Showing papers in "Washington Law Review in 2012"

Indigenous Peoples and Epistemic Injustice: Science, Ethics, and Human Rights

Abstract: :This Article explores the use of science as a tool of public policy and examines how science policy impacts indigenous peoples in the areas of environmental protection, public health, and repatriation. Professor Tsosie draws on Miranda Fricker's account of "epistemic injustice" to show how indigenous peoples have been harmed by the domestic legal system and the policies that guide the implementation of the law in those three arenas. Professor Tsosie argues that the theme of "discovery," which is pivotal to scientific inquiry, has governed the violation of indigenous peoples' human rights since the colonial era. Today, science policy is overtly "neutral," but it may still be utilized to the disadvantage of indigenous peoples. Drawing on international human rights law, Professor Tsosie demonstrates how public policy could shift from treating indigenous peoples as "objects" of scientific discovery to working respectfully with indigenous governments as equal participants in the creation of public policy. By incorporating human rights standards and honoring indigenous self-determination, domestic public policy can more equitably respond to indigenous peoples' distinctive experience. Similarly, scientists and scientific organizations can incorporate human rights standards into their disciplinary methods and professional codes of ethics as they respond to the ethical and legal implications of their work.INTRODUCTION 1134I. NATIVE NATIONS AND THE JURISPRUDENCE OF "DISCOVERY": INDIGENOUS PEOPLES AND NINETEENTH CENTURY SCIENCE 1137A. The Differences Between Western and Indigenous Thought 1137B. The Impact of Nineteenth Century Science Policy upon Indigenous Peoples 1141C. Contemporary Science Policy and the Legacy of the Past. 1148II. SCIENCE AND ETHICS: THE PROBLEM OF EPISTEMIC INJUSTICE 1150A. Understanding Epistemic Injustice 1152B. Testimonial Injustice 1154C. Hermeneutical Injustice 1158D. Structural Forms of Epistemic Injustice Impair Equal Citizenship 1162III. CONTEMPORARY CASE STUDIES INVOLVING INDIGENOUS PEOPLES AND SCIENCE POLICY 1164A. Environmental Policy 11651. The Legacy of Nineteenth Century Land Policy .... 11652. Twentieth Century Policies Governing Environmental Regulation and Energy Development Emerge from Nineteenth Century Federal Land Policy .........1168B. U.S. Health Policy 11751. U.S. Public Health Policy and Native Peoples 11762 . Native Peoples and Health Care Innovation 1179C. Repatriation Policy 11811. Overview of NAGPRA 11822. Ancient Human Remains and Contemporary Injustice ........11843. The Contemporary Policy Debate over Culturally Unidentifiable Human Remains 1186IV. SCIENCE, ETHICS, AND HUMAN RIGHTS 1189A. The Argument for Integrating International Human Rights Norms into Domestic Law 1190B. International Human Rights Law as a Tool of Public Policy 1192C. Human Rights Law and the Public Policy Arena: Envisioning a Different Future 11961 . National Environmental Policy and Indigenous Rights 11962. National Health Policy and Indigenous Rights .........11983. Indigenous Peoples and U.S. Repatriation Policy... 1200CONCLUSION 1201INTRODUCTIONScientists and scientific organizations are increasingly challenged to incorporate human rights standards into their disciplinary methods and professional codes of ethics and to explore the impact of their work on indigenous peoples. In particular, indigenous knowledge and benefitsharing are vital considerations for contemporary biomedical researchers. …

High-Tech Harassment: Employer Liability under Title VII for Employee Social Media Misconduct

Abstract: Workplace harassment has traditionally occurred within the "four walls" of the workplace. In Faragher v. City of Boca Raton and Burlington Industries. Inc. v. Ellerth the U.S. Supreme Court recognized that employers are liable under Title VII of the 1964 Civil Rights Act for harassment that is sufficiently severe or pervasive to alter the employee's work environment. The rise in social media, however, has created a new medium through which harassment occurs. Courts are just beginning to confront the issue of if and when to consider social media harassment as part of the totality of the circumstances of a Title VII hostile work environment claim. This Comment argues that to determine whether social media harassment evidence should be considered as part of the totality of the circumstances, courts should examine whether the employer derived a "substantial benefit" from the social media forum. If the employer derived a "substantial benefit" from the social media forum where the harassment occurred, then a court may logically consider the social media platform to be an extension of the employee's work environment and thus part of the totality of the circumstances. This framework is consistent with the traditional workplace harassment analysis under Title VII, recognizes evolving technology in the modem workplace, and would provide employers with guidance on how to maintain an affirmative defense to harassment allegations in the social media age. INTRODUCTION Since 1986, the U.S. Supreme Court has recognized workplace harassment as an actionable claim against an employer under Title VII of the Civil Rights Act of 1964.1 Traditionally, harassment has occurred through face-to-face verbal and physical acts in the workplace.2 The traditional notion of the workplace, however, continues to expand with changing technology and flexible schedules, which increasingly allow employees to stay connected to the work environment at numerous locations outside the physical boundaries of the office.3 In particular, the rise of social media has given employers and employees new means through which to interact with customers, colleagues, friends, and acquaintances outside the workplace.4 These same technological developments have also expanded the media through which individuals may perpetrate acts of harassment.5 With the rise in popularity of social media, harassment has moved beyond the physical walls of the workplace to the virtual workplace.6 The broadening conception of the workplace and increasing use of social media in professional settings expands potential employer liability under Title VII.7 In order for workplace harassment to be actionable under Title VII, courts have traditionally required plaintiffs to show that the harassment was sufficiently "severe or pervasive" under the totality of the circumstances to "alter the conditions of the victim's employment and create an abusive working environment."8 This is known as a hostile work environment claim. Courts have split over what type of evidence to consider under the totality of the circumstances analysis9 and they are just beginning to address claims of harassment conducted via social media.10 However, those courts that have addressed the issue have indicated that evidence of social media harassment should be included as part of the totality of the circumstances.11 This Comment argues that courts examining employer liability for harassment via social media should not abandon the traditional totality of the circumstances model but should recognize the changes wrought by evolving technology in the workplace. To determine employer liability, courts should consider whether the employer derived a "substantial benefit" from the social media through which the harassment occurred. If the employer derived a "substantial benefit" from the social media then the court may properly view the harassment as part of the employee's work environment and consider it as part of the totality of the circumstances for purposes of a hostile work environment claim. …

Selling Advice and Creating Expectations: Why Brokers Should Be Fiduciaries

Abstract: Investors face a dizzying array of choices regarding where to invest their funds and increasingly rely on experts for advice. Most advice about securities is provided by investment advisers or broker-dealers, legal categories with little meaning to most people but fraught with consequences. Although advisers and brokers often perform the same function, advisers are subject to a strict fiduciary standard to act in their clients' best interest while brokers are subject to a less rigorous standard of suitability to ensure that their recommendations are suitable for customers. In 2010, the Dodd-Frank Act authorized the U.S. Securities and Exchange Commission (SEC) to harmonize the regulation of advisers and brokers and impose a fiduciary duty on brokers that give advice. This Article is about whether the SEC should exercise its authority. After explaining the historical context of the debate over a fiduciary standard, the Article critiques common arguments for a fiduciary duty, concluding that they are incomplete and do not alone justify a change in the law. The Article then puts forth a better justification, based on the reasonable expectations of investors. Reasonable expectations arise from brokers marketing their services as advisory and using titles, such as financial advisor and financial consultant. Reasonable expectations provide a stronger justification for a fiduciary standard than the conventional arguments.I. DISPARATE REGULATION OF INVESTMENT ADVISERS AND BROKER-DEALERS THAT PROVIDE ADVICE IS ROOTED IN HISTORY 716A. Early State Regulation of Brokers and Advisers Was Minimal 716B. Federal Securities Regulation Was First Enacted During the Great Depression 7181 . Broker-Dealer Regulation Was Enacted in 1934 7182. Investment Adviser Regulation Was Enacted in 1940 . 7203. Certain Broker-Dealers Were Excluded from the Advisers Act 723C. The Regulation of Brokers and Advisers Differs 724D. Changes in the Securities Industry Disrupted the Coherency of Broker and Adviser Regulation 7261 . The Elimination of Fixed Commissions Resulted in Two-Tier Pricing 7272. Certain Broker-Dealers Began to Charge AssetBased Fees 7283. The Focus of Brokerage Services Moved from Execution to Advice 729E. The SEC Addressed Changes in Compensation Through an Administrative Rule 731F. The Obama Administration and Congress Sought a Political Solution to Changes in the Securities Industry .... 733II. CONVENTIONAL ARGUMENTS THAT SUPPORT A FIDUCIARY DUTY FOR BROKERS ARE INADEQUATE .... 736A. Investor Confusion Is an Insufficient Basis to Support a Fiduciary Standard 7371 . Advocates of a Fiduciary Standard Claim Investor Confusion Justifies Regulatory Harmonization 7372. Investor Confusion Is Not a Compelling Argument for Regulatory Harmonization 739B. Inconsistent Standards Are an Insufficient Basis to Support Regulatory Harmonization 7411 . Advocates of a Fiduciary Duty Claim Inconsistent Standards Justify Regulatory Harmonization 7412. Existence of Inconsistent Standards Is Not a Compelling Argument for Regulatory Harmonization . …

