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Volume 106 - Issue 2


Foreword: The Legacy of Justice John Paul Stevens

Dunbar, Lindsay S., Meixner, John B. | March 1, 2012

On May 12, 2011, the Northwestern University Law Review and the Northwestern University School of Law had the privilege of welcoming Justice John Paul Stevens back to Northwestern for a day of reflection on his distinguished career following his retirement from the Supreme Court.

Tribute to Justice John Paul Stevens

Calabresi, Steven G. | March 1, 2012

On May 12, 2011, the Northwestern University Law Review and the Northwestern University School of Law had the privilege of welcoming Justice John Paul Stevens back to Northwestern for a day of reflection on his distinguished career following his retirement from the Supreme Court. Professor Steven G. Calibresi reflected on the legacy of Justice Stevens.

The Institution Matching Canon

Huq, Aziz Z. | March 1, 2012

This Article identifies and analyzes a transsubstantive tool of constitutional doctrine that to date has escaped scholarly attention. The Article terms this device the “institution matching” canon. It can be stated briefly as follows: When the government makes a decision that may impinge upon a liberty or equality interest—which may or may not be directly judicially enforced otherwise—a court should determine whether the component of government that made the decision has actual competence in and responsibility for the policy justifications invoked to curtail the interest. If not, the court should reject the government action but leave open the possibility of a “do-over” by a more appropriate component of government. First identified in an early written opinion of Justice John Paul Stevens, the institution matching canon continues to play an important if imperfectly articulated role in criminal law, administrative law, and national security doctrine. This Article provides a systematic survey of the ways that the Court has employed institution matching and develops a taxonomy of the canon’s costs and benefits.

“The Essence of a Free Society”: The Executive Powers Legacy of Justice Stevens and the Future of Foreign Affairs Deference

Johnsen, Dawn | March 1, 2012

After 9/11, Justice John Paul Stevens insisted the United States maintain its foundational commitment to the rule of law—the very “essence of a free society.” Justice Stevens led the Court’s scrutiny and rejection of early Bush Administration policies regarding the detention and prosecution of suspected terrorists. Since it lost Justice Stevens’s passionate and principled voice in 2008, the Court has not addressed the scope of the President’s military detention authority. This Article considers Justice Stevens’s role in the Court’s altered stance, and also a complementary explanation: the Obama Administration’s improved interpretation and
exercise of executive authority. Informed and inspired by Justice Stevens’s jurisprudence, a post-9/11 academic debate explores the deference due the Executive’s statutory and treaty interpretations on foreign affairs matters, appropriately favoring an intermediate measure of foreign affairs deference that provides a meaningful judicial check while respecting the Executive’s constitutional authority and expertise. This Article highlights the Bush Administration’s extraordinarily flawed theory and often secret claims of authority to contravene federal statutes that effectively forfeited its claim to between the Bush and Obama policies as well as presidential power aggrandizements—underappreciate the unusual, arguably unique, nature of the Bush approach’s threat to the rule of law. Future judicial review of foreign affairs matters might not be as robust as some hope and others fear. Only the combination of judicial review and continued vigilance from nonjudicial sources can effectively check the Executive during times of war and crisis. The Article concludes by briefly assessing President Obama’s performance on rule-of-law issues that might never face judicial review.

The Rise and Fall of the Separation of Powers

Calabresi, Steven G., Berghausen, Mark E., Albertson, Skylar | March 1, 2012

The U.S. Constitution’s separation of powers has its origins in the British idea of the desirability of a Mixed Regime where the King, the Lords, and the Commons all checked and balanced one another as the three great estates of the realm. Aristotle, Polybius, Cicero, St. Thomas Aquinas, and Machiavelli all argued that Mixed Regimes of the One, the Few, and the Many were the best forms of regimes in practice because they led to a system of checks and balances. The Enlightenment killed off the Mixed Regime idea forever because hereditary office-holding by Kings and Lords became anathema. The result was the birth of a functional separation of legislative, executive, and judicial power as an alternative system of checks and balances to the Mixed Regime. For better or worse, however, in the United States, Congress laid claim to powers that the House of Lords and the House of Commons historically had in Britain, the President laid claim to powers the King historically had in Britain, and the Supreme Court has functioned in much the same way as did the Privy Council, the Court of Star Chamber, and the House of Lords. We think these deviations from a pure functional separation of powers are constitutionally problematic in light of the Vesting Clauses of Articles I, II, and III, which confer on Congress, the President, and the courts only the legislative, executive, and judicial power. The United States badly needs a rebirth of the functional separation of powers idea.

