2018, Vol. 112, No. 4
The Constitution does not talk about precedent, at least not explicitly, but several of its features suggest a place for deference to prior decisions. It isolates the judicial function and insulates federal courts from official and electoral control, promoting a vision of impersonality and continuity. It charges courts with applying a charter that is vague and ambiguous in important respects. And it was enacted at a time when prominent thinkers were already discussing the use of precedent to channel judicial discretion.
Taken in combination, these features make deference to precedent a sound inference from the Constitution’s structure, text, and historical context. This understanding informs the treatment of precedent in concrete disputes as well as the locus of authority over the rules of precedent within the federal system. It also explains why the Supreme Court may legitimately reaffirm constitutional precedents even when they are flawed.
Few institutions have done more to improve working conditions for the middle class than labor unions. Their efforts, of course, cost money. To fund union activities, thousands of collective bargaining agreements across the nation have long included provisions permitting employers to require employees to pay “fair share” or “agency” fees. In public unions—when the employer is the government—this arrangement creates tension between two important values: the First Amendment’s protection against compelled expression and the collective benefits of worker representation. When confronted with this tension forty years ago in Abood v. Detroit Board of Education, the Supreme Court struck an uneasy compromise, allowing public sector unions to recoup expenses for collective bargaining but not for political activity. For decades, the decision has been a lightning rod with some scholars calling for its reversal and others insisting on its preservation. In the meantime, the realities of modern public sector collective bargaining have changed, and First Amendment jurisprudence has evolved. The Supreme Court, which recently granted certiorari in Janus v. AFSCME, now has the opportunity to reconsider Abood’s fragile compromise.
This Article offers a new way forward within the First Amendment that honors the importance of both union activity and free expression. It proposes a method to reconcile these twin interests while also updating the doctrine to account for state legislative efforts, modern union realities, and First Amendment jurisprudential developments. The Article argues that agency fees should be brought into step with current political contribution and campaign finance jurisprudence. Under this middle-ground approach, some agency fees, but only those that are “closely drawn” to avoid unnecessary expressive infringement, will remain lawful. This approach may not satisfy those who ardently oppose agency fees of any kind or those who want Abood’s rule fully upheld. Still, it emerges as the best way forward through a difficult terrain: It avoids the false dichotomy between union and political activities, respects state legislatures that craft innovative collective bargaining statutes, and grounds public sector agency fees with other coherent aspects of First Amendment jurisprudence.
From secret stingray devices that can pinpoint a suspect’s location, to advanced forensic DNA-analysis tools, to recidivism risk statistic software—the use of privately developed criminal justice technologies is growing. So too is a concomitant pattern of trade secret assertion surrounding these technologies. This Article charts the role of private law secrecy in shielding criminal justice activities, demonstrating that such secrecy is pervasive, problematic, and ultimately unnecessary for the production of well-designed criminal justice tools.
This Article makes three contributions to the existing literature. First, the Article establishes that trade secrecy now permeates American criminal justice, shielding privately developed criminal justice technologies from vigorous cross-examination and review. Second, the Article argues that private law secrecy surrounding the inner workings—or even the existence—of these criminal justice technologies imposes potentially unconstitutional harms on individual defendants and significant practical harms on both the criminal justice system and the development of welldesigned criminal justice technology. Third, the Article brings the extensive literature on innovation policy to bear on the production of privately developed criminal justice technologies, demonstrating that trade secrecy is not essential to either the existence or operation of those technologies. The Article proposes alternative innovation policies that the government, as both a funder of research and the primary purchaser of criminal justice technologies, is uniquely well-positioned to implement.
Insider trading law is meant to be a shield, protecting the market and investors from unscrupulous traders, but it can also be a sword. Insofar as we penalize trading on the basis of material, nonpublic information, it becomes possible to share information strategically in order to disable or constrain innocent investors. A hostile takeover can be averted, or a bidding war curtailed, because recipients of such information must then refrain from trading. This Article offers the first general account of “insider tainting,” an increasingly pervasive phenomenon of weaponizing insider trading law.
