Discovery is the linchpin of our fact-based justice system. Because social policy in the United States is often enforced by civil suits, discovery is a cornerstone of civil rights, environmental, product liability, fraud, and antitrust law. Often the only way to meet the high standard of proof required in these areas of the law is to present evidence demonstrating clear patterns of behavior and showing who knew what and when. The recent revisions to the discovery rules missed the opportunity to create rules that would encourage the use of technology to make the justice system more transparent and more just.
The forthcoming Federal e-discovery Rules are a welcome advance, but they do not address all of e-discovery’s challenging issues. For example, how should the law treat instant messaging (IM) or other forms of real-time communications? When must organizations or individuals preserve dynamic data such as databases or work in progress? Practical realities and established legal principles from the age of typewriters and telephones teach us that businesses should need to preserve real-time communications and dynamic data only when they record them for business purposes.
The new procedures for electronic discovery might encourage companies to spy on their own workers. To prevent that from happening, I argue that courts should apply the new rules—which will likely take effect in December—in a way that discourages the abuse of surveillance technologies and protects workers’ privacy. When weighing the benefits of a particular discovery request against the costs, judges should consider an invasion of workers’ privacy as one of the costs.
Pity the poor appellate judge. All alone, she sits in her chambers with just her clerks, law books, and the cold, bleak trial record for company. No witness’s testimony to hear. No defendant’s demeanor to observe. How is she supposed to determine what is—or is not—a reasonable sentence?
After United States v. Booker, federal district judges may no longer just find Guideline-specified facts, plug those facts into a Guideline calculation, and then mechanically impose a Guideline sentence. Instead of sentencing-by-the-numbers, Booker requires district courts to exercise independent reasoned judgment when imposing a sentence, and requires appellate courts to ensure sentences are both reasoned and reasonable.
Judicial opinions post-Booker reflect something that the great legal scholar Yogi Berra described. The same decisions that turned the Federal Sentencing Guidelines (“Guidelines”) into mandatory rules are being adopted by courts across the country, with the same results. Booker or no Booker, it is déjà vu all over again!
In United States v. Booker, the Supreme Court constitutionalized sentencing in a way it had not done before. The Guidelines, the Court held, were not guidelines in any meaningful sense of the word. So long as they required judges to find facts that had consequences pre-ordained by the United States Sentencing Commission (“Commission”), what judges did looked exactly like what juries were supposed to do, and that violated the Sixth Amendment. As a remedy, the Court severed the provisions of the Sentencing Reform Act of 1984 (“SRA”) that made the Guidelines mandatory. Courts were to “consider” the Guidelines but could sentence individuals in light of all the purposes of sentencing: retribution, deterrence, public safety, and rehabilitation. Appellate courts were to review sentencing decisions for “reasonableness” not for their strict fealty to the Guidelines. The Guidelines, in short, were now “advisory,” the Court announced.
Justice Breyer's remedial opinion in United States v. Booker not only rendered the Federal Sentencing Guidelines advisory but also called on appellate judges to ensure that sentences are not "unreasonable." Eighteen months after Booker, the appellate courts are still grappling with how to determine whether a sentence is reasonable or not. This month, four authors--Judge Nancy Gertner, Professors Doug Berman and Steve Chanenson, and Yale Law Journal Editor Eric Citron--offer their perspectives on the definition and practical meaning of appellate review of sentencing.
Americans take seriously the difference between acts and ideas. We remain mystified, for example, by the to-do about the cartoons depicting the Prophet Muhammad. The act-idea distinction is alive and well in our culture, and it remains largely intact in American law. No store owner puts up a sign saying, “You covet it, you bought it!” If you want to show your commitment to “manliness” by refusing to hire women, you’re out of luck. Don’t want to pay your taxes because you don’t like the Administration’s views? Move to Canada. We let the government erect at least rudimentary boundaries between our impermissible acts and the permissible ideas those acts communicate. Otherwise, we would be forced to choose between the First Amendment and a society of laws. We couldn’t have both.
