Constitutional Law
Validation Procedures and the Burden of Ballot Access Regulations
115 Yale L.J. 1833 (2006) Despite the prominent role they play in election contests, validation mechanisms have largely escaped judicial and scholarly scrutiny. This Comment urges courts to assess the constitutionality of a state's ballot access scheme in light of how the state evaluates and certifies a candidate's nomination materials. As Part I explains, Nader v. Keith, a Seventh Circuit decision authored by Judge Posner, takes some tentative steps in the right direction. Part II builds on Judge Posner's analysis to suggest that ballot access doctrine obliges courts to be sensitive to the difficulties validation mechanisms can create. Part III then explains why giving partisan actors a central role in challenging an opponent's nomination filings may present special constitutional problems because private challenges can be a potent way to limit the political participation of disfavored candidates.
Recovering American Administrative Law: Federalist Foundations, 1787-1801
115 Yale L.J. 1256 (2006) By scholarly convention, federal administrative law begins in the United States in 1887 with the establishment of the Interstate Commerce Commission. Before that time the national government is perceived as a state of courts and parties in which federal administration was minimal and congressional statutes were either self-executing or so detailed as to preclude significant administrative discretion. Such administration as there was went on within executive departments under the exclusive control of the President, and judicial review of administrative action was virtually unknown. From this perspective the administrative state of the twenty-first century, with its independent commissions, combinations of legislative, executive, and judicial authority in administrative agencies, broad delegations of administrative discretion, limitations on presidential control of administration, and ubiquitous opportunities for judicial review of executive action, represents a radical transformation of original constitutional understandings. There is much truth in this conventional vision of nineteenth-century governance, but far from the whole truth. This Article begins a project of recovering the lost one hundred years of federal administrative law. For statutory sources, agency practice, and common law actions in the Federalist period reveal a quite different and more nuanced picture. From the very beginning some administrators were clothed with broad statutory authority, made general rules, adjudicated cases, were located outside of departments, and were tightly bound to congressional oversight and direction. And common law actions provided a judicial review that was often more intrusive and robust than we observe in contemporary practice. If there was an original understanding of the structure, function, and control of administration in early federal law, Federalist practices suggest that it was a much more complex and pragmatic understanding than our conventional account admits.
Managing Transitional Moments in Criminal Cases
115 Yale L.J. 922 (2006) As long as some courts review the work of others, there will be situations in which governing precedent shifts during the interval between an initial decision and the underlying dispute's ultimate resolution. Although such "transitional moments" follow many appellate court decisions, several of the Supreme Court's recent criminal procedure rulings would have been especially disruptive if implemented in a maximally retrospective fashion. Focusing on direct review of federal convictions, this Article identifies and critiques one widely used method for limiting the effects of legal change: subjecting defendants who failed to raise objections that were foreclosed by controlling time-of-trial authority to a narrow form of review that virtually guarantees that their appeals will fail. The problem with applying "plain error" rules in this way is that it cannot be justified by the purposes warranting use of forfeiture rules in the direct review context. Given the unsuitability of the forfeiture approach as a means of coping with transitional moments, the Article suggests a reconsideration of the Warren Court's preferred method: nonretroactivity doctrines.
Securing Informationships: Recognizing a Right to Privity in Fourth Amendment Jurisprudence
115 Yale L.J. 1086 (2006) This Note argues for judicial recognition of a Fourth Amendment right to privity, conceived broadly as a right to make limited disclosure of one's personal information without surrendering the constitutional privacy interests that attach to it. In particular, this Note challenges the so-called third-party doctrine, which holds that when individuals disclose information to a third party, they retain no constitutional protection against government searches of that information. It argues that a privity right is essential for people to be secure in their "papers," particularly in a world increasingly defined by "informationships," or relationships formed around shared access to and exchange of personal information.
The Constitutional Status of Tort Law: Due Process and the Right to a Law for the Redress of Wrongs
115 Yale L.J. 524 (2005) In our legal system, redressing private wrongs has tended to be the business of tort law, itself traditionally a branch of the common law. But do individuals have a "vested interest" in law that redresses wrongs? If so, do state and federal governments have a constitutional duty to provide that law? Since the New Deal era, conventional wisdom has held that individuals do not possess such a right, and consequently, government bears no such duty. In this view, it is a matter of unfettered legislative discretion--"whim"--whether or how to provide a law of redress. This view is wrongheaded. To be clear: I do not argue that individuals have a property-like interest in a particular corpus of tort rules. The law of tort is always capable of improvement, and legislatures have an obligation and the requisite authority to undertake such improvements. Nonetheless, I do argue that tort law, understood as a law for the redress of private wrongs, forms part of the basic structure of our government. And though the Constitution does not confer on any particular individual a right to a specific version of tort rules, all American citizens have a right to a body of law for the redress of private wrongs that generates meaningful and judicially enforceable limits on tort reform legislation.
