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Janus and the Movement DissentThis paper examines Justice Kagan’s 2018 dissent in Janus v. AFSCME to illustrate how incisive, bold, and creative dissents can bolster ordinary citizens seeking constitutional change. Using the tools of intellectual history, the paper shows that the dissent created a dialogic relationship between the Supreme Court and labor activists and liberal academics. It then explores how progressive commentators, union leaders, politicians, and workers deployed the Janus dissent in political and discursive organizing that resisted the Court’s constitutional and economic visions. The paper concludes by reflecting on the promise of movement dissents in channeling constitutional cynicism and alienation into constitutional construction.
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The Road From Rhodes: The Impact of Double Celling on State Investment in IncarcerationExactly forty years ago, the Supreme Court decided Rhodes v. Chapman, holding that Ohio’s practice of double celling prisoners did not violate the Eighth Amendment. In contravention of American Correctional Association and architectural minimum standards, the practice has since only continued to spread among prisons as a way to decrease the financial burdens of a rapidly expanding prison population. Both the COVID-19 pandemic and recent calls for prison abolition have brought the issues of overcrowding and carceral investment to the forefront of the national consciousness. This essay explores the financial costs of incarceration that states are able to avoid by virtue of their double celling practices. First, this essay provides a historical context to double celling, surveying prison space standards and variables designed to measure prison capacity, before drawing on Rhodes v. Chapman as a case study for estimating Ohio’s avoided costs before and after Rhodes. Second, this essay examines modern prison expenditures and overcrowding, using those figures to estimate the costs that Alabama’s prison system—which spends the least on its inmates— is able to currently externalize. Both federal and state prison systems should internalize these costs. Currently, governments simultaneously overinvest in the size of their carceral systems while underinvesting in the quality of prisons. This situation allows for the development of a carceral policy disconnected from the actual costs of incarceration. As a start, standards governing minimum space requirements exist and should be enforced. Individual state legislatures have near-plenary power over their prison systems, and Congress can provide incentives for states to comply with humane standards. Congress has direct powers over the federal system, and the executive branch can exercise control over the Federal Bureau of Prisons, an agency housed in the Department of Justice. In addition, much of the confusion around whether or not prisons meet minimum standards in the first place centers around inconsistent and incomplete data. Relevant government authorities should mandate—or at least heavily incentivize—data collection and standardization; otherwise, carceral systems will shield themselves through ambiguous and deficient data. Permitting double celling has created perverse incentives for prison systems, providing opportunities for prisons to minimize their financial costs at the expense of prisoners’ health and safety. COVID-19 has shown us the devastating consequences of such policies. The time to act to curtail Rhodes v. Chapman’s reach is now.
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Mechanism Design and Behavioral Economics: Incentivizing Optimal Pre-Trial DiscoveryPractitioners and judges recognize excessive civil discovery to be a widespread and serious issue. Since litigants bear only a small portion of the costs of their own discovery requests and face unconscious psychological biases, they regularly seek far more discovery than would be relevant and proportional to proving their case. This in turn massively inflates litigation costs for their opponents. The 2015 Amendments to the Federal Rules of Civil Procedure (FRCP) recognized and confronted this problem directly: they rewrote Rule 26(b)(1) to encourage judges to more actively ensure that discovery requests are “proportional” to the needs of the case. In showing precisely how judges should implement the revised Rule 26(b)(1), I first explore the causes underlying excessive discovery. I draw on insights from classical economics (which understands litigants as purely rational actors) and from behavioral economics (which explores litigants’ psychological biases) to explain the current prevalence of excessive discovery. I then use techniques from mechanism design, a branch of mathematical economics, to develop a new discovery system. Under this system, judges formulate rigorously the “proportionality” standard envisioned in the amended FRCP, which they implement by correcting for the aforementioned causes of excessive discovery. I conclude by exploring questions regarding this proposed system’s real-world feasibility.
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The Remediless Reading RightLawmakers nationwide are trying to improve reading by embracing a scientific consensus regarding literacy acquisition and enacting robust regulatory regimes touching every part of the learning process. For most actors, “Right to Read” laws establish clear accountability rules and noncompliance remedies. However, students who are not provided with statutory reading entitlements have inconsistent or nonexistent remedies against their schools. As a result, states do not hold accountable educators using debunked instructional methods and schools failing to provide necessary interventions. And courts abstain from enforcing their entitlements based on anachronistic research and policy. This Note introduces the new literacy science and laws, arguing descriptively that Right to Read regimes are enforceable under an implied right of action or a statutory negligence claim. Nevertheless, it recommends that lawmakers enact a public enforcement scheme that would better serve the students most in need of support.