Notes & Comments
Deference and Prisoner Accommodations Post-Holt: Moving RLUIPA Toward "Strict in Theory, Strict in Fact"
The Religious Land Use and Institutionalized Persons Act (RLUIPA) requires prisons to make accommodations to regulations that substantially burden a prisoner’s religious exercise, unless the prison can show that the regulation is the least restrictive means to meeting a compelling interest. This language suggests strict scrutiny, and yet in Cutter v. Wilkinson, the Supreme Court instead intimated in dicta that courts should give prison officials “due deference” when applying this test. The 2015 case of Holt v. Hobbs presented the Court with an opportunity to clarify how much deference is due under RLUIPA. Though Holt declared that there should not be “unquestioning” deference toward prison officials, the decision failed to mention Cutter or draw clear lines. Questions about the viability of Cutter’s due deference standard thus persist. This Note provides the first comprehensive analysis of the application of RLUIPA post-Holt by presenting a qualitative and quantitative analysis of all lower court cases addressing RLUIPA accommodations from 2015 to 2017. This analysis shows that, while some confusion remains, the lower courts are moving towards a hard look analysis rather than deference. At the same time, this Note argues that Cutter was not overruled and that Holt in fact clarified Cutter to provide guidelines for the appropriate amount of scrutiny to be applied in a penal context.
Not Fully Discretionary: Incorporating a Factor-Based Standard into the FTCA's Discretionary Function Exception
The Federal Tort Claims Act (FTCA) pulls back the curtain of sovereign immunity and allows private citizens to directly sue the federal government for damages resulting from negligence. Passed in 1946 and never amended, the statute carries no limit on potential damages, only prohibiting punitive damages and jury trials. Other than those procedural limitations, the potential liability of the government is unlimited—except for one single exception: the discretionary function exception. The discretionary function exception shields the government from liability for “the failure to exercise or perform a discretionary function or duty.” Congress failed to elaborate on the definition and scope of “discretionary” functions and has left this vague exception for the courts to interpret.
The Supreme Court has used a wide array of terms to describe the discretionary function exception and has intermittently revived and overruled prior language. The discretionary function exception has therefore rested entirely on judicial discretion in practice, changing in application based on the whims of the Court without any concrete factors on which to rely. This Note proposes that the Court formally adopt a factor- based standard in interpreting the discretionary function exception, based on five factors. By clearly articulating these factors, the Court can prevent future courts from abusing their discretion in applying the exception. This is especially important considering that such abuse could leave the government either largely immune from the consequences of its actions or open to crippling liability at every turn. The Federal Tort Claims Act was a pivotal step forward in solving this problem in 1946; clarifying the discretionary function exception today will be another crucial milestone.
Litigation against the Trump Administration has proliferated rapidly since the inauguration. As cases challenging executive actions, such as the “travel ban,” multiply in federal courts around the country, an important procedural question has so far not been considered—Should these sets of cases be consolidated in a single court under the Multidistrict Litigation Act? Multidistrict litigation, or MDL, has become one of the most prominent parts of federal litigation and offers substantial benefits by coordinating litigation pending in geographically dispersed federal courts. Arguably, those benefits would also accrue if “public law” cases were given MDL treatment. There also are some underappreciated strategic reasons why both plaintiffs and the government might want to invoke the MDL process in these cases—and we suspect that, sooner rather than later, one of these parties might give MDL a try.
In this Essay, we argue that although the MDL statute would allow for consolidation of these public law cases, there are prudential reasons why the judges in charge of MDL should stay their hands. In our view, these cases rarely achieve the efficiencies of most MDLs, and there is value to these cases undergoing scrutiny in multiple trial and appellate courts before they percolate upward to Supreme Court review. Moreover, consolidation of these cases would raise the political profile of the MDL process and thus might politicize the MDL itself as well as the selection of its judges. This politicization could undermine MDL’s primary role in mass tort litigation—and, indeed, it risks harming the national tort system more generally.