Democratic Disobedience
114 Yale L.J. 1897 (2005) Traditional justifications for civil disobedience emphasize the limits of legitimate political authority and defend civil disobedience as a just response when governments overstep these limits. Such liberal justifications are well suited to certain classes of civil disobedience--in particular, to disobedience in protest of laws or policies that violate basic rights. Moreover, these classes include the historical cases of civil disobedience (for example, in the American civil rights movement) to which the traditional treatments of civil disobedience responded. But the traditional liberal theory fits less well when civil disobedience is directed against laws or policies that fall within the scope of democratic political authority. Such cases figure increasingly prominently in the political landscape. The traditional theory of liberal disobedience is therefore increasingly inadequate to the practice of disobedience on the ground. This Essay develops an alternative approach to civil disobedience--a theory of democratic disobedience--that can explain such cases. According to this theory, civil disobedience may be justified when there is a democratic deficit in the processes that have produced the laws against which the disobedience protests. Even if such laws could be legitimate, because they fall within the scope of democratic political authority, the democratic deficits that they suffer deprive them of actual authority. Civil disobedience functions, in such cases, not to limit but rather to enhance democracy. The argument presents an account of democratic politics that highlights the possibility of democratic deficits as a necessary side effect of the basic mechanisms of democratic political authority, which democratic disobedience might correct. Along the way, the argument develops an analogy between civil disobedience and another seemingly antidemocratic political practice: judicial review. This analogy emphasizes the costs of approaching democratic disobedience on the traditional, liberal model. It also helps the argument structure the forms and limits of democratic disobedience. The argument concludes by speculating about the rising prominence of democratic disobedience and connects this phenomenon to broader trends in democratic politics.
Freeing Newsgathering from the Reporter's Privilege
114 Yale L.J. 1827 (2005) A number of recent high-profile cases have forced courts to reexamine whether reporters must respond to subpoenas seeking disclosure of confidential sources or whether they are protected from doing so by the doctrine of reporter's privilege. While these confidential-source cases have garnered the most public attention, the vast majority of subpoenas issued to reporters seek to compel disclosure of nonconfidential information. In a recent case, McKevitt v. Pallasch, Judge Posner suggests that the reporter's privilege, if it exists at all, should not extend to nonconfidential information. In this Comment, I argue that Posner overlooks the unique ways in which a privilege for nonconfidential information protects the newsgathering process. Federal courts should use their common law power under Federal Rule of Evidence 501 to articulate a flexible newsgathering privilege for reporters analogous to the work product immunity that exists for attorneys.
Comment: War and Uncertainty
114 Yale L.J. 1405 (2005) This comment builds on John Hart Ely's concern in War and Responsibility with Congress's duty to investigate the factual predicate for going to war in circumstances of uncertainty. Professor Damrosch argues that Congress should exercise its constitutional power to decide to authorize military conflict with the fullest feasible understanding of policy-relevant factual context, but that the contextual investigation Congress should undertake should not be confused with a kind of incident-specific fact-finding that Congress is ill suited to perform.
Globalization and Distrust
114 Yale L.J. 1193 (2005) There was a time when the critics of international law denounced it for its irrelevance, its masquerade of power. Now, in the post-ontological era of international law, the critique has shifted. International law is denounced not for its weakness but for its vigor, specifically its transfer of authority from local to international bodies. Critics find a "democratic deficit" in almost all international institutions--from the World Trade Organization to the International Criminal Court to even the World Health Organization. Critics also denounce U.S. courts for serving as vassals of international law through the jurisdictional grant of the Alien Tort Statute. Three decades ago, the Warren Court's constitutional pronouncements overruling the judgments of the American people were similarly decried as judicial usurpation. John Hart Ely's legal process classic, Democracy and Distrust, rescued the judiciary from illegitimacy. Today's democratic deficit is yesterday's countermajoritarian difficulty. This article tests the transnational legal process against Ely's vision of democracy. Three case studies anchor the inquiry: (1) Sosa v. Alvarez-Machain, the Supreme Court's recent decision regarding the application of international law in U.S. courts; (2) the online gambling claim brought by Antigua and Barbuda against the United States in the World Trade Organization; and (3) the International Monetary Fund's intervention in Indonesia at the height of the Asian financial crisis. Through these studies, I demonstrate that the transnational legal process operates through (and is consistent with) national democratic processes, permitting review, revision, and rejection through such processes. Furthermore, the part of international law that purports to be superconstitutional--jus cogens--can be seen as representation reinforcing, supplying minority protections in a world that has sadly come to see the need for them.
