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Ethical Guardrails to Unbounded Procedure
No full textCivil lawsuits in federal courts—especially class actions and multidistrict litigation (MDL)—can be messy and complicated, calling for pragmatic interventions that lie beyond what is explicitly addressed by the existing rules. And flexibility is part of the genius of the Federal Rules of Civil Procedure. On the other hand, unbounded discretion and innovation in procedure can lead to illegitimate exercises of power, bias, democratic nonaccountability, and other serious harms. But the choice is not between providing individual courts with nearly limitless authority to experiment with procedure or having a set of rigid rules. Instead, there is a third path: district judges should look to ethics rules to define the boundaries of their discretion, especially when innovating with civil procedure. The case for treating professional-conduct rules as guardrails to unbounded procedure begins with a recognition that federal district courts have almost universally adopted ethics codes modeled after the American Bar Association Model Rules of Professional Conduct through their local rulemaking. This comes with an important doctrinal payoff: judges cannot ignore these ethics rules when applicable. Moreover, even if the district courts had not already committed to them, professional-conduct rules have many normative advantages over unbounded procedure and, thus, would serve as useful guides. The supervision of attorneys’ fees in multidistrict litigation provides a helpful case study. MDLs have become the predominant battleground for important procedural disputes and are a paradigmatic example of unbounded procedure. Within MDLs, common-benefit fees are extremely controversial and legally tenuous. Several professional-conduct rules, however, directly address the substantive issues and offer established frameworks for regulating lawyers’ compensation to ensure its reasonableness and fairness for everybody involved. Beyond this specific intervention, the key contributions of this Article are (1) putting civil procedure and professional responsibility into greater dialogue and (2) illustrating how professional-conduct rules are well positioned to fill many important gaps or otherwise guide judges’ experiments
Clemency for the Common Good
No full textDuring the height of the COVID-19 pandemic, we were reminded of several terrible truths about the modern mass incarceration state: namely, that it collects vulnerable people, places them in conditions where they are unable to protect themselves against many forms of ordinary and extraordinary risks, incubates suffering amongst them, and then spreads that suffering to surrounding communities. The ghastly consequences of these realities during the COVID pandemic led to piecemeal efforts to release moderate numbers of incarcerated people for public policy reasons largely unrelated to the kinds of individualized factors that have traditionally motivated most acts of clemency. This Article draws upon both the successful and unsuccessful aspects of these efforts to theorize about and propose a new conception of the clemency power that is rooted more expressly in our collective public policy goals. This theory, clemency for the common good, resonates with the deeper explanations of more traditional grants of clemency. Transparently adopting a theory of clemency for the common good is likely to protect both prisoners and the general public when the inevitable future pandemic and natural disaster occur, both by speeding releases and ensuring that appropriate procedures are in place. Of equal importance, however, is that the acceptance of such an approach will open dialogues about the wisdom and sustainability of some of the most troubling aspects of the modern mass incarceration state and offer a safety valve to protect us against our most punitive and counter-productive policies
The Need for Corporate Guardrails in U.S. Industrial Policy
Get PDFU.S. politicians are actively “marketcrafting”: the passage of the Bipartisan Infrastructure Law, the CHIPS and Science Act, and the Inflation Reduction Act collectively mark a new moment of robust industrial policy. However, these policies are necessarily layered on top of decades of shareholder primacy in corporate governance, in which corporate and financial leaders have prioritized using corporate profits to increase the wealth of shareholders. The Administration and Congress have an opportunity to use industrial policy to encourage a broader reorientation of U.S. businesses away from extractive shareholder primacy and toward innovation and productivity. This Article examines discrete opportunities within the major policy programs for rule-makers to include corporate guardrails to prevent public funds from flowing mainly to shareholders, to encourage gain-sharing with multiple corporate stakeholders, and to ensure that the public interests embedded in industrial policy are met
A Meaningful Life: The Future of Juvenile Justice in Washington After Anderson
Get PDFUntil 2022, Washington’s line of juvenile sentencing jurisprudence gave every indication of continuing along the course set by Miller v. Alabama, as Washington courts recognized that “children are different” and should not be subjected to the harshest punishments available in the criminal legal system. State v. Anderson marked a stark diversion from this course. In upholding the constitutionality of a de facto life sentence for a juvenile, the Washington Supreme Court all but rejected the well-established scientific consensus surrounding juvenile brain development and implicit racial bias. Whether this decision reflects a minor aberration or a broader trend in the court’s juvenile sentencing jurisprudence, has yet to be seen. This Note begins by discussing the constitutionality of life and long sentences for young offenders in the United States and explains how the scientific consensus surrounding juvenile brain development informs this constitutional inquiry. It then examines the range of responses to Miller’s ban on mandatory life without the possibility of parole for juveniles across United States jurisdictions, generally, and in Washington State specifically. Next, it turns to the future and analyzes whether Anderson will lead to the increased imposition of de facto life sentences on juvenile and young offenders. Finally, it makes policy recommendations arguing for the elimination of life and long sentences for juvenile and young offenders in Washington and explains how doing so recognizes current brain science and reduces the risk of implicit racial bias tainting the sentencing process
Justice Is Not a Game: The Devastating Racial Inequity of Washington’s Three Strikes Law
Get PDFJustice Is Not a Game: The Devastating Racial Inequity of Washington’s Three Strikes La