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Bottom-Up Federal Sentencing Reform
Get PDFToday, about 160,000 people live behind the bars of a federal prison. That is roughly the population of Alexandria, Virginia. Starting from the premise that the federal system’s contribution to mass incarceration should be curbed and recognizing that broad legislative reform seems unlikely, this Article considers the federal judiciary’s potential role in sentencing reform.
Bottom-up sentencing reform consists of federal trial judges exercising their decisional authority in individual cases to engage with the fundamental premises and assumptions that underlie traditional sentencing decisions, categorically rejecting them when appropriate. This approach to reform is available under current law. In fact, a few prominent examples of this type of reform already exist. This Article proposes expanding those existing models and concludes that the benefits of more ambitious judge-led reform are not offset by potential critiques. In the absence of top-down reform, federal trial judges should use their discretion and fact-finding power to reform federal sentencing
Separate, Sovereign, and Subjugated: Native Citizenship and the 1790 Trade and Intercourse Act
Get PDFIn 1790, the same year Congress limited naturalization to “free white persons,” it also enacted the first Indian Trade and Intercourse Act. The Trade and Intercourse Act may have even stronger claims to “super statute” status than the Naturalization Act. Key provisions of the Trade and Intercourse Act remain in effect today, and the Act enshrined a tribal, federal, and state relationship that profoundly shapes modern law. Unlike the Naturalization Act, the Trade and Intercourse Act reflected the input of people of color: it responded to the demands of tribal nations and—to a degree—reflected tribal sovereignty. While Indigenous people could not naturalize in 1790, early laws and policies encouraged them to become citizens of the United States. Indigenous citizenship, however, was a tool of subjugation, designed to undermine tribal sovereignty and thereby increase White authority. This history is inconsistent with Chin and Finkelman’s claim of a persistent vision of White citizenship, but it is consistent with allocation of citizenship as a tool of White power
Afterward: A Reply to Commentators
Get PDFAuthors Gabriel J. Chin and Paul Finkelman respond to the comments on their article, The Free White Person Clause of the Naturalization Act of 1790 as Super-Statute
Constitutional Rights and Remedial Consistency
Get PDFWhen the Supreme Court declined definitively to block Texas’s S.B. 8, which effectively eliminated pre-enforcement federal remedies for what was then a plainly unconstitutional restriction on abortion rights, a prominent criticism was that the majority would have never tolerated the similar treatment of preferred legal protections—like gun rights. This refrain reemerged when California enacted a copycat regime for firearms regulation. This theme sounds in the deep-rooted idea that judge-made law should adhere to generality and neutrality values requiring doctrines to derive justification from controlling a meaningful class of cases ascertained by objective legal criteria.
This Article is about consistency, and inconsistency, in judicial decision-making—and more specifically, about the extent to which federal courts should provide similar opportunities to obtain relief for wrongs to discrete constitutional rights. The Article explores how a commitment to generality and neutrality values can translate into a paradigm promoting transsubstantivity (meaning consistent applicability across separate substantive concerns) for constitutional remedies (meaning rules for implementing and preventing or punishing the violation of constitutional rights)—and how the Supreme Court has deviated from this paradigm. Supported by an array of examples, the Article proposes a novel framework turning on the notion that remedial inconsistency can be transparent, translucent, or opaque given the clarity of doctrinal inconsistency. Prophylactic remedial doctrines (like the Miranda-warning mandate and First Amendment overbreadth) are transparently inconsistent, for instance, because they apply differently to discrete rights on their faces. And indeterminate remedial standards (like the political question doctrine for justiciability and the “plan of the Convention” doctrine for state sovereign immunity) are opaquely inconsistent because discerning their variable character requires inductive analysis of actual applications.
After these descriptive claims, the Article proceeds to a normative examination of how this framework could help improve judicial approaches to constitutional remedies—while recognizing that nontranssubstantive doctrines are desirable in many circumstances. Courts, for example, should work to make doctrines of opaque and translucent inconsistency more transparent so that appropriate institutional actors can more easily assess, affirm, alter, or abandon them. And judges should consider the risk of introducing unnecessary elements of opaque inconsistency before relying on overdeterminative reasoning to reach otherwise established results. Among additional contributions, by providing innovative tools for centering remedial consistency as an important—but not absolute—aspect of constitutional law, this Article offers a potential step toward decreasing perceptions of the Supreme Court’s work as pervasively political, thereby reinforcing its legitimacy at this time of widespread skepticism
Missing Coercive Control in Family Court Proceedings
Get PDFIn New Zealand, like in the United States, coercive control generally remains outside the purview of the criminal law. It is therefore crucially important that court personnel identify and respond appropriately to coercive control in family law proceedings. Their continued focus on discrete incidents of physical violence between adults conceals the patterned and gendered nature of most [interpersonal violence] in which women are victimized and the patriarchal context of male privilege that continues to dominate heterosexual relationships. The failure to identify coercive control contributes to victims’ entrapment and increases the risk of violence continuing post-separation.
