Emad H. Atiq, Associate Professor of Law and Philosophy
(with coauthor Jud Mathews)
“The Uncertain Foundations of Public Law Theory,” Cornell Journal of Law and Public Policy (forthcoming 2022).
Recently, public law scholarship has taken a “jurisprudential turn.” Scholars have argued for controversial public law conclusions—concerning how to interpret the Constitution, the powers of administrative agencies, and the responsibilities of judges— based on assumptions about the fundamental grounds of legal validity. Some use this jurisprudential move to denounce opposing views as not merely mistaken, but denying or defying the law, thus raising the stakes in public law disputes. A surprising feature of this development in public law theory is that those who lean on jurisprudential assumptions either dismiss as irrelevant or pass over in silence persistent disagreement in general jurisprudence about the nature of law.
Atiq and Mathews argue that tracing our public law convictions to contested assumptions about law’s nature should make us less (not more) confident in the rightness of our conclusions and the wrongness of the opposing side. Their case for confidence-lowering begins with a close examination of prominent examples of the jurisprudential turn, including arguments for broadly originalist conclusions. After highlighting the unargued-for assumptions about the nature of law on which these works rely, the authors develop a general challenge for this mode of advocacy based on the epistemology of “peer disagreement.” Their challenge invokes intellectual reasons for withholding judgment on questions that inspire persistent disagreement among good-faith reasoners. The upshot is that controversial claims about public law should be approached with ambivalence on all sides, and an awareness of the general reasons for ambivalence should significantly alter the tenor of public law debates.
Joe Margulies, Professor of Practice, Law and Government
Sheri Lynn Johnson, James and Mark Flanagan Professor of Law
John H. Blume, Samuel F. Leibowitz Professor of Trial Techniques and Director, Cornell Death Penalty Project
“Dead Right: A Cautionary Capital Punishment Tale,” Columbia Human Rights Law Review, vol. 53, no. 1. (2021)
At least 228 people executed in the modern era—or more than one in every seven—were right too soon according to this paper. That is, they had claims in their case that today would render their execution unconstitutional, but were killed because of a legal regime that arrived too late. Roughly 30 percent of those cases include the children and persons with intellectual disability who were executed prior to Roper v. Simmons and Atkins v. Virginia, respectively. But the great majority of the people identified in in a study by Margulies, Johnson, and Blume, raised claims based on doctrine that had already been clearly established by the Supreme Court. If the lower courts had applied Supreme Court caselaw correctly, these people would have gotten relief. Yet the lower courts resisted the doctrine and for years the Supreme Court did nothing to correct them. This resistance was particularly egregious in Texas and Florida. In Texas, at least 108 people were executed after the Supreme Court had already established the relevant basis for relief, and in Florida, the total is at least thirty-six. At least when it comes to the death penalty, the lower courts seem especially unwilling to follow Supreme Court doctrine that would save a person from execution. According to Margulies, Johnson, and Blume, the result is a system that routinely kills people even when they are right.
Sherry F. Colb, C.S. Wong Professor of Law
“Free Exercise in the Mirror,” North Carolina Civil Rights Law Review, vol. 2 (forthcoming 2022).
Recent U.S. Supreme Court cases present an opportunity to apply a new form of analysis to discrimination claims. In 2018’s Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission and 2021’s Fulton v. City of Philadelphia, there is a party complaining about discrimination on each side of the dispute. In both cases, one side (respondent) claims that the other (petitioner) is discriminating on the basis of sexual orientation, while the other side (petitioner) claims that subjecting petitioner to the law prohibiting sexual orientation discrimination itself discriminates on the basis of religion. With discrimination claims coming from both directions, this article performs what it calls “mirror-image analysis” to better understand how the Court thinks about the issues it faces in Free Exercise cases. Mirror-image analysis takes a definition that the Court applies to one side of the dispute, whether it is the definition of discrimination or coercion, and considers what the other side’s claim would look like if it deployed similarly capacious definitions of both terms. The article uses hypothetical cases, some quite provocative, to help clarify the nature of the Court’s approach to Free Exercise. It concludes that because the religions at issue in both Masterpiece Cakeshop and Fulton were mainstream Christian faiths, it takes a mirror to appreciate how extreme the Court’s analysis of religious freedom has become.
Michael C. Dorf, Robert S. Stevens Professor of Law
“Constitutional Courts in Defective Democracies,” Virginia Journal of International Law, vol. 62 (2021).
