1,721,092 research outputs found
January 6, Ambiguously Inciting Speech, and the Over-Acts Rule
No full textA prosecution of Donald Trump for his role in the January 6 attack on the Capitol would have to address whether the First Amendment protects the inflammatory remarks he made at the “Stop the Steal” rally. A prosecution based solely on the content of Trump’s speech—whether for incitement, insurrection, or obstruction—would face serious constitutional difficulties under Brandenburg v. Ohio’s dual requirements of intent and likely imminence. But a prosecution need not rely solely on the content of Trump’s speech. It can also look to Trump’s actions: his order to remove the magnetometers from the entrances to the rally and his repeated attempts to join the crowd at the Capitol.
This Article proposes a requirement of overt acts for the prosecution of ambiguously inciting speech. Trump’s overt acts offer a principled basis for criminal liability for Trump’s speech, while preserving Brandenburg’s prophylactic approach to protecting against the overcriminalization of speech. The prosecutorial use of overt acts also accords with historical practice going back to the Founding, when the Framers, influenced by English practice, required evidence of overt acts for the most serious of crimes: treason. In an age of increasing political polarization and violence, drawing a line between permitted and prohibited by our political officials is of the utmost importance. This Article is an attempt to make that line clearer.Rozenshtein, Alan Z; Shugerman, Jed H. (2023). January 6, Ambiguously Inciting Speech, and the Over-Acts Rule. Retrieved from the University Digital Conservancy, https://hdl.handle.net/11299/258551
Unreasonable Probability of Error
Full text linkIn Strickland v. Washington, the Supreme Court sought to create a uniform standard to guarantee effective assistance of counsel to criminal defendants, to ensure a fair trial, and to assure the reliability of a just result. \u27 Justice O\u27Connor\u27s majority opinion created a two-pronged test for overturning a trial verdict: deficient performance and resulting prejudice. The Court explicitly established a difficult burden for proving deficient performance,2 but set a moderate standard for prejudice as the reasonable probability that, but for counsel\u27s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. 3 The Court elaborated that this standard is lower than preponderance.4 Thus, for penalty-phase ineffectiveness claims, a defendant may establish prejudice without having to show that counsel\u27s deficient conduct more likely than not altered the outcome in the case. 5 For guilt-phase ineffectiveness, the standard drops from reasonable probability to reasonable doubt.
While Strickland may have been a good faith attempt to balance the right to counsel with judicial efficiency, the system still does not ensure reliability or justice.\u27 One reason for this national crisis is that too many lower federal and state courts have consistently misinterpreted, misapplied, undercut, or ignored parts of Strickland. In Coleman v. State, the Indiana Supreme Court offered a disturbing example of this pattern, despite the U.S. Supreme Court\u27s intervention. After analyzing Coleman and surveying the errors by courts around the country, I suggest ways to clarify Strickland and to improve its application, both in general and for death sentence cases
The Golden or Bronze Age of Judicial Selection?
Full text linkThis Essay questions Gerhardt and Stein’s interpretation of the golden age and whether there were meaningful differences in the politics of the nomination and confirmation processes of the antebellum era as compared with the contemporary era. In Part II, I suggest that one hallmark of the contemporary judicial selection process is the intense inquiry into the nominees’ personal lives and ethics (whether through confirmation hearings or the media). Gerhardt and Stein do not find much evidence of these practices in the antebellum era, even though historians have noted the nastiness of that era’s presidential election campaigns. Thus, some aspects of the imagined golden era may be true, while others may not. Then, the Essay highlights a few of Gerhardt and Stein’s most interesting findings of discontinuity between the antebellum and contemporary eras. While acknowledging the obvious discontinuities, Gerhardt and Stein emphasize the “patterns of practice that are similar to contemporary developments”2 and argue that their research shows “surprisingly relative equivalence between the antebellum and contemporary periods.”3 Part III discusses how these findings further undercut the notion that a true golden age existed in judicial selection. This Essay draws from that aspect of their research, concluding that the golden age of modern political commentators’ imagination was more a judicial “bronze age” before the transportation and communication revolutions
The Floodgates of Strict Liability: Bursting Reservoirs and the Adoption of Fletcherv. Rylands in the Gilded Age
Full text linkPart I presents an overview of Rylands v. Fletcher and then discusses the phases of the American response: the initial acceptance; the Northeastern rejections in the 1870s, which have been the basis for the erroneous scholarly conclusions; and the overlooked tide of acceptances across the country, beginning in the late 1880s and increasing in the 1890s. Part II places this wave of acceptance in its historical context of changing social forces, although these brief sketches are not the primary emphasis of this Note. First, during a period of rapid urbanization, a small number of courts sought to protect residential areas against the risks of industrialization.12 Second, courts adopted or rejected Rylands partially in response to business cycles: The phase of rejections in the 1870s loosely corresponded to the depression of the 1870s, when courts would have been most eager to subsidize industry, and the subsequent industrial boom in the 1880s and early 1890s corresponded with the wave of acceptances. 13 However, this economic link is undermined by a closer examination of the timing of these cycles and the patterns of rejection and acceptance. The initial rejections occurred before the onset of depression in the 1870s, states generally resisted Rylands for most of the 1880s boom, and Rylands continued to prevail during the depression of the mid-1890s. In terms of politics, the adoption of Rylands corresponded with the rise of populism and an emerging legislative consensus to begin regulating industry, most prominently in the Sherman Antitrust Act of 1890.14 However, the influence of populism is also questionable, because Rylands fared better in Republican states than in the more populist states. Each of these forces played an underlying role in Rylands\u27s adoption, but this Note demonstrates that these broader economic, social, and political trends are flawed and insufficient explanations. As a result, these factors are more accurately described as background conditions merely setting the stage, rather than as the direct causes of the adoption.