Panopticism for Police: Structural Reform Bargaining and Police Regulation by Data-Driven Surveillance

Abstract: Spurred by civil rights investigations, police departments across the nation, including in Washington State, are engaging in structural reform bargaining and collaborative design of institutional reforms. Often before any complaint is filed in court or a judge makes any findings of unconstitutionality, police - and the groups threatening to sue the police - are cooperating to fashion remedies for the biggest concerns that have shadowed the law of criminal procedure, such as excessive force and the disproportionate targeting of people of color. Prominent scholars have expressed concern over settlement of civil rights suits outside the arena of the courtroom and without legal clarification. This Article argues, however, that bargaining in the shadow of law and outside the courthouse may yield smarter and fartherreaching reforms and remedies based on data-driven surveillance than could be achieved through litigation and judicial decision. This Article argues that the remedies being fashioned "off the books" - that is, outside the doctrine in the case law reportera - offer important insights for the future of police governance and reform. The primary engine of police regulation - the exclusionary rule, which deters rights violations through the remedy of exclusion of improperly obtained evidence - is increasingly eroding and becoming the last resort rather than first instinct. The question becomes: what regulatory and remedial model should arise to fill the vacuum? The Article contends that a promising paradigm being refined by structural reform bargaining is regulation by data-driven surveillance - what this Article dubs "panopticism for police." Panopticism is efficient internalized regulation by surveillance. The term comes from the metaphor of Jeremy Bentham's Panopticon, in which prisoners in a state of perfect visibility positioned around an opaque watch tower self-regulate because at any time the guard may be watching. The goal of police panopticism is leveraging data-driven surveillance from multiple institutional vantages. The state of "conscious and permanent visibility" reduces monitoring and remedial costs and triggers self-regulation and institutional culture change. INTRODUCTION 94 I. MAIN ROUTES FOR PENETRATING POLICE OPACITY ..... 104 A. Path-Opening: 42 U.S.C. § 14141 106 B. Purse Power: Crime Control and Safe Streets Act and Title VI 1 10 C. A Winding and Widening Path: 42 U.S.C. § 1983 1 12 II. COOPERATIVE REFORM IN LAW'S SHADOW 1 16 A. An Invitation to Bargain 117 B. On Institutional Reform Rather than Law Reform 120 C. The Virtues of Collaborative Reform (Despite Legal Stasis) 121 III. LESSONS FOR THE FUTURE OF POLICE GOVERNANCE ANDREFORM 124 A. The Search for Alternatives and the Potential of Regulation by Information 125 B. Optimizing Police Panopticism 130 CONCLUSION 136 INTRODUCTION New Jersey police supervisors review on a random-selection basis videos of traffic stops and require officers to report the race of people stopped and searched pursuant to a consent decree.1 Los Angeles police are required by consent decree to complete a written or electronic report for each incident where force was used and for each investigative stop documenting the subject's "apparent race, ethnicity, or national origin," the reason for the stop, and whether a search was conducted. …

Understanding the First Amendment

Abstract: It is a rare privilege to be read and engaged by such thoughtful and insightful commentators as the Washington Law Review has assembled. It is exhilarating to participate in a conversation of this range and intensity. I am very grateful to the Washington Law Review, Ronald K.L. Collins and David Skover, and the University of Washington School of Law, for making this symposium possible. As I read the contributions to this symposium, I am put in mind of Oliver Wendell Holmes' famous injunction that "[w]e must think things not words, or at least we must constantly translate our words into the facts for which they stand, if we are to keep to the real and the true."1 Although lawyers love words and language, "the real justification of a rule of law," Holmes argued, "is that it helps to bring about a social end which we desire."2 Holmes' advice was to pay close attention to whether our legal words in fact function to serve our social ends. Nowhere is the disjunction between words and ends more apparent than in First Amendment jurisprudence. We suffer from First Amendment hypertrophy. Doctrine proliferates endlessly and meaninglessly. Around every corner is yet another confusing First Amendment "test." We barely ever stop to ask what social ends are actually served by this barrage of inconsistent and abstract doctrine. We rarely take time to "translate our [First Amendment] words into the facts for which they stand." The illuminating contribution of Bruce E.H. Johnson and Sarah K. Duran3 seems fortunately almost immune from this affliction. Strategic Lawsuits Against Public Participation (SLAPPs) are theoretically interesting precisely because they illustrate the disjunction between legal words and social ends. Plaintiffs bring SLAPP suits to enforce rights created by substantive legal doctrine. Substantive legal doctrine, especially when subject to constitutional standards that determine whether particular speech acts should receive First Amendment immunity, ought accurately to reflect our values. At first blush, therefore, SLAPP suits ought not to be problematic; defendants should prevail whenever constitutional standards provide that their speech deserves constitutional protection. This way of thinking, however, does not pay sufficient attention to how legal standards actually function. It fails to appreciate the transaction costs associated with litigation enforcing substantive doctrine. Defending even an unmeritorious suit can be costly and timeconsuming, and this expense will likely discourage otherwise protected participation in public discussion. The anti-SLAPP statutes Johnson and Duran discuss are designed to address and nullify such transaction costs. They not only shift attorneys' fees, but they also create pathways for the "prompt and inexpensive" resolution of SLAPP suits.4 Johnson and Duran invite us to theorize the actual behavioral effects of enforcing substantive First Amendment standards; they direct our attention to the reality that underlies doctrine. The idea that substantive First Amendment rules should take account of the transaction costs of litigating First Amendment rights is a deep insight. It ultimately derives from the legal realism inspired by Holmes. Johnson and Duran are concerned with how the costs of enforcing First Amendment doctrine affect actual participation in public discourse. The first decision of the U.S. Supreme Court systematically to reason in this way was New York Times Co. v. Sullivan,5 which fashioned the "actual malice" rule precisely to nullify the transaction costs of libel litigation.6 It designed the actual malice rule to anticipate and nullify the "chilling effect" of ordinary and otherwise constitutionally defensible substantive rules of defamation liability. The anti-SLAPP statutes so helpfully analyzed by Johnson and Duran are legislative interventions created to accomplish precisely the same result.7 Anti-SLAPP statutes anticipate and nullify the chilling effects produced by First Amendment litigation. …

Defining "breach of the peace" in self-help repossessions

Abstract: Since Roman times, creditors have invoked the limited extrajudicial remedy of self-help repossession. Pre-colonial English laws also allowed for a limited repossession remedy outside of the courts, provided the creditor accomplished the repossession without a "breach of the peace." The Uniform Commercial Code (UCC) has allowed for the self-help remedy since the 1950s, making it available for any secured party in the event of contractual default so long as there was no breach of the peace. The drafters of the UCC, however, failed to define what constituted a "breach of the peace," choosing to allow the courts to flesh out the definition in a fact specific, ex post fashion. This has resulted in a lack of clarity and consistency across jurisdictions as each court attempts to cran a breach of the peace requirement without guidance from the UCC. This Comment argues that courts across the country should adopt a two-part test for determining whether a breach of the peace occurred during self-help repossession. The two-part test involves three per se rules of exclusion followed by consideration of two factors to reach a final decision. INTRODUCTION The concept of self-help repossession has existed in law and society since Roman times.1 Repossession is "[t]he act or an instance of retaking property"2 and self-help is "[a]n attempt to redress a perceived wrong by one's own action rather than through the normal legal process."3 Throughout history, this concept has allowed individuals to regain possession of their rightful and legal property without resorting to a formal judicial process. Appearing in the Roman Empire,4 the concept evolved over time as it progressed through other societies,5 into English law,6 and then finally into the common law of the United States.7 Congress first recognized the self-help repossession remedy in the Uniform Conditional Sales Act,8 and it is presently codified in section 9-609 of the Uniform Commercial Code (UCC).9 The UCC established a very formal process for self-help repossession. Only secured parties have the option of self-help repossession.10 In order to become secured, the party must form a security interest." Only then does the debtor12 have a specified obligation, as defined by the security interest, to the secured party.13 If debtor default14 occurs, then the secured party has certain rights to the collateral,15 which could be in the debtor's possession.16 One of the secured party's rights is self-help repossession. Section 9-609 of the UCC states that "[a]fter default, a secured party . . . may take possession of the collateral . . . pursuant to judicial process; or ... without judicial process, if it proceeds without breach of the peace."17 This Comment focuses on the difficulty courts have in defining the term "breach of the peace" within the meaning of the UCC. For example, if a repossession agent asks the police to provide him with protection as he repossesses a vehicle, is this a breach of the peace that makes the self-help repossession unlawful? Does a breach of the peace occur when a homeowner assaults someone trespassing on his property in an effort to repossess lawn furniture? Imagine that the same homeowner does not notice his property being repossessed, but the creditor has to cut a lock and bypass a gate to repossess the property. Does this breach the peace even if there is no confrontation? What if the debtor experiences emotional distress or something happens to a neutral third party? Chapa v. Traders & Associates(TM) illustrates the difficulty courts face in defining and applying the "breach of the peace" concept. In that case, a repossession agent performed a self-help repossession and towed the debtor's vehicle away while - unbeknownst to the agent - the debtor's children were still inside.19 The court decided that the agent's actions did not constitute a breach of the peace,20 even though the debtor likely experienced extreme emotional distress from thinking that her children had been abducted. …