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Felon Re-Enfranchisement and the Problem of “Lost” RightsBy conditioning the restoration of political rights on financial repayment, states have prevented hundreds of thousands of citizens with felony convictions from participating politically—profoundly altering the shape of the American electorate. Courts have upheld the practice by treating restoration as an exercise of legislative grace to nonmembers of the political community. Critics argue that the practice conditions political participation on wealth status and is therefore subject to heightened review. This Essay traces the disagreement back to an overlooked first-order question: how should the juridical status of a disenfranchised citizen’s “lost” rights be understood? The conventional position assumes that disenfranchisement casts a citizen outside the democratic community, thereby voiding all constitutional claims to political participation. But for doctrinal and democratic-theoretical reasons, disenfranchisement is better understood as the subordination—not the revocation—of political rights and interests, just as punishment suppresses but does not eliminate an individual’s constitutional interests in physical liberty or other civil liberties. From this it follows that disenfranchised citizens retain a stake in political inclusion that cannot be conditioned on wealth status. Redescribing the disenfranchisement-to-restoration process in this way aligns with the Supreme Court’s reading of Section 2 of the Fourteenth Amendment in Richardson v. Ramirez and sharpens the constitutional symmetry between financially conditioned restoration and the paradigmatic poll tax. By framing re-enfranchisement as a constitutional default and drawing attention to disenfranchised citizens’ enduring claim to political presence, this account may also be of use in popular restoration efforts outside the courts.
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Locking the Doors to Discovery? Assessing the Effects of Twombly and Iqbal on Access to DiscoveryMany observers believe the Supreme Court’s Twombly and Iqbal opinions have curtailed access to civil justice. But previous empirical studies looking only at Rule 12(b)(6) grant rates have failed to capture the full effect of these cases because they have not accounted for party selection—changes in party behavior that can be expected following changes in pleading standards. In this Note, I show how party selection can be expected to undermine the empirical usefulness of simple grant-rate comparisons. I then use a conceptual model of party behavior that allows me to derive an adjusted measure of Twombly/Iqbal’s impact and show how to estimate a lower bound on this measure using data from recent studies by the Federal Judicial Center. My empirical results suggest that, depending on the nature of the suit in question, Twombly and Iqbal have negatively affected plaintiffs in at least 15 to 21% of cases that faced Rule 12(b)(6) motions in the post-Iqbal data window. Again depending on the nature of the suit, these figures represent between one-fourth and two-fifths of the cases that fail to reach discovery on at least some claims in the post-Iqbal data window.
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Family Integrity and Incarcerated Parents: Bridging the DivideToday, it is not uncommon for parents in prison—particularly those who lack economic resources and supportive family networks—to lose their parental rights while they are incarcerated.[1] The Adoption and Safe Families Act (ASFA), a federal law passed in 1997, creates incentives to move children out of foster care and into adoption placements as quickly as possible, requiring states to file petitions to terminate parental rights when children have been in foster care for fifteen of the past twenty two months.[2]Parents in prison are likely to trigger this filing deadline, as the typical sentence for an incarcerated parent is between eighty and one hundred months.[3]At the same time, practical and legal obstacles make it difficult for parents in prison to maintain contact with and plan for the future of their children, actions that become crucial if a parent is to defend herself against accusations of neglect.[4] [1]See infranotes 75-77 and accompanying text. See alsoArlene F. Lee et al., Child Welfare League of America,The Impact of the Adoption and Safe Families Act on Children of Incarcerated Parents PAGE (2005), available at www.fcnetwork.org/Resource%20Center/cop_pubimpact.pdf(discussing studies which indicate a significant increase in the number of termination cases involving incarcerated parents since the adoption of the Adoption and Safe Families Act in 1997; one study estimates that the increase is as high as 250%). [2]Pub. L. No. 105-89, §103, 111 Stat. 2118-20 (codified as amended in 42 U.S.C. §675(5)). [3]Steve Christian, Nat’l Conference of State Legislatures, Children of Incarcerated Parents PAGE (2009), available at www.ncsl.org/documents/cyf/childrenofincarceratedparents.pdf.See also Kathleen S. Bean, Reasonable Efforts: What State Courts Think, 36 U. Tol. L. Rev. 321, 348-51 (2005) (noting that average prison sentences are longer than the twenty-two-months). [4] See infrapp. 29-31.
