Federal Courts
Beyond Marbury: The Executive's Power To Say What the Law Is
115 Yale L.J. 2580 (2006) Under Marbury v. Madison, it is "emphatically the province and duty of the judicial department to say what the law is." But in the last quarter-century, the Supreme Court has legitimated the executive's power of interpretation, above all in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, the most cited case in modern public law. Chevron is not merely a counter-Marbury for the executive branch, but also the Erie Railroad Co. v. Tompkins of the last half-century. It reflects a salutary appreciation of the fact that the law's meaning is not a "brooding omnipresence in the sky"--and that the executive, with its comparative expertise and accountability, is in the best position to make the judgments of policy and principle on which resolution of statutory ambiguities often depends. The principal qualification has to do with certain sensitive issues, most importantly those involving constitutional rights. When such matters are involved, Congress should be required to speak unambiguously; executive interpretation of statutory ambiguities is not sufficient. Read Professor Sunstein's Debate with Professor Peter L. Strauss
United States v. Pho: Reasons and Reasonableness in Post-Booker Appellate Review
115 Yale L.J. 2183 (2006) This Comment argues that a proper understanding of Booker's reasonableness review validates the appellate court's rejection of these reduced-ratio sentences in Pho, and should do so despite the fact that the sentences issued by Judge Torres were eminently "reasonable" in any colloquial sense of the term. Two possible conceptions of reasonableness review must be distinguished--"reasonable-length" review and "reasons-based" review--and the latter should be preferred. Reasons-based review focuses not on the terms imposed but on the reasons given for imposing them, insisting that those reasons comport with Congress's sentencing priorities. This paradigm, more so than the vague reasonableness standard, acknowledges congressional authority over sentencing rationales and preserves a central role for Congress's much-beloved Sentencing Guidelines going forward. At the same time, by seeing the Guidelines as providing reasons rather than outcome-oriented formulae, it avoids the rote view of the Guidelines that rendered them unconstitutional under Booker. It is thus not only the most appropriate view on the law, but also capable of reconciling Congress's obvious desire for rule-bound sentencing with the advisory role of the Guidelines as they now stand.
Law's Migration: American Exceptionalism, Silent Dialogues, and Federalism's Multiple Ports of Entry
115 Yale L.J. 1564 (2006) Legal theorists are engaged in understanding the legitimacy of techniques by which principles of rights-holding travel across borders. Sovereigntists in the United States object to that migration. The history of both protest about and the incorporation of "foreign" law provides important lessons for contemporary debates. Through examples from conflicts about slavery, the rights of women, and the creation of the United Nations, I chart the anxiety occasioned when American law interacts with human rights movements. At times, through silent absorption rather than express citation, some of the "foreign" sources become lost in translation, and the new rights become constitutive elements of "American" identity. To conceive of these debates as engaging only questions of national boundaries is, however, to miss the reliance on federalism as a justification for declining to participate in transnational rights work. Yet America's federalist structure also serves as a path for the movement of international rights across borders. As illustrated by the adoption by mayors, city councils, state legislatures, and state judges of transnational rights stemming from the U.N. Charter, the Convention to Eliminate All Forms of Discrimination Against Women (CEDAW), and the Kyoto Protocol on global warming, the debate about transnationalism is deeply democratic, with significant popular engagement reframing American norms. Such local government actions require revisiting legal doctrines that presume the exclusivity of national power in foreign affairs--as that which is "foreign" is domesticated through several routes.
Limiting the Federal Forum: The Dangers of an Expansive Interpretation of the Tax Injunction Act
115 Yale L.J. 727 (2005) In Henderson v. Stalder, the Court of Appeals for the Fifth Circuit held that the Tax Injunction Act (TIA) of 1937 prevents the federal courts from exercising jurisdiction over any case in which a victory for the plaintiff might reduce state revenues. In reaching this result, the Fifth Circuit did more than diminish its own power: It gave state legislatures a potentially powerful tool to insulate their actions from constitutional review in the federal courts. The Fifth Circuit's holding is troubling because it threatens the ability of the federal courts to fulfill their historic role in safeguarding rights created under federal law. This Comment argues that Henderson was wrongly decided. By holding that the court lacked jurisdiction to hear the plaintiffs' claims, the Fifth Circuit needlessly limited the power of the federal courts vis- -vis state legislatures and opened a door to state legislatures intentionally crafting legislation so that it will be immune from review in the federal courts. Part I describes the legislative program the plaintiffs challenged in Henderson. Part II argues that in reaching its decision, the Fifth Circuit not only critically misinterpreted existing Supreme Court precedent, but also gave the TIA a construction that is at odds with the enacting Congress's intent. Part III discusses the dangerous possibility that the Fifth Circuit's abdication of jurisdiction will spur states to structure legislative programs as "taxes" specifically to insulate them from constitutional review in the federal courts.
