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Volume 118 - Issue 4


The Unwritten Norms of Civil Procedure

Diego A. Zambrano | January 21, 2024

The rules of civil procedure depend on norms and conventions that control their application. Civil procedure is a famously rule-based field centered on textual commands in the form of the Federal Rules of Civil Procedure (FRCP). There are over eighty rules, hundreds of local judge-made rules, due process doctrines, and statutory rules, too. But written rules are overrated. Deep down, proceduralists know that the application of written rules hinges on broader norms that animate them, expand or constrain them, and even empower judges to ignore them. Unlike the FRCP and related doctrines, these procedural norms are unwritten, sociological, flexible, and informal. Norms shape every aspect of the litigation system, from the division of labor between state and federal judges, to the application of Rule 11 sanctions, discovery technology, and multidistrict litigation. Yet the field of civil procedure has not fully grappled with these procedural norms in a systematic way nor appreciated the power of norm-making to resolve current problems.

This Article explores the influence of norms in civil procedure with three goals in mind. First, the Article argues that a wide array of litigation practices, culture, and conventions constitute what it calls “procedural norms.” Conceptualizing civil procedure in this manner allows the Article to examine how these norms are created, changed, codified, or replaced. It also reveals the importance of norm entrepreneurs and the problem of sticky norms in civil procedure. Second, the Article’s core goal is to explain the role of norms in civil litigation—how they organize judicial administration, serve as structural features of our litigation system, and distribute power among different legal actors, including federal and state judges. A surprising amount of our civil procedure law boils down to unwritten practices and conventions that form a large body of procedural norms. It is these norms that often implement the abstract values of our procedural system. And, crucially, because norms can trump textual commands, changes to the FRCP may be less relevant without a deeper account of the norms behind them. Finally, the Article argues that a pivot to norm-making can be an important corrective to the ossification of the federal rulemaking process. Procedural norms can solve litigation problems because they are flexible and sometimes even subversive—they prioritize values that are contrary to the commitments of the FRCP. Ultimately, the Article seeks to make norms a first-class citizen in the study of civil procedure, on par with rules and case law in their importance and significance.

The Second Founding and Self-Incrimination

William M. Carter Jr. | January 21, 2024

The privilege against self-incrimination is one of the most fundamental constitutional rights. Protection against coerced or involuntary self-incrimination safeguards individual dignity and autonomy, preserves the nature of our adversary system of justice, helps to deter abusive police practices, and enhances the likelihood that confessions will be truthful and reliable. Rooted in the common law, the privilege against self-incrimination is guaranteed by the Fifth Amendment’s Self-Incrimination and Due Process Clauses. Although the Supreme Court’s self-incrimination cases have examined the privilege’s historical roots in British and early American common law, the Court’s jurisprudence has overlooked an important source of historical evidence: the long history of coerced and involuntary confessions extracted from enslaved persons by both governmental and private actors.

The Article sheds new light upon this history by examining the privilege against self-incrimination from the perspective of enslaved persons and through the lens of the nation’s Second Founding following the Civil War. Enslaved persons’ understandings and experiences informed the Second Founding, which was intended to have a transformative effect upon the Constitution as a whole. This Article is the first to extensively examine first-person slave narratives in order to draw upon enslaved persons’ experiences for insights into self-incrimination doctrine.

This Article first provides an overview of the theories underlying the privilege against self-incrimination, the background of the Self-Incrimination Clause, and the Supreme Court’s self-incrimination jurisprudence. The Article next discusses the nation’s Second Founding and the ways in which it changed our constitutional regime, both substantively and in principles of constitutional interpretation. The Article then examines enslaved persons’ views and experiences regarding self-incrimination, both through antebellum judicial decisions involving enslaved persons and through enslaved persons’ own first-person narratives. This evidence reveals that the Supreme Court’s cramped and formalistic approach to self-incrimination is inconsistent with the post-Civil War Constitution’s purposes and values. The Article concludes that our constitutional jurisprudence misses a great deal by failing to include in constitutional analysis evidence from the Second Founding and the experiences of enslaved persons and calls upon courts to take such evidence into account in interpreting the privilege against self-incrimination.

Constitutional Clash: Labor, Capital, and Democracy

Kate Andrias | January 21, 2024

In the last few years, workers have engaged in organizing and strike activity at levels not seen in decades; state and local legislators have enacted innovative workplace and social welfare legislation; and the National Labor Relations Board has advanced ambitious new interpretations of its governing statute. Viewed collectively, these efforts—“labor’s” efforts for short—seek not only to redefine the contours of labor law. They also present an incipient challenge to our constitutional order. If realized, labor’s vision would extend democratic values, including freedom of speech and association, into the putatively private domain of the workplace. It would also support the Constitution’s promise of free labor; guarantee social and economic rights to workers; expand who qualifies as an equal member of the demos; and forge a more democratic governance structure, with less power for the judiciary and more democratic control over the political economy. The potential threat has not escaped the notice of capital. Business is responding with reinvigorated arguments about the First Amendment, the Takings Clause, due process, equal protection, nondelegation, and the Dormant Commerce Clause, as well as appeals to common law concepts of managerial control and property rights.