The Supreme Court in Lawrence v. Texas held that same-sex couples have a constitutional right to engage in sexual intimacy, free of regulation by the state. It seems to me that Mr. Greene ignores the actual rationale underlying the substantive due process ruling in Lawrence v. Texas—the rationale that was expressly set forth by Justice Kennedy and found strong support in prior case law—in order to posit a different rationale that he then finds problematic as applied to the death penalty. This makes for an interesting intellectual exercise, and I do not disagree with the background observation in Mr. Greene’s piece that the courts are moving toward giving special scrutiny to laws that discriminate against gay people. Laws drawing that line are beginning to take on the same kind of cultural resonance as discrimination based on race or sex, and Lawrence certainly fueled that phenomenon. But it is also important to be clear what the Court actually had in mind as a rationale, and see whether that rationale is legitimate and supportable.
[Editor's Note: The Meta-Nonsense of Lawrence is a Response to Jamal Greene, Lawrence and the Right to Metaprivacy, Yale L.J. (The Pocket Part), May 2006, http://www.thepocketpart.org/2006/06/greene.html.]
Jamal Greene’s interesting essay deals not with Justice Kennedy’s actual majority opinion in Lawrence v. Texas but with an opinion of Greene’s own imagining. This is not surprising, since Justice Kennedy’s actual opinion reads like a cruel parody of the modern make-it-up-as-you-go-along judicial decision-making that hides behind the euphemism of the “living Constitution.”
The Latino community has mobilized as never before in response to H.R. 4437, the punitive immigration bill sponsored by Rep. James Sensebrenner (R-WI). Newspapers declared that the marches in Los Angeles, Dallas, Phoenix, and Chicago marked “a new day of Hispanic political involvement.” More than just getting Latinos in the streets, however, this mobilization will greatly increase Latino participation in American politics, and could even mean more Latinos elected to the 110th Congress this fall.
The proper use of legislative history by judges interpreting statutes has long been debated among jurists and legal academics. But no one disputes the value of lawmakers themselves consulting legislative history, especially when they are wrestling with the very same issues addressed by a prior Congress.
The current debate over immigration reform presents an opportunity for Congress to learn from its past mistakes. Twenty years ago, President Reagan signed the Immigration Reform and Control Act of 1986, an ill-conceived amnesty program that promised--but never delivered--strict enforcement of our immigration laws. The immigration reform proposals that have thus far garnered the most support in the Senate have much in common with the 1986 amnesty. While I favor a second chance for hard-working illegal aliens currently within the United States, I cannot in good faith support any proposal that will repeat the failures of the 1986 amnesty.
Federal immigration reform has seized public attention for the first time since Congress last made major changes in immigration policy in 1996. People are taking to the streets and engaging in heady debates about what being a nation of immigrants really means. Our answer will shape the workplaces of tomorrow.
Yet Congress has not tapped the unique opportunity to correct past legislative mistakes by aligning our workplace laws and immigration policy. The proposed immigration reforms—in particular the plans to expand an employment database system that has been error-filled in its pilot phase—will harm workers unless those reforms provide increased workplace protections for both legal and unauthorized immigrants.
While considerable attention has been paid to the constitutional and treaty questions before the Court in Hamdan, the case begins with a seemingly straightforward question of customary international law: Does conspiracy, the sole charge against Hamdan, violate the law of war? The question is essential because military commissions may only be used to try such violations.
The ways we fight - and the reasons why we fight - have changed. The Predator drone, last seen screaming across the screen in Syriana, has replaced the Winchester rifle in popular imagination; and Saddam Hussein is rightly considered a war criminal for violating the Chemical Weapons Convention, a treaty signed less than fifteen years ago. But the law of war the administration invokes to try Salim Hamdan is an outdated relic (although ironically, today’s military commissions do not even offer the protections afforded by their ancestors). It is lifted - not from today's battlefield - but from the pages of General Scott’s account of the 1847 Mexican-American War.
In an uncertain world, crisis demands executive action. And so 2005, a year of crisis, became a year of executive muscle-flexing, in response to crises ranging from Hurricane Katrina to avian flu to the Global War on Terror. In many ways, the legal debates generated were déjà vu all over again. Exorbitant claims of executive power in the War on Terror triggered the strongest clash since the Iran-Contra Affair between a constitutional vision of unchecked executive discretion bottomed on sweeping dicta in United States v. Curtiss-Wright Export Corp. and a counter-vision of shared institutional powers symbolized by Justice Jackson’s canonical concurrence in Youngstown Sheet & Tube Co. v. Sawyer: a clash of visions I discussed more than fifteen years ago.