Justice Stevens and the Chevron Puzzle

Merrill, Thomas W. | March 1, 2012

Justice Stevens’s most famous decision—Chevron U.S.A. Inc. v. NRDC—has come to stand for an institutional choice approach to agency interpretation. But there is no evidence that Justice Stevens shared this understanding. Instead, he followed an equilibrium-preserving approach, which sought to nudge agencies to reconsider decisions the Justice regarded as unreasonable. Although the equilibrium-preserving approach is consistent with what a common law judge would embrace, the institutional choice perspective is probably more consistent with the needs of the modern administrative state, and it appears the Court as a whole is gradually adopting that perspective.

Justice Stevens, Religious Enthusiast

Koppelman, Andrew | March 1, 2012

It is sometimes alleged that Justice John Paul Stevens is hostile to religion. In fact, however, Justice Stevens espouses a position with religious roots and enthusiastically embraces a distinct conception of religion. This casts doubt on the claim, made in different ways by Eduardo Peñalver and Christopher Eisgruber, that the fundamental concern of Justice Stevens’s religion clause jurisprudence is equality. At least as important to him is protecting religion from corruption by the state.

To be consistent, Justice Stevens ought to acknowledge, more forthrightly than he does, that he treats religion as a distinctive human good. Any notion of corruption implies a norm or ideal state from which the corruption is a falling off. An invocation of the corruption rationale presupposes that religion is a good thing deserving of protection. To call this view hostile to religion is confused to the point of perversity.

A Fixture on a Changing Court: Justice Stevens and the Establishment Clause

Chemerinsky, Erwin | March 1, 2012

Throughout his time on the Supreme Court, Justice John Paul Stevens consistently took the “strict separationist” approach to the Establishment Clause. This led him to write and join opinions that stated that the Establishment Clause is violated by religious activity in public schools, by religious symbols on government property, and by government support for parochial schools that could be used for religious education. Justice Stevens adhered to these views throughout his thirty-five years on the Court. Although the strict separationist approach was the dominant view on the Court for several decades, those appointed after Justice Stevens rarely held this view. Some, like Justices Sandra Day O’Connor and Stephen Breyer, believe that the government violates the Establishment Clause only if it symbolically endorses religion or a particular religion. Others, like Justices Antonin Scalia, Anthony Kennedy, and Clarence Thomas, believe that little violates the Establishment Clause: the government acts unconstitutionally only if it literally establishes a church or coerces religious participation. The result is that, while Justice Stevens remained consistent, the Justices around him became much more conservative on this issue. Justice Stevens’s approach to the Establishment Clause has great virtues in protecting freedom of conscience and providing inclusiveness in a religiously pluralistic society.

Continuing the Constitutional Dialogue: A Discussion on Justice Stevens’s Establishment Clause and Free Exercise Jurisprudence

Brownstein, Alan | March 1, 2012

This Article examines Justice John Paul Stevens’s religion clause jurisprudence from the perspective of a continuing dialogue about the meaning of the Free Exercise Clause and the Establishment Clause. The term continuing dialogue suggests that even for as formidable and longtenured a jurist as Justice Stevens, important questions remain open and unresolved. In discussing these unanswered questions, the article explores potential dissonance between Justice Stevens’s contrasting interpretations of the Free Exercise Clause and the Establishment Clause. For example, Justice Stevens’s concern for the status and sensibilities of religious minorities, expressed repeatedly in his Establishment Clause opinions reviewing state-sponsored religious displays, plays a far less obvious and focused role in his free exercise jurisprudence. Yet surely minority faiths may suffer a similar sense of alienation when government denies them exemptions from general laws that burden their religious practices, but not those of the majority. Similarly, the opinions Justice Stevens joined limiting free exercise claims reject a federal judicial role that requires subjective, value-based balancing. Justice Stevens’s view that the Establishment Clause requires the evaluation of legislative accommodations to determine whether
they unfairly favor certain faiths or extend too far and impose unacceptable burdens on third parties or the public, however, would seem to involve judges in a comparably subjective and value-laden inquiry.

