2018, Vol. 113, No. 1
Aggregation—the ability to join parties or claims in a federal civil lawsuit—has usually been governed by subject matter jurisdiction, claim and issue preclusion, and the joinder rules. These doctrines have tended to favor aggregation for its efficiency, consistency, and predictability. Yet aggregation is suddenly under attack from a new threat, one that has little to do with aggregation directly: personal jurisdiction. In this Article, I chronicle how a recent restrictive turn in personal jurisdiction—seen in modern cases narrowing general jurisdiction and October Term 2016’s blockbuster case Bristol-Myers Squibb—threatens the salutary benefits of aggregation across a number of areas, including simple joinder of parties and claims, representative