John Hart Ely and the Problem of Gerrymandering: The Lion in Winter
114 Yale L.J. 1329 (2005) In Democracy and Distrust, John Hart Ely articulated a "participation-oriented, representation-reinforcing approach to judicial review" that advanced both an anti-entrenchment and an antidiscrimination rationale for judicial intervention. This essay explores the implications of his work for a central issue of democratic governance: legislative apportionment. Part I shows that although Ely celebrated the Warren Court's "Reapportionment Revolution" as a paradigmatic example of the anti-entrenchment approach, he essentially ignored the ways in which the Burger Court's jurisprudence of racial vote dilution, with its focus on geographically discrete minority groups subjected to majority prejudice, exemplifies the antidiscrimination approach. Part II looks at the implications of Ely's theory for contemporary controversies over race-conscious redistricting. Ely's final work--a trilogy defending the Rehnquist Court's Shaw jurisprudence as a wedge for attacking political gerrymandering more broadly--reveals an implicit tension within his approach: While the anti-entrenchment and antidiscrimination rationales may have dovetailed during the years of Democracy and Distrust, today they can operate at cross-purposes. The protection of minority interests is now often best served not by judicial skepticism of legislative outcomes but by judicial deference to plans that allocate power to politicians elected from minority communities. In the end, Ely's trilogy may reflect his romance with the Warren Court, which saw discrete and insular racial minorities essentially as objects of judicial solicitude, rather than as efficacious political actors in their own right.
Parrhesiastic Accountability: Investigatory Commissions and Executive Power in an Age of Terror
114 Yale L.J. 1419 (2005) In War and Responsibility, John Hart Ely sought to answer a question that has bedeviled constitutional scholars since the beginning of the Republic: What meaningful checks should be placed on the power of the Executive in wartime? For Ely, the answer was a new and improved version of the War Powers Resolution, a solution entirely in keeping with his support for theories of legal process more generally. Yet in light of the open-ended congressional resolutions authorizing the United States's military engagements in Afghanistan and Iraq, the viability of such legal process approaches to checking executive power in the area of national security is open to question. This article contends that a reinvigorated version of the independent investigatory commission may represent an effective supplemental check on the power of the Executive. To this end, it examines the experience of the 9/11 Commission and attempts to explain its remarkable successes by reference to a concept known as parrhesia. Celebrated in ancient Greece, parrhesia occurs when a speaker with a personal knowledge of the folly of choices made by his leaders confronts them with evidence of their failures. Whereas past investigatory commissions engaged solely in what can be called an analytics of truth--determining the objective facts of what happened--the 9/11 Commission also opened itself to the parrhesiastic truth telling of those who had experienced the consequences of what happened. This truth moved Congress to act and imposed a measure of accountability on the executive branch.
Pluralism and Distrust: How Courts Can Support Democracy by Lowering the Stakes of Politics
114 Yale L.J. 1279 (2005) John Hart Ely argued that judicial review is most appropriate when democratic politics has broken down. Professor Eskridge argues that judicial review is also appropriate to lower the stakes of pluralist politics. Stakes get high when the system becomes embroiled in bitter disputes that drive salient, productive groups away from political engagement. Groups disengage when they believe that participation in the system is pointless due to their permanent defeat on fundamental issues or their perception that the process is stacked against them, or when politics imposes burdens threatening their group identity. At the Founding, religion was the best example of high-stakes politics, and the Religion Clauses of the First Amendment were designed to lower the stakes of religion-based politics. Pluralism-facilitating judicial review generalizes the stakes-managing principles of the Religion Clauses to suggest applications of the Free Speech, Due Process, and Equal Protection Clauses to issues ranging from abortion protests and same-sex marriage to English-only laws and the war on terrorism.
