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Forcing Supreme Court Review by the Federal Circuit
Full text linkFrom time to time, a federal court of appeals may want the Supreme Court to take a case because it is stuck: there is an unresolved issue that is important to the day-to-day administration of justice, but an en banc sitting would be futile. The Supreme Court, however, has a haystack problem: it receives several thousand certiorari petitions each year, of which approximately 1% receive plenary review. The literature suggests that the selection of the certworthy needles in this petition haystack is a black-box process affected by discretion and situational factors that make timely review unpredictable and difficult to obtain.
Among the federal appellate courts, the difficulty of securing timely Supreme Court review may be the most problematic for the U.S. Court of Appeals for the Federal Circuit, which was established to create and maintain a uniform, coherent body of patent law precedents. Because of its exclusive appellate jurisdiction in patent cases, if the Federal Circuit gets stuck, its impact is felt nationwide. Compared to the other circuits, the Federal Circuit might be more dependent on the Supreme Court in some ways, because there is no intercircuit percolation of patent law. Ironically, the Federal Circuit may have more difficulty signaling when review is necessary because there are no circuit splits in patent law.
Accordingly, using the Federal Circuit as a case study, this Article proposes the creation of a mechanism for bypassing the Supreme Court’s certiorari haystack to secure timely review of cases that are important to the day-to-day administration of justice. Specifically, Congress should give the judges of the Federal Circuit the power to periodically invoke (e.g., once a year)—through a majority vote of its regular active judges—either mandatory appellate jurisdiction or mandatory certified question jurisdiction at the Supreme Court to secure review of a case or a discrete issue. By providing a supplemental pathway to Supreme Court review that can be invoked directly by the Federal Circuit judges themselves, the proposal effectively sets up a “hotline” between the two courts and reserves a slot on the high court’s plenary docket for a case that was selected with the benefit of the Federal Circuit’s expertise. As a result, a tighter, more robust feedback loop is created between the generalist Supreme Court that makes broad pronouncements and the specialist appellate court that is charged with operationalizing those pronouncements for day-to-day adjudication.
Because all appellate courts (not just the Federal Circuit) have an interest in obtaining timely Supreme Court intervention when necessary, this Article might also be of interest to audiences beyond patent law who are seeking ideas for reforming the Supreme Court
On Fragmentation, Boundary Problems, and Movement Toward a Regional Fair Housing Regime in Erie County, NY
Full text linkPrior to recent rule changes, which are still being deliberated as of this writing, Department of Housing and Urban Development (HUD) grantee communities charged with Affirmatively Furthering Fair Housing (AFFH) have been required to perform regular analyses of impediments (AIs) that identify barriers to fair housing in their territories. A central element of the AI is the delineation of racially or ethnically concentrated areas of poverty (R/ECAPs). Traditionally, grantees identify R/ECAPs using data for their jurisdictions only, ignoring surrounding communities. Doing so provides local decision-makers with knowledge about spaces in their territories where housing security might be relatively problematic, and where residents tend to be isolated from wealth-building opportunities. However, this piecemeal, jurisdiction-by-jurisdiction approach arguably reinforces, rather than challenges, the processes that produce residential segregation and concentrated poverty. This paper offers an example of how such an outcome might occur using information drawn from the most recent (February 2020) attempt at producing a countywide, “regional” AI in Erie County, NY, home to the city of Buffalo. The distribution of R/ECAPs calculated for that AI on a jurisdiction-by-jurisdiction basis are compared to R/ECAP distributions generated by spatial analyses which ignore municipal boundaries and operate on the entire study area. The thought exercise reveals that, while the regional geographies of R/ECAPs change depending on how boundaries are defined, the geographies of HUD funding are fixed, thereby disincentivizing grantees from pooling resources in ways that could contribute to cooperative regional solutions. The article concludes by exploring the policy implications of these findings
The Ninth Amendment: The Hard Problem of U.S. Constitutional Law
Full text linkLike with the mythical lamp that can grant any three wishes, federal courts in the United States have buried the Ninth Amendment of the U.S. Constitution deep within the sands of American law in order to avoid coming to terms with its potential regarding the protection of unenumerated constitutional rights. Courts have been able to do so, in part, because of the seemingly impossible task of extracting from the text and history of the Ninth Amendment sufficient elements needed to identify which unenumerated rights may be subject to judicial enforcement.
This impossibility is an illusion and is contrary to the text, structure, history, and purpose of the Ninth Amendment. The Ninth Amendment means and does something. It is not superfluous or redundant. But, because of the nature of its object—unenumerated rights—there is an inherent limit to what the text of this constitutional provision can tell us about them. This is not a design flaw on the part of the drafters. It is a necessary characteristic when dealing with unenumerated items. It simply requires more effort on our part.
The Ninth Amendment constitutes a textual command regarding extra-textual things. This generates a normative gap: how do we get from the text to the unenumerated rights it references but does not, and cannot, identify specifically? This challenge represents the ultimate hard problem of U.S. constitutional law. But it is a solvable problem.