Negotiating Jurisdiction: Retroceding State Authority over Indian Country Granted by Public Law 280

Abstract: :This Article canvasses the jurisdictional rules applicable in American Indian tribal territories-"Indian country." The focus is on a federal law passed in the 1950s, which granted some states a measure of jurisdiction over Indian country without tribal consent. The law is an aberration. Since the adoption of the Constitution, federal law preempted state authority over Indians in their territory. The federal law permitting some state jurisdiction, Public Law 280, is a relic of a policy repudiated by every President and Congress since 1970. States have authority to surrender, or retrocede, the authority granted by Public Law 280, but Indian tribal governments should be allowed to determine whether and when state jurisdiction should be limited or removed.The Public Law 280 legislation was approved by Congress in the face of strenuous Indian opposition and denied consent of the Indian tribes affected by the Act . . . . The Indian community viewed the passage of Public Law 280 as an added dimension to the dreaded termination policy. Since the inception of its passage the statute has been criticized and opposed by tribal leaders throughout the Nation. The Indians allege that the Act is deficient in that it failed to fund the States who assumed jurisdiction and as a result vacuums of law enforcement have occurred in certain Indian reservations and communities. They contend further that the Act has resulted in complex jurisdictional problems for Federal, State and tribal governments.S. COMM. ON THE INTERIOR & INSULAR AFFAIRS, 94TH CONG., BACKGROUND REP. ON PUBLIC LAW 280 (Comm. Print 1975) (statement of Sen. Henry M. Jackson, Chairman).Senator Jackson's statement accurately described the issues then and now. This Article reviews the legal history of federal-tribal-state relations in the context of Public Law 280 jurisdiction. Washington State has recently taken progressive steps that could serve as the foundation for a national model to remove state jurisdiction as a tribal option. The modern Indian self-determination policy is not advanced by adherence to termination era experiments like Public Law 280. The Article concludes that federal legislation should provide for a tribally-driven retrocession model and makes proposals to that end.INTRODUCTION 916I. INDIAN TRIBES ARE SOVEREIGNS RECOGNIZED UNDER FEDERAL LAW AND FREE OF STATE JURISDICTION ABSENT TRIBAL AGREEMENT OR FEDERAL LAW TO THE CONTRARY 919II. THE EVOLUTION OF CRIMINAL JURISDICTION IN INDIAN COUNTRY FROM EXCLUSIVE TRIBAL CONTROL TO AN INCREASED STATE ROLE IS INCONSISTENT WITH SELF-DETERMINATION AND CONSENT PRINCIPLES 923A. Federal Jurisdiction over Indians in Indian Country Increased as Indian Nations Succumbed to Federal Domination 924B. Tribes Retain Inherent Jurisdiction over Indians 926C. States Have No Jurisdiction over Criminal Matters Involving Indians 928III. P.L. 280 AUTHORIZED STATE CRIMINAL AND SOME CIVIL JURISDICTION IN INDIAN COUNTRY IN A MANNER INCONSISTENT WITH MODERN SELFDETERMINATION POLICIES 930A. The Passage of P.L. 280 Marked a Retreat from the Policy of Support for Tribal Institutions Under the IRA 930B. P.L. 280's Grant of Criminal and Civil Jurisdiction Did Not Include Civil Regulatory Authority 932IV. WASHINGTON'S JURISDICTIONAL SCHEME UNDER P.L. 280 IS CONFUSING AND INCONSISTENT WITH THE CONSENT PARADIGM 937V. CONGRESS AMENDED P.L. 280 SO STATES MAY RETROCEDE JURISDICTION, BUT TRIBES HAVE NO FORMAL ROLE IN THE PROCESS 945VI. THE MODERN SELF-DETERMINATION POLICY IS INCOMPLETE WITHOUT TRIBAL AUTHORITY TO INITIATE RETROCESSION AT THE FEDERAL LEVEL 951A. Washington's 2012 Retrocession Legislation Is an Excellent Model for Negotiating Jurisdiction in Indian Country . …

Public Discourse, Expert Knowledge, and the Press

Abstract: This Essay identifies and elaborates two complications raised by Robert Post's Democracy, Expertise, and Academic Freedom, and in doing so attempts to show how Post's theory can account for constitutional protection of the press. The first complication is a potential circularity arising from the relationships between the concepts of democratic legitimation, public discourse, and protected social practices. Democratic legitimation predicates First Amendment coverage on participation in public discourse, whose boundaries are defined as those social practices necessary for the formation of public opinion. But close examination of the relationships between these three concepts raises the question of whether public discourse and social practices can do any analytic work independent of the value of democratic legitimation, or instead are simply labels for speech that furthers it. Consideration of the press helps to illuminate the problem and a potential solution. The second complication is the interface between expert knowledge and public discourse. Post's theory of democratic competence convincingly explains how such knowledge is created and circulated outside of public discourse. But in order to inform self-governance, expert knowledge must ultimately be disseminated into public discourse. The theory does not yet account for how this happens, nor how such expert knowledge can serve an informative function, given that public discourse transmutes claims of expert knowledge into statements of opinion. Again, the press serves as an illustrative and important example. INTRODUCTION Robert Post's Democracy, Expertise, and Academic Freedom1 explains our constitutional commitment to free speech in light of two central and sometimes conflicting principles: democratic legitimation and democratic competence. In doing so, the book employs concepts that Post has carefully crafted over the past few decades, including the constitutional concept of public discourse,2 the lexical priority of participatory democracy as a First Amendment principle,3 and the need to orient First Amendment doctrine around social practices rather than "speech as such."4 Drawing heavily on that earlier work, this Essay attempts to identify and explore two ways in which those concepts are particularly hard to reconcile. First, it is difficult to maintain a conceptual thread through public discourse, protected social practices, and democratic legitimation while treating each of them as independent and important parts of First Amendment analysis. Second, Post's theory raises intractable questions about how expert knowledge is disseminated into public discourse and how it should be treated once it arrives there. In the course of exploring those difficulties, this Essay also considers how Post's theory can account for First Amendment protection of the press. Following the structure of the book, this Essay proceeds in two parts. Part I explores the relationships between public discourse, protected social practices, and democratic legitimation. Specifically, it asks whether the first two concepts define the boundaries of the third, or the other way around - whether, in other words, public discourse and protected social practices establish the boundaries of speech that furthers the principle of democratic legitimation, or whether they are simply labels for speech that does so. Part I begins, as Post does, with the proposition that the First Amendment must be interpreted in line with its core values.5 The primary value of First Amendment doctrine is democratic legitimation6 - allowing speakers to communicate in public discourse7 and thereby experience themselves as participating in the shared project of self-government.8 Defining the boundaries of public discourse is therefore an essential, difficult, and inherently normative goal.9 In pursuit of that goal, Post argues that public discourse is not defined by the content of specific speech acts, but by "the forms of communication constitutionally deemed necessary for formation of public opinion. …