Divorcing Marriage from Procreation
114 Yale L.J. 1989 (2005) Public debate about same-sex marriage has spectacularly intensified in the wake of the Massachusetts Supreme Judicial Court's decision in Goodridge v. Department of Public Health. But amid the twisted faces, shouts, and murmurs surrounding that decision, a bit of old-fashioned common-lawmaking has been lost. Some have criticized the Goodridge court for its apparently result-oriented approach to the question of whether, consistent with the Massachusetts Constitution, the commonwealth may deny marriage licenses to same-sex couples. Others have defended the decision, both on the court's own rational basis terms and on other grounds, including sex discrimination and substantive due process. This Comment contends that both sides are partly right. I join those commentators who find Goodridge's reasoning flawed but its outcome correct. Where I part ways is in recognizing the vital importance but untapped potential of the Supreme Court's decision in Turner v. Safley. The Turner Court held unconstitutional a Missouri prison regulation denying inmates the right to marry except for "compelling reasons." It is a familiar case, frequently invoked in legal arguments over same-sex marriage to support the proposition that marriage is a fundamental right under our federal constitutional jurisprudence. Too often, however, these arguments miss the totality of what Turner tells us about exactly why marriage is a fundamental right. Because the Turner Court struck down a marriage ban that applied to a population with no legal right to procreate and that provided an exception for pregnancy, the decision undermines any claim that marriage is fundamental because of an inexorable connection to procreation. Part I of this Comment scrutinizes and ultimately rejects the Goodridge court's rational basis analysis. Part II explores the road not taken in Goodridge--the fundamental rights approach of cases such as Loving v. Virginia, Zablocki v. Redhail, and Turner. I argue that for marriage to comport with our fundamental rights jurisprudence, the source of its constitutional definition must be constitutional common law, not individual state statutes. Part III rediscovers Turner as a source of that constitutional definition, concluding that the case is irreconcilable with the view that the possibility of procreation is a necessary affluent of marriage's fundamentality. With Bowers v. Hardwick officially dead, Turner insists that same-sex marriage bans answer to strict, and therefore fatal, scrutiny.
Female Judges Matter: Gender and Collegial Decisionmaking in the Federal Appellate Courts
114 Yale L.J. 1759 (2005) This Note finds that the gender composition of the bench affected federal appellate court outcomes in Title VII sexual harassment and sex discrimination cases in 1999, 2000, and 2001. An empirical study (n = 1666) shows that female judges decided for plaintiffs more often than did male judges. Moreover, male judges on panels with female judges decided for plaintiffs more than twice as often as those on all-male panels. Gender mattered more than ideology in determining outcomes. The Note discusses four explanations for the observed effect of gender on collegial decisionmaking: deliberation, deference, logrolling, and moderation.
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.