Which President was advised by his lawyers that he had the constitutional authority to refuse to comply with federal statutes enacted by Congress? Which President also openly violated a federal statute in the exercise of his Commander-in-Chief power? The answer is not George W. Bush, but Bill Clinton. Like every modern President, Clinton defended his inherent and exclusive constitutional powers as Commander in Chief from congressional interference. Yet no legal argument has provoked more outrage today than the Bush Administration’s identical claims pursuant to the same power.
Perhaps to no one’s surprise, a recent survey found that most Americans know far more about television hits than they know about the United States Constitution. For instance, 52% of Americans surveyed could name at least two characters from the Simpsons, and 41% could name at least two judges from American Idol. Meanwhile, a mere 28% could identify more than one of the rights protected by the First Amendment.
Surveys such as this help clear up one of the apparent mysteries of the last five years: how did we change so quickly from a nation in which the rule of law seemed deeply entrenched to a nation that has seen an astonishingly successful executive power grab?
We are fighting three wars, not two. Besides Iraq and Afghanistan, there is a full scale war in the press and in the academy about whether we have an imperial presidency. President Bush’s critics cry that he has violated or ignored numerous statutes; has adopted absurdly narrow understandings of our treaty obligations; and has violated the Constitution. His supporters respond that presidential powers have eroded over the years and that Bush is just restoring executive power.
Impeachment is a nasty accusation these days. In the wake of Senator Feingold’s proposed resolution to censure President Bush, Republicans alleged that the resolution revealed Democrats’ hopes to impeach the President if they gain control of Congress in the November elections. The allegation was meant to arouse indignation and rally the Republican base. Senator Feingold, meanwhile, sought to mute the allegation by emphasizing censure as an alternative to the highly controversial impeachment process. But what if there was a stronger alternative, by which a legislature could effectively impeach a sitting executive without ever voting on articles of impeachment? That process now exists in Connecticut.
As chief prosecutor for Maricopa County, which includes the city of Phoenix, my office prosecutes about 40,000 felonies each year and includes a staff of 300 prosecutors. In June 2005, we surveyed 102 of those attorneys, all of whom had trial experience, and they reported that the CSI effect is no myth: Of the prosecutors we surveyed, 38% believed they had at least one trial that resulted in either an acquittal or hung jury because forensic evidence was not available, even though prosecutors believed the existing testimony was sufficient by itself to sustain a conviction. In about 40% of these prosecutors’ cases, jurors have asked questions about evidence like “mitochondrial DNA,” “latent prints,” “trace evidence,” or “ballistics”—even when these terms were not used at trial.
[Editor's Note: Is the CSI Effect Good Science? is a Response to Andrew P. Thomas, The CSI Effect on Jurors and Judgments, Yale L.J. (The Pocket Part), Feb. 2006, http://www.thepocketpart.org/2006/02/thomas.html.]
The "CSI effect" is a term coined by prosecutors and the mass media to describe the influence that television crime dramas like CSI: Crime Scene Investigation have on jurors. Prosecutors, like those in the Maricopa County prosecutors’ office, argue that juries now expect to witness the same sleights of evidentiary magic in real life trials.
[Editor's Note: A CSI Writer Defends His Show is a Response to Andrew P. Thomas, The CSI Effect on Jurors and Judgments, Yale L.J. (The Pocket Part), Feb. 2006, http://www.thepocketpart.org/2006/02/thomas.html.]
As a former crime scene investigator, I was once called to testify on the stand in a criminal trial. Before giving my testimony, I had to explain to the jury the responsibilites and qualifications of forensic scientists in the criminal justice system. Now, five years later, prosecutors are complaining that jurors may know too much about forensics for their own good. Prosecutors blame this trend on the television show CSI, for which I serve as a writer and technical adviser.
Senate confirmation hearings for Supreme Court nominees have in recent years grown increasingly contentious. Nominees have refused to answer questions about their constitutional views on the ground that any such interrogation would compromise the constitutional independence of the judiciary.
[Editor's Note: Making Confirmation Hearings Meaningful is a Response to Robert Post & Reva Siegel, Questioning Justice: Law and Politics in Judicial Confirmation Hearings, Yale L.J. (The Pocket Part), Jan. 2006, http://www.thepocketpart.org/2006/01/post_and_siegel.html.]
