clause Decisions,” Arizona State Law Journal (forthcoming 2022).

In this article, the authors ex-tend into a third decade their ongoing empirical examination of religious liberty deci-sions in the federal courts, finding the persistence of ideological influence in Establishment Clause decisions for the period of 2006–2015. Because a non-partisan judiciary is essential to preserve the rule of law, we should sound the alarm when partisan influences appear to be weighting the outcome.

At the same time, one might take comfort in a systematic narrowing of the partisan gap in this most recent ten-year period for this study. For 1996–2005, the authors had found an Establishment Clause claimant’s chances for success were approximately 2.25 times higher before a judge appoint-ed by a Democratic president than one appointed by a Re-publican president. By this 2006–2015 period, the Establishment Clause claimant advantage before a Democratic-appointed judge had fallen to about one-third higher than before a Republican-appointed judge.Moreover, a Supreme Court precedent variable was the single most significant, robust, and powerful influence on the outcome. Thus, the authors’ findings suggest that legal controls may meaningfully confine subjective discretion and reduce the influence of extralegal factors in federal court decision-making.

Alexandra D. Lahav, Professor of Law

“An Order, Most Fixed,” Michigan Law Review (forth-coming 2022).

Every once in a while, a book is written that explains more than its own field. Lorraine Daston’s Rules: A Short History of What We Live By, is that kind of book. This history of rules teaches us something about how rules work in law and about many other do-mains, in the process demonstrating how legal rules are part of a larger social web of rules regulating human con-duct. This review focuses on her chief insight: that thin (or bright-line) rules, as well as algorithms, are a product of a stable legal order as much as they are formative of one. The implication of Daston’s thesis is that while thin rule regimes, or rule by algorithm, can be effective in times of relative stability, the rules do not create stability. In fact, it may be quite the other way around: stability allows rules to flourish. To the extent legal thinkers have staked their theories on the idea that rules promote stability, they may have the causal direction wrong. This review closes with an analysis of what this observation means for law in an increasingly destabilized world.

Emily Sherwin, Frank B. Ingersoll Professor of Law

“Do Precedents Constrain Legal Decision-Making?” in Timothy Endicott, Hafsteinn Kristjansson & Sebastian Lewis, eds. Philosophical Foundations of Precedent, Oxford University Press (forthcoming).

Judicial decision-making is constrained by determinate, authoritative rules laid down in precedent cases. Other proposed forms of precedent-based decision-making, including analogical reasoning, reasoning from the facts and outcomes of prior cases, and reasoning from legal principles, do not effectively constrain current decision-making. Analogical intuitions, in particular, may aid in legal reasoning by suggesting useful comparisons, but they do not constrain legal reasoning. Thus, in the absence of a determinate rule, judges must rely on their own reasoning about what outcome is best, given the facts at issue and the practical and moral aims of legal decision-making.

Nelson Tebbe, Jane M.G. Foster Professor of Law
(with coauthor Micah Schwartzman)

“The Politics of Proportional-it y,” Michigan Law Review, vol. 120 (2022).

In this review of Jamal Greene ’s How Rights Went Wrong, Nelson Tebbe and Micah Schwartzman (UVA) raise a series of questions about proportionality review as a model for adjudicating rights conflicts. Proportionality re-view, in brief, is a style of constitutional adjudication that is common in Europe and elsewhere, according to which judges ask whether a government’s restriction on a right is outweighed by its policy interests. Jamal Greene endorses this approach in his book, which has rightly drawn a great deal of attention, and he criticizes the approach that is more common in the United States, under which constitutional rights simply trump all countervailing policies and interests.

The first question Tebbe and Schwartzman ask about the book is whether proportionality is justified as a matter of ideal theory. Even if it is well applied, is this approach normatively attractive? A second question is which institutions ought to apply this form of review—courts, legislatures, executive officials, or some other democratic bodies? A third is how proportionality works in practice, under non-ideal conditions.

Greene’s account also leads Tebbe and Schwartzman to ask about the relation between two aims that seem to motivate much of his argument for proportionality, namely, reducing the level of conflict in our society and achieving a better balance of rights and interests. In short, proportionality promises to deliver more peace and more justice. Their last question, then, is whether implementing proportionality review today would require significant trade-offs between these ends. In addressing these questions, their aims are mainly analytical, separating out various types of considerations that might count as reasons for supporting proportionality review. But they also consider whether proportionality should be adopted as a progressive reform strategy under polarized political conditions. The answer may turn on whether compromises for the sake of reducing social conflict could lead, paradoxically, to less peace and less justice.

