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An Ugly Common Ancestor: Dred Scott, Roe and Enumerationism
No full textThe Dred Scott case holds a deserved place in the constitutional “anticanon” of Supreme Court decisions that exemplify rejected constitutional views. But the complex history of the case, the convolution of the opinion by Chief Justice Roger Taney, and the complicated relationship between its two primary holdings have generated multiple, often conflicting arguments about its negative “lessons.” Such arguments—particularly that of Robert Bork arguing that Dred Scott is the “very ugly common ancestor” of Lochner v. New York and Roe v. Wade—have masked an important element of the Taney opinion: its central reliance on “enumerationism,” the doctrine of limited enumerated powers. This Article argues that the reasoning underlying Dred Scott’s holding striking down the Missouri Compromise—the holding that was supposedly based on the substantive due process argument—does not offer a clear precedent for substantive due process, which was a mere makeweight argument, but instead rests on the core values of enumerationism. The opinion, whatever other lessons it supplies, demonstrates the close connection between enumerationism and slavery as well as the internal contradictions and incoherence of limited enumerated powers
The Puzzling Persistence of Nature’s Rights
Full text linkThe American experience of rights of Nature—the legal recognition of the rights and personhood of natural phenomena—presents a puzzle. On the one hand, no court has ever recognized such rights. Rights of Nature laws are routinely struck down and have proven impossible to enforce. On the other hand, dozens of communities, including municipalities and Native American tribes, continue to enforce them while scholars debate them endlessly. Why do rights of Nature persist?
Through analysis of 119 laws and 32 interviews with rights of Nature activists, I offer the first empirically-grounded answer to this question. Rights of Nature persist because of their value as political resources in legal mobilization, trading on deeply held myths embedded in American legal culture. Most rights of Nature activists have specific, local environmental objectives, and hope to use Nature’s rights to block development, assert local power, and build a movement. Sometimes, they succeed. Litigation plays an important role in pursuing these objectives, even though advocates rarely expect to win.
Like many other rights, the rights of Nature are best conceived of as movement resources rather than a formal litigation strategy. Nevertheless, the movement finds itself at a crossroads. It can remain a primarily negative movement, offering a framework for opposing development projects or critiquing environmental law. Or it can evolve into an alternative and concrete paradigm for environmental governance. The tension between these two objectives is the key challenge facing the rights of Nature movement
Reframing Genocide
Full text linkGenocide has recently taken center stage in international affairs. Both Israel and Hamas and Russia and Ukraine have accused one another of committing genocide or having genocidal aims, and each side has denounced allegations against themselves. The legal accuracy of these accusations depends, inter alia, upon whether the allegedly genocidal acts were committed with “intent to destroy,” as required by the Genocide Convention. Courts and commentators nearly all assume that the “intent to destroy” describes an individual’s internal mental state and the mens rea of the crime of genocide.
In this Article, I argue that this individualistic interpretation of genocide is inaccurate and unworkable. Genocide is not a discrete act committed by an individual perpetrator. It is a collective process arising out of particular structural conditions. Furthermore, the gap between the enormity of genocidal intent and the capacity of individuals renders any determination regarding the intentions of individual perpetrators highly speculative. And the structural conditions that make genocide possible also make it difficult for courts to disentangle individuals’ intentions. As a result of these difficulties, criminal tribunals and the International Court of Justice have produced inconsistent and convoluted jurisprudence. Worse, the individualistic interpretation has stymied efforts at prevention by making it easy for states to deny allegations of imminent or ongoing genocide based on uncertainty about the innerworkings of individuals’ minds.
The alternative structural approach I propose understands genocide as a collective process in which the structural context exhibits an “intent to destroy.” Accordingly, whether a situation counts as genocide would not depend on the internal mental states of individual perpetrators, but rather, objective indicators of genocidal structures. Reframing the definition of genocide in this way streamlines judicial decision-making and makes it harder for states to get away with ignoring, contributing to, or committing genocide
Regulating Light Trucks and SUVs: Making America’s Roads Safer and Air Cleaner
Full text linkThe increase of trucks and SUVs on the roads in the United States has made streets less safe while contributing to poorer air quality. Compared to other vehicles, trucks and SUVs have a higher center of gravity, a ridged vehicle frame with a larger engine block, a heavier weight requiring more gas to move, and emitting more greenhouse gases. These vehicle features make accidents more common, decrease driver visibility, increase the potential for pedestrian fatalities, and make car accidents more deadly for non-truck or SUV vehicles. This Note explores solutions to these issues and discusses regulatory actions that the Environmental Protection Agency (“EPA”) and National Highway Traffic Security Administration (“NHTSA”) can promulgate to reduce vehicle emissions and increase the safety features of trucks and SUVs. The EPA can reduce greenhouse gas emissions by improving fuel economy standards. The NHTSA can (1) regulate the structure of trucks and SUVs to require safety features for pedestrians and other drivers; (2) require all new and used truck and SUV purchasers be informed of potential safety issues; and (3) similarly categorize trucks and SUVs as passenger cars for fuel economy regulations. Working together, both agencies can ensure that automobile manufacturers account for the greenhouse gas emissions and safety features of trucks and SUVs in future model years, help slow or reverse the recent rise of pedestrian fatalities, and contribute to improved air quality. Ultimately, the EPA, NHTSA, and automobile manufacturers must balance the need to improve safety features and emissions standards in a palatable manner to American consumers