Constitutional courts exercising the power to invalidate the outputs of elected bodies can strengthen the liberal democratic character of the polities they serve in three main ways: by reinforcing representation; protecting human rights, particularly those of members of socially disadvantaged groups; and promoting the political system’s stability over time. These functions may be especially important in defective democracies. This essay expounds the utility of constitutional review through the example of the United States, which has a democracy that is defective in various respects, including its allocation of disproportionate political power to a racially identifiable elite. Even so, constitutional review is no panacea. In the face of the extraordinary threats unleashed by a former president and his authoritarian movement, jurists in the United States will need to display great courage to have a chance of preserving the nation’s democratic order.
Maggie Gardner, Associate Professor of Law
“Deferring to Foreign Courts,” University of Pennsylvania Law Review, vol. 169, no. 8 (2021).
Federal judges have too many options for deferring to foreign courts, none of them particularly good. Not only have judges developed at least five different bases for declining to hear transnational cases, but the acceptance and formulation of these bases also varies significantly from circuit to circuit. The courts of appeals have split over recognizing foreign relations abstention or prudential exhaustion, and they have developed different tests for assessing foreign parallel proceedings. Even with forum non conveniens, where the Supreme Court has provided clearer guidance, circuit practice has diverged. Thus in two recent transnational tort cases stemming from the Fukushima nuclear disaster in Japan, a district court in the First Circuit dismissed on a discretionary basis that a district court in the Ninth Circuit had rejected, while the district court in the Ninth Circuit dismissed on a discretionary basis not yet recognized by the First Circuit.
This article uses the Fukushima cases as an opportunity to step back and assess the full range of federal judge-made doctrines for deferring to foreign courts. Its primary aim is to provide a practical roadmap for judges and litigants, one that surveys inter-circuit variation, identifies best practices, and suggests doctrinal refinements. It proposes an updated and simplified rubric for forum non conveniens, a consolidated approach to foreign parallel proceedings, and a distinct doctrine for deference to foreign bankruptcies. It also argues for rejecting prudential exhaustion and abstention based on foreign relations concerns, and it encourages judges to analyze questions of judgment recognition and extraterritorial application of federal statutes without resorting to loose invocations of “abstention” or “international comity.” Judicial deference to foreign courts is sometimes necessary, but it need not be muddled or haphazard.
Valerie Hans, Charles F. Rechlin Professor of Law
“Virtual Juries,” DePaul Law Review, vol. 71 (forthcoming 2022).
The introduction of virtual or remote jury trials in response to the COVID-19 pandemic constitutes a remarkable natural experiment with one of our nation’s central democratic institutions. Although it is not a tightly controlled experimental study, real-world experiences in this natural experiment offer some insights about how key features of trial by jury are affected by a virtual procedure. This article surveys the landscape of virtual jury trials. It examines the issues of jury representativeness, the adequacy of virtual jury selection, the quality of decision making, and the public’s access to jury trial proceedings. Many have expressed concern that the digital divide would negatively affect jury representativeness. Surprisingly, there is some preliminary evidence that suggests that virtual jury selection procedures lead to jury venires that are as diverse, if not more diverse, than pre-pandemic jury venires. Lawyers in a demonstration project reacted favorably to virtual voir dire when it was accompanied by expansive pretrial juror questionnaires and the opportunity to question prospective jurors. A number of courts provided public access by live streaming jury trials. How a virtual jury trial affects jurors’ interpretations of witness testimony, attorney arguments, and jury deliberation remain open questions.
Michael Heise, William G. McRoberts Professor in the Empirical Study of Law
(with coauthor Jason P. Nance)
“‘Defund the (School) Police’?: Bringing Data to Key School-to-Prison Pipeline Claims,” Journal of Criminal Law and Criminology, vol. 111, no. 3 (2021).
Nationwide calls to “Defund the Police,” largely attributable to the resurgent Black Lives Matter demonstrations, have motivated derivative calls for public school districts to consider “defunding” (or modifying) school resource officer (“SRO/police”) programs. To be sure, a school’s SRO/police presence—and the size of that presence—may influence the school’s student discipline reporting policies and practices.