American Prosecutors as Democracy Promoters: Prosecuting Corrupt Foreign Officials in U.S. Courts
114 Yale L.J. 1185 (2005) On June 3, 2004, a jury in a San Francisco federal court convicted former Ukrainian Prime Minister Pavel Lazarenko of twenty-nine counts of money laundering, wire fraud, interstate transportation of stolen property (ITSP), and conspiracy. The jury found that Lazarenko stole tens of millions of dollars from the Ukrainian people, which he then concealed in U.S. banks. For only the second time in history, a foreign head of government had been successfully prosecuted in the United States. Yet it was the first time that a former leader of a foreign country was convicted in a U.S. court in part for breaking his own country's laws. The U.S. offenses with which Lazarenko was charged criminalize transactions involving money obtained from an underlying illegal act. While these underlying criminal activities typically occur within the United States, Lazarenko stole property and committed extortion within Ukraine. Nevertheless, the district court instructed the jury that it could find him guilty of violating U.S. laws against money laundering, wire fraud, ITSP, and conspiracy if it found that his activities in Ukraine violated Ukrainian law. In effect, the U.S. government helped Ukraine enforce its own laws where Ukrainian courts had failed. Although Lazarenko's corruption was well known in Ukraine, at the time his own country's courts and prosecutors lacked the independence to convict such a powerful political figure. The story is familiar across the developing world: Good laws on the books are not enforced, corruption and lawlessness deepen, and consequently public disillusionment with the promise of democratic reforms grows. Although U.S. prosecutors claimed no such foreign policy designs, this Comment argues that Lazarenko suggests a potentially powerful new tool to promote the rule of law abroad: U.S. prosecutors indirectly punishing violations of foreign laws in U.S. courts by using such violations to prove elements of U.S. crimes. Helping countries in transition enforce their own laws and eliminate corruption at home until their own legal systems become stronger is a heretofore unrecognized collateral benefit of such prosecutions. In considering whether to prosecute foreign officials in the future, the U.S. government should take into account this goal of promoting democracy.
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.
The Right To Destroy
114 Yale L.J. 781 (2005) Do you have the right to destroy that which is yours? This Article addresses that fundamental question. In contested cases, courts are becoming increasingly hostile to owners' efforts to destroy their own valuable property. This sentiment has been echoed in the legal academy, with recent scholarship calling for further restrictions on owners' rights to destroy cultural property. Yet this property right has received little systematic attention. The Article therefore examines owners' rights to destroy various forms of property, including buildings, jewelry, transplantable organs, frozen human embryos, patents, personal papers, and works of art. A systematic treatment of the subject helps support a qualified defense of the right to destroy one's own property. For example, an examination of American laws and customs regarding the disposition of cadaveric organs helps one understand and weigh the expressive interests that prompt people to try to destroy jewelry via will. Similarly, an examination of patent suppression case law points toward a form of ex ante analysis that has been deemphasized in opinions involving the destruction of buildings and other structures. And an analysis of cases involving the destruction of frozen human embryos may shed light on creators' rights to burn unpublished manuscripts or works of art. In advocating a more unified treatment of destruction rights, the Article argues that greater deference to owners' destructive wishes often serves important welfare and expressive interests. The Article also critiques existing case law that calls for particular hostility toward will provisions that direct the destruction of testators' valuable property. Courts and commentators have not given persuasive justifications for restricting testamentary destruction. The Article proposes a safe harbor provision whereby sincere testators who market future interests in their property during their lifetimes and forgo the market prices for those future interests can have their destructive wishes enforced.
Judicial Power and Civil Rights Reconsidered
114 Yale L.J. 593 (2004) Michael Klarman's From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality is an important contribution to the scholarly literature on both the history of the civil rights struggle and judicial power more generally. Klarman argues that for much of the twentieth century, the Supreme Court was very reluctant to rule in favor of African-American civil rights claimants and had little impact when it did. Klarman is right to reject traditional accounts that greatly exaggerated the Supreme Court's willingness and ability to protect minorities. However, he overstates his case. The Court's views on the proper scope of African Americans' rights periodically diverged from those of the political branches of government. The Justices' relative insulation from political pressure, their membership in a different generational cohort than the median voter, the idiosyncrasies of presidential selection of Justices, and the Justices' nationalist inclinations all help explain this result. Moreover, in at least three types of situations, judicial invalidation of Jim Crow legislation significantly aided African Americans: (1) when such legislation had solved collective action problems among racist whites, (2) when legislation had enabled white actors to externalize the costs of Jim Crow onto society as a whole, and (3) when laws lowered the overall costs of maintaining Jim Crow. This Review supports these conclusions by closely examining relevant Supreme Court decisions, especially Progressive Era cases and Brown v. Board of Education.