Graham on the Ground

Abstract: In Graham v. Florida, the U.S. Supreme Court held that it is unconstitutional to sentence a non-homicide juvenile offender to life in prison without parole. While states need not guarantee release to these juvenile offenders, they cannot foreclose such an outcome at the sentencing phase. Scholars have identified several long-term ramifications of Graham, including its likely influence on juvenile sentencing practices and on retributive justice theory. As yet unexamined, though, are the important and thorny legal questions that Graham raises for state judges and lawmakers in the very short term. To whom does the Graham decision apply? What is the appropriate remedy for those inmates? What affirmative obligations does the Graham decision impose upon the states? This Article endeavors to answer these and other pressing questions that confront judges and legislators today. Part I briefly describes the Graham opinion and surveys what scholars to date have identified as salient aspects of the decision. Part II seeks to provide a blueprint for lower courts and legislatures implementing the Graham decision. Specifically, it argues that: (1) Graham is retroactively applicable to all inmates who received a life-without-parole sentence for a juvenile non-homicide crime; (2) those inmates entitled to relief under Graham require effective representation at their resentencing hearings; (3) judges presiding over resentencing hearings should err in favor of rehabilitation over retribution to comport with the spirit of Graham; and (4) long-term legislative and executive action are necessary in order to make Graham's promise a reality. Finally, Part III situates Graham in the context of our nation's ongoing criminal justice failings. While the sentence challenged in Graham ought to be viewed as a symptom of such failings, the Graham decision may offer a window of hope for reform on that same front. INTRODUCTION 52 I. THE GRAHAM DECISION 55 A. The Graham Opinion 55 B. Early Graham Scholarship 61 II. IMPLEMENTING GRAHAM ON THE GROUND 64 A. Graham Applies Retroactively 64 B. Graham Requires the States to Provide Effective Representation at Resentencing Hearings 69 C. Judges Sentencing Juveniles After Graham Should Err in Favor of Rehabilitation over Retribution 72 D. Legislative and Executive Action Are Needed to Make Graham's Promise a Reality 75 1. Parole Policy 75 2. States Should Facilitate Graham's Promise Through Conditions of Confinement 78 III. GRAHAM GOING FORWARD 82 A. Graham Reflects Broader Criminal Justice Failings 82 B. Graham and Plata: The U.S. Supreme Court May Be Willing to Intervene in State Criminal Justice Matters that Are Egregious and Long-Standing 85 CONCLUSION 90 INTRODUCTION In Graham v. Florida,1 the U.S. Supreme Court held that it is unconstitutional to sentence a non-homicide juvenile offender to life in prison without parole.2 The Court was careful to note that "[a] State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime," but it must provide the offender with "some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. …

Protecting Child Victims' Rights as Vigorously as Criminal Defendants' When Prosecuting Possession or Distribution of Child Pornography

Abstract: Among the devastating effects of the worldwide child pornography epidemic is a concerning legal dilemma Until recently, courts have frequently held that a defendant charged with child pornography offenses has a nearly unrestricted right to receive and view copies of the pornographic evidence as part of discovery of the state's evidence The duplication, dissemination, and viewing of child pornography is not only a violation of federal law, but is also a further violation of the child victims' privacy and renewal of their abuse The Washington State Legislature recently enacted Substitute House Bill 2177 ("HB 2177"), which amends the legislative findings on the child pornography epidemic, and places certain limits on the discovery of child pornography evidence These limitations are found in the new statute RCW 968A170 Washington's law is modeled closely on the Adam Walsh Child Protection and Safety Act of 2006, which has withstood numerous federal constitutional challenges This Comment argues that the Washington State Supreme Court should uphold RCW 968A170 as constitutional, and overrule its earlier decisions in State v Boyd and State v Grenning, which created a per se rule requiring the State to provide child pornography evidence to criminal defendantsINTRODUCTIONWeldon Marc Gilbert enticed adolescent boys with exotic trips, rides in airplanes and boats, then allegedly lured them into his home where he filmed himself sexually abusing them1 His case is pending before the Pierce County Superior Court2 From his jail cell, Gilbert petitioned the court to receive both copies of his videos and a means to view them Washington's criminal discovery rules3 - as construed by the Washington State Supreme Court in State v Boye? and State v Grenning5 - entitle Gilbert to receive and view a copy of the child pornography evidence without any showing that his viewing the materials is necessary to his defense6Similar to Washington State law, a defendant charged in federal court with possession of child pornography before 2006 would routinely receive a copy of the pornographic evidence to review in preparation for trial7 The government's surrender of child pornography evidence results in several problematic consequences Most troubling, every viewing of the pornography constitutes further victimization of the children depicted in the obscene images, regardless of whether the viewing occurs in preparation for trial There is also a custody and security risk: once the government distributes the pornography to the defense and other expert witnesses, there is no guarantee that the materials will not be further disseminated Even if unlikely, defense counsel and expert witnesses who receive the pornography risk future prosecution if they fail to return the evidence to the court Another dilemma - albeit commonly seen as incurable - -is that those prosecuting child pornography cases violate federal law themselves whenever they copy and distribute the pornographic evidenceThe United States Congress addressed some of these troubling concerns by passing the Adam Walsh Child Protection and Safety Act of 2006 ("Walsh Act" or "Act")8 Congress made lengthy and important findings regarding the unquestionable vice of child pornography, and recognized the need to stamp out its duplication and distribution9 Specifically, Congress determined that viewing child pornography constitutes a renewed violation of the child victims' privacy and a repetition of their abuse10 In response to these findings, Congress created a special exception to the discovery rules in cases involving child pornography In most circumstances, the Act prohibits the government from reproducing the evidence and mandates securing the evidence in a government facility However, the Act requires the government to make the materials "reasonably available" for examination by the defense, or else produce a copy of the pornographic evidence upon a showing that receiving a copy is essential to the defense …

Recalibrating Constitutional Innocence Protection

Abstract: . This Article examines the constitutional nature of the right of a prisoner to receive post-conviction relief based solely on the claim that he' is innocent. Part I explores innocence protection as an animating value of constitutional criminal procedure (Part I.A) and describes how developments in the way that crimes are investigated, proved, and reexamined have dislodged the trial from its place at the center of the constitutional criminal procedure universe (Part I.B). Part II explores how realigning the importance of innocence protection with the practical realities of our criminal justice system would impact the regulation of post-conviction procedures. It also is divided into two sections. Part II.A provides an overview of how the U.S. Supreme Court has treated innocence claims to date. First, it considers gateway innocence claims - those in which the prisoner asserts that new evidence of his factual innocence should permit substantive review of an otherwise defaulted claim that he received a constitutionally deficient trial. It also considers freestanding innocence claims - those in which a prisoner asserts that new evidence of his factual innocence warrants relief despite the fact that the conviction stemmed from a constitutionally sound trial. Part II.B articulates a three-tiered framework - conviction relief, execution relief, gateway innocence - for adjudicating such claims. INTRODUCTION 140 I. INNOCENCE PROTECTION AND THE DECLINE OF THE TRIAL 147 A. Innocence Protection Is a Transcendent Constitutional Value 147 B. The Trial Is No Longer the Penultimate Place for Innocence Protection 151 1 . Changes in Investigative, Trial, and Sentencing Procedures 153 2. Erosion of Confidence in Determinations of Criminal Liability 156 a. Eyewitness Identification 156 b. False Confessions 157 c. Misremembering and Misinterpreting Evidence ..159 3. Changes in the Availability and Reliability of Post-Conviction Evidence 160 C. Mechanisms for Realigning Constitutional Innocence Protection 163 II. POST-CONVICTION INNOCENCE CLAIMS SHOULD BE VIEWED THROUGH THE INNOCENCE-PROTECTION FRAMEWORK 168 A. Overview of Post-Conviction Innocence Cases and the U.S. Supreme Court 169 1. Gateway Innocence 169 2. Freestanding Innocence Claims 171 B. The Three-Tiered Proposal 176 1. Conviction-Relief 182 2. Execution Relief 188 3. Gateway Innocence Claims 195 CONCLUSION 203 INTRODUCTION Society suffers thrice when it convicts an innocent person. First, as a retributive matter, the harm done to society has not been rectified but amplified. Second, the real perpetrator is still "out there," which, from a public safety standpoint, might not seem significant in the context of small-time marijuana distribution or tax fraud, but means much more in the case of a murderer or serial rapist. …

