This Essay takes the Supreme Court’s recent decision in Connick v. Thompson as a point of departure for examining the efficacy of professional responsibility measures in combating prosecutorial misconduct. John Thompson, the plaintiff in Connick, spent fourteen years on death row because prosecutors concealed exculpatory blood evidence from his defense attorneys. In rejecting Thompson’s attempt to hold the New Orleans District Attorney’s Office civilly liable for failing to train its prosecutors in proper discovery procedures, the Connick Court substantially narrowed one of the few remaining avenues for deterring prosecutorial misconduct. Implicit in the Court’s reasoning was a belief that district attorneys' offices should be entitled to reasonably rely on professional responsibility measures to prevent prosecutorial misconduct. This Essay subjects that premise to a searching critique by surveying all fifty states’ lawyer disciplinary practices. Our study demonstrates that professional responsibility measures as they are currently composed do a poor job of policing prosecutorial misconduct. However, we also take seriously the Supreme Court’s insistence that those measures should function as the primary means of deterring misconduct. Accordingly, in addition to noting the deficiencies of professional responsibility measures, we offer a series of recommendations for enhancing their effectiveness.

Introduction

Federal and state law enforcement officials throughout the nation are currently using Global Positioning System (GPS) technology for automated, prolonged surveillance without obtaining warrants. As a result, cases are proliferating in which criminal defendants are challenging law enforcement’s warrantless uses of GPS surveillance technology, and courts are looking for direction from the Supreme Court. Most recently, a split has emerged between the Ninth and D.C. Circuit Courts of Appeal on the issue. In United States v. Pineda-Moreno, the Ninth Circuit relied on United States v. Knotts—which approved the limited use of beeper technology without a warrant—to uphold warrantless use of GPS surveillance technology. However, in United States v. Maynard, the D.C. Circuit held that warrants are required for law enforcement use of GPS tracking devices. In distinguishing Knotts, the D.C. Circuit pointed to the vast differences between the relatively primitive beeper technology used almost thirty years ago and the unprecedented power of GPS surveillance technology used today. The Seventh Circuit Court of Appeals and various state courts are similarly divided. In light of this confusion, the Supreme Court has recently agreed to review the issue, granting certiorari from the decision of the D.C. Circuit in Maynard and leaving the Pineda-Moreno petition in a holding pattern. On November 8, the Supreme Court will hold oral arguments in the case, which was docketed under the new name United States v. Jones.

The Supreme Court’s Fourth Amendment doctrine, including its cases evaluating new surveillance technologies, has always been informed by one of the Amendment’s animating principles: its mandate to prevent abuse of police power. While the Court has not always articulated this theory of the Fourth Amendment as clearly as it could have, a careful review of the case law reveals a concern about abuse and “a too permeating police surveillance.” This reading demands that, in any review of new surveillance technology, courts must evaluate the technology’s potential for abuse.

“No man in this country is so high that he is above the law.”
—United States v. Lee, Dec. 4, 1882

“[N]o individual is superior to the game.”
—Commissioner A. Bartlett Giamatti, Aug. 24, 1989

Introduction

At his 2005 confirmation hearing, Chief Justice Roberts explained that he viewed the job of a Supreme Court Justice as similar to that of an umpire, declaring, “Umpires don’t make the rules; they apply them. . . . They make sure everybody plays by the rules. . . . And I will remember that it’s my job to call balls and strikes, and not to pitch or bat.” That analogy was an “instant success” and has become the dominant paradigm in media accounts of the judicial role. In a 2010 essay, I traced the history of the judge-umpire analogy from 1888 to the present and found that the judge-umpire analogy was originally intended to apply to trial court judges and was advanced as a model expressly to be rejected. In place of the judge-umpire analogy, I proposed that a Supreme Court Justice is more appropriately analogized to the Commissioner of Baseball.

This Essay reinforces the Justice-Commissioner analogy in two ways. First, it traces the Justice-Commissioner analogy back over a century, finding that the Commissioner of Baseball has been compared to the Supreme Court since the Office of the Commissioner was created. This is no coincidence: both Justices and Commissioners play the same structural roles in their respective systems. Neither a Justice nor a Commissioner is a fact-finder searching for a clear right answer to a specific question—for example, was the ball in the strike zone? Rather, both make inherently difficult, controversial, and value-influenced decisions at high levels of abstraction; both interact with and modify the rules of their respective systems in order to preserve their respective institutions’ core values, such as fair play and due process. In short, being a Justice and a Commissioner is hard: there are not always clear right and wrong answers.

Second, this Essay illustrates the similarity of Justices and Commissioners through nine paired case studies where Justices and Commissioners have, in their respective capacities, (1) provided guidance, (2) refrained from error correction, (3) undertaken rulemaking, (4) exercised countermajoritarian powers, (5) provided explanations for their decisions, (6) protected the fundamental values of their respective institutions, (7) employed special masters for fact-specific inquiries, (8) decided on statutes of limitations, and (9) exercised finality. This Essay concludes that Chief Justice Roberts had the right sport but the wrong position: Justices are not umpires; they are Commissioners.

**In May 2011, The Yale Law Journal Online introduced a new series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases. This Essay is part of the second symposium in that series.**

In American Electric Power Co. v. Connecticut (AEP), the Supreme Court held that “the Clean Air Act and the EPA actions it authorizes displace any federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants.” This set of commentaries explores several of the interesting and controversial issues that the opinion addresses (or largely sidesteps). These essays analyze the complexities of the context in which the core displacement holding takes place, the opinion’s environmental justice implications, its interaction with current standing doctrine, the political question doctrine issues briefed in the case but not addressed in detail by the decision, and common law nuisance actions as an approach to addressing climate change. My commentary situates these essays in relation to one another and adds to this dialogue by considering the decision’s implications for the future of climate change litigation in the United States.