International Tribunals and Forum Non Conveniens Analysis
114 Yale L.J. 443 (2004) Many international civil disputes are resolved via state-driven litigation before multinational tribunals. Indeed, under traditional principles of international law, individuals may not appear before such tribunals at all. Instead, states must advance claims on behalf of their nationals, a procedure known as diplomatic espousal. As the D.C. Circuit's decision in Nemariam v. Federal Democratic Republic of Ethiopia demonstrates, U.S. courts rarely consider such international tribunals adequate to vindicate individual claimants' interests, because the tribunals' procedures are often in tension with American notions of due process. Accordingly, many courts find that international tribunals are inadequate alternative forums under forum non conveniens analysis. In so holding, courts are allowing forum non conveniens, a doctrine developed to balance proceedings between courts, to undermine the authority of international tribunals--a very different type of adjudicative body. This Comment argues that, in evaluating whether an international tribunal is an adequate alternative forum under forum non conveniens analysis, U.S. courts should focus less on formalistic factors like the identities of the parties who espouse claims before the tribunal and more on the ability of those parties to represent the interests of the individuals whose claims they advance. Emphasizing interest representation, rather than party structure, would help U.S. courts avoid undercutting established international institutions; lessen the perception of U.S. courts as disconnected players in a multilateral world; and allow war-torn states to devote their resources to broad-based compensation and redevelopment, rather than to the litigation of private claims in multiple forums.
What Feeney Got Right: Why Courts of Appeals Should Review Sentencing Departures De Novo
113 Yale L.J. 1955 (2004) Last summer, when a panel of the U.S. Court of Appeals for the First Circuit issued its initial ruling in United States v. Thurston, it plunged into a war between federal judges and Congress, as well as between district and appellate courts, over how much flexibility trial judges have to tailor criminal sentences as they see fit. The war began nearly two decades ago with the passage of the Sentencing Reform Act (SRA) of 1984 and the subsequent enactment in 1987 of the comprehensive Sentencing Guidelines regime. It flared up anew in April 2003, with the passage of the Prosecutorial Remedies and Other Tools To End the Exploitation of Children Today (PROTECT) Act of 2003, Congress's latest attempt to rein in the discretion of sentencing judges. Before the PROTECT Act, a district court's decision to choose a sentence that departed from the range recommended by the Sentencing Guidelines was to be given considerable deference by courts of appeals. In accordance with the Supreme Court's 1996 decision in Koon v. United States, appellate courts had been directed to review Guideline departures for "abuse of discretion." But the PROTECT Act's "Feeney Amendment," named after its author, Florida Representative Tom Feeney, changed the standard of review to "de novo," and seemingly invited appellate courts to regularly second-guess the sentences imposed by district judges. The Amendment, which was approved after just fifteen minutes of debate on the floor of the House of Representatives, quickly earned the condemnation of nearly the entire legal community. Until Thurston, however, courts of appeals around the country had danced around the new standard of review, asserting in case after case that their decisions would be the same using either de novo or abuse-of-discretion review. The First Circuit, which in the past had often led other courts of appeals when it came to sentencing decisions, tackled the new law head-on in Thurston.
Security with Transparency: Judicial Review in "Special Interest" Immigration Proceedings
113 Yale L.J. 1333 (2004) Much of the debate regarding post-September 11 counterterrorism initiatives has centered on the potentially damaging effects of these policies on constitutionally protected rights. Many observers have weighed the balance that the government has struck between national security and civil liberties by determining the extent to which new law enforcement initiatives preserve or encroach upon these rights. While scholars debate the legality of the government's new tools, it is often more difficult to assess whether such initiatives enhance or undermine security. The war on terrorism relies largely on sensitive intelligence and covert operations, so "victories" often remain undisclosed. Yet such assessments will be crucial in defining the future direction of U.S. policy. If another terrorist attack takes place on American soil, lawmakers will be called upon to determine whether the attack occurred because law enforcement personnel were not given adequate tools to prevent it, or because those tools were used ineffectively. This assessment may determine whether policymakers rush to provide law enforcement with additional powers similar to those they already possess, or instead decide to refocus the nation's overall counterterrorism strategy. In choosing between these options, it is critical to scrutinize whether limiting the checks on executive branch authority actually translates into enhanced security. This Comment takes one step in this direction by arguing that decreasing transparency through the blanket closure of "special interest" immigration hearings is unnecessary to preserve security and may undermine overall counterterrorism efforts. Part I argues that the closure policy casts an overly broad net by failing to require judicial determinations that individual aliens pose security threats. Part II evaluates an already-existing alternative that avoids this problem: the open hearings of the Alien Terrorist Removal Court (ATRC). Part III proposes a compromise scheme based on the ATRC model that allows closed hearings after case-by-case adjudications of whether particular aliens have terrorist ties. This compromise model provides a viable alternative that allows the government to conceal the identities of truly high-risk detainees while ensuring the valuable safeguard of judicial review. It also reduces the risk that categorical closure may undermine counterterrorism efforts by alienating immigrant communities that can serve as allies in intelligence gathering. Part IV concludes.