Cases involving coercive control generally require substantial protections for victims and their children to be safe after separation. Research demonstrates that the most effective way to protect [family violence] victims from additional violence is a systemic response that prioritizes their safety and holds perpetrators accountable. If judges, lawyers, and psychologists who work in the [New Zealand] Family Court are not able to understand coercive control, they cannot protect victims and may expose them to further harm. Court professionals who fail to recognize and understand the harms that stem from coercive control inadvertently enable and collude with perpetrators.
This abstract has been adapted from the author\u27s conclusion
Cherry-Picking History: Witchcraft, the Common Law, and the Weaponization of Substantive Due Process
Get PDFIn 2021, the Supreme Court sharply altered its substantive due process analysis in Dobbs v. Jackson Women’s Health Organization, reversing the 49-year-old decision in Roe v. Wade to establish abortion access as a constitutional right. The Court reframed its substantive due process analysis as a two-step test, requiring a right to be narrowly framed and “deeply rooted in history and tradition” before it could be analyzed as “implicit in the concept of liberty,” instead of its previous balancing test that involved a broad description of the right. In the Dobbs majority opinion, the Court cherry-picked elements of common law jurisprudence as its chosen “history and tradition” to strike down Roe v. Wade. In doing so, the Court demonstrated its ability to weaponize substantive due process with originalist theory, threatening to utilize the very doctrine that many civil liberties are based in to strike those down.
This Note uses a combination of historical analysis and social science to criticize this approach to substantive due process, using one of the common law authorities the Dobbs majority cited— scholar and witch-hunter Sir Matthew Hale—as an example of the type of history the Court has the potential to recreate. It argues that the Court’s decision to treat Hale as a legal authority enshrines the culture of oppression through witch-hunting that contributed to the Salem Witch Trials, paving the way for a legally enforceable codified morality. It ultimately concludes with a criticism of the overutilization of common law and an assertion of alternate means to argue abortion rights, combined with a prediction of the potential downfall of substantive due process
Quantifying \u3cem\u3eWinters\u3c/em\u3e Rights
Get PDFAll reservations of federal land, including Native American reservations and national forests, have water rights. These rights are referred to as “Winters rights” after the seminal U.S. Supreme Court case. That case recognized such rights’ existence, but it did not quantify the amount of water of those rights. Federal courts have applied various approaches to quantifying Winters rights. Recent decisions in Arizona state courts have taken new and different approaches to quantification of both tribal and non-tribal Winters rights. These state court decisions have important implications for federal water rights throughout the United States. This Article examines these new approaches to quantifying Winters rights, evaluates them for their impact on equitable and sustainable water policy, and proposes reforms to better adapt the adjudication of Winters rights to responding to water variability caused by climate change
Emergency Powers for Good
Get PDFEmergency powers are widely, and justly, criticized as threats to the rule of law. In the United States, forty-three declared emergencies give the executive vast authority to exercise power unencumbered by standard legal and procedural requirements. A long tradition of executive use of emergency powers to erode civil liberties amplifies fears of executive overreach.
Yet this, we argue, is only part of the picture. We examine how emergency powers can be used for good. We argue that under certain limited conditions, political actors can legitimately invoke emergency powers to transform public policy. In addition to widely accepted requirements of crisis severity, transparency, and time limits, we argue that broad consensus and a reformulated non-discrimination requirement are essential to the proper use of emergency powers for societal transformation.
We analyze recent high-profile exercises of emergency powers by the U.S. executive to fund a wall on the southern border and to forgive billions in student debt, as well as the European Union’s (EU) extraordinarily frequent and broad use of emergency powers in the last three years in response to COVID-19 and Russia’s Ukraine invasion. We conclude that the U.S. measures fail under our normative framework, while the EU measures offer a promising template for the transformative use of emergency powers
The Fourteenth Amendment and the \u3cem\u3eVénus Noire\u3c/em\u3e
No full textThis Essay makes two points. The first is that originalism is not a promising path for progressive causes. The second is that as the Constitution is amended, the meaning of the entire document is altered, and earlier text should be interpreted in light of what has changed. But instead of making these observations in the usual law review style, I’m calling on a figure out of nineteenth-century art, the Vénus Noire, to serve as our companion and guide.
This abstract has been taken from the author\u27s introductory paragraphs