Loyola University Chicago, School of Law: LAW eCommons
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Around the World: A Look at Nepal\u27s Unconditional Child Grant Program and How Universal Cash Grants Can Provide Social Protection for Children Around the World
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Wrongfully Convicted Does Not Need to Mean Wrongfully Compensated: Using State Legislation to Assure Accurate Compensation
Full text linkBeyond Samuel Moyn\u27s Countermajoritatian Difficulty as a Model of Global Judicial Review
No full textThis Article responds to Samuel Moyn\u27s critique of judicial review and his endorsement of judicial modesty as an alternative. By invoking the countermajoritarian difficulty, Moyn argues that judicial overreach has become an unwelcome global phenomenon that should be reexamined and curbed. I reject Moyn\u27s claim that this kind of judicial modesty should define the role of courts for all time. By applying the countermajoritarian difficulty beyond its United States origins, Moyn assumes it is an unproblematic baseline against which to measure the role of courts globally. Moyn\u27s vision says nothing about when it would be appropriate for courts to rule against legislative majorities. This view of judicial modesty is defied in constitutions such as those of South Africa and Kenya, which explicitly provide for their manner of interpretation and empower courts to “develop” the law. In the often revolutionary conditions of new African democracies, the functions expected of judicial review have a significant role both in constituting the new order as well as in disabling the continuation of the old order
Deliberate Democracy, Truth, and Holmesian Social Darwinism
Full text linkJUSTICE Oliver Wendell Holmes Jr.\u27s “marketplace of ideas” analogy continues to deeply influence First Amendment doctrine. It provides a rational substratum upon which the political or self-realization characterizations of free speech are built. However, typically overlooked is the Social Darwinistic root of the Justice\u27s thought. He championed the spread of ideas and the political sway of majority opinions. That analytical insight is key to many of the Supreme Court\u27s free speech precedents. On the one hand, the concept is invaluable for defending free discussions about philosophy, political science, the arts, humanities, pedagogy, and social sciences. In these areas, the marketplace of thoughtful expression will give rise to searching wisdom, understanding, culture, taste, achievement, scientific truth, political action, and creativity. On the other hand, market political leverage can drown out minority voices. According to a Holmesian relativist understanding, populist versions of truth can and should dominate law and its formation. To his mind, the judiciary lacks any power to check “proletarian dictatorship” from forming in the country. Left unqualified, his political perspective on truth allows for abuses of representative governance. In the second decade of the twenty-first century, democratic institutions are being exploited by populist autocrats like Hungary\u27s Viktor Orban or Turkey\u27s Recep Tayyip Erdogan. Populism in the United States, on the right and on the left of the political spectrum, is alarmingly flirting with xenophobia, racism, and anti-Semitism. That political reality should give us some pause about expecting libertarianism to yield a just truth.
Justice Holmes\u27s Social Darwinistic approach to the marketplace of ideas is fraught with callous notions of preference for powerful speakers. It stands in opposition to a more equalitarian understanding of markets, which recognizes the policy balance governments sometimes undertake to advance important interests that protect open dialogue, while empowering indigent and powerless individuals to join the conversation. Truth and falsity are manipulable concepts, not generally something courts want to resolve. Falsehood is inevitable in conversation. At a minimum, mistakes are rampant in discourse, therefore as New York Times Co. v. Sullivan championed a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open. People living in a deliberative democracy must be given space to joke, speak figuratively, and hyperbolically criticize government without risk of censorship or punishment. Government lacks the authority to require parties to adopt its version of truth.
This essay first provides a brief doctrinal trajectory of how the Court developed its marketplace of ideas doctrine. It then critiques the construct\u27s amenability to authoritarian doctrines. At its core, this essay argues against the libertarian view of free speech and for the adoption of a limited balancing test that, along with precedents, requires judges to weigh speech, public policy, a means/ends analysis, and the availability of less intrusive ways of achieving the narrowly tailored government aims
Police Disciplinary Appeals
No full textThis Article empirically evaluates the procedural protections given to police officers facing disciplinary interrogations about alleged misconduct. It demonstrates that state laws and collective bargaining agreements have insulated many police officers from the most successful interrogation techniques. The first part of this Article builds on previous studies by analyzing a dataset of police union contracts and state laws that govern the working conditions in a substantial cross section of large and midsized American police departments. Many of these police departments provide officers with hours or even days of advanced notice before a disciplinary interrogation. An even larger percentage of these police departments require internal investigators to provide officers with copies of incriminating evidence before any interrogation. These protections exist in departments of all sizes, regardless of geographical location. The second part of this Article relies on a national survey of American law enforcement leaders to evaluate whether these regulations frustrate officer accountability efforts. The overwhelming majority of the survey respondents claimed that these interrogation regulations substantially burden legitimate investigations into officer behavior. Virtually all survey respondents agreed that these protections do little to reduce the likelihood of false confessions. Combined, this data paints a troubling picture of the internal procedures used to investigate and respond to officer misconduct. This data suggests that states and municipalities have given police officers procedural protections designed to thwart internal investigations, thereby limiting officer accountability. This Article concludes by offering normative recommendations on how communities can reform interrogations of police officers so as to balance the community interest in accountability with officers\u27 interests in due process