The hearings concerning the nomination of Judge Samuel Alito to the Supreme Court obviously are of enormous importance. Most significantly, Justice Sandra Day O’Connor was the decisive fifth vote in countless important areas, such as abortion, affirmative action, campaign finance, death penalty, federalism, and separation of church and state. Alito’s confirmation thus has the potential to dramatically change constitutional law. More subtly, the Alito hearings may go a long way to determining whether confirmation hearings serve any useful purpose or are just a sham. Professors Robert Post and Reva Siegel have offered a sensible and very desirable approach to what should be asked of nominees at confirmation hearings: How would they have voted in cases previously decided by the Supreme Court? This is a way that senators can learn the views of the nominee, without asking how the individual will vote on cases that will come before him or her as a Justice.
[Editor's Note: Learning What From a Nominee's Views of Past Court Rulings? is a Response to Robert Post & Reva Siegel, Questioning Justice: Law and Politics in Judicial Confirmation Hearings, Yale L.J. (The Pocket Part), Jan. 2006, http://www.thepocketpart.org/2006/01/post_and_siegel.html.]
Reva Siegel and Robert Post have argued convincingly that constitutional democracy could be advanced while preserving judicial independence by the practice of asking Supreme Court nominees how they would have ruled in already decided cases—and by treating a refusal to respond to such inquiry as reason to deny confirmation. Their essay elegantly dispatches the principal objections that have, seemingly more as a matter of habit than as a result of reflection, been advanced against this line of inquiry. Thus they quickly dispose of concerns that rest on an elementary confusion between saying what one would have done in the past and promising what one will do in the future. They argue that only a mock confusion could survive the now routine practice in which senators preface their questions with the assurance that they are not asking nominees to make any commitments about how they will vote on particular matters—other than, of course, the usual commitment to decide cases in accord with their best understanding of what the applicable law requires and to approach each case fairly and with an open mind.
[Editor's Note: Questioning Ethics s is a Response to Robert Post & Reva Siegel, Questioning Justice: Law and Politics in Judicial Confirmation Hearings, Yale L.J. (The Pocket Part), Jan. 2006, http://www.thepocketpart.org/2006/01/post_and_siegel.html.]
Following Reva Siegel and Robert Post’s profound consideration of constitutional structure and democratic legitimacy, one hesitates to bring up something so pedestrian as the Code of Conduct for United States Judges. Still, legal ethics principles do have some bearing on the scope of Supreme Court confirmation testimony, and the Code is the most definitive statement we have about judicial ethics. As it turns out, the Code pretty much supports Siegel and Post’s position that judicial nominees may (and should) properly be asked to explain how they would have decided well-known Supreme Court cases.
[Editor's Note: Clauses Not Cases is a Response to Robert Post & Reva Siegel, Questioning Justice: Law and Politics in Judicial Confirmation Hearings, Yale L.J. (The Pocket Part), Jan. 2006, http://www.thepocketpart.org/2006/01/post_and_siegel.html.]
In Questioning Justice, Robert Post and Reva Siegel make three claims. First, that the Constitution authorizes the Senate to rest its judgement, in part, on the constitutional philosophy of nominees to the Supreme Court; second, that this practice is justified on grounds of democratic legitimacy; and third, that it is best implemented by asking nominees “to explain the grounds on which they would have voted in past decisions of the Supreme Court.” I agree entirely with the first and, to my mind, most important of these propositions. I disagree, however, that either the Constitution as a whole, or this particular practice is best justified on grounds of democratic legitimacy, or that their proposal is the best way to assess the philosophy of nominees.
[Editor's Note: A Remedy Without a Wrong is a Response to John C. P. Goldberg, The Constitutional Status of Tort Law, Yale L.J. (The Pocket Part), Dec. 2005, http://www.thepocketpart.org/2005/12/goldberg.html.]
Somewhere far away, in a land not studied by Professor John Goldberg, there may be a legal system that denies injured people redress for injuries. Flipping through the yellow pages here in America, however, there seems to be heavy traffic in the commerce of bringing lawsuits for almost any setback in life.
[Editor's Note: Big Money v. The Framers is a Response to John C. P. Goldberg, The Constitutional Status of Tort Law, Yale L.J. (The Pocket Part), Dec. 2005, http://www.thepocketpart.org/2005/12/goldberg.html.]
African-Americans and women were once, at law, lesser beings. They were made that way, in part, by not having the right to go to court and get redress there, the right by which the powerless hold the powerful to account. Why is it even plausible that so fundamental a right is not protected by the Constitution?