Appellate Review and the Exclusionary Rule
113 Yale L.J. 1143 (2004) Today, application of the exclusionary rule to evidence obtained in reliance on a potentially invalid search warrant is governed by the Supreme Court's holding in United States v. Leon. Leon instructs courts to admit evidence obtained on the basis of a potentially invalid search warrant, so long as the executing law enforcement officers "'acted in good faith'" and "in objectively reasonable reliance on . . . [the] warrant." According to Leon, conduct of the judge or magistrate who issued the warrant cannot provide grounds for suppression of evidence unless the defendant can show that the issuing judge or magistrate "wholly abandoned his judicial role." The scope and application of the exclusionary rule have always bred disagreement. For some, the rule is an unnecessary impediment that allows guilty criminals to escape conviction on procedural technicalities. For others, it is an indispensable substantive component of the Fourth Amendment's protections against unnecessary search and seizure. Set against the backdrop of this historic conflict, Leon can be seen as a great achievement, one that has freed courts from "a difficult dilemma." Yet nearly twenty years later, Leon remains an uneasy compromise--and a source of enduring controversy. Reforming appellate review of the good faith exception to the exclusionary rule along the lines suggested in United States v. Koerth would eliminate a significant problem: the failure of post-Leon jurisprudence to reach underlying probable cause issues in exclusionary rule cases. Part I of this Comment describes this problem and discusses the nature of the Koerth reform. Part II explains why Koerth's "substantial basis" test is preferable to current practice. Part III responds to possible criticisms of the Koerth approach, including the objection that Koerth is inconsistent with Leon.
Leaving FISA Behind: The Need To Return to Warrantless Foreign Intelligence Surveillance
113 Yale L.J. 179 (2003) In a locked, windowless room with walls of corrugated steel, in a restricted area of a Justice Department building in Washington, sits the Foreign Intelligence Surveillance Court (FISC). Conducting proceedings completely hidden from the public, as mandated by Foreign Intelligence Surveillance Act (FISA) of 1978, the FISC grants government agents permission to surveil targets if there is probable cause to believe they are foreign powers or agents of foreign powers. The FISC is accustomed to approving each government request it receives, but on May 17, 2002, it issued an order stating that the Department of Justice (DOJ) had overstepped its bounds by promulgating surveillance procedures that gave prosecutors too much supervisory authority over intelligence investigations. The DOJ insisted that its procedures were in accordance with the FISA amendments passed with the USA PATRIOT Act, and filed the first ever appeal to the Foreign Intelligence Surveillance Court of Review, a panel of three senior federal circuit court judges appointed by Chief Justice Rehnquist. The court handed down In re Sealed Case, reversing the FISC order and affirming the legitimacy of the new DOJ procedures and the USA PATRIOT Act amendments. In late March 2003, the Supreme Court declined to reconsider the decision. The USA PATRIOT Act has virtually eliminated the specialized intelligence-gathering function of FISA orders; they now can be used with the specific purpose of obtaining evidence to be used in criminal prosecutions, as long as this is not the sole purpose of such investigations. Additionally, prosecutors and intelligence officials may now consult over FISA warrant application and execution. A FISA warrant has become little more than a regular Title III warrant issued secretly with no required showing of probable cause of criminal activity. In view of these significant changes, the FISC retains little unique jurisdiction. The FISC's secret, perfunctory procedures no longer provide constitutionally adequate protection for surveillance targets who will be unknowingly investigated and prosecuted as a direct result of its orders, especially now that FISA surveillance may be used specifically for criminal--and not simply intelligence-gathering--investigations. The best way to revive the constitutional viability of foreign intelligence surveillance is to forego the FISA warrant procedure entirely and rely on regular Article III courts to guarantee the reasonableness of such searches if challenged. Such a change in process would allow law enforcement authorities more flexibility in pursuing foreign intelligence investigations, since no pre-investigatory warrants would be required, but would also allow for greater protection of the civil liberties of those investigated, since the standard of review would not be simply whether the target is an agent of a foreign power, but whether the search was conducted in a reasonable manner, in conformance with the Supreme Court's Fourth Amendment jurisprudence. Warrantless