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A Punitive Bind: Policing, Poverty and Neoliberalism in New York CityNarrowly conceived, neoliberalism is a system of economic ideas and policy initiatives that emphasize small government and market-based solutions to social and economic problems. Adopted in response to the fiscal, welfare and racial crises of the Keynesian state, neoliberalism has become the dominant governing principle in the United States over the last forty years. A growing body of literature has shown how the rise of neoliberalism has underwritten the massive expansion of the American criminal justice system and the growth of its incarceral arm. Yet theorists of neoliberalism have largely ignored how the rise of neoliberalism has affected policing practices and, in turn, have failed to consider the role that police play in the neoliberal state.
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The Fusion of Law and Equity in the Field Code of Civil Procedure: New York, 1846-1876In 1848, New York enacted a code of civil procedure that powerfully influenced the common law world. The Field Code, named after one of its drafters, David Dudley Field, systematized New York’s procedural law and combined the previously separate systems of common law and equity. In the following decades, thirty other American states enacted versions of the Code, and English legal reformers studied New York’s experience to inform their efforts at fusion. Although scholars agree on this general outline,[1] they differ regarding what the Code really accomplished. Writing in 1948,[2] Roscoe Pound argued that the characteristics of the modern Federal Rules of Civil Procedure “could have been attained at least eighty years [earlier] if Field’s Code of Civil Procedure had been developed and applied in its spirit instead of the spirit of maintaining historical continuity.”[3] Pound particularly praised the “equitable shortcuts” of the Code.[4] [1] See, e.g., Lawrence Friedman, A History of American Law 293-97 (3d. ed., 2005); Robert W. Millar, Civil Procedure of the Trial Court in Historical Perspective 54-55 (1952). [2] For the centennial of the Field Code, Professor Alison Reppy organized a conference on the Code at New York Law School. See David Dudley Field: Centenary Essays (Alison Reppy ed., 1949) [hereinafter Centenary Essays]. The presentations typically celebrated more than they clarified, however. The presenters frequently relied on Henry Martyn Field’s biography of his brother, Henry Martyn Field, The Life of David Dudley Field (1898) [hereinafter Life of Field], and they occasionally retain Henry’s extreme rhetoric. For instance, Reppy concluded that Field “believed that with righteousness on his side, he would gather strength as he fought the battle to cut a passage through the labyrinth of judicial myth and precept and ‘cast up a highway that should lead straight to the Temple of Justice.’” Alison Reppy, The Field Codification Concept, in Centenary Essays, supra, at 52 (quoting Life of Field, supra, at viii). [3] Roscoe Pound, David Dudley Field: An Appraisal, in Centenary Essays, supra note 2, at 14. [4] Id. The two main drafters of the FRCP, Charles Clark and Edson Sunderland, largely agreed. See Charles E. Clark, Code Pleading and Practice Today, in Centenary Essays, supra note 2, at 55; Edson R. Sunderland, Modern Procedural Devices, in Centenary Essays, supra note 2, at 83.
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The Origins of the Oral Deposition Under the Federal Rules: Who’s in Charge?This paper traces the origins of the oral deposition1 in the Federal Rules of Civil Procedure (“Federal Rules”) with an emphasis on the role of the officer in charge of the deposition. In Parts II and III, I document the origins of the deposition, drawing on published sources. In Parts IV and V, I draw upon unpublished sources regarding the 1930s Advisory Committee’s decision not to provide for a judicial officer who would have the authority to rule on the admissibility of evidence during the deposition. That decision was an important, yet overlooked, element in the shaping of modern American civil procedure, including the displacement of civil trial by pretrial discovery.