The Coherentism of Democracy and Distrust
114 Yale L.J. 1237 (2005) John Hart Ely's justly celebrated Democracy and Distrust aims to reconcile judicial review with the fundamentally democratic character of the American Constitution. Yet taken at face value, the book does not establish that the American Constitution is fundamentally democratic. While pointing to the large number of constitutional provisions that concern the mechanics of government, Ely offers no satisfactory account of why these provisions should be used to infer a master principle to guide interpretation of the document as a whole. Nor can Ely rely on a comprehensive normative account such as utilitarianism to establish his representation-reinforcing approach, because the book more generally argues that judges have no business importing such substantive values into the Constitution. In fact, the book succeeds to the extent that it does because Americans highly value democracy. But can American faith in democracy be made to serve as a basis for treating democratic representation as the key to constitutional interpretation in a noncircular fashion? Perhaps surprisingly, yes, if Democracy and Distrust is understood as presenting a coherentist account of constitutional interpretation--one that aims to make the best sense of the practice as a whole, given all of our considered convictions. Although this coherentist reading of Ely leaves him vulnerable to standard critiques of coherentism, it does not leave him any more vulnerable to such critiques than are other, rival accounts of constitutional interpretation.
The Duty To Defend
114 Yale L.J. 1489 (2005) Through the lens of history and doctrine, combining personal narrative, memoir, and stump speech, Barbara Babcock recalls John Ely's contributions to criminal defense.
Applying Section 5: Tennessee v. Lane and Judicial Conditions on the Congressional Enforcement Power
114 Yale L.J. 1133 (2005) Section 5 of the Fourteenth Amendment grants Congress the "power to enforce, by appropriate legislation," the Equal Protection and Due Process Clauses. Yet in the past seven years the Supreme Court has invalidated five different laws--including three landmark civil rights laws--as exceeding Congress's power to enforce the Fourteenth Amendment. This Note reveals changes in the Court's review of the Section 5 power by examining its ruling last Term in Tennessee v. Lane, in which it upheld for the first time Congress's effort to enforce the Due Process Clause. The Note contends that while Lane affirms the Court's claim to exclusive interpretive authority, the Court applied its tests for valid enforcement legislation in important new ways that vindicate a more expansive Section 5 power for Congress.
Judging Partisan Gerrymanders Under the Elections Clause
114 Yale L.J. 1021 (2005) The Supreme Court has consistently decried the lack of standards for adjudicating partisan gerrymandering claims, most recently in last Term's Vieth v. Jubelirer. But it has ignored the potential for developing standards under the Elections Clause, which it held in Cook v. Gralike to bar attempts by state legislatures to influence federal election outcomes. This Note aims to reconcile these two cases. It mines the history of the Elections Clause to determine what limitations it imposes on state legislatures and, invoking congressional obligations under the Guarantee Clause, articulates a novel standard for review of partisan gerrymandering consistent with those limitations.
Overlooking a Sixth Amendment Framework
114 Yale L.J. 905 (2005) As the Supreme Court further plunges the world of criminal sentencing into turmoil, state courts in particular are scrutinizing their own statutory sentencing schemes and judicial practices. Ever since the Court's holding in Apprendi v. New Jersey (recently reformulated and expanded in Blakely v. Washington ), states have been called upon to ensure that trial judges do not usurp the jury's exclusive fact-finding power and thereby violate criminal defendants' Sixth Amendment guaranty of a trial by jury. While the legal framework that protected this Sixth Amendment right has been developing for decades, Apprendi formulated a bright-line rule that prohibits a judge from finding by herself during sentencing, instead of submitting to a jury for determination at trial, any fact that increases a defendant's sentence beyond the prescribed statutory maximum absent that fact. Under Apprendi, scores of factual determinations were taken from judges and placed back in the hands of juries. But while courts have continued to occupy themselves with defining the scope of Apprendi and its progeny, they have remained blind to a more fundamental, and increasingly prevalent, problem. By mechanically examining the effect a factor has on the length of a defendant's sentence in determining whether it must be submitted to a jury, courts have permitted the Apprendi bright-line rule to eviscerate the preexisting substantive method for making that determination. Long before Apprendi, the Court applied a less mechanical, more substantive analysis to determine whether a fact must be submitted to a jury. In Mullaney v. Wilbur, the Court analyzed how the presence or absence of a particular fact related to the underlying crime in order to determine whether or not that fact was indeed an essential element of that crime. Apprendi did not replace or eliminate the need for this Mullaney inquiry; it merely short-circuited the inquiry in cases where the finding at issue increased the sentence beyond the otherwise available maximum sentence. The current widespread misapplication of the Apprendi doctrine threatens the very Sixth Amendment and due process protections Apprendi was designed to safeguard. A recent Connecticut Appellate Court case, State v. Kirk R., illustrates this problem. The Kirk R. court, relying primarily on the Apprendi doctrine, failed to conduct a Mullaney analysis and thereby permitted the finding of a particular element of a crime to be removed from the jury's purview, allowing the trial judge to make his own unilateral determination at sentencing. Part I presents the relevant doctrinal background, describing the continuum between "element of a crime" and "sentencing factor" and demonstrating how Apprendi and its progeny do not--and were never intended to--displace the preexisting and entirely discrete element-of-a-crime analysis. Part II discusses the facts and holding of Kirk R. Part III argues that the Connecticut court improperly relied on the Apprendi doctrine as relevant to, and even dispositive of, this issue; in truth, all Apprendi could have done was remove a special protection from the Kirk R. court's arsenal, forcing the court to then apply Mullaney's more basic element-of-a-crime test. Part IV closes by addressing the impact of Blakely on this Comment's thesis.