foreign intelligence surveillance would be admissible in criminal prosecutions, but only if such surveillance were determined to be reasonable in post hoc adversary proceedings. My proposal is not to give the DOJ a blank check to investigate anyone, anytime, anywhere; such a regime would cause the kind of backlash that prompted the passage of FISA in the first place. Rather, if warrantless foreign intelligence surveillance is going to succeed in the twenty-first century, strict executive and legislative branch internal review procedures are necessary. Prosecutors will have to give targets of warrantless operations notice when such investigations are concluded, allowing targets to contest the surveillance in Article III courts. Such a change would benefit all parties involved. The DOJ would enjoy greater freedom in conducting investigations, as it would not have to procure judicial warrants and could act rapidly to investigate time-sensitive threats. At the same time, the entire process would be removed from the supersecret domain of the FISC, making the Attorney General publicly and politically accountable for his orders, allowing targets more opportunities to challenge investigations, and requiring Article III courts to closely examine the constitutionality of warrantless surveillance when targets so desire. In this Note, I first briefly discuss the reasons for the passage of FISA and the establishment of the FISC, including the past and current workings of the FISC as an institution and its questionable constitutionality even before the USA PATRIOT Act amendments. I then explain how the USA PATRIOT Act and In re Sealed Case have damaged the usefulness and legitimacy of FISA and the FISC. Finally, I make the case for the abolition of FISA and the appropriateness of warrantless searches as the standard in foreign intelligence cases.
The Birth of an Academic Obsession: The History of the Countermajoritarian Difficulty, Part Five
112 Yale L.J. 153 (2002) How is it that the countermajoritarian difficulty became the central frame for constitutional theory for the last fifty years? That is the question taken up in this, the last installment of The History of the Countermajoritarian Difficulty. The piece explains that the countermajoritarian problem so prominent in legal scholarship is neither the same as the occasional criticism leveled at courts engaged in controversial exercises of judicial review, nor necessarily related to the task of political theory of explaining the legitimacy of any branch of government in a democracy. Rather, the academic obsession with the countermajoritarian difficulty was born out of historically contingent circumstances present at the middle of the twentieth century, circumstances that haunt us stillÜthough they need not. The criticism that courts are acting contrary to the will of the majority has been heard throughout history, but it was most prominent during the Progressive Era. It made sense then, as courts were striking down legislative enactments of recent vintage with a strong democratic pedigree. At mid-century, however, popular criticism of the Supreme Court sometimes included this countermajoritarian claim, and sometimes did not, depending precisely on what the Court was doing. Nonetheless, academics became fixated on the problem, even when the public was far less concerned and the criticism inapt. Why did this happen? It is important to recall that the countermajoritarian problem emerged in the course of justifying judicial review, not criticizing it. After the Realists had exploded the myth that constitutional standards were determinate, academics at mid-century struggled to define a role for courts that justified aggressive judicial review in defense of individual liberty and equality. Their concern about this judicial role was expressed in countermajoritarian terms, not because those terms were apt, but because they echoed the Progressive Era battle cries of their most honored teachersÜThayer, Holmes, Hand, and Frankfurter. The problem these academics struggled with was unique to political liberals, whoÜat that timeÜsupported both halves of the countermajoritarian equation: They approved of the work of the Warren Court, but believed in popular democracy as well. Unlike their predecessors, these academics had come to need the Court, but struggled with their inheritance of skepticism about judicial review. Today, liberal academics are more concerned with criticizing the Court than with justifying its work. Yet, echoing Progressive Era critics, these scholars are attacking the Court by raising concerns about its democratic pedigree. These two projects sound similar, but they are very different. Constitutional ¿theoryî flip-flops between attacking the Court and justifying it, depending primarily on who is sitting on the Supreme Court bench and the agenda they are pursuing. It should not be thus; we need a constitutional theory that is less historically contingent and more enduring. The historical perspective offered here can help us see this.