Justice Stevens and the News Media: An Exercise in Exposition

Barnhart, Bill | March 1, 2012

Justice John Paul Stevens in nearly 35 years on the U.S. Supreme Court had few dealings with the news media. Nonetheless, anecdotes of his press relations, as well as his opinion-writing in cases related to First Amendment press freedom, provide clues for needed reforms by both sides in the interaction between the court and the press.

Are Even Unanimous Decisions in the United States Supreme Court Ideological?

Epstein, Lee, Landes, William M., Posner, Richard A. | March 1, 2012

The fact that a substantial percentage of Supreme Court decisions are unanimous is often used to undermine the theory that the Court’s decisions are ideologically driven. We argue that if the ideological stakes in a case are small, even slight dissent aversion is likely to produce a unanimous decision. The data support this interpretation but also establish the existence of an ideological effect in unanimous decisions. These findings are consistent with a realistic conception of the Court as a mixed ideological–legalistic judicial institution.

Supreme Court Prequel: Justice Stevens on the Seventh Circuit

Lindquist, Stefanie A. | March 1, 2012

Justice Stevens’s retirement from the U.S. Supreme Court has occasioned numerous retrospectives on his lengthy career as a Supreme Court Justice. Yet Justice Stevens’s career began on the Seventh Circuit and his voting behavior and doctrinal positions on the circuit court provide a unique window into his judicial character and the roots of his thinking on important issues that continued to preoccupy him on the Supreme Court. In this Essay, I first analyze then-Judge Stevens’s voting behavior on the court of appeals by examining the frequency with which he wrote separate opinions, as well as his voting interagreement with his colleagues on the circuit bench. I then discuss the doctrinal positions taken by Judge Stevens in several substantive areas, including substantive due process, gender discrimination, and election law, noting how those positions were often reiterated in Justice Stevens’s opinions on the Supreme Court. The Essay concludes that Judge Stevens, like Justice Stevens, was extremely independent in his voting behavior. In terms of the ideological direction of his votes, Judge Stevens’s votes did not follow a clear pattern; instead he
was iconoclastic and unpredictable. Nevertheless, positions taken by Judge Stevens in several cases sounded themes and principles upon which he continued to rely even until his final term on the Supreme Court.

John Paul Stevens, Originalist

Amann, Diane Marie | March 1, 2012

Commentators, including the author of a recent book on the Supreme Court, often attempt to give each Justice a methodological label, such as “practitioner of judicial restraint,” “legal realist,” “pragmatist,” or “originalist.” This Essay first demonstrates that none of the first three labels applies without fail to Justice John Paul Stevens; consequently, it explores the extent to which Justice Stevens’s jurisprudence paid heed to the fourth method, “originalism.” It looks in particular at Justice Stevens’s opinions in recent cases involving firearms, national security, and capital punishment. Somewhat at odds with conventional wisdom, the Essay reveals Justice Stevens as a kind of originalist—as a Justice duty-bound to identify and enforce principles, such as liberty and fairness, that the Framers embedded in the Constitution. To do so, Justice Stevens has practiced a fifth methodology, one that synthesizes many sources and interpretive techniques in an effort to reach a decision that serves a contemporary understanding of justice.

Stripping the Gears of National Government: Justice Stevens’s Stand Against Judicial Subversion of Progressive Laws and Lawmaking

Lazarus, Simon | March 1, 2012

Since William Rehnquist became Chief Justice in 1986, the Supreme Court has been aggressively activist in narrowing, undermining, or effectively nullifying an array of statutes—in particular the vast edifice of regulatory, safety net, and civil rights laws enacted by both the federal and state governments since the early twentieth-century dawn of progressive government. The conservative bloc of Justices have developed a formidable arsenal of largely nonconstitutional techniques for limiting the reach and impact of progressive statutes, blunting or neutralizing the intent and purpose of the legislatures that enacted them, elevating the Court’s power vis-à-vis both Congress and state legislatures, and, even, impeding Congress’ practical capacity to carry out its legislative function. Justice Stevens was consistently alert to this “continuing campaign,” spotlighting its excesses and countering its designs. Over and over, Justice Stevens called out his conservative colleagues for “unabashed law-making,” and for “skewed interpretations” that impose “its own policy preferences,” “defeat the purpose for which a provision was enacted,” and “ignore the interest of unrepresented” constituencies whom statutes were enacted to protect. This Article considers the conservatives’ methodological approaches together, as elements of a campaign to constrain twentieth- and twenty-first-century progressive legislation. Originally submitted for publication in September 2011, prior to the start of the Court’s 2011–2012 term, the Article forecast that cases likely to be decided by the end of that term (completed on June 28, 2012) would test whether the conservative bloc is prepared to ratchet up its hostility to progressive legislation, and more aggressively invalidate such laws as unconstitutional, rather than simply restrict their application.