Rethinking Early Judicial Involvement in Foreign Affairs: An Empirical Study of the Supreme Court's Docket
114 Yale L.J. 855 (2005) Mainstream and revisionist scholars advance radically different histories of early judicial involvement in foreign affairs. By reconstructing the foreign affairs docket of the Jay and Marshall Courts, this Note presents empirical evidence with which these claims can be evaluated. In finding that one-fourth of the Court's caseload involved international disputes, and in presenting summary statistics on the parties, jurisdictions, areas of law, and kinds of disputes involved in these 323 cases, this Note concludes that scholars have not fully appreciated the degree of judicial involvement in foreign affairs or the reasons for it.
Solving the Due Process Problem with Military Commissions
114 Yale L.J. 921 (2005) The terrorist attacks of September 11, 2001 prompted the creation of two new adjudicatory bodies within the Department of Defense. First, military commissions were established by presidential order just two months after the attacks in order to prosecute members of al Qaeda for war crimes. The commissions are non-Article III courts (although they adhere to many aspects of conventional criminal procedure) and are empowered to try persons designated by the President as eligible for trial by commission for offenses against the laws of war. No trials have yet taken place, although commissions for four detainees have been convened, and fifteen detainees have been designated for trial. Second, combatant status review tribunals (CSRTs) were created in the wake of Hamdi v. Rumsfeld to determine if detainees at Guantánamo Bay are being properly held as enemy combatants. A plurality of the Supreme Court held in Hamdi that "a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker." The CSRTs aim to provide that "fair opportunity" to individuals who the government alleges are enemy combatants and hence subject to detention until the end of hostilities. This Comment's principal goal is to explore the interplay between the military commissions and the CSRTs. A plethora of law review articles have dealt with military commissions, and the CSRTs have been covered at length in the press. There has been almost no effort, however, to analyze how the two institutions fit together or how the lessons of one could be used to solve the potential constitutional problems of the other. This Comment seeks to fill that gap. In particular, it argues that there is a serious constitutional flaw in the military commissions' procedure for establishing personal jurisdiction and that, in an ironic twist, this flaw can be mended through a modest broadening of the scope of the CSRTs' fact-finding powers. Part I describes the looming due process problem with the military commissions: that there is currently no mechanism by which individuals who dispute their eligibility to be tried by commission can resolve this jurisdictional issue. This Part argues that this aspect of the commissions' procedure is unconstitutional under case law on both Article III personal jurisdiction and unilateral executive designations. Part II contends that this due process problem can best be solved by expanding the decisionmaking range of the CSRTs. Rather than merely determining whether a detainee is an enemy combatant, the CSRTs should also decide whether a detainee found to be an enemy combatant is a lawful combatant, immune from trial by military commission, or an unlawful combatant, subject to such trial. Part II also argues that the CSRTs are better positioned to make this determination than either conventional courts or the military commissions themselves. Part III concludes.
An Article I, Section 7 Perspective on Administrative Law Remedies
114 Yale L.J. 359 (2004) By applying game-theoretic analysis to the bicameralism and presentment requirements of Article I, Section 7, scholars have recommended reforms in constitutional law, statutory interpretation, and the Chevron doctrine. This Note builds on this work and explores whether Article I, Section 7 can inform remedial choice in administrative law--the choice between vacating defective agency action and remanding it without vacatur. It argues that, from the perspective of the sequential structure of Article I, Section 7, vacatur should be the presumptive administrative law remedy. Accordingly, the Note offers a reason to question the recent judicial trend away from the vacatur remedy.