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Mormon PropertyFor most of the latter half of the nineteenth century, the American government fought desperately to rein in the Mormons in Utah. Narratives about this conflict generally treat it as one centered on polygamy or tensions between religion and the state. This paper, however, considers the central role of competing visions of property and property law in the Mormon-American conflict. It explores how the Mormon property system was not only a driver of the conflict but also one of the Mormons’ most important tools in attempting to subvert and overcome the American legal system. In particular, it outlines how the Mormons treated group identity and community standing as a property asset in order to govern through ecclesiastical structures independent of state authority. This historical context offers three advantages. (I) First, a framing centered on competing visions of property law sheds new light on the historical causes and drivers of the Mormon-American conflict and the drastic legal actions of the federal government, including those of the Supreme Court in several prominent decisions. (II) Second, this novel historical framing provides a new throughline for understanding the evolution of the Mormon property system and underscores an overlooked irony in the development of Mormon history: in attempting to subvert “sole and despotic” Anglo-American property norms, the Mormons ultimately succumbed to the American property logic under increasingly elaborate property arrangements. (II) Third, exploring the Mormon property system as one of law rather than merely religion inspires new appreciation for the role of non-state institutions in private ordering and enforcing property systems. At this level, this paper attempts to flesh out the story of the administration of property in Territorial Utah, under the law of consecration, as a case study in law without violence.
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The NBA’s “One-and-Done” Rule: Procompetitive Justifications and Anticompetitive EffectsIn 2005, the National Basketball Association (NBA) implemented a rule prohibiting players from entering the League directly after high school. To be eligible to join the NBA, players need to meet two conditions: (1) at least one year must have elapsed since they graduated high school, and (2) they must be 19 years old or must turn 19 the year they enter.1 This rule,2 often termed the “One-and-Done” Rule, was first enacted in advance of the 2006 NBA draft. The most talented high school athletes tend to compete in National Collegiate Athletic Association (NCAA) basketball until they are eligible to play professionally, although a few alternative options do exist. To fully understand the anticompetitive and procompetitive effects of the One-and-Done Rule, this Article will examine the justifications and consequences of the rule under a fullrule- of-reason approach that courts may take if the legality of the rule were to be litigated.3 The following analysis demonstrates that, on balance, the rule has salient anticompetitive effects on the market for talented young basketball players, and may violate antitrust laws.
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The Second Amendment on Board: Public and Private Historical Traditions of Firearm RegulationIn New York State Rifle & Pistol Association, Inc. v. Bruen, the Supreme Court reaffirmed that laws prohibiting the carrying of firearms in sensitive places were presumptively constitutional. Since Bruen, several states and the District of Columbia have defended their sensitive-place laws by analogizing to historical statutes regulating firearms in other places, like schools and government buildings. Many judges, scholars, and litigants appear to have assumed that only statutes can count as evidence of the nation’s historical tradition of firearm regulation. This Note is the first expansive account since Bruen to challenge this assumption. It argues that courts should consider sources of analogical precedent outside of formal lawmaking when applying the Court’s Second Amendment jurisprudence. Taking public transportation as a case study, the Note surveys rules and regulations promulgated by railroad corporations in the nineteenth century and argues that these sources reveal an historical tradition of regulating firearm carriage on public transportation. Bruen expressly permits courts to engage in more nuanced analogical reasoning when dealing with unprecedented concerns or dramatic changes. One such change is the shift in state capacity that has placed sites that were previously privately or quasi-publicly operated before the twentieth century under public control in the twenty-first century. As in the case of schools, which the Court has already deemed sensitive, a substantial portion of the nation’s transportation infrastructure in the nineteenth century was not entirely publicly owned and operated. This case study instructs that courts and litigants can best honor Bruen’s history-based test by considering all of the nation’s history of firearm regulation.
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Statutory StructureOne of the least controversial tools of statutory interpretation the Supreme Court employs is also one of its least examined: the use of a statute’s “structure.” For decades—but particularly under Chief Justice Roberts—the Court has determined the meaning of ambiguous statutory provisions through reference to the “structure,” “scheme,” or “plan” of a statute. Despite its ubiquity in the Court’s opinions, however, structural argument in statutory interpretation has gone largely unexamined by scholars. This Note attempts to fill that gap. Through an analysis of recent case law, this Note categorizes the types of structural argument employed by the Court in its statutory-interpretation cases and the various assumptions needed to motivate such arguments. This fine-grained mapping permits a closer normative evaluation of structural argument and, in particular, of its compatibility with different methodologies of statutory interpretation. All dominant methods for reading statutes have good reason—on their own terms—to employ some types of structural argument, which demonstrates its cross-methodological appeal. But purposive reasoning best embodies the assumptions of coherence and rational design that undergird structuralism. The sway of this type of argument over a hypertextualist Supreme Court thus suggests the enduring need for purposive reasoning, particularly as the traditional tools of purposivism—such as legislative history—have been largely abandoned.
