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 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.

Since United States v. Booker, the main task of sentencing academics and appellate judges has been to solve the riddles of its mandated “reasonableness” review. This is a crucial task because the answers reached will largely determine whether Booker’s promise of fresh discretion in federal sentencing becomes a dead letter in the district courts, or whether the federal judiciary once again assumes its role at the head of our pursuit of justice in sentencing. 

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.

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.

[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 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.

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.

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.

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?

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.

[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.

 

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: 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: 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: 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?

[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.

[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.]

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.

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.