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The constitutionalism of Electricity Restructuring: A Case Study in Statutory ReinterpretationSince 1935, shortly after the Supreme Court held that state regulation of interstate electricity transactions violated the Dormant Commerce Clause of the U.S. Constitution, the federal government has been the primary regulator of wholesale electricity generation. The Federal Power Act (FPA), which was passed to remedy the regulatory “gap” created by the Supreme Court’s holding, has received significant amendments in 1978, 1992 and 2005. Nonetheless, the basic crux of the Act, a requirement that federal regulators ensure “just and reasonable” rates and prevent “undue discrimination” or “undue preference,” has remained relatively unchanged since 1935. Yet the regulatory structures created to enforce those obligations would be unrecognizable to one of those early regulators. Indeed, federal electric utility regulation has evolved from a classic New Deal model based on “the cost of service” to a market-based regime premised on vigorous competition. Throughout the first fifty years of the FPA’s history, electricity generators filed tariffs with government technocrats who, at the request of an affected party, could review the generator’s cost to produce the electricity to determine whether the rates in the tariff were “just and reasonable.” Today, the rate of return on most sales of electricity is determined by market competition. Rather than scrutinizing a utility’s books, regulators ensure that rates are just and reasonable by maintaining a healthy market. This “revolution” in electricity regulation occurred during a twenty-year period between 1980 and 2000. Surprisingly, given the scope and significance of the reforms, the changes were initiated largely through rulemaking and adjudication by the Federal Energy Regulatory Commission (FERC or “the Commission”), rather than congressional legislation. Although Congress ratified the Commission’s changes to the regulatory structure in both 1992 and 2005, Congress did not play a leading role in restructuring the electricity industry. Instead, the changes were the result of FERC’s reinterpretation of what was permitted and required by the basic standards in the 1935 version of the FPA —“just and reasonable” and “undue discrimination” or “undue preference.” This paper argues that electricity restructuring provides an excellent example of politically legitimate Administrative constitutionalism or statutory reinterpretation. By acting pursuant to its delegated authority, within its established jurisdiction, and in a way that reflected Congressional preferences commission, the Commission exercised its authority in a politically legitimate fashion. Moreover, by doing so incrementally, it promoted deliberation, both within the Commission and with stakeholders in industry and Congress, about how its regulations should evolve. Of course this deliberation cannot give the agency the power to do what a statute says it cannot. But where a statute is vague or unclear, a robust dialogue and the involvement of outside stakeholders mitigate the concern about agencies “run amok.” Indeed, combining robust agency deliberation with its experience and expertise should promote effective regulation that is responsive to the needs of industry and the policy preferences of Congress. This type of regulatory change is a desirable means of addressing statutory ambiguity and should be accepted, both by courts and in the scholarly understanding of the administrative state.
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One of These Things Is Not Like the Others: Legislative History in the U.S. Courts of Appeal“In the past few decades, however, we have developed a legal culture in which lawyers routinely—and I do mean routinely—make no distinction between words in the text of a statute and words in its legislative history.” Justice Scalia, A Matter of Interpretation[1] How accurate is Justice Scalia’s characterization of American legal culture? Has runaway purposivism erased the distinction between statutory text and legislative history? Most scholars of statutory interpretation say no—although at one point legislative history seemed poised to dominate statutory interpretation, Justice Scalia and othertextualists have succeeded in defending the primacy of text. In arriving at this answer, the intellectual conversation has focused onstatutory interpretation at the Supreme Court. But Justice Scalia’s assertion sweeps far beyond the Court; it is a claim about “legal culture”. So the question remains: how has legislative history fared outside of the Supreme Court? In this paper, I aim to begin answering a small piece of this question by investigating the evolution of the use of legislative history in the circuit courts. I counted all of the citations to legislative history made by the circuit courts between 1950 and 2006. This data reveals the degree to which the circuit courts’ usage patterns either confirm or reject Justice Scalia’s claim about the prevalence of legislative history in statutory interpretation. [1]Antonin Scalia, Common Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation: Federal Courts and the Law 3, 18-23 (Amy Gutman ed., 1997).
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Property Without Possession: Defining Private Instream Rights in Western Water LawSince the early 1970s most western states have made a concerted effort to either maintain or augment the quantities of water flowing in their rivers and streams. Environmental interest groups, recreation industries, and those with aesthetic or other interests in increasing the amount of water in these natural channels have provided widespread support for these efforts, yet there has been little success in impacting instream flows in any material way. A promising solution is the privatization of rights to instream flows, such that private entities or individuals could purchase and enforce instream water rights; and instream uses of water could compete in the market for water against traditional consumptive uses. However, attempts by states to implement privately held instream rights have also been unsuccessful thus far. In this paper, I propose that the definition of water rights established by the early western settlers in the mid-nineteenth century is a primary reason for the present day inefficiency and inability to accommodate private ownership of non-consumptive uses of water.
