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Volume 115 - Issue 4

Article

Discovering Racial Discrimination by the Police

Siegler, Alison,Admussen, William | January 17, 2021

For decades, it was virtually impossible for a criminal defendant to challenge racial discrimination by the police or prosecutors. This was because in United States v. Armstrong, 517 U.S. 456 (1996), the Supreme Court set an insurmountable standard for obtaining discovery in support of a selective prosecution claim. Equating the roles of prosecutors and law enforcement officers, lower courts applied this same standard to claims alleging racial discrimination by the police. This high standard led courts to deny discovery and stifle potentially meritorious claims. Recently, criminal defendants have initiated a wave of challenges to “fake stash house” operations, in which federal law enforcement agencies like the ATF and the DEA approach people—overwhelmingly people of color—and induce them to rob a nonexistent drug stash house. Defense attorneys have argued that these practices constitute racially selective law enforcement and that Armstrong’s strict standard should not apply to the police. Three federal courts of appeals responded by recognizing that the differences between prosecutors and law enforcement officers merit lowering the discovery standard for defendants alleging racial discrimination by the police. This Article is the first to describe and defend this important development in equal protection jurisprudence. We argue that other courts should similarly craft a lower discovery standard.

Recognizing that federal courts hear only a fraction of race discrimination claims, this Article embraces the spirit of federalism and proposes an innovative state-level solution: a state court rule lowering the insuperable discovery standard to which most states still cling. This Article draws on a recent Washington state court rule aimed at preventing racial discrimination in jury selection to propose that state courts adopt a similar rule setting a new discovery standard for racially selective law enforcement claims. Such a rule would ensure that state-level equal protection claims are not blocked at the discovery stage, thus enabling courts to adjudicate those claims on the merits.

Why Judicial Independence Fails

Huq, Aziz Z | January 17, 2021

Judicial independence seems under siege. President Trump condemns federal courts for their political bias; his erstwhile presidential opponents mull various court-packing plans; and courts, in turn, are lambasted for abandoning a long-held constitutional convention against institutional manipulation. At the same time, across varied lines of jurisprudence, the Roberts Court evinces a deep worry about judicial independence. This preoccupation with threats to judicial independence infuses recent opinions on administrative deference, bankruptcy, patent adjudication, and jurisdiction-stripping. Yet the Court has not offered a single, overarching definition of what it means by the term “judicial independence.” Nor has it explained how its disjointed doctrinal interventions add up to a coherent theory of institutional autonomy. And it remains unclear how debates on judicial independence among jurists relate to debates about the same term in the larger public sphere.

This Article’s first contribution is to analyze how the Roberts Court understands the term judicial independence and how its doctrinal rules fall far short of realizing even the aspirations the Court has for that term. This case study in doctrinal specification illuminates the gap between the Justices’ own ethical aspiration toward judicial independence and its institutional realization—a gap that generates confusion, uncertainty, and opportunities for circumvention.

This Article then abstracts away from the particulars of the Roberts Court’s jurisprudence to explore the origins of this aspiration– implementation gap. To motivate this more general analysis, it first demonstrates that there is a large range of constitutional-design options for a founder seeking to create independent courts. The Framers of Article III embraced certain of these options and rejected others. Specifically, they preferred ex post to ex ante checks on political interference in the judiciary. Subsequent experience, though, has demonstrated that their choice of judicial independence’s institutional forms rested on flawed presuppositions. In particular, the Framers failed to anticipate the rise of partisanship as a motivating principle for national political action, and also the unexpectedly strong incentives that push legislatures toward vague or ambiguous statutory texts, leaving ample discretion for judges’ policy preferences. Today, it is possible to identify a range of instruments through which elected actors can achieve such unraveling. The three most important can be labeled cracking, packing, and stacking by analogy to techniques of partisan gerrymandering. This taxonomical exercise illuminates how, in practice, the jurisprudence and politics of judicial independence fall so far short of professed ethical aspirations. This exercise further points toward the possibility of a more institutionally grounded account of what plausibly can be expected in terms of federal court autonomy from the partisan currents of American political life.