Judicial Review, the Congressional Process, and the Federalism Cases: An Interdisciplinary Critique
111 Yale L.J. 1707 (2002) Following the lead of Alexander Bickel's The Least Dangerous Branch: The Supreme Court at the Bar of Politics, legal scholars have been obsessed with the countermajoritarian aspects of judicial review. Much of the literature is normative--how can the dilemma of judicial review in a democracy be reconciled theoretically? In this vast, important, and sometimes self-important literature, one might, in the whimsical manner of William Prosser, find examples of arguments ranging from the philosophical to the lawyerly. In contrast, political scientists who study judicial behavior generally take a descriptive tack, contending that judicial review is best understood as simply correlating with the political values of the Justices or as representing the strategic behavior of self-interested actors in a complex institutional setting. One would be hard-pressed in academe to find many other scholarly areas with so much overlap and so little congruence. Generally speaking, judges are probably untroubled by these conflicts, finding them, if you will, academic. Recently, however, the Supreme Court has operationalized judicial review in cases concerning congressional authority to invade state prerogatives, not so much by normative articulation of constitutional standards as by descriptive evaluation of the nature and quality of the congressional process underlying the enactment of the statute. In this respect, the Court has invited a new intersection of legal scholarship and political science, one concerning the judicial capacity to evaluate and to control congressional processes under our constitutional system of separated national powers. In this Essay, we combine our mutual perspectives to analyze the Court's performance at this new juncture of constitutional law and political science. We demonstrate that the Court's intrusion into congressional processes is not simply too rigorous, but institutionally wrongheaded in a variety of ways. Whatever might be said about the outcomes in these federalism cases--and for purposes of this Essay, we remain agnostic on that score--some of the techniques of judicial review exercised in them are contrary to any plausible scholarly understanding of Congress as an institution. Whatever might be said, whimsically or otherwise, about the Court as philosopher or lawyer, it has flunked political science. We are not the first commentators to criticize the methodology of the new federalism cases. Several articles have examined the trend in the case law, complaining that it, among other things, is contrary to precedent, wrongly transplants to constitutional statutory review the model of judicial review of administrative decisionmaking, unfairly retroactively imposes procedural obligations upon Congress at the expense of the constitutionality of important legislation, constitutes impermissible judicial interference with Congress contrary to the separation of powers, and improperly translates congressional questions of legislative fact into judicial questions of law. There is much to admire in these commentaries, and our analysis necessarily overlaps with them in many more ways than can be demonstrated productively by citation within the confines of the essay format. Our goals are to use our interdisciplinary partnership to advance this literature in two important ways. First, largely from the perspective of public-law theory, we situate the federalism cases within broader jurisprudential frames of reference, examining theories of due process of lawmaking and the intersection of judicial review and statutory interpretation. We ask not only whether the theories undermine the cases, but also whether the cases undermine the theories. Second, largely from the perspective of social science, we present a focused and detailed interdisciplinary evaluation of the legislative deliberation model based on a more complete understanding of congressional decisionmaking processes. In Part I, we begin by identifying three models of judicial interaction with the political branches that turn in large part on institutional and procedural concerns rather than on normative articulation of constitutional principles. Part II then discusses the federalism cases within the domain of our study, with particular focus on the judicial review of congressional processes at the heart of them. These cases appear to fit our third model of judicial proceduralism-institutionalism, one inquiring whether the political actor duly deliberated before making the law in question. Part III provides a thorough evaluation of the "due deliberation" model in the federal cases in light of the common understanding of Congress found in the social sciences. We conclude that Congress is capable of meeting the Court's fact-gathering requirements, but cannot satisfy the Court's requirement of due deliberation and rational, articulated decision. In our judgment, at least this aspect of the Court's model is likely to be abandoned eventually. One reason is that the model is a dysfunctional imposition upon Congress. Another, more ironic, reason is that the majority coalition of Justices in these cases was assembled in apparent violation of the very principles of nonstrategic interaction, deliberation, and articulation of reasoned, sincere decisions that the coalition has seemingly sought to impose upon Congress. The concluding portions of the Essay examine some alternatives suggested in recent literature for the future of judicial review focused on legislative processes.