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Nudging’ Section 8 Recipients Out of the GhettoThe nation’s largest housing assistance program, the Housing Choice Voucher Program (Section 8) annually provides housing vouchers to over 2 million eligible households for use in the private rental market.[1] While Congress intended for the program to “aid low-income families in obtaining a decent place to live and…promote economically mixed housing,”[2]in its almost forty year tenure, Section 8 has largely failed to improve locational outcomes or increase integration.[3] Voucher recipients remain concentrated in moderate to high poverty neighborhoods with predominantly minority populations.[4] This geographic distribution of vouchers perpetuates segregation, exacerbates the problems of poverty (joblessness, crime, delinquency, broken families, low educational attainment, etc.), and leads to poor individual outcomes.[5] It also contravenes the Section 8 program’s stated goal of improving locational outcomes,[6] the Fair Housing Act’s mandate to affirmatively further fair housing in the administration of all federal housing programs,[7] and finally the Fair Housing Act’s prohibition on even facially neutral housing practices that perpetuate segregation.[8] [1]Xavier de Souza Briggs, Susan J. Popkin & John Goering, Moving to Opportunity: The Story of an American Experiment to Fight Ghetto Poverty 42 (2010). [2]United States Housing Act of 1937, 42 U.S.C. § 1437f(a) (2006). [3]Alex F. Schwartz, Housing Policy in the United States 175 (2006). [4] Judith D. Feins & Rhiannon Patterson, Geographic Mobility in the Housing Choice Voucher Program, 8.2 Cityscape 21, 22 (2005). [5] See infra Section I.A(3). [6]Housing and Community Development Act of 1974, Pub. L. No. 93-383, § 101(c)(6), 88 Stat. 633 (codified as amended at 42 U.S.C. § 5301(c)(6) (2006)). [7]Fair Housing Act, 42 U.S.C. § 3608(e)(5) (2006). [8]Fair Housing Act, 42 U.S.C. § 3604 (2006) (as interpreted at Section 8 Housing Choice Voucher Program – Demonstration Project of Small Area Fair Market Rents in Certain Metropolitan Areas, Discussion of Comments, and Request for Participants, 76 Fed. Reg. 22122, 22124 (Apr. 20, 2011)).
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Lawfare in Luzon: The American Application of the Rules of War in the Philippines, 1898-1903The campaign fought in the towns, villages, and jungle paths of the Philippine Islands at the turn of the last century long remained outside the mainstream of U.S. historical memory, but it has returned during the current conflict with al-Qaeda and its affiliates. For military historians, the Philippine-American War—fought in a faraway land on difficult terrain against an elusive, irregular foe who often enjoyed the support of local civilians—represents a paradigmatic, successful counterinsurgency. Legal scholars, for their part, have focused on the military commissions before which the United States government, then as now, tried its enemies for violating the laws of war. In recent years, legal academics, military lawyers, and even the military commissions themselves have looked to these earlier tribunals as a source of precedent. Meanwhile, cultural historians have drawn implicit and explicit comparisons between the Philippine-American War and the U.S. engagement in Iraq since 2003, examining and comparing the role of racial assumptions in driving violence and torture.
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Site-Specific Works and the Visual Artists Rights Act: Modeling a More Flexible Approach on the Building ExceptionA real estate developer hired a sculptor, David Phillips, to create and install a group of sculptures with an aquatic theme in a public park facing Boston Harbor. Known for his reverence for natural beauty, Phillips created “fifteen abstract bronze and granite pieces and twelve realistic bronze sculptures of various aquatic creatures, including frogs, crabs, and shrimp.” The park—its paths and landscaping—was designed to incorporate the sculptures, with the largest one, an abstract spherical work carved out of granite, at the center of the park. Phillips conceived of the dozens of sculptures as an “integrated work of visual art” which, if rearranged or relocated, would lose much of its artistic meaning. The sculptures were integrated in their relationships to each other as well as within the entire park, and the finished product—the park itself—was, the artist claimed, a site-specific work of art. That is, the work’s placement in its location was as much a part of the work as the stone and metal the sculptures were made from. Site-specific works, unlike “plop art” (portable works that may be situated anywhere), thus cannot be moved without being artistically altered.
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Minimalism, Experimentalism and the Regulation of Risk: A Reply to Sabel and SimonExperimentalism is an increasingly important trend in the study and practice of administrative law. Over the course of the past decade, exponents of Experimentalism have presented a comprehensive critique of the centralized administrative state. Alongside this critique, they have advanced their own agenda for sweeping regulatory reform. This agenda calls for the devolution of decisionmaking to local units, which then adopt “rolling rules” (or “rolling best practices”) that evolve as new information on policy outcomes emerges. These elements of Experimentalist regimes stand in contradistinction to two features that characterized public administration through much of the twentieth century: the centralization of authority and the reliance on proceduralized rulemaking.
