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Volume 116 - Issue 2


Redeeming Justice

Terrell Carter, Rachel López, Kempis Songster | October 10, 2021

Approximately three decades ago, two of us, Terrell Carter and Kempis Songster, were sentenced to life in prison without the possibility of parole. The U.S. Supreme Court has said that this sentence, effectively an order to die in prison, represented a legal determination that we were irredeemable. In this Article, with insights from our coauthor and friend, human rights scholar Rachel López, we ask: What does it mean for the law to judge some human beings as incapable of redemption? Isn’t the capacity for change core to the human condition, and shouldn’t that be reflected in the law? This Article marries human rights law with our lived experience to argue that the capacity for redemption is an innate human characteristic. By documenting the dehumanizing effect of codified condemnation and the struggle for humanity after a person has been found irredeemable in a court of law, we seek to show why all humans should have a legal right to redemption—a right embedded in the Eighth Amendment through the latent concept of human dignity.

The reading of the Eighth Amendment we call for would require a dramatic reimagination of the U.S. criminal legal system into one that elevates humanity, not deprives it. One that creates the opportunity for healing and human development, not denies it. One that facilitates the human capacity for redemption, not forbids it. One, in other words, that recognizes that change is always possible. Redeeming justice thus requires that legal systems not make unalterable decisions about a human being’s capacity for change. At a bare minimum, this means that all sentences should be reviewable, with release possible after someone redeems herself. No person should be permanently deprived of her hope for freedom.


Mitchell Chervu Johnston | October 10, 2021

Multistep tests pervade the law to the point that they appear to be a fundamental feature of legal reasoning. Famous doctrines such as Chevron or qualified immunity take this form, as do more obscure doctrinal formulas. But surprisingly, these doctrinal formulations as a class are relatively new. The reality is that the intellectual moment that gave rise to Chevron was one in which multiple older doctrines that relied on multifactor balancing were replaced by new tests formulated as multistep inquiries in which each step was a discrete inquiry.

This Article provides the first historical and normative account of this phenomenon—which I refer to as “stepification.” It charts both the rise of the new multistep tests as well as the intellectual climate that gave birth to these formulations, offering a theory of why courts chose to reorganize the law in this way at the time they did. Additionally, it argues that there are transsubstantive normative advantages and disadvantages to this mode of organizing doctrine, and it offers an accounting of the implications of historical stepification. In doing so, this Article aims to shed light on a historical phenomenon and on trends in modern legal disputes (such as recent cases over partisan gerrymandering and the future of Auer) that illustrate the work that stepification continues to do within our legal culture.

Pure Privacy

Jeffrey Bellin | October 10, 2021

In 1890, Samuel Warren and Louis Brandeis began a storied legal tradition of trying to conceptualize privacy. Since that time, privacy’s appeal has grown beyond those authors’ wildest expectations, but its essence remains elusive. One of the rare points of agreement in boisterous academic privacy debates is that there is no consensus on what privacy means.

The modern trend is to embrace the ambiguity. Unable to settle on boundaries, scholars welcome a broad array of interests into an expanding theoretical framework. As a result, privacy is invoked in debates about COVID-19 contact tracing, police body cameras, marriage equality, facial recognition, access to contraception, loud neighbors, telemarketing calls, and on and on. This “pluralistic turn” has made privacy popular, but this popularity comes at a cost. Lacking precision, ubiquitous invocations of privacy tend to cloud rather than clarify, raising the temperature of academic and policy debates while generating little light.

This Article proposes a baseline definition of “privacy” to anchor legal discourse. The definition responds to privacy skeptics by identifying a core of pure privacy that can and should be protected. But it also pushes back on privacy pluralists by insisting on the need for precision. In a post-pandemic world, policymakers face powerful temptations to override longstanding privacy protections and countervailing pressures to abandon lifesaving policies in the face of vigorous privacy objections. Precisely identifying what is at stake in these debates can help to clarify the difficult choices that will shape the future.

Notes and Comments

Man Camps and Bad Men: Litigating Violence Against American Indian Women

Ana Condes | October 10, 2021

The crisis of sexual violence plaguing Indian Country is made drastically worse by oil-pipeline construction, which often occurs near reservations. The “man camps” constructed to house pipeline workers are hotbeds of rape, domestic violence, and sex trafficking, and American Indian women are frequently targeted due to a perception that men will not be prosecuted for assaulting them. Victims have little recourse, facing underfunded police departments, indifferent prosecutors, and a federal government all too willing to turn a blind eye to the ongoing violence.

This Note proposes a litigation strategy for tribes to address the crisis and compel federal action. Litigation would rely upon the “Bad Men” clauses in 1867 and 1868 tribal–federal treaties, which mandate government action when “bad men among the Whites” commit crimes against tribal members. Indian law canons of construction urge that these treaties be construed in favor of the tribes and interpreted in the manner in which historical tribal signatories would have understood them. Under the doctrine of parens patriae, tribes could bring Bad Men lawsuits on behalf of tribal members who have been harmed. Because Indian signatories to the Bad Men treaties would have understood them to impose a positive and prospective obligation to protect, tribes ought to be able to use such litigation to compel federal protection for the women victimized as a result of pipeline construction.

Identifying the Most Democratic Institution to Lead Criminal Justice Reform

Harry B. Dodsworth | October 10, 2021

American criminal justice is in crisis, and most scholars agree why: unduly severe laws, mass incarceration, and disproportionate effects on minority groups. But they don’t agree on a solution. One group of scholars—known as the “democratizers”—thinks the answer is to make the criminal justice system more democratic. According to democratizers, layperson participation and local democratic control will impart sensibility into criminal justice reform. In short, a transfer of power away from distant lawmakers and toward local communities, which would craft their own criminal codes and elect their own prosecutors. This argument assumes that more local means more democratic—but what if democratization actually threatens democracy?

Criminal law could be made at the statewide level, the neighborhood level, or somewhere in between. And that distinction matters. This Note analyzes democratization through the lens of democratic theory, finding that the degree to which the criminal lawmaking process is democratic depends heavily on the unit of government at which it operates. In other words, the critical variable is how local we go. Each level of government creates tradeoffs between democratic principles. If criminal law is too localized, it unfairly excludes voters from the political process and encourages localities to compete in protectionist arms races. On the other hand, if criminal law sweeps too broadly, then preferences vary too much among constituents for the law to adequately represent any one community’s views. This Note argues that “intermediate-level” institutions—counties or regions—are the most democratically sound institutions to make and enforce criminal law. These institutions, although imperfect, are best able to maximize representation while still protecting against the destructive incentives of microlocalism. Democratization can be more democratic, but only when it is calibrated at the right level.