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The Administrative State\u27s Jury Problem
Get PDFThis Article argues that the administrative state’s most acute constitutional fault is its routine failure to comply with the Seventh Amendment. Properly understood, that Amendment establishes an independent limitation on congressional authority to designate jurisdiction to juryless tribunals, and its dictate as to “Suits at common law” refers to all federal legal rights regardless of forum. Agencies’ use of binding, juryless adjudication fails these requirements and must be reformed. But this does not mean dismantling the administrative state; it is possible (indeed, necessary) to solve the jury problem while maintaining modern government. To that end, this Article advances a structural theory of the Seventh Amendment that situates the civil jury as an institution within the modern administrative state. It contends that the Seventh Amendment’s demands can be met either by providing a jury trial within administrative adjudication in the first instance, or by providing a de novo jury trial in an Article III court afterward. And it unearths and presents historical and judicial support for both approaches. The Article further considers the consequences of incorporating lay participation into the work of expert agencies and shows that the disruptive impact likely would be minimal. It concludes by arguing that reintroducing the jury will increase the procedural legitimacy of the administrative state and, perhaps, its substantive accuracy and effectiveness, too
Antimatters: The Curious Case of Confederate Monuments
Get PDFConfederate monuments sit at a crossroads of speech frameworks as contested government speech, as concrete edifices of hate speech, and as key protest sites. The interplay of state law and speech doctrines in states like Alabama and Florida has cemented monuments as physical representations of government speech that municipal governments cannot speak on. To understand the confounding ways that doctrinal principles take on inverse implications, this Article draws on the concept of antimatter in physics—matter that has the same mass and properties of ordinary matter but with the opposite charge—to analyze doctrinal intersections of constitutional law that are made to appear doctrinally neutral or generally applicable but are contextually charged with the full force of white supremacy.
Physicists refer to the observable material that makes up the known universe as matter but have theorized and identified corresponding material that has the same mass but the opposite properties, known as antimatter. Although physicists are certain that antimatter exists, its nature makes its presence difficult to articulate, and represents an asymmetry in the visible universe due to our limitations in perceiving the phenomena. Thus, a limited perception prevents people from understanding antimatters, and, theoretically, may be due to antimatter having a different relationship to time itself—antimatter travels backwards, or at least in a different direction in time than the known, observable universe.
Framing the practical contradictions created by the doctrinal intersections, I argue that state legislation has turned Confederate monuments into antimatters—all the properties of speech, but obfuscated by state legislation, becoming intangible legal phenomena that are in transit back in time. Governments no longer need to express explicit support of white supremacy. By providing special protection for these Confederate monuments, states demonstrate allegiance to the ideology the statues represent. Theorizing antimatters thus reframes the doctrines of constitutional law by focusing on phenomena rendered intangible by rhetorics of neutrality and objectivity to contextualize the operation of power and belonging in the law—like Confederate monuments that regulate time and place in the name of white supremacy under the protection of neutral, doctrinal applications
Fugitive Pull: Applying the Fugitive Disentitlement Doctrine to Foreign Defendants
Get PDFDefendants force courts to decide whether to use judicial time and resources to hear a case when they either flee or refuse to submit to jurisdiction. Judges in the United States possess an exceptional discretionary power to deny access to the courts in these circumstances through the fugitive disentitlement doctrine. The fugitive disentitlement doctrine developed as federal common law and permits courts to exercise discretion in declining to hear appeals or motions from defendants classified as fugitives from justice.
Historically, the fugitive disentitlement doctrine was intended to prevent courts from wasting resources adjudicating cases when a defendant has fled and remains a fugitive from justice. While traditional fugitives remain subject to the doctrine, modern courts now also apply fugitive disentitlement to foreign defendants with tenuous connections to United States jurisdiction. United States federal prosecutors can leverage the doctrine to circumvent the principle of the presumption against extraterritoriality, a legal doctrine that presumes laws do not apply outside United States borders. Consequently, as long as the government can secure an indictment, fugitive disentitlement requires that foreign defendants travel to the United States and submit to its jurisdiction.
Absent an appeals process, foreign defendants must submit to United States jurisdiction and may be forced to travel great distances to defend themselves in United States courts any time a U.S. prosecutor levels charges. Allowing foreign defendants to challenge the application of the fugitive disentitlement doctrine furthers the purposes of justice and due process. This Comment argues that the United States Supreme Court should adopt the Second Circuit’s approach to fugitive disentitlement, which allows a defendant to challenge fugitivity through the collateral order doctrine as an exception to the final judgment rule
Software Law and Its Application, Third Edition
No full textSoftware Law and Its Application, Third Edition covers the statutes, cases, and regulations that provide legal protection for computer software with a practice-focused approach.https://digitalcommons.law.uw.edu/faculty-books/1084/thumbnail.jp