Reflections on OT07

Shaw, Katherine | March 1, 2012

On May 12, 2011, the Northwestern University Law Review and the Northwestern University School of Law had the privilege of welcoming Justice John Paul Stevens back to Northwestern for a day of reflection on his distinguished career following his retirement from the Supreme Court. Professor Katherine Shaw reflected on her experience clerking for Justice Stevens.

Some Thoughts on Justice Stevens and Judging

Trela, Constantine L., Jr. | March 1, 2012

Justice Stevens served on the Supreme Court for thirty-five years and on the Seventh Circuit for five years before that, so summarizing his judicial career will be a multi-year, multi-volume project for legal scholars. But Justice Stevens’s underlying approach to judging may be easier to summarize. Two aspects of his approach stand out in my mind—namely, the importance he attached to the actual facts of a case and his deep respect for the law.

Justice Stevens’s Black Leather Arm Chair

Watts, Kathryn A. | March 1, 2012

On May 12, 2011, the Northwestern University Law Review and the Northwestern University School of Law had the privilege of welcoming Justice John Paul Stevens back to Northwestern for a day of reflection on his distinguished career following his retirement from the Supreme Court. Professor Kathryn A. Watts reflected on her experience clerking for Justice Stevens.

Notes and Comments

DMCA Section 512 Safe Harbor for Anonymity Networks Amid a Cyber-Democratic Storm: Lessons From the 2009 Iranian Uprising

Nazemi, Nassim | March 1, 2012

In 2009, the world watched as Iranians took the online services that many have come to regard as tools of procrastination—services like Twitter, Facebook, and YouTube—and transformed them into tools of cyber-democratization. When the Iranian government banned foreign journalists, citizens disseminated cell phone footage of peaceful protests and the government’s brutal response, keeping the world informed. But news did not escape Iran’s borders unaided. Liberation technology, particularly the popular anonymity network “Tor,” helped Iranian protesters bypass government censorship while remaining undetected. Today, the U.S.-based volunteers who comprise a significant segment of Tor’s operator network face an uncertain legal landscape because Tor can facilitate copyright infringement. I foresee that Tor operators will soon find themselves defendants in copyright infringement actions arising from filesharing activity, likely in connection with the BitTorrent protocol. The typical plaintiff’s strategy of subpoenaing Internet service providers to identify users based on Internet Protocol address can mistakenly identify Tor operators who, because of the nature of this technology, will appear to be the sources of any infringing activity passing through their virtual tunnels. Using the Iranian uprising as case study, I argue that Tor operators should be shielded from secondary infringement liability so that they can continue to facilitate speech in censored nations, thereby improving U.S. access to world news and nurturing democratic habits abroad. Specifically, volunteer anonymity network operators should enjoy protection under the Digital Millennium Copyright Act (DMCA) § 512(a), a provision allowing safe harbor for transitory digital network communication providers.

“A Deposition is not a Take Home Examination”: Fixing Federal Rule 30(E) and Policing the Errata Sheet

Ruehlmann, Gregory A., Jr. | March 1, 2012

Federal Rule of Civil Procedure 30(e) allows a deponent thirty days after a deposition in which to make “changes in form or substance.” Courts are split in their interpretation of just how broad a range of alterations the Rule envisions and permits. Some take an expansive reading, presuming that deponents can make whatever changes they see fit, however radical or contradictory the amendments may seem. Others are stricter, permitting changes only when a typographical error affected the form or substance of the transcribed answer. The question of how permissively to treat a deponent’s errata sheet is a vitally important one to the discovery process, with drastic consequences for individual litigants. This Comment is the first to comprehensively lay out the case in favor of strict requirements for deposition changes under Rule 30. It contends that the history of the Rule, the goals of swift and fair justice, and parallel developments in the discovery process militate against an expansive reading of Rule 30(e). Further, it proposes amendments to the Rule’s text that will cure confusion and etch new procedural parameters to promote fairness in federal litigation.