How schools report student discipline and whether it involves referrals to law enforcement agencies matter, particularly as they may fuel a growing “school-to-prison pipeline.” The school-to-prison pipeline research literature features two general claims that frame debates about changes in how public schools approach student discipline and the growing number of calls for schools to defund SRO/police programs. One claim is that public schools’ increasingly “legalized” approach toward student discipline increases the likelihood that students will be thrust into the criminal justice system. A second distributional claim is that these adverse consequences disproportionately involve students of color, boys, students from low-income households, and other vulnerable student subgroups. Both claims include important legal and policy dimensions as students’ adverse interactions with law enforcement agencies typically impose negative consequences on students and their futures. We subject both claims to the nation’s leading data set on public school crime and safety, supplemented by data on state-level mandatory reporting requirements and district-level per-pupil spending, and explore three distinct analytic approaches in an effort to assess the independent influence of a school’s SRO/police presence on that school’s student discipline reporting behavior. Results from our analyses, largely robust to various analytical approaches, provide mixed support for the two claims. We find that a school’s SRO/police presence corresponds with an increased likelihood that the school will report student incidents to law enforcement agencies. However, we do not find support in the school-level data for the distributional claim.
Brian Richardson, Assistant Professor of Law
“The Imperial Prosecutor?” (January 12, 2022), American Criminal Law Review, vol. 59, no. 1.
Federal prosecutors’ authority in the U.S. legal system is imperial. When they act, prosecutors speak for the whole of the U.S. government across all policymaking domains. Ideally, their judgments, expressed in many thousands of retail investigative and prosecutive decisions each year, are meant to be insulated from the interests of other Executive Branch actors—even, on many accounts, from the White House. The relevant ideal is expressed not principally as an injunction against self-dealing or “political” influence, but rather as the far broader norm of prosecutorial independence.
This article describes and appraises a growing set of federal criminal prohibitions that predictably implicate national interests beyond the criminal law, such as national security, diplomatic, and economic interests. Crucially, the criminalization of activity in such policy domains, when paired with exclusive charging discretion for prosecutors, may yield divergent judgments within the Executive about whether the enforcement of criminal law serves the national interest. Yet prosecutors’ deliberative practices take place principally among prosecutors, using the distinctive grammar of ordinary, case-by-case law enforcement judgment. That grammar reflects a conscious selection to allow prosecutors a pro-criminal-enforcement free agency. Moreover, that grammar is, by design, insensitive to other modes of Executive decision-making. On a strong account of the independence norm, prosecutors’ judgment must win.
Because enforcement choices in federal criminal cases are allocated to prosecutors alone, this creates a “deliberative dilemma”: prosecutors wield a power that can affect the whole Executive’s interests, but they can act without transparent access to information about priorities beyond criminal law enforcement. This article argues that we can choose strict prosecutorial independence or whole government deliberation about the national interest, but we cannot have both.
Predictable pathologies ensue when the dilemma is not managed. The ideal of independence may give way to ad-hoc accommodations that are sometimes feigned, sometimes tactical, but in any event sufficiently risky to recommend other models of Branch-wide prosecutorial decision making. After unearthing these tensions, the article concludes by exploring Branch-wide deliberative norms to manage them.
Nelson Tebbe, Jane M.G. Foster Professor of Law
“The Principle and Politics of Liberty of Conscience,” Harvard Law Review, vol. 135 (2021).
Many on the left agree with conservatives that the current free exercise rule insufficiently protects religious minorities. The challenge is to articulate an approach that protects liberty of conscience without endangering the political equality that is essential for any democracy. This article argues for a conception that presumptively protects liberty of conscience while erecting democratic guardrails. This interpretation of free exercise is warranted and might even attract crosscutting support on the Roberts Court. Yet the article also offers reasons to be concerned that the approach could be deployed in the service of a problematic political program. Given that practical reality, lawyers and academics face a difficult choice among several strategies, all of which have serious drawbacks.
W. Bradley Wendel
“Lawyer Shaming” (2022), University of Illinois Law Review, vol. 2022, no. 1.
The Lincoln Project’s effort to shame law firms working on behalf of the Trump campaign is only the most recent example of the public criticism, even vilification, directed against lawyers who represent unpopular clients. The legal profession is mostly unified in its response, which appeals to values such as due process, fairness, and the right to counsel. On the other hand, many scholars contend that lawyers should be morally accountable for actions they take as professionals, since everyone remains a moral agent, even when acting in an institutional role. This article argues that, contrary to the near-unanimous view of lawyers, lawyers are subject to accountability for the clients they represent. In many cases, they have a complete normative defense. The social value of legality is a weighty, but not conclusive justification for providing zealous representation to even the worst clients. However, these role-based considerations do not displace ordinary morality from the field altogether. Ordinary morality persists, and in some cases can produce justified self-evaluations, or ascriptions to others, of regret, guilt, or shame. Building these “moral remainders” into professional ethics can help resist cynicism, amoralism, and alienation of professionals from the resources of morality.
Note: This article was the winner of the 2021 Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility, awarded by the Association of American Law School’s Section on Professional Responsibility.