Showing papers in "William and Mary Bill of Rights Journal in 2018"

Beyond Headlines & Holdings: Exploring Some Less Obvious Ramifications of the Supreme Court’s 2017 Free-Speech Rulings

Abstract: Digging behind the holdings, this Article analyzes less conspicuous, yet highly consequential aspects of the United States Supreme Court’s First Amendment rulings during the opening half of 2017. The four facets of the opinions addressed here— items both within individual cases and cutting across them—hold vast significance for future free-speech battles. Nuances of the justices’ splintering in Matal v. Tam, Packingham v. North Carolina, and Expressions Hair Design v. Schneiderman are examined, as is the immediate impact of Justice Anthony Kennedy’s Packingham dicta regarding online social networks. Furthermore, Justice Sonia Sotomayor’s solo concurrence in the threats case of Perez v. Florida is explored.

The New Jim Crow's Equal Protection Potential

Abstract: In 1954, the Supreme Court’s Brown v. Board of Education opinion relied on social science research to overturn Plessy v. Ferguson’s separate but equal doctrine. Since Brown, social science research has been considered by the Court in cases involving equal protection challenges to grand jury selection, death penalty sentences, and affirmative action. In 2016, Justice Sotomayor cited an influential piece of social science research, Michelle Alexander’s The New Jim Crow: Mass Incarceration in the Age of Colorblindness, in her powerful Utah v. Strieff dissent. Sotomayor contended that the Court’s holding overlooked the unequal racial impact of suspicionless stops. Though the defendant in Strieff was white, Sotomayor emphasized that “it is no secret that people of color are disproportionate victims of this type of scrutiny,” and mentioned The New Jim Crow in support of her conclusions about the role race plays in suspicionless stops. The New Jim Crow, published in 2010, has sold over 750,000 copies. It describes how the criminal justice system disproportionately targets and incarcerates black men. The book has inspired a popular movement to end mass incarceration and the racial caste system mass incarceration has created. In addition to its appearance in Strieff, The New Jim Crow was cited in United States v. Nesbeth, a well-publicized 2016 sentencing order from the Eastern District of New York in which the court imposed probation instead of the incarceration recommended by the federal sentencing guidelines. The New Jim Crow has also been cited to explain the unfair collateral consequences faced by those convicted of drug crimes, as well as convictions’ disproportionate racial impact. This essay is the first to study The New Jim Crow’s equal protection potential. The New Jim Crow’s presence in federal decisions is reminiscent of the Supreme Court’s citation to social science research in Brown v. Board of Education. This essay considers whether The New Jim Crow sits alongside canonical works of social science research considered by the Supreme Court in cases like Brown. It examines how The New Jim Crow is sometimes cited by the federal courts in passing, as a nod to a work that has infiltrated popular culture, but not always as evidence that influences case outcomes. Noting its appearance in Judge Scheindlin’s orders finding that the NYPD’s use of stop-and-frisk encouraged unconstitutional racial profiling, it questions whether The New Jim Crow could successfully support equal protection claims. It concludes that citations to The New Jim Crow represent soft law, albeit soft law with hard law potential.

The Unconstitutionality of Criminal Jury Selection

Abstract: The criminal defendant’s right to a jury trial is enshrined within the U.S. Constitution as a protection for the defendant against arbitrary and harsh convictions and punishments. The jury trial has been praised throughout U.S. history for allowing the community to democratically participate in the criminal justice system and for insulating criminal defendants from government oppression. This Article asks whether the jury selection process is consistent with the defendant-protection justification for the Sixth Amendment right to a trial by jury. Currently, the prosecution and defense share equal control over jury selection. Looking to the literal text of the Sixth Amendment, the landmark case on the right to a jury trial, and the Federal Rules of Criminal Procedure for guidance, this Article explains that jury selection procedures undermine the defendant-protection rationale for the Sixth Amendment right to a jury trial. Because the Sixth Amendment grants this right personally to the defendant and the Supreme Court has construed this right as intending to protect the defendant from governmental overreach, the prosecution should not be entitled to select the very jury that is supposed to serve as a check against its power. After concluding that symmetrical power in jury selection undermines the constitutional purpose of the jury trial, this Article proposes two possible remedies.

A Reparative Justice Approach to Assessing Ancestral Classifications Aimed at Colonization's Harms

Abstract: “Everybody should get to vote, no matter what color your skin is.” In 2018, this seductive phrase refers not to African American voting rights in the U.S. South, but to a white male’s attempt to vote in a political status plebiscite reserved for “native inhabitants of Guam.” Davis v. Guam—a little-known “reverse discrimination” lawsuit—threatens to undermine a politically-crafted remedial law aimed at rectifying the harms of colonization to an Indigenous people. Using Davis as a focal point, and situating it in the larger movement to dismantle rights for people of color and Native peoples nationwide, the article offers an approach for assessing ancestry-based classifications seeking to repair the damage of historical injustice. This approach rests on two important theoretical foundations: international scholar Albert Memmi’s groundbreaking theory of how race and ancestry are used to justify colonization or political aggression, and the concept of reparative justice, rooted in the international human rights principle of self-determination. Together, these theories point to a more appropriate method for assessing ancestry-based classifications that incorporates the context of colonization and the resulting damage to the Native group and, perhaps most importantly, takes account of that group’s use of ancestry as a restorative response to colonialism’s devastation.