Corporate Law for Good People

Feldman, Yuval,Libson, Adi,Parchomovsky, Gideon | January 17, 2021

This Article offers a novel analysis of the field of corporate governance by viewing it through the lens of behavioral ethics. It calls for both shifting the focus of corporate governance to a new set of loci of potential corporate wrongdoing and adding new tools to the corporate governance arsenal. Behavioral ethics scholarship emphasizes that the large share of wrongdoing is generated by “good people” whose intention is to act ethically. Their wrongdoing stems from “bounded ethicality”—various cognitive and motivational limitations in their ethical decision-making processes—that leads to biased decisions that seem legitimate. Bounded ethicality has important implications for a wide range of topics in corporate governance, like board structure, independent directors, regulation of institutional investors and proxy advisory firms, the business judgment rule, corporate liability, and intraboard fiduciary duties. In the legal domain, corporate law provides the most fertile ground for the application of behavioral ethics. It encapsulates many of the features that the behavioral ethics literature finds to confound the ethical judgment of good people, like principal–agent relations, group decisions, victim remoteness, vague directives, and subtle conflicts of interest.

Behavioral ethics suggests a view of corporate law that is dramatically different than that portrayed by traditional legal and economic theorists. Not only does it suggest that wrongdoing can be committed by well-intentioned people who wish to do right, but also that the biases they display call for a radically different set of legal interventions than those advocated by standard economic theory. If standard theory views corporate agents as self-interest- maximizers, bounded ethicality perceives them as actors with varied and nuanced ethical motivations that could benefit from subtle legal reforms.

This Article’s assessment of corporate governance through the behavioral ethical lens proceeds in three stages. First, it exposes potential wrongdoing by good people that conventional corporate governance does not address. Second, it suggests novel corporate governance interventions supported by behavioral ethics to address wrongdoing by good people. Finally, it identifies existing interventions that, according to behavioral ethics analysis, may have unintended adverse effects on the behavior of well- meaning corporate officers and exacerbate wrongdoing instead of mitigating it.

Notes and Comments

Laypeople as Learners: Applying Educational Principles to Improve Juror Comprehension of Instructions

Rogers, Max | January 17, 2021

The U.S. Constitution enshrines the jury in a sacred space within the American judicial system. Yet there are troubling signs that, notwithstanding their best efforts, jurors struggle to fulfill their duties. In particular, substantial empirical research indicates that jurors struggle to understand and, consequently, to apply the instructions given to them by the judge just prior to deliberations. Various mechanisms have been proposed— and in some cases adopted—to improve jurors’ comprehension of instructions and the quality of the deliberations that follow. Among these are rewriting jury instructions in “plain English,” permitting jurors to take notes and ask questions of witnesses, providing jurors with interim and preliminary instructions, providing written copies of jury instructions, and adopting a bifurcated trial structure. And, indeed, many of these proposals are backed by empirical research suggesting that they improve juror decision-making. Yet none have proven to be a panacea, and much room remains for improvement. This Note builds on previous legal scholarship analogizing jurors to learners and proposes a novel set of procedural reforms based on educational research—particularly the theory of Direct Instruction—that would further improve juror comprehension and decision-making.

Essay

The Promise of Senior Judges

Levy, Marin K | January 17, 2021

Judges, lawmakers, and scholars have long debated whether the federal courts of appeals are understaffed and, if so, how Congress should go about redressing that fact. Even though there is currently a strong argument that some new judgeships should be created, such a path presents logistical complications. If a significant number of seats are added to the appellate bench, circuits may eventually become too large to function well. And if a significant number of circuits are ultimately split, the total number of federal appellate courts may become too large for the judiciary as a whole to function well. Furthermore, there are political complications. Congress may be disinclined to authorize new judgeships, as has been the case for the past thirty years.

But this does not mean that there is no smooth path to increasing judge power at the courts of appeals. Indeed, a promising possibility exists that rests almost entirely within the judiciary’s control: raise the incentives (and lower the disincentives) for taking senior status. Currently, when a judge has satisfied the “Rule of 80” (meaning that the judge is sixty-five or older and his or her age plus years of service totals eighty or more), that judge can leave regular active service. The judge can elect to continue hearing cases and assist the court as a senior judge, but “going senior” also creates a vacancy that can be filled with another judge, thereby adding to the court’s overall capacity. There are currently more than sixty judges who are eligible to take senior status, amounting to a third of all authorized federal appellate judgeships—the possible gains are considerable.

This Essay begins the task of identifying and proposing stronger incentives for federal appellate judges to take senior status. As part of a larger research project on the internal operations of the federal courts of appeals, it relies upon interview data with judges and survey data from court administrators to identify the different ways senior judges are treated across the courts of appeals. These variations in practice are important to document, particularly since some of them were unknown even to members of the judiciary. But these variations also highlight possible changes that could improve the balance of incentives for taking senior status.

Ultimately, the Essay’s reform proposal involves modest changes that could create substantial benefits in terms of judge power. Its promise lies with appreciating the finer details of court administration, including which can feasibly be altered. Just as importantly, its promise lies with not relying upon the actions of the elected branches, but upon changes that can be made by the courts themselves.