By examining labor’s efforts and business’s response, this Article shows that contemporary fights about labor are also inherently fights about constitutional law—about the rights to which citizens and residents are entitled, about governmental powers and structure, and ultimately about how we constitute ourselves as a nation. The Article also offers lessons for how to engage in nonjuriscentric constitutionalism; highlights the importance of advancing an affirmative constitutional agenda; and, from the range of labor’s efforts, outlines a coherent substantive alternative to both business’s constitution and the post-New Deal constitutional compromise that has, in many ways, failed to guarantee a democratic and egalitarian political economy.

Data Is What Data Does: Regulating Based on Harm and Risk Instead of Sensitive Data

Daniel J. Solove | January 21, 2024

Heightened protection for sensitive data is becoming quite trendy in privacy laws around the world. Originating in European Union (EU) data protection law and included in the EU’s General Data Protection Regulation, sensitive data singles out certain categories of personal data for extra protection. Commonly recognized special categories of sensitive data include racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, health, sexual orientation and sex life, and biometric and genetic data.

Although heightened protection for sensitive data appropriately recognizes that not all situations involving personal data should be protected uniformly, the sensitive data approach is a dead end. The sensitive data categories are arbitrary and lack any coherent theory for identifying them. The borderlines of many categories are so blurry that they are useless. Moreover, it is easy to use nonsensitive data as a proxy for certain types of sensitive data.

Personal data is akin to a grand tapestry, with different types of data interwoven to a degree that makes it impossible to separate out the strands. With Big Data and powerful machine learning algorithms, most nonsensitive data give rise to inferences about sensitive data. In many privacy laws, data giving rise to inferences about sensitive data is also protected as sensitive data. Arguably, then, nearly all personal data can be sensitive, and the sensitive data categories can swallow up everything. As a result, most organizations are currently processing a vast amount of data in violation of the laws.

This Article argues that the problems with the sensitive data approach make it unworkable and counterproductive as well as expose a deeper flaw at the root of many privacy laws. These laws make a fundamental conceptual mistake—they embrace the idea that the nature of personal data is a sufficiently useful focal point for the law. But nothing meaningful for regulation can be determined solely by looking at the data itself. Data is what data does. To be effective, privacy law must focus on harm and risk rather than on the nature of personal data. The implications of this point extend far beyond sensitive data provisions. In many elements of privacy laws, protections should be proportionate to the harm and risk involved with the data collection, use, and transfer.

Notes and Comments

Hung Out to Try: A Rule 29 Revision to Stop Hung Jury Retrials

Elijah N. Gelman | January 21, 2024

How many times can a defendant be retried? For those facing hung jury retrials, it’s as many times as the government pleases. Double jeopardy prohibitions do not apply when juries fail to reach a verdict.

There is, theoretically, a built-in procedural solution to stop the government from endlessly retrying defendants. Rule 29 of the Federal Rules of Criminal Procedure allows judges to acquit defendants when “the evidence is insufficient to sustain a conviction.” Considering that a hung jury indicates the jurors could not agree on the sufficiency of the evidence, defendants facing hung jury retrials are prime candidates for this Rule’s application. Yet Rule 29 has not been applied to prevent hung jury retrials. Instead, the Supreme Court has given a government-biased standard for deciding whether there is insufficient evidence to convict, stating that a judge must consider the evidence in the “light most favorable” to the government. This standard, which can force judges to nonsensically conduct the same analysis in perpetuity when juries repeatedly indicate that evidence is insufficient to convict, is not a functional standard.

This Note proposes a new post-hung jury Rule 29 standard. Rather than viewing the evidence in the light most favorable to the government, a judge should view the evidence in the light it was actually viewed by the hung jury, with no bias toward the government. Doing so allows a judge to consider a jury’s inability to reach a verdict as proof that the evidence is insufficient, preventing the government from unduly retrying cases where multiple juries have failed to convict. Moreover, a Rule 29 acquittal cannot be appealed, meaning this new standard can be applied today even without the approval of appellate courts.

Sentence Served and No Place to Go: An Eighth Amendment Analysis of “Dead Time” Incarceration

Christopher B. Scheren | January 21, 2024

Although the state typically releases incarcerated people to reintegrate into society after completing their terms, indigent people convicted of sex offenses in Illinois and New York have been forced to remain behind bars for months, or even years, past their scheduled release dates. A wide range of residency restrictions limit the ability of people convicted of sex offenses to live near schools and other public areas. Few addresses are available for them, especially in high-density cities such as Chicago or New York City, where schools and other public locations are especially difficult to avoid. At the intersection of sex offenses and indigency lies a sharper injustice. Indigent people convicted of sex offenses with no family or friends who are willing and able to house them face extended imprisonment, referred by them as “dead time” incarceration, while wealthier people convicted of sex offenses roam freely.

Such a system violates the Eighth Amendment’s prohibition against cruel and unusual punishment. In Robinson v. California, the Supreme Court held that it is cruel and unusual to punish an individual on the basis of “status.” Subsequently, federal circuit court decisions applied this principle to invalidate laws that punish individuals for being homeless. Then, federal district courts in Illinois and New York considered invalidating interpretations of residency laws and policies that caused the consequential reality of dead time incarceration in cases brought by indigent people convicted of sex offenses, but they reached very different conclusions. This Note argues that continued incarceration for indigent people convicted of sex offenses because they cannot secure approved housing constitutes a punishment based on their indigent status, thereby violating the Eighth Amendment’s prohibition.