Chantal Thomas, Associate Dean for Academic Affairs and Radice Family Professor of Law

“Race as a Technology of Global Economic Governance,” UCLA Law Review, vol. 67 (2021).

This article offers an account of the role of race in global political economy—in particular, how to understand racialization as part of the process by which institutions of economic hierarchy not only were created but continue to be legitimated. It offers the conception of race as a technology: the product of racialized forms of knowing, which serve the practical goal of maintaining and legitimating hierarchy, in particular in the context of political economy. The article begins by considering the monumental scope of related work that has gone before, both within the legal academy and in other scholarly disciplines. It then offers a few narratives of key dimensions of the contemporary global economy—commodity production and labor migration—and a reflection on the international legal doctrines and institutions that maintain these phenomena as indicia of economic inequality. It concludes by considering race as a technology of global economic governance. The conception of race as a technology of global economic governance highlights multiple connections between racialization, law, and global political economy: race as a technology of empirics, in which racial categories purported to be based on empirical knowledge; race as a technology of legal rule, in which laws and institutions helped to shape, as well as en-forced, the identity constructs purportedly rooted in empirical knowledge; and race as a technology of economic allocation and production, itself dependent on the knowledge and practice of the technologies of empirics and legal rule, in which one’s racial identity has directly influenced one’s place in global chains of production and consumption.

W. Bradley Wendel, Edwin H. Woodruff Professor of Law

“Malice or Snafu? Punitive Damages and Organization-al Culture Defects,” DePaul Law Review (forthcoming 2022).

When can the conduct of a corporation be deemed sufficiently reprehensible to warrant the imposition of punitive damages? This is a much-debated question, but it has been complicated by developments in cognitive and social psychology over the last several decades, which show that wrongdoing by organizational actors is frequently the product of interactions among unconscious effects on individual decision making and predictable departures from ideal group decision making processes. The dynamics of organizational cultural failures are by now fairly well understood. In some cases the failure is the result of top-down directives from senior leadership, sometimes driven by market pressures. Other situations, however, are more subtle, and sometimes are the result of the unintended consequences of either neutral or well-intentioned organizational decisions. The question considered in this contribution to the 2022 Clifford Symposium on Tort Law and Policy is when organizational dysfunction crosses over into the kind of reprehensible behavior, approximating malice or intentional wrongdoing, that is the basis for punitive damages, both at common law and under the Supreme Court’s due process jurisprudence.

The paper will use as a case study the design and certification of the Boeing 737-MAX. The immediate cause of the accident—as engineers would say, the proximate cause—was the half-baked design of a system known as MCAS that applied rapid, aggressive, and repeated nose-down stabilizer trim inputs under certain very unusual flight conditions. In engineering or risk-management (not tort) terms, however, the root cause of the Lion Air and Ethiopian accidents can be understood as a failure of Boeing’s organizational culture. In my judgment the explanation for the 737-MAX accidents is closer to a SNAFU (emphasis on “situation normal”) that is difficult to avoid in a gigantic, decentralized organization, as opposed to the conscious imposition by upper management of unrealistic goals that foreseeably would reorient lower-level managers and employees away from goals like safety and social responsibility. Even granting the truth of some of the most damning allegations, such as reports by flight-test crews that MCAS behaved in surprisingly aggressive ways and calls by some engineers to include information about MCAS in the FAA-approved Flight Operation Manual for the plane, the ultimately fatal decisions did not arise from a state of mind that traded lives for dollars or ignored safety concerns. Rather, there were mistakes, bureaucratic inertia, pressures to conform, miscommunications, perhaps unwarranted optimism, failures to be more proactive in managing risks, and above all a kind of blinkered obsession with not having to retrain flight crews which may have led to unconscious framing of some of the judgments regarding MCAS. In other words, the explanation is more in line with the findings of behavioral psychology—including unconscious framing effects and predictable dysfunctions of group behavior—than with an assumption that Boeing was a rogue actor that was consciously indifferent to safety.

The conclusions of the paper should have implications beyond the case study of Boeing. To Wendel, the most interesting question is how to understand the common law malice standard as applied to corporate actors where the explanation for wrongdoing rests largely on subtle effects known to social psychologists but very difficult to counteract. Good organizational cultures are extremely difficult to maintain, given the often-un-conscious tendencies that underlie cultural declines. The “big stick” of punitive damages may not be the most effective response to dysfunctional organizational cultures.