Finally, and most importantly, Part III suggests the direct cause by connecting a series of bursting reservoirs and floods in the 1880s and 1890s to a decisive breakthrough of adoptions. In his study of Rylands in its English context, A.W. Brian Simpson persuasively argues that Rylands was the product of British reservoir accidents in 1853 and 1864.15 Similarly tragic disasters occurred in California and Pennsylvania in the 1880s, with similar legal results. After a series of powerful floods and a long political and legal battle over destructive hydraulic gold-mining techniques, California adopted Rylands in 1886. In 1889, an artificial recreational lake owned by a club of the wealthy elite (including business titans Andrew Carnegie and Andrew Mellon) burst through a poorly built dam, destroying Johnstown, Pennsylvania, and killing 2000 people. The nation\u27s media and courts focused intently on the Johnstown Flood, and perceived, mostly inaccurately, that the fault doctrine prevented recovery through the tort system. Two months after the Flood, one of the most influential law publications in the country, the American Law Review, focused on the tragedy and argued that the fault doctrine unjustly prevented recovery in such cases. The Review concluded that courts should adopt Rylands, rather than the flawed and abuse-prone fault doctrine. Thereafter, state courts began adopting Rylands for a wide array of unnatural activities. Whereas Simpson contended that Rylands\u27s rule was anomalous and applied to only a narrow set of cases, American state courts applied Rylands expansively across a wide spectrum of industrial and nonindustrial problems. In these courts, the bursting reservoir was not treated as legally unique, but as part of a broader problem of industrial age hazards.\u2716 Perhaps the most surprising part of this trend is that three of the states most widely recognized for their rejection of Rylands-New York, New Jersey, and Pennsylvania-reversed their stance on Rylands in the 1890s, soon after the Johnstown Flood.
The story of Rylands\u27s acceptance offers a new perspective on the history of strict liability and illustrates the responsiveness of state courts to industrial accidents and popular fears, which this Note discusses in Part IV. While American courts initially subsidized the industrial revolution,17 the late nineteenth century\u27s rapid urbanization, incredible economic success, and political reform set the stage for broad legal changes, but these forces were insufficient. Ultimately, a series of terrifying experiences with the revolution\u27s darker side made the industrial age\u27s risks more salient and triggered a wide imposition of strict liability. These dramatic events, combined with broad social changes, seem to have tapped into an inchoate notion of the cheapest cost avoider, \u27 though the courts did not yet articulate this understanding in any explicit way. This account also sheds light on the errors of the legal science scholars of the early twentieth century, who over-conceptualized doctrine, as well as those of more contemporary legal historians and constitutional scholars, who have over-conceptualized historical eras. Finally, federal courts generally ignored Rylands over this period.19 This Note offers this discrepancy as an example of the different dynamics of the two judicial systems, and of the significance of Erie Railroad v. Tompkins20 in bringing the federal courts back into line with state common law
The Creation of the Department of Justice: Professionalization Without Civil Rights or Civil Service
Full text linkThis Article offers a new interpretation of the founding of the Department of Justice in 1870 as an effort to shrink and professionalize the federal government. The traditional view is that Congress created the DOJ to increase the federal government’s capacity to litigate a growing docket as a result of the Civil War, and more recent scholarship contends that Congress created the DOJ to enforce Reconstruction and ex-slaves’ civil rights. However, it has been overlooked that the DOJ bill eliminated about one third of federal legal staff. The founding of the DOJ had less to do with Reconstruction, and more to do with “retrenchment” (budget-cutting and fiscal conservatism) and anti-patronage reform. The DOJ’s creation was contemporaneous with major professionalization efforts (especially the founding of modern bar associations) to make the practice of law more exclusive and more independent from partisan politics. A small group of reformers worked on a combination of the DOJ bill, civil service reform, bureaucratic independence, and founding modern bar associations in the late 1860s through 1870. This Article also explains why the Department of Justice did not include civil service reforms as part of this professionalization project, even though the same reformers were fighting for broad civil service legislation at exactly the same time. The same Congressman who led the DOJ effort in 1870, Thomas Jenckes, was also known as “the father of the Civil Service” and simultaneously fought for civil service reform. Jenckes succeeded in passing a DOJ bill to professionalize government lawyers by reorganizing them under a more professional and independent Office of the Attorney General, rather than through civil service reform. Meanwhile, reformers fell short in their civil service campaign for other kinds of federal employees, reflecting a view that government lawyers were different from other government officials in the post-Civil War era. In this new light, the DOJ’s creation conflicts with one historical trend, the growth of federal government’s size. Instead, it was at the very leading edge of two other major trends: the professionalization of American lawyers and the rise of bureaucratic autonomy and expertise. This story helps explain a historical paradox: how the uniquely American system of formal presidential control over prosecution evolved alongside the norms and structures of professional independence
The (Joseph) Stories of Newmyer and Cover: Hero or Tragedy?