The Superior Solution to the “Denominator Problem” — Comparing the Majority and Dissent’s Property Benchmark Tests in Murr v. Wisconsin with a Focus on Property Owners’ Reasonable Expectations

Abstract: On June 23, 2017, the United States Supreme Court, in a 5–3 decision—Murr v. Wisconsin—set out a multifactor balancing test intended to resolve the “denominator problem” in regulatory takings cases involving real property. The denominator problem asks how the pertinent parcel of land should be defined when deciding whether a regulatory taking has occurred. The dissenting opinion, written by Justice Roberts and joined by Justices Thomas and Alito, protested the unnecessary complexity of the majority’s test. Fearing its potential ramifications on property rights, the dissent set out an alternative, straightforward solution. While both the majority and dissent’s tests would have arrived at the same holding—ruling against the Murr family and in favor of St. Croix County—their solutions as to how the denominator question should be answered are markedly different. This difference is especially pronounced when comparing the tests’ potential to achieve denominators in agreement with property owners’ reasonable expectations. The Murr majority opinion, written by Justice Kennedy, offered three specific considerations to weigh when defining the denominator: “[(1)] the treatment of the land under state and local law; [(2)] the physical characteristics of the land; and [(3)] the prospective value of the regulated land.” The Justices further elucidated:

The Common Law Endures in the Fourth Amendment

Abstract: The text of the Fourth Amendment provides no guidance about what makes a search unreasonable or when warrants are required to make a search reasonable. The Supreme Court has had to craft a doctrine based on intuition, policy goals, and halfhearted stabs at history. This Article argues that the Court’s Fourth Amendment doctrine is stable when it roughly tracks the eighteenth-century common law protection of property, privacy, and liberty. When the Court has sought to provide more protection than the common law provided, the result has been an erratic doctrine that has gradually receded almost back to the common law contours. The most recent move away from a robust Fourth Amendment has been to reduce the application of the exclusionary rule. As there was no exclusionary rule at common law, and for over a century after the Fourth Amendment was ratified, further reductions in the rule’s application can be expected.

When Influence Encroaches: Statutory Advice in the Administrative State

Abstract: This Article revisits the D.C. Circuit’s 1993 decision in FEC v. NRA Political Victory Fund, and concludes that the separation of powers reasoning applied in NRA Political Victory Fund could invalidate other common practices in the administrative state, such as statutory requirements that Executive Branch officers serve on the boards of corporations created and staffed by Congress. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 658 A. Both Decisional Authority and Advisory Influence Are “Power” for Purposes of the Separation of Powers . . . . . . . . . . . . . . . . . . . . . . . . . 658 B. Both “Undermining” and “Aggrandizing” Violate the Separation of Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 659 I. STATUTES GRANTING CONGRESS ADVISORY INFLUENCE OVER THE EXECUTIVE BRANCH . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 660 A. Corporate Boards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 660 B. Advisory Committees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 664 1. Appointment Creep . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 666 2. Powerful Committees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 668 C. Mandatory Consultations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 668 II. REGULATORY CAPTURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 669 A. Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 669 B. Social Psychology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 673 C. Political Science. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 675 1. Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 675 2. Executive Branch. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 676 III. THE SEPARATION OF POWERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 678 A. NRA Political Victory Fund. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 680 B. Interference with Decision-Making Processes . . . . . . . . . . . . . . . . . . . 684 C. The Formalist Fix. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 687 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 689 * JD, Yale Law School; BA, Davidson College. Special thanks to Jarilyn Dupont and Nicholas R. Parrillo.

Schuette and Antibalkanization

Abstract: In Schuette v. Coalition to Defend Affirmative Action, Justice Kennedy’s controlling plurality revised the political process doctrine and ended the practice of affirmative action in Michigan. In this opinion, Kennedy followed in the Court’s tradition of invoking antibalkanization values in equal protection cases, making the empirical claims both that antibalkanization motivated the campaign to end affirmative action in Michigan and that the campaign itself would, absent judicial intervention, have antibalkanizing effects. Using sophisticated empirical methods, this Article is the first to examine whether the Court’s claims on antibalkanization are correct. We find they are not. Support for the Michigan ballot initiative banning affirmative action arose principally from feelings of racial resentment, not a desire for racial comity. The ballot initiative did not mitigate racial divisiveness but did just the opposite, exacerbating racial division in the state. We conclude by considering what Schuette and these empirical findings mean for affirmative action, for the political process doctrine, and for the antibalkanization principle.