The First Amendment's Epistemological Problem

Abstract: INTRODUCTION A standard rule of thumb in journalism tells us that three of anything is a trend. Whatever the subject, high or low, no journalist will consider something a trend until he or she can find three examples. Once they are found, however, the newspapers and other outlets will fill with pieces gushing that "everybody's doing it."1 In the bit of trendspotting that follows - or, to lend it some dignity, in this analysis of an emerging theme in First Amendment scholarship - we have many more than three examples. Consider the titles of some recent papers by leading First Amendment scholars: Facts and the First Amendment? Details: Specific Facts and the First Amendment? and 'Telling Me Lies ': The Constitutionality of Regulating False Statements of Fact.4 Consider, too, the U.S. Supreme Court's grant of certiorari in the Stolen Valor Act case, United States v. Alvarez,5 and the emerging scholarship on that case.6 Consider other recent cases raising similar issues.7 Finally, consider the book that is the subject of this Symposium: Robert Post's Democracy, Expertise, and Academic Freedom: A First Amendment Jurisprudence for the Modern State* The puzzle all these writers are addressing is epistemological,9 a question about the nature, legitimacy, and sources of knowledge.10 First Amendment jurisprudence routinely stresses the equality of speakers," refuses to allow government to regulate expression on the basis of its content,12 and emphasizes that "there is no such thing as a false idea."13 But how does the First Amendment deal -withfactsl Even if Post is right that a central value of the First Amendment is the protection of "public discourse"14 and the ideas and opinions it involves, public discourse still rests on a factual foundation. Not all facts are equal. People are entitled to have different opinions about where Barack Obama was bom and who his parents were. But those opinions presuppose that there is a fact of the matter. How do we know what is true? How, in particular, do courts ascertain what is true? And what does the First Amendment say about all this? If not all "facts" are equal in life, should they nonetheless be treated as equals in law? In this Article, I treat the recent interest in these epistemological issues as an opportunity to explore an important aspect of Post's project: the uneasy role of truth within First Amendment doctrine, and the relationship between courts and those institutions that we view generally as epistemically reliable sources of knowledge. My examination suggests that the First Amendment faces what I call an epistemological problem: specifically, the problem of figuring out just how knowledge fits within the First Amendment. The growing attention to the epistemology problem among leading First Amendment scholars is significant enough to warrant examination. Although I offer some views of my own, my approach is primarily descriptive. We must see the epistemological problem clearly before we can do anything about it (if anything can be done, that is). That is the goal of this Article. Part I presents some basic theoretical and doctrinal views concerning free speech and its relation to epistemological questions. I show that current theory and doctrine recognize, but do not resolve, a host of difficult questions about the relationship between truth, falsity, knowledge, and freedom of speech. I offer as an example the recent litigation over the federal Stolen Valor Act, which was heard this Term in the U.S. Supreme Court. Part II analyzes the recent scholarship discussing these epistemological questions. Part III draws on Post's book and my own forthcoming book on what I call "First Amendment institutions."15 1 ask whether we can say more about what Post calls "the relationship between the marketplace of ideas and the production of expert knowledge."16 In other words, are there ways that First Amendment law could better protect or encourage the production of useful facts? …

Addressing the Costs and Comity Concerns of International E-Discovery

Abstract: The volume of electronically stored information (ESI) is expanding rapidly. Under the Federal Rules of Civil Procedure, litigants may request electronic discovery (ediscovery) of many different forms of ESI. In 1978, the U.S. Supreme Court held that the party responding to an e-discovery request presumptively pays all e-discovery costs, including the costs of preserving, producing, and reviewing the requested ESI. Therefore, the rapidly increasing volume of ESI has substantially increased the costs of e-discovery for producing parties. In the 2003 case, Zubulake v. UBS Warburg LLC, the U.S. District Court for the Southern District of New York established a two-step test that allows a court to shift some of the e-discovery costs from the responding party to the requesting party. Since 2003, many federal district courts and some state courts have followed the two-step Zubulake test for conducting e-discovery in the United States. However, no court has yet established a test for cost-shifting in international e-discovery - conducting e-discovery on ESI located outside the United States. International e-discovery has unique costs and implicates concerns of national sovereignty. This Comment argues that courts should adopt a cost-shifting test for international e-discovery that starts with a comity analysis and then applies Zubulake's twostep cost-shifting test. Furthermore, courts applying this test should enforce cost-shifting orders through an escrow system whereby the requesting party will deposit some of the shifted costs with the court for later disbursement to the producing party. INTRODUCTION The amount of electronically stored information (ESI) worldwide is increasing at a rapid rate.1 In 2005, the total amount of ESI worldwide (the "digital universe") was 130 exabytes.2 In 2011, the digital universe expanded to over 1800 exabytes, enough data to fill 57.5 billion 32GB Apple iPads.3 Consistent with this rapid growth in ESI, Law Technology News reported that the total cost of e-discovery rose from $2 billion in 2006 to $2.8 billion in 2009 and estimated that the total cost would rise ten to fifteen percent annually in 2010 and 2011.4 Electronic discovery (e-discovery) begins when one of the parties in a lawsuit requests that the other party produce certain ESI that is relevant to the requesting party's claims or defenses.5 Many forms of ESI are discoverable in federal district courts.6 As a general rule, the producing party pays the costs of preserving, finding, and sending the ESI to the requesting party.7 Due to the high volume of available ESI, discovery requests can pose a burden for producing parties.8 In one case, the cost of complying with an e-discovery request was $249,000.9 In another case, the cost to restore, search, and produce data in archived electronic backup tapes was around $274,000. 10 Twenty-five percent of large-cap businesses11 in the United States and the United Kingdom anticipate an increase in their e-discovery budgets for 20 II,12 notwithstanding improvements in e-discovery tools and technologies.13 Federal district courts address the high costs of e-discovery in the United States by shifting some e-discovery costs to the requesting party under the two-step test articulated in Zubulake v. UBS War burg LLC.14 The first step of the Zubulake test is to examine the ESI's "accessibility."15 Although the original Zubulake case described accessibility in terms of the data storage format,16 some post-Zubulake cases have framed accessibility in terms of the overall cost to the producing party.17 The Federal Rules of Civil Procedure (FRCP) state that ESI is inaccessible if it creates an "undue burden or cost" for the producing party.18 If the court finds the ESI accessible, then the producing party must bear the costs of e-discovery.19 However, if the court finds the data inaccessible, it will continue on to the second part of the Zubulake test, which requires considering and balancing seven factors related to the cost and significance of the e-discovery request. …

The First Amendment, the Courts, and "Picking Winners"

Abstract: Dean Robert Post's book - Democracy, Expertise, and Academic Freedom^ - reflects and requires serious thought about our First Amendment. This Essay addresses just two of the many interesting assertions Dean Post makes. The first is his claim that the advancement of knowledge in a democracy springs primarily from the knowledge that experts gather in discerning good from bad ideas, and that recognizing this value requires courts to develop criteria for determining which viewpoints are better in ongoing debates among experts. The second is Dean Post's contention that the U.S. Constitution protects an individual right to academic freedom, which requires enforcing this right against academic institutions. The concern we have in each instance is with the role his theory assigns to courts in promoting some "experts" over others. I. EXPERT KNOWLEDGE AND THE COURTS Dean Post focuses much of his book on a contrast between the universal tolerance of expression traditionally associated with the First Amendment and the disciplinary practices that experts employ to produce knowledge. Proper appreciation of this contrast, he argues, requires revising many of our traditional conceptions of the First Amendment. To illustrate this contrast, Dean Post begins his work by noting that his knowledge of an oak tree in his backyard is simply a trusting of his senses, while his knowledge of the cancerous effects of cigarette smoking is based on deference to the conclusions of "experts"2 who "deployed the full and elaborate apparatus of modern epidemiological and statistical science."3 He argues that if the First Amendment protects the dissemination of knowledge to the public, then its application cannot be wholly characterized by "the egalitarian tolerance that defines the marketplace of ideas paradigm of the First Amendment."4 That is because determining whether an expression is worthy of protection because it promotes knowledge requires determining whether that expression actually does so. And this in turn requires that "courts apply the disciplinary methods by which expert knowledge is defined."5 Thus, Dean Post argues, "disciplinary practices that create expert knowledge [should be] invested with constitutional status."6 That means that courts should develop "criteria to determine which disciplinary practices"7 are best so that they may adequately "distinguishf] good ideas from bad ones."8 In a nutshell, while the traditional marketplace-of-ideas model "requires that the speech of all persons be treated with toleration and equality"9 so that advancements in knowledge and ideas may occur,10 the democratic competency model Dean Post develops as a counterpoint does not demand such treatment." Ultimately, he argues as follows: insofar as the First Amendment is fundamentally egalitarian in its application, it is not concerned with the promotion of knowledge; and, insofar as the First Amendment is concerned with the promotion of knowledge, it is not necessarily egalitarian in its application. We have two concerns with this position. First, it seems to rest on an implausible account of the theory behind the marketplace model, which is more focused on worries about the harmful effects of state power on free and open debate than on the criteria by which true knowledge is identified and produced. Second, Post's suggestion that courts should take sides in ongoing factual controversies to promote the First Amendment value of "democratic competence" neglects an important aspect of First Amendment jurisprudence: the emphasis on minimizing the footprint of state regulation of speech. First, the contrast Dean Post draws between traditional First Amendment tolerance and the standards by which experts produce knowledge cannot carry the weight he attributes to it. Contrary to what he implies,12 there is nothing in the traditional First Amendment faith in the value of "uninhibited, robust, and wide-open" debate13 that requires any corresponding belief in the particular value - let alone equal value - of each and every submission to that debate. …

Driving Dangerously: Vehicle Flight and the Armed Career Criminal Act after Sykes v. United States