This Article analyzes the Ninth Amendment, including its text, structure, history, and purpose, as well as the intent of its drafters and the history of its interpretation by courts and scholars. Furthermore, this Article proposes that the Ninth Amendment is a multi-purpose tool that serves different roles. Its main role is as a residuary or reservations clause that allows for the identification of judicially enforceable unenumerated constitutional rights that can be claimed against both state and federal governments. As a result, the Ninth Amendment represents one of our best current bets with regard to the development of federal constitutional rights at a historical juncture where federal courts are weakening rights protections under the guise of textualism and originalism. The Ninth Amendment stands in the way of that endeavor, since its text and history are meant to broaden rights, not contract them
Life Without Parole: An Eighth Amendment Analysis
Full text linkThis Article will analyze the constitutionality of life without parole under the U.S. Supreme Court’s test for categorical bans on sentencing practices. This article first addresses the cruelty of prison and how that affects individuals with life sentences specifically. Next, it will analyze life without parole under the Supreme Court’s Eighth Amendment analysis, starting with examining evolving standards of decency. In doing so, this article will address how the U.S. operates with respect to sentencing compared to the rest of the world. Importantly, it will engage in a culpability analysis, following the Supreme Court’s logic, that ultimately favors abolition of the sentencing practice. It argues that the typical person committing a crime does not have true moral depravity due to the average incarcerated person being impacted, at some point in their life, by poverty and trauma, with few resources available to address these challenges. Both poverty and trauma affect a person’s brain development and decision-making, which diminishes their personal culpability. As such, violence typically does not reflect a person’s fundamental moral defects, but reflects one’s circumstances and background. Because an unacceptable amount of individuals sentenced to life without parole are not so morally culpable as to deserve the harshest life sentence, imposing life without parole generally does not meet the Court’s culpability requirements. Finally, this article will conclude that life without parole does not adequately achieve the four main penological goals, and these goals may be reached by far less oppressive means.
Based on evolving standards of decency, the culpability of the typical person engaging in crime, and an analysis of the four main penological goals, life without parole is unconstitutional under the Supreme Court’s test, as it violates the Eighth Amendment’s prohibition of cruel and unusual punishment
Regionalization and Access to Fair Housing in Erie County, NY
Full text linkThis paper examines how political fragmentation in Erie County, NY, USA impacts the availability of affordable housing and economic opportunity for residents. In the post-World War II era, employment rapidly migrated to the suburbs, resulting in spatial disconnections between extant residential geographies of the principal City of Buffalo and older, inner-ring suburbs, and the emerging economic geographies of second- and outer-ring municipalities. Stated alternatively, the typical distance between workers and workplace steadily increased. As jobs suburbanized, affordable housing opportunities did not, leaving many low-income residents either isolated from new employment opportunities altogether or paying higher transportation costs for employment farther from their homes. Utilizing the 2020 Analysis of Impediments to Fair Housing Access we explore what contributes to this condition, with a focus on how political fragmentation is a key factor. Erie County specifically, and metropolitan areas across the U.S., are characterized by multiple jurisdictions, each with its own regulations, policies, and politics influencing their approach to affordable housing and limiting its construction. This political fragmentation makes it difficult to coordinate meaningful regional action to ensure the provision of affordable housing in proximity to suburban employment opportunities. That difficulty is compounded by federal policies and programs requiring individual municipal grantees to conduct their own (local) fair housing planning, usually independently, which tends to reinforce existing jurisdictional divisions. Understanding factors that contribute to lack of affordable housing can contribute to more effective strategies to mitigate those barriers and improve connection between affordable housing and economic opportunity
When a Picture is Worth a Thousand Sentences: A Call to Reword Federal Sentencing of Non-Production Child Pornography Offenses in the United States
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Progressive State Constitutionalism
Full text linkUnlike the U.S. Constitution, many state constitutions are truly modern documents that address important social, economic, and political issues from a progressive perspective. This is due to the combination of several key features, including: socially oriented historical circumstances; democratic creation processes; significant substantive content guided by ideas of social justice; and adequate judicial enforcement that takes into account these crucial normative elements. As a result, these progressive state constitutions can become powerful allies in the search for a transformative constitutionalism in the United States that facilitates the goals of social justice and collective prosperity.
The constitutional processes in California (1880), New York (1938), Puerto Rico (1952), and Illinois (1970) are prime examples of this type of progressive constitutionalism. Their particular creation histories and the constitutional content they produced represent a sharp break from the experiences at the federal level. Specifically, they show that there is an available alternative route in order to achieve progressive results in the constitutional realm. Moreover, they can serve as blueprints for the eventual substitution of the U.S. Constitution with a document truly written by ‘We the People’ that, in turn, addresses the enormous social, economic, political, and environmental challenges facing the United States today
Genteel Culture, Legal Education, and Constitutional Controversy in Early Virginia
Full text linkThis article focuses on the movement to reform legal education in early national Virginia, offering a fresh perspective by examining the connection between legal education and society and culture. It challenges the notion that constitutional ideas were the primary driving force behind reforms and argues that social status and “manners” played a more significant role. Wealthy elites in Virginia associated manners with education, sending their sons to college to become gentlemen, as it secured their aspirations to gentility and their influence over society and politics. Reformers sought to capitalize on this connection by educating a generation of university-trained, genteel lawyers who could lead the state\u27s legislature and its courts. In this sense, educational reform was genteel rather than democratic in its basic assumptions. The article examines the central figure of George Wythe and explores his influence on Virginia\u27s leading men, including Thomas Jefferson and St. George Tucker. It delves into the student experience in Wythe\u27s law office and at the College of William and Mary, the success of educational reforms in the central courts, and the effects on Virginia\u27s constitutional development. The college-educated lawyers who came to dominate the legislature in the early nineteenth century used their training for politics. As these lawyers sought to strengthen the institutions their party controlled, they drove the development of constitutional doctrines like federalism and separation of powers