Brown v. Board of Education was a noble exercise of judicial power. On perhaps the most pressing moral issue in twentieth-century America—racial inequality—the Supreme Court chose the right side well before the president or Congress did so. Not until 1959 did President Eisenhower declare racial segregation immoral, and throughout the 1950s, Congress failed to enact proposed resolutions affirming that Brown was the law of the land (not even that it was rightly decided).
[Editor's Note: Equal Justice—Same Vision in a New Day is a Response to Kenneth W. Mack, The Myth of Brown?, Yale L.J. (The Pocket Part), Nov. 2005, http://www.thepocketpart.org/2005/11/mack.html. ]
No single narrative can capture the complexity of what Mack concedes was a “plural, heterogeneous civil rights movement” in the pre-Brown era. Mack’s revisionist narrative is no exception. With his focus on the intraracial work of Charles Hamilton Houston and other leaders of the black bar during this period, Mack obscures the antecedents of a court-centered legal liberalism that were apparent from the beginning of the modern civil rights movement. Mack is correct to point out that Houston and others worked to educate a generation of black lawyers who could assist black businesses and meet the everyday legal needs of their communities. However, these leaders always recognized the inherent limits of intraracial work. True progress on the intraracial front demanded an attack on de jure segregation—and the black bar always considered litigation an important weapon in that battle. The seeds of legal liberalism were evident in an aspect of the pre-Brown record that Mack largely ignores: the NAACP’s litigation strategy during the interwar period. This litigation history demonstrates that civil rights lawyers saw the courts as an agent of social change as they worked to implement a strategic plan that would lead to Brown.
Americans move a lot. According to the Census Bureau nearly one in six moves in a given year, roughly 20% of whom cross state lines. Americans on the move need not start completely anew. They can maintain old cellular numbers and sports team allegiances. Thanks to the Internet, they can also continue to read the same local newspapers and listen to the same local radio. But they can’t maintain all of their old property rights.
Should a landlord and tenant negotiating the lease of an apartment in Greenwich Village be entitled to spurn New York law and instead agree that their relationship is to be governed by the law of Idaho? Bell and Parchomovsky (B&P) apparently would answer yes. Their potentially revolutionary proposal would allow participants in a consensual property transaction to create, as this example suggests, an oasis of red-state law within an otherwise deeply blue legal environment.
[Editor's Note: A Private Idaho in Greenwich Village? is a Response to Abraham Bell & Gideon Parchomovsky, Of Property and Federalism, Yale L.J. (The Pocket Part), Oct. 2005, http://www.thepocketpart.org/2005/10/bell_parchomovsky.html.]
First, the good news: Bell and Parchomovsky (B&P) see federalism’s potential to foster benign competition in the production of legal rules. This vision takes federalism beyond the traditional view of states as laboratories for experiment. It looks to federal structures that create a market for legal rules—a market with minimal distortions and thus with good prospects for races to the top, with optimal rules coming to prevail.
Supreme Court nominee Judge Samuel A. Alito, Jr. was a member of the Yale Law School Class of 1975 and an editor of The Yale Law Journal. Judge Alito currently serves on the Journal’s Alumni Advisory Committee.
While a member of the Journal, Judge Alito published a student Note, The Released Time Cases Revisited: A Study of Group Decisionmaking by the Supreme Court. The Note analyzes the Supreme Court’s decisions in the so-called “released time” cases. These cases dealt with the question of whether public schools violate the Establishment Clause of the First Amendment by allowing students to take religious education classes during school hours. The Note received the Israel H. Peres prize for best student contribution to The Yale Law Journal in 1974.
The citation for the Note is: Samuel A. Alito, Jr., Note, The Released Time Cases Revisited: A Study of Group Decisionmaking by the Supreme Court, 83 Yale L.J. 1202 (1974). Click here to download a pdf version.
Nearly every state uses tax incentives to attract local investment. Do such incentives discriminate against interstate commerce in violation of the dormant Commerce Clause? The Supreme Court now confronts this question in DaimlerChrysler Corp. v. Cuno (oral arguments on March 1). If the Court takes an expansive view of what constitutes discrimination against interstate commerce, its decision could reshape the state tax policy landscape. Europe has already moved in this direction, and the problems with its doctrine should make the Court hesitant to travel the same path.