Abstract: The Armed Career Criminal Act (ACCA), a federal "three-strikes" recidivist statute, applies a mandatory enhancement to sentences of criminal defendants previously convicted of three qualifying predicate crimes. In Sykes v. United States the U.S. Supreme Court held that a conviction for fleeing police by car counted as a predicate under ACCA's residual provision for crimes that "otherwise involve conduct that presents a serious potential risk of physical injury to another." ACCA's residual provision has produced a confusing series of U.S. Supreme Court decisions, each applying a different method for determining its scope. Though Sykes borrows methods from each of these prior cases, this Comment argues that only the narrowest of its bases - a finding of risk based on the statutory features of the state crime - controlled its outcome. This basis suffices to explain Sykes' outcome, and best comports with the Court's own precedent mandating a categorical approach when interpreting ACCA. Under the categorical approach, a court may consider only the elements of a crime, not the particulars of its commission by an individual defendant, to determine whether it qualifies as a predicate offense under ACCA. Applying this interpretation of Sykes in future cases, only vehicle-flight convictions that either (1) require risk of physical injury to another as an element themselves or (2) share the same punishment as a comparable offense containing this element will qualify under ACCA's residual provision. However, in Sykes' wake most federal courts have read Sykes broadly, employing reasoning this Comment argues is inconsistent with faithful application of the categorical approach. INTRODUCTION When Marcus Sykes pleaded guilty to illegally possessing a firearm in 2008, ' nearly every day of his more than fifteen-year sentence - all but eight months out of 188 - sprang from a five-year-old prior conviction. The Armed Career Criminal Act (ACCA) ratcheted what might otherwise have been jail time of less than five years for being a felon in possession of a firearm to more than fifteen years behind bars,2 based on Sykes' prior conviction in 2003 for fleeing when police tried to pull him over for driving without headlights.3 Sykes was arrested in March of 2008 after attempting to rob two people parked outside an Indianapolis liquor store.4 Sykes maintained that he had merely approached to speak to one of the car's occupants, a woman he knew.5 The Government asserted he instead tried to rob them at gunpoint, and only aborted his plans after recognizing one of his intended victims.6 While the federal district court found police information sufficient to conclude that Sykes had attempted robbery,7 he was not convicted for that crime, pleading only to illegal firearm possession.8 What he had been doing with the gun before his arrest only mattered inasmuch as possessing a firearm in connection with another felony lengthened his sentence.9 The majority of Sykes' sentence resulted from the fifteen-year minimum imposed by ACCA and triggered by his prior felony convictions.10 Whether Sykes had attempted robbery made no difference for ACCA purposes - ACCA applies to sentencing for the federal offense of illegal firearm possession whenever the convict's history contains three qualifying predicate convictions.11 These predicates may be any combination of "serious drug offenses" and "violent felonies."12 ACCA defines "violent felonies," the category at issue in Sykes' case, as any offense punishable by at least a year of imprisonment that either (1) requires the element of actual, attempted, or threatened use of force; (2) is burglary, arson, extortion, or involves using explosives; or (3) "otherwise involves conduct that presents a serious potential risk of physical injury to another."13 Sykes conceded his two 1996 robbery convictions qualified as ACCA predicate crimes under the first prong.14 He disputed, however, the Government's claim that his 2003 vehicle flight should count as a violent felony under the third "otherwise involving" category15 - the so-called "residual provision. …

The Rise, Decline, and Fall (?) of Miranda

Abstract: I. WHY DID THE WARREN COURT BELIEVE SOMETHING LIKE MIRANDA WAS NEEDED? 967II. CONFUSION OVER, AND RESISTANCE TO, MIRANDA 970III. THE POLITICIANS GET INTO THE ACT 972IV. PRESIDENT NIXON NOMINATES WARREN BURGER TO BE CHIEF JUSTICE 975V. PRESIDENT NIXON NOMINATES WILLIAM REHNQUIST TO BE ASSOCIATE JUSTICE 978VI. CHIEF JUSTICE BURGER AND JUSTICE REHNQUIST ADMINISTER THE FIRST BLOWS TO MIRANDA: THE HARRIS AND TUCKER CASES 980A. Harris v. New York 980B. Michigan v. Tucker 984VII. "PROPHYLACTIC RULES" VS. CONSTITUTIONAL RULES 991VIII. THE COURT WEAKENS THE EDWARDS RULE 995IX. THE COURT DISPARAGES MIRANDA: QU ARLES AND ELSTAD 997X. WHAT WAS THE MIRANDA COURT TRYING TO DO? 1000XI. THE STRANGE CASE OF DICKERSON V. UNITED STATES 1002XII. BERGHUIS V. THOMPKINS: THE COURT INFLICTS A HEAVY BLOW ON MIRANDA 1008A. Must the Police Obtain a Waiver of Rights Before Interrogation Commences? 101 1B. The Implications of Miranda's Concern About the "Compelling Atmosphere" of Police Interrogation 1014C. What Likely Takes Place in the Interrogation Room? 1015D. "Waiver by Confession" 1018XIII. ALTERNATIVES TO MIRANDA 1021A. Should We Provide Custodial Suspects More Protection than Miranda Does (or Ever Did)? 1022B. Should We Give Up on Miranda and Reinvigorate the Old Due Process/'Totality of the Circumstances"/"Voluntariness"Test? 1024C. Is the Best Solution Interrogation by, or in the Presence of, a Magistrate or Other Judicial Officer? 1032A FINAL REFLECTION 1038There has been a good deal of talk lately to the effect that Miranda1 is dead or dying - or might as well be dead.2 Even liberals have indicated that the death of Miranda might not be a bad thing.3This brings to mind a saying by G.K. Chesterton: "Don't ever take a fence down until you know the reason why it was put up."4I. WHY DID THE WARREN COURT BELIEVE SOMETHING LIKE MIRANDA WAS NEEDED?Why was the "Miranda fence" erected? Because the "fence" it replaced - the due process/"totality of circumstances"/"voluntariness" test - proved to be "an inadequate barrier when custodial interrogation was at stake."5 As the "voluntariness" test evolved, the terms typically used in administering it (e.g., "voluntariness," "coercion," "breaking" or "overbearing" the will) became increasingly unhelpful. They did not focus directly on either of the two grounds for excluding confessions: (a) their untrustworthiness or (b) disapproval of the methods used by the police in obtaining them.6Nor is that all. As Stephen Schulhofer has observed, because of its sponginess and "subtle mixture of factual and legal elements,"7 the preMiranda test "virtually invited" trial judges to "give weight to their subjective preferences" and "discouraged active review even by the most conscientious appellate judges."8"Given the Court's inability to articulate a clear and predictable definition of 'voluntariness,' the apparent persistence of state courts in utilizing the ambiguity of the concept to validate confessions of doubtful constitutionality, and the resultant burden on [the Court's] own workload,"9 it is hardly surprising that in 1966 what might be called the "voluntariness fence" was finally torn down in favor of a new one.If a picture is worth a thousand words, perhaps the same can be said for a specific case and its graphic details. I am not going to return to the 1930s and 40s, when police interrogators sometimes resorted to the whip or the rope. …

State Default and Synthetic Bankruptcy

Abstract: An insolvent state does not need bankruptcy if sovereign immunity would protect it from lawsuits and other collection efforts. To the extent that a state is not judgmentproof and needs bankruptcy, we may not need to modify the Federal Bankruptcy Code to allow it to file. First, a substantial share of state spending flows through their municipalities, and these municipalities have substantial obligations of their own. Unlike states, municipalities can file for bankruptcy under current law, and a state could substantially reduce the cost of accomplishing its own fiscal goals by forcing its municipalities to file. Second, states may be able to create their own synthetic "bankruptcy" mechanisms, or bankruptcy without the federal code. State obligations are creatures of state law; states do not need a federal bankruptcy discharge. Federal law would not preempt a state composition mechanism used to adjust these debts, and any adjustment that would have been confirmed by a bankruptcy court would likely survive a Contract Clause challenge as well. Even if a state does not enact a composition mechanism, it could capture most of the benefits of federal bankruptcy by directly altering the rights of its creditors. A synthetic bankruptcy mechanism created by a state would not precisely replicate a federal bankruptcy chapter for states. Perhaps the best argument for federal bankruptcy is that it could operate with significantly lower transactions costs. In a world without omniscient judges, however, transactions costs can actually increase welfare by enhancing the ability of a state to make credible commitments.INTRODUCTION 658I. THE NATURE OF A STATE'S FISCAL CRISIS SHOULD DICTATE THE STRUCTURE OF THE RESOLUTION MECHANISM 662A. States and Their Municipalities Resemble Complex Holding Companies 663B. Debt Service Payments Do Not Account for a Large Share of State Budgets 665C. Pension Obligations Constitute a Substantial Burden on States 668II. NON-BANKRUPTCY LAW MAY PREVENT THE ENFORCEMENT OF STATE OBLIGATIONS 671A. Sovereign Immunity May Prevent Creditors from Suing a State 675B. State Laws Amending Creditor Rights May Survive a Contract Clause Challenge 680III. AN INSOLVENT STATE COULD USE BANKRUPTCY UNDER EXISTING LAW 683A. States Can Use Municipal Bankruptcy to Reduce Expenses 683B. States Can Create Synthetic Bankruptcy - Bankruptcy Without the Code 686IV. SYNTHETIC BANKRUPTCY MAY BE A GOOD SUBSTITUTE FOR FEDERAL BANKRUPTCY 690A. Minimalist Bankruptcy Is Likely to Be Either Unnecessary or Insufficient 690B. Federal Bankruptcy May Offer No Real Advantages Over Synthetic Bankruptcy 6941. The Contractarian Argument for Synthetic Bankruptcy 6952. Federal Bankruptcy and the Allocation of Power 6983. The Role of Transactions Costs 703CONCLUSION 704INTRODUCTIONSome scholars and politicians have called for a change in law1 that would allow states to file for bankruptcy under the federal code.2 At the moment, states don't need bankruptcy protection. States have relatively little debt, at least if we define debt narrowly to mean liabilities owed to capital markets.3 More importantly, if a state truly wants to default, there may be very little that its creditors can do to force the state to pay. The Eleventh Amendment prevents nearly all creditors from suing a state in federal court without the state's consent, and sovereign immunity allows the state to prevent most creditors from suing in state court as well.4 Even if a state's creditors do manage to sue, existing Contract Clause doctrine allows a state to use its financial distress to excuse its nonperformance. …