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Brief for Respondents, Tyler v. Hennepin County, MinnesotaQUESTIONS PRESENTED 1. Whether selling a tax-forfeited property to satisfy a tax debt and keeping the surplus value violates the Fifth Amendment’s Takings Clause in the absence of any state-created property right to that surplus value. 2. Whether a tax forfeiture of a property worth more than needed to satisfy its tax debt, plus interest, penalties, and costs, is a “fine” within the meaning of the Eighth Amendment.
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SUBMISSION FOR THE JOSEPH A. CHUBB COMPETITION PRIZEThis writing sample is an assignment I submitted to Yale’s Supreme Court Advocacy Clinic. I was asked to review the certiorari petition and corresponding files in State of Oklahoma v. Robert Eric Wadkins, and then to draft a mock “cert pool memo.” The case addressed what requirements a criminal defendant must satisfy to qualify as an “Indian” for purposes of federal criminal law. I recommended the “Court” deny the petition. The assignment did not require formal Bluebook citations, but I have added them for purposes of this submission.
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ON WRONGS AND JUSTIFICATIONSIn this paper, my goal is to shed light on a recent debate regarding the nature of justifications and wrongs in criminal law. As we delve deeper into the topic, we will see that wrongs and justifications are conceptually intertwined, and it is, therefore, crucial to have a clear understanding of their nature. The theoretical disputes and perplexities surrounding this topic can be attributed, in part, to an improper conception of moral wrongs. However, once we have a better understanding of this phenomenon, we will be able to account for many of the issues associated with the nature of justifications in criminal law. The distinction between offence denials and justifications is not morally neutral. The former assumes that there are no decisive moral reasons against performing an action. In short, they deny the existence of an offense altogether. Justifications, on the other hand, acknowledge the existence of an offense but deny that the conduct is wrong all things considered. To have a defense is to concede the existence of a pro tanto wrong or a provisional complaint, but to reject the claim that the conduct is wrongful in the particular context in question.
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THE KIDS ARE NOT ALRIGHT: ENDING THE UNCONSTITUTIONAL RELIANCE ON JUVENILE CONDUCT TO ENHANCE FEDERAL CRIMINAL SENTENCESUnder the U.S. Sentencing Guidelines’ recidivism provisions, prior judgments can be used to enhance a federal defendant’s advisory sentence and block relief from draconian mandatory minimums. This includes past offenses the defendant committed before age 18—whether the individual was prosecuted as an adult or as a juvenile. The use of pre-18 conduct to enhance later adult sentences is both constitutionally suspect and bad policy. First, the practice stands in tension with the U.S. Supreme Court’s juveniles-are-different line of cases that has recognized that “children are constitutionally different from adults in their level of culpability.” Second, the way in which the Guidelines draw a line between juvenile and adult priors generates unequal treatment between similarly situated defendants based on geography and race, a result at odds with the Guidelines’ “primary goal” of eliminating unwarranted sentencing disparities. Third, because juvenile systems in many states impose punitive sanctions while denying young people the right to a jury trial, the Guidelines enhance sentences based on convictions obtained in violation of the Sixth Amendment. Now that the U.S. Sentencing Commission is back in action following a three-and-a-half-year hiatus, this article recommends that the Commission amend the Guidelines to prohibit the use of offenses committed before age 18 to enhance advisory sentences. While those changes are pending, criminal defense attorneys and judges should implement training sessions to educate themselves about the flaws in the Guidelines so they can adjust their advocacy and sentencing decisions accordingly.
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Like Circus Clowns and Movie Actors, Women Should Deduct Their Work-Appearance CostsThe tax law on the deductibility of working expenses seems, on its face, gender neutral. A closer look shows that the doctrine fails to account for women’s working experiences, with the result that working women pay higher income taxes than working men. Women have historically been confined to the private sphere of the home and prohibited from engaging in the public sphere, both explicitly and constructively. Though much has changed in the world, scars of the previous division remain. The law of federal income taxation in the U.S. draws a seemingly unrelated distinction between the ‘personal’ and ‘business’ expenses of working in the public sphere. Expenses which are ordinary and necessary for the production of income are deductible, while those whose value is thought to be enjoyed more personally are not. This doctrinal distinction grows out of a body of law that, in addition to being drafted almost exclusively by men, contemplated a world in which the ‘production of income’ was taken on (and deducted) almost exclusively by men. Now that women make up about half of the U.S. workforce, the line between business and personal costs of working may require a shift, in consideration of women’s working experiences.
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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.