Full text linkKent Newmyer’s classics Supreme Court Justice Joseph Story: Statesman of the Old Republic and John Marshall and the Heroic Age of the Supreme Court are important stories about the architects and heroes of the rule of law in America. In Newmyer’s account, Story played a crucial role preserving the republic and building a legal nation out of rival states, and Newmyer’s Story is fundamentally important for students of American history. But in Robert Cover’s account in Justice Accused on northern judges’ deference to slavery, Story is an anti-hero. Sometimes Story stayed silent. In Prigg v. Pennsylvania, Story overvalued formalistic comity. This Essay suggests that Story missed vital opportunities to write a judicial opinion more forcefully recognizing the rights of fugitive slaves under the Fifth Amendment’s due process clause, a preview of Dred Scott but in reverse.
One can find a balance between Newmyer’s empathetic charity and Cover’s non-empathetic clarity, to see the value of the rule of law through both interpretations. Thus, they both teach us about law, leadership, and life
Countering Gerrymandered Courts
Full text linkThe key insight in Professor Miriam Seifter’s outstanding article Countermajoritarian Legislatures is that state legislatures are usually antidemocratic due to partisan gerrymandering, whereas state governors and judiciaries are insulated from gerrymandering by statewide elections (or selection), and thus they should have a more prominent role in framing election law and in enforcing the separation of powers.
This Piece offers a friendly amendment: These observations are true, so long as states do not gerrymander their state supreme courts into antidemocratic districts. The problem is that historically, judicial elections emerged generally as districted elections, and often with regional and partisan politics shaping those districts. Many states still draw judicial districts with those considerations, and in our era of polarization, this problem is likely to get worse.
After some observations about the hypocrisies in the Supreme Court’s “independent state legislatures” precedents, this Piece offers some potential solutions: (1) extend the “one-person/one-vote” rule to judicial elections, ending the Baker v. Carr exception while retaining special due process rules for judicial elections; (2) adopt a special rule against partisan gerrymandering for judges; and/or (3) the most manageable solution, create a bright-line rule that all state judicial districts must be statewide
Hardball Vs. Beanball: Identifying Fundamentally Antidemocratic Tactics
Full text linkThe “constitutional hardball” metaphor used by legal scholars and political scientists illuminates an important phenomenon in American politics, but it obscures a crisis in American democracy. In baseball, hardball encompasses legitimate tactics: pitching inside to brush a batter back but not injure, hard slides, hard tags. Baseball fans celebrate hardball. Many of the constitutional hardball maneuvers previously identified by scholars have been legitimate, if aggressive, constitutional political moves. But the label “hardball” has been interpreted too broadly to include illegitimate, fundamentally undemocratic tactics. I suggest a different baseball metaphor for such tactics: beanball, pitches meant to injure and knock out the opposing player, against the basic rules of the game.
In this Reply to Fishkin, Pozen, and Bernstein, I first address Bernstein’s examples of President Barack Obama and Democrats engaging in hardball. I note that Fishkin and Pozen’s “asymmetry” thesis acknowledged clearly that Democrats play hardball, even if not as aggressively as Republicans have. I discuss government shutdowns, birtherism, debt ceiling threats, abuses of the Department of Justice (DOJ), and the contrasting manipulations leading to the Iraq War versus the Iran nuclear deal.
This Reply then identifies examples of Republicans’ fundamentally antidemocratic beanball: voter ID laws and other voting restrictions, extreme gerrymandering, marginalizing racial minorities, and abusing the DOJ. Beanball’s destructive politics reflect racial status anxiety, paranoia, and a panic over dispossession and the loss of historical privilege
The Legitimacy of Administrative Law
Full text linkReviewing Daniel R. Ernst, Tocqueville’s Nightmare: The Administrative State Emerges in America, 1900-1940; Joanna Grisinger, The Unwieldy American State: Administrative Politics Since the New Deal; Philip Hamburger, Is Administrative Law Unlawful?; Jerry L. Mashaw, Creating the Administrative Constitution: The Lost One Hundred Years of American Administrative Law; and Nicholas R. Parrillo, Against the Profit Motive: The Salary Revolution in American Government, 1780-1940
The Case Kamala Harris Can\u27t Stop Prosecuting
No full textAs Kamala Harris seeks to become the first career prosecutor to win the presidency, she has faced persistent questions: What kind of prosecutor was she? And how would that background shape her presidency? Instead of fitting into the familiar categories, she has been campaigning as another first: the first white-collar-crime prosecutor in chief. Instead of policies to reverse mass incarceration, the signature objective of progressive prosecutors, her approach seems to be for more equal incarceration, a new twist on an old populist economic theme
- …