Democratic Competence, Constitutional Disorder, and the Freedom of the Press

Abstract: In Democracy, Expertise, and Academic Freedom: A First Amendment Jurisprudence for the Modem State, Robert Post offers a powerful argument for why the First Amendment should protect the manner in which professional disciplines produce expert speech. This symposium Essay responds to Post's book by focusing on the potential interaction between Post's theory of "democratic competence" and the freedom of the press. Using the WikiLeaks affair as a foil, this Essay concludes that a "democratic competence" approach might provide a more coherent theoretical underpinning for according constitutional protection to newsgathering (as distinct from publication), and might thereby help to answer the unanswerable question about what the First Amendment's Press Clause actually protects. By the same logic, though, it might also provide for greater restraint on the media insofar as it constitutionalizes conventional arguments about the need to honor the government's expertise when protecting national security secrets against public dissemination. Thus, the question Post really raises is whether such a deeper but narrower First Amendment is one to which we should aspire. We have then, at least in my opinion, the worst of both worlds. On the one hand the laws stand idle and are not enforced at least in part because their meaning is so obscure, and on the other hand it is likely that the very obscurity of these laws serves to deter perfectly legitimate expression and debate by persons who must be as unsure of their liabilities as I am unsure of their obligations.1 [Government may guard mightily against serious but more ordinary leaks, and yet must suffer them if they occur. Members of Congress as well as the press may publish materials that the government wishes to, and is entitled to, keep private. It is a disorderly situation surely. But if we ordered it we would have to sacrifice one of two contending values - privacy or public discourse - which are ultimately irreconcilable.2 When the international organization WikiLeaks systematically disclosed to the public massive volumes of classified U.S. government information - including scores of sensitive diplomatic cables3 - by posting them to its eponymous website, it presented a conundrum for those attempting to expound a comprehensive (and coherent) theory of the First Amendment.4 To understand the parameters of the problem, consider 18 U.S.C. § 793(e), part of the Espionage Act of 191 7.5 Section 793(e) makes it a crime for anyone "having unauthorized possession of ... information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation," to "willfully communicate[] . . . the same to any person not entitled to receive it," or to "willfully retain[] the same and fail[] to deliver it to the officer or employee of the United States entitled to receive it."6 Assume for the sake of argument that the U.S. government could make out a prima facie case that Julian Assange, WikiLeaks' enigmatic founder and editor-inchief, violated § 793(e) by posting to public websites thousands of classified U.S. government diplomatic cables and reports (at least some of which presumably "relat[e] to the national defense").7 Would the First Amendment ever provide Assange with a defense?8 I have suggested elsewhere that the answer under extant precedent is quite possibly "no."9 Now, change the hypothetical: What if the government separately sought to prosecute the New York Times, which published a number of articles quoting directly from some of the classified documents that WikiLeaks made public, and also posted some of the cables themselves?10 Assuming that, per its text, § 793(e) applies to downstream redistribution,11 would the Times have a First Amendment defense to such charges?12 And what about individuals who downloaded some of the WikiLeaks documents onto their computers, or who downloaded the Times articles quoting from those documents, and "willfully retain[ed] the same"? …

[87WashLRev1251] Fleeing East from Indian Country: State v. Eriksen and Tribal Inherent Sovereign Authority to Continue Cross-Jurisdictional Fresh Pursuit

Abstract: :In State v. Eriken, the Washington State Supreme Court held that Indian tribes do not possess the inherent sovereign authority to continue cross-jurisdictional fresh pursuit and detain a non-Indian who violated the law on reservation land. This Comment argues the Eriksen Court's reliance on RCW 10.92.020 is misplaced. RCW 10.92.020 is irrelevant to a consideration of sovereign authority. States do not have the authority to unilaterally define tribal power. A tribe retains sovereign powers not taken by Congress, given away in a treaty, or removed by implication of its dependent status. The Eriksen Court also misinterpreted the state statute as a limit on tribal authority to enforce laws and incorrectly dismissed the validity of cross-jurisdictional fresh pursuit of a non-felon. Eriksen guts the ability of tribes to enforce their sovereign right to uphold the law and safety on the reservation. To reinforce tribal power, Congress should enact legislation similar to the "Duro Fix," a statutory recognition of inherent sovereign authority.INTRODUCTIONOn September 1, 201 1, the Washington State Supreme Court decided State v. Eriksen (Eriksen III).1 Writing for the majority, Justice Fairhurst held that a tribal police officer lacked the inherent sovereign authority2 to stop and detain a non-Indian defendant outside the tribe's territorial jurisdiction, even though pursuit began within the reservation. Eriksen III mandates that tribal officers who are not certified to enforce Washington law under RCW 10.92.020 release non-Indian law violators who have fled the reservation with officers in fresh pursuit.4 In effect, Eriksen III permits non-Indians to act with impunity on tribal land as long as they can successfully evade tribal officers.5The Eriksen III holding will harm tribal interests. Tribes allow a large number of non-Indian visitors to enter their reservations on a daily basis to further economic development. Twenty-two of Washington's twentynine federally-recognized tribes operate casinos.6 There are also other retail establishments located within reservations that draw visitors. The level of non-Indian traffic is extraordinary. The Tulalip reservation alone receives 42,000 guests on a weekday and over 60,000 on a weekend day.7 In the face of this level of ingress, tribes without state approval to enforce state law are now limited in their ability to ensure health and safety on the reservation.This unpalatable result should not stand because Eriksen III flies in the face of established law. Part I of this Comment provides an overview of the federal government's "plenary and exclusive" authority to define inherent sovereign authority. Part II outlines the legal analysis the Washington State Supreme Court used in recognizing tribal power to stop and detain non-Indians who violate the law on the reservation in State v. Schmuck.9 Part III demonstrates that Washington statutes have removed jurisdictional barriers from officers pursuing law violators. The final background section, Part IV, lays out Eriksen Iirs procedural history and legal arguments. This Comment argues in Part V that the Eriksen III decision is a misunderstanding of the analysis for inherent sovereign authority, a misapplication of the canons of construction for tribal treaties and statutes, a misinterpretation of the statute authorizing certification of tribal officers to enforce state law, a misappropriation of precedents and statutes regarding barriers to fresh pursuit, and a misalignment with public policy. To limit the precedential effect of Eriksen III, this Comment suggests in Part VI that Congress should use its exclusive power to define inherent sovereign authority and statutorily recognize the right of tribal officers to protect safety on their reservation through cross-jurisdictional fresh pursuit of non-Indians who break the law on tribal land.I. CONGRESS HAS "EXCLUSIVE AND PLENARY AUTHORITY" TO DEFINE A TRIBE'S INHERENT SOVEREIGN AUTHORITY AND DELEGATE JURISDICTION OVER TRIBAL RESERVATIONSCongress has the sole discretion to define tribal authority and to delegate jurisdiction within Indian Country. …