The Pro-Defense Constitution
Full text linkThe pro-defense Constitution envisioned by the framers had its shortcomings. State power was unconstrained by it. More importantly, the Constitution’s protections only applied to white people; African Americans had no legal rights. The drafters of the Reconstruction Amendments attempted to change this reality in the field of criminal law by making the Bill of Rights applicable to the states. Put another way, the pro-defense Constitution was to protect all persons charged with crimes in the United States. The author avers that this vision of the Constitution must be reclaimed
Criminal Abortion and Citizen’s Arrest
Full text linkIn the aftermath of Dobbs v. Jackson Women’s Health Organization, many states rushed to classify abortion as homicide. In addition to criminalizing abortion, some states have shown a willingness to place enforcement of the new laws in the hands of ordinary citizens through a variety of private enforcement mechanisms. These new abortion statutes exist in tandem with existing citizen’s arrest laws to create the possibility for women, providers, and those who assist them to be subject to this problem-ridden doctrine. This Article analyzes potential scenarios in which these areas clash and pose new risks to exercising what was not long ago viewed as a settled constitutional right. Because of the chilling effect on abortion health care and the threat to privacy and safety, the Article concludes that citizen’s arrest should not be applicable in the abortion context
Don’t Go Chasing Litigation Funding Waterfalls
Full text linkProponents of third-party litigation funding argue that it is socially beneficial, helping parties bring meritorious litigation that otherwise would not be possible, due in part to the ability of the plaintiff to share risk with funders. But the reality of how some third-party funding contracts are structured belies this theory. Many such contracts include “waterfall” clauses whereby funders get paid back first upon successful case resolution. This leaves most of the risk on the plaintiff, the party usually least equipped to bear it. This is at odds with the prescription of standard economic theory, which suggests that the residual claimant should be the party best able to manage risk, in this case, the litigation funders.
We introduce a simple, numerical model that captures this intuition and shows why “equity” contracts would be preferred by risk-averse plaintiffs. Moral hazard, adverse selection and funder agency costs likely all play a role in why waterfall contracts are used. We suggest three simple changes to funding arrangements that could ameliorate this situation. Counterintuitively, giving lenders greater power by allowing them to have input into settlement negotiations could lead to different contractual setups that shift the risk more to the litigation funders
The Reality of the Good Faith Exception
No full textThe Fourth Amendment’s primary remedy is the exclusion of unlawfully obtained evidence at trial. But not every defendant whose rights are violated gets a remedy. The most substantial obstacle for defendants is the good faith exception, which directs courts to admit unlawfully collected evidence if the police can show they relied in good faith on existing authority. If the police rely on a statute that turns out to be unconstitutional, or a warrant or precedent that turns out to be invalid, the evidence they obtain will nonetheless be admitted under the good faith exception. The Supreme Court has justified this doctrine on the grounds that excluding evidence is only worthwhile if it deters misconduct by police officers. When officers rely in good faith on existing authority, the Court has found there is no misconduct to deter, and exclusion is unjustified.
We challenge this conventional account of the good faith exception in several ways. First, we conduct the first large-scale empirical study of the good faith exception. We reveal how often courts use the exception, demonstrate that courts frequently employ it to avoid substantive constitutional rulings, and identify the sources police most frequently rely on when they make good faith exception claims. We then examine the impact of the exception following a major Supreme Court decision expanding Fourth Amendment rights.
Second, we demonstrate that the Supreme Court has badly misconceived the incentives its good faith exception rulings create for police officers. Current law incentivizes police and prosecutors to aggressively interpret old legal authorities to permit the collection of new forms of data and to collect as much data as possible before courts impose a warrant requirement. We identify these incentives and propose reforms to align them with meaningful constitutional protections for personal data.
Finally, we examine how the good faith exception destabilizes the Fourth Amendment as a source of constitutional rights. While certain applications of the exception are compatible with a robustly enforced Fourth Amendment, others strike at the heart of the Amendment’s protections. The current good faith exception blocks any meaningful remedy for several core violations of the Fourth Amendment, including those targeted by the Framers of the Constitution. It motivates judges to avoid addressing substantive Fourth Amendment questions and contributes to the stagnation of constitutional law. It introduces arbitrariness and inequity into constitutional remedies, insulating discretionary police behavior from review in a manner likely to harm groups disproportionately targeted by the police. And it implicates separation of powers values, preventing the judiciary from acting as an effective structural check on executive or legislative overreach. The Article’s analysis, both empirical and theoretical, aims to spur a comprehensive reexamination of the good faith exception
We Cannot Police Systemic Racism and Systemic Poverty: Why Policing Is Not a Solution to Our Public Health Crisis
Full text linkFrom drug addiction to issues with homelessness, the mental health crisis, community disputes, traffic violations and more, there does not seem to be any evidence that increased police budgets and spending are the best use of limited resources. Criminalization in substitution for measured and targeted interventions has not worked in structurally vulnerable and marginalized communities and it is far past the time to accept tangible alternatives, such as funding initiatives like TCCS. Instead of perpetually increasing our police budget, let’s instead invest in healing our communities. Let’s invest this money in education, recreation, childcare, housing, health; measures that are proven to dramatically improve public health and safety