Independence for Washington State's Privileges and Immunities Clause

Abstract: Article I, section 12 of the Washington State Constitution prohibits special privileges and immunities. It provides: "No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations." Since the 1940s, the Washington State Supreme Court has analogized article I, section 12 to the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. As a result, it has treated claims under article I, section 12 and the Equal Protection Clause as a single inquiry and applied the U.S. Supreme Court's Equal Protection analysis to article I, section 12. In the mid-1980s, the Washington State Supreme Court began to question this practice. In 2006, the Court divided on when and how to independently analyze article 1, section 12. Justice James Johnson would have the Court independently analyze article I, section 12 in every case; Chief Justice Barbara Madsen would have the Court independently analyze article I, section 12 only where the law grants a privilege to a minority class; and Justice Mary Fairhurst would have the Court independently analyze article I, section 12 only where the state constitution provides greater protection to the right at issue than the Equal Protection Clause. This Comment argues that the Court should abandon the approaches advanced by Chief Justice Madsen and Justice Fairhurst and adopt Justice Johnson's approach to interpreting and applying article I, section 12. Justice Johnson's approach is consistent with the clause's original intent, plain language, and the Court's early decisions interpreting and applying it. Unlike the other approaches. Justice Johnson's approach does not put judicial efficiency, finality, and the dignity of Washington courts and the state constitution at risk. INTRODUCTION Adopted in 1889, article I, section 12 of the Washington State Constitution is the state's privileges and immunities clause.1 It provides, "No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations."2 The Washington State Supreme Court has considered article I, section 12 to be substantially equivalent to the Equal Protection Clause because both provisions require that laws apply equally to all.3 Due to this common treatment, the Court stopped independently analyzing claims under article I, section 12 during the 1940s. Instead, the Court addressed claims under both article I, section 12 and the Equal Protection Clause as a single issue, resolving both using the tiered scrutiny the U.S. Supreme Court applies to the Equal Protection Clause.4 In 1986, the Court's approach to the state constitution (and to article I, section 12) changed with its adoption of the so-called Gunwall criteria.5 The Gunwall criteria guide the Court's determination of when and how to analyze a state constitutional provision independent of an analogous federal provision.6 In 2002, the Court applied the Gunwall criteria to determine that article I, section 12 warranted an analysis independent of the Equal Protection Clause.7 Several years later, the Court divided three ways on when and how to independently analyze article I, section 12.8 Justice Johnson9 rejected the assertion that article 1, section 12 is analogous to the Equal Protection Clause and did not rely on the Gunwall criteria to determine when and how to independently analyze article I, section 12.'° Under his approach the Court would independently analyze article I, section 12 in every case according to its plain language." In contrast to Justice Johnson's approach, Chief Justice Madsen and Justice Fairhurst start with the presumption that article I, section 12 is analogous to the Equal Protection Clause and rely on the Gunwall criteria to determine when and how to independently analyze article I, section 12 in appropriate cases. …

Discernible Differences: A Survey of Civil Jury Demands

Abstract: Under Washington State's historic default rules, the civil jury consisted of twelve persons unless both parties expressly consented to a "less number."1 The Washington Legislature reversed this presumption in 1972.2 Washington's civil jury now consists of six persons, unless one of the parties files a specific demand for twelve.3 It appears, however, that litigants have refused to embrace this change; a survey of 2883 civil jury demands filed in King County Superior Court in 2009 to 2010 demonstrates that litigants overwhelmingly prefer twelve-member juries. This paper presents this survey's results4 and explores what they might mean, positing seven considerations that may explain litigants' shared preference for traditional juries. I hope that the survey and accompanying exploration will remind us of the "great purposes that gave rise to the jury in the first place."5 I. BACKGROUND Until 1972, Washington's lawmakers found particular value in the twelve-person jury. When the first Legislative Assembly of the Territory of Washington instituted the civil jury in 1854, it declared: "The jury shall consist of twelve persons, unless the parties consent to a less number. The parties may consent to any number, not less than three, and such consent shall be entered by the clerk on the minutes of the trial."6 In other words, civil litigants could agree to have their case heard by fewer than twelve jurors, but the court provided a smaller jury only if the opposing parties expressly consented and their consent was properly documented. The framers of the Washington State Constitution also recognized the value of the twelve-member jury. When they enshrined the civil jury right in the Declaration of Rights, they required special action - a legislative enactment - to decrease jury size.7 While "there has scarcely been a time when elimination or reformation of the civil jury system has been far from the minds of its critics,"8 jury detractors focused particularly negative attention on the civil jury beginning in the late 1950s.9 Critics blamed the jury for "the pressing problem of court congestion and litigation delay"10 and argued that the civil jury was "an expensive luxury"11 society could ill afford. Studies were conducted, one of which estimated that a bench trial was "on the average, 40 to 50 percent less time-consuming than a jury trial."12 After jury detractors successfully depicted jury cases as "the greater time-consumers and ... the more expensive type of trial,"13 even jury supporters began to ask, "[w]hat may be done to economize on time and money in the trial of lawsuits?"14 In response to this narrow question, a growing number of legal commentators recommended that the civil jury should be reduced from twelve members to either five or six. They argued that the twelvemember jury was not a necessary component of justice, but merely "an accident"15 of history.16 Certain proponents then conducted limited studies of six-member civil juries to test their theories in state courts.17 According to these researchers, a smaller jury would provide all the benefits of a larger jury, while conserving time, saving money and reducing court congestion.18 After the U.S. Supreme Court affirmed these studies in the Sixth Amendment context, declaring that there was "no discernible difference between the results reached by the two different-sized juries,"19 it signaled the jury's widespread diminishment.20 Two years after Williams v. Florida2^ was decided, the Washington State Legislature voted to diminish the civil jury without much thought. There was some limited debate in the Senate, but it centered on time of service.22 There was no debate and only one question in the House of Representatives: Representative Martinis23 asked, "Axel,24 is there any provision in this bill that allows the computer selection of a jury?"25 Representative Julin replied, "The answer to your question is no, Mr. Martinis. We did not have time to perfect that particular amendment at this time. …

The Guardians of Knowledge in the Modern State: Post's Republic and the First Amendment

Abstract: On some grave questions, there is no difference to be split; one does not look for a synthesis between verity and falsehood; the sun does not rise in the east one day and in the west the next.1 Christopher Hitchens 's maxim could be the epigraph quote to Robert Post's thought-provoking new book, Democracy, Expertise, and Academic Freedom: A First Amendment Jurisprudence for the Modern State? While many might laud the democratization of knowledge and the ideal of free and equal competition of ideas in the proverbial marketplace, there are certain lines that cannot be crossed if the sun is to continue to rise in the east. This is but another way of saying that egalitarian principles cannot be allowed to run amok when it comes to how we understand truth or, if you will, expert knowledge. Robert Post's examination of the First Amendment is reminiscent, if only in broad strokes, of the late Allan Bloom's critique of what he saw as the assault on the academy owing to invasive egalitarian principles. The liberal dean of the Yale Law School and the conservative professor of political philosophy of the University of Chicago share some conceptual ground. If truth be known (Dare we put it that way?), this should not be surprising. For where excellence (what the ancients called arete) is the criterion, there has to be some rupture, at some point, of egalitarian norms.3 One mark of a dauntless thinker is a willingness to defend the verity of the earth's circularity in a democratic culture in which the flatearth crowd demands compromise or synthesis. However much one may agree or disagree with eye-opening books such as Post's Democracy, Expertise, and Academic Freedom or Bloom's The Closing of the American Mind, it is hard to deny one thing: that they force us to be pensive, to pause and reflect on what we heretofore may have considered to be gospel. Metaphorically, they are akin to Socrates speaking to his Athenian jury - they alert us even as they challenge us. One of the nobler purposes of the First Amendment is to inspire us to think critically, including the way we think about the First Amendment. By that measure, Dean Post has done us a great service: he has written a book that pricks the mind at many a turn where feeble thinking passes for received wisdom. In his discussion of justice in The Republic, Plato's Socrates insists on a distinction between truth and opinion.4 Drawing on the thought of the political theorist Hannah Arendt,5 Dean Post does something of the same in his discussion of the First Amendment. He writes: "Arendt allows us to see that First Amendment protections guarantee the specifically political character of public opinion. To the extent that law enforces claims of truth, it suppresses 'political thinking' by excluding from political participation those who embrace a different truth from the state."6 Hence, we are told, '"[t]ruth . . . carries within itself an element of coercion.'"7 We will soon say more about this general dichotomy. For now, it is enough to suggest a larger point, namely, the nexus in Dean Post's thinking between political philosophy and free speech. Throughout his book Post turns time and again to the thoughts of philosophers such as Jurgen Habermas, Georg Wilhelm Hegel, Immanuel Kant, Charles Sanders Peirce, John Rawls, Jean Jacques Rousseau, and Carl Schmidt, to list but a few.8 Speaking broadly, this juxtaposition of philosophy and free speech theory calls to mind the approach that Alexander Meiklejohn takes in his seminal book Free Speech and Its Relationship to Self Government? Whatever his conceptual allegiance to Meiklejohn,10 Post does something similarly bold - he ventures a theory of free speech. And that theory very much concerns the role and rule of the First Amendment in a modern democracy. It is an old problem. Democracy is tied to doxa (the Greek word for opinion), which affects how we perceive truth or understand knowledge. And Dean Post is aware of that problem: "Within public discourse, traditional First Amendment doctrine systematically transmutes claims of expert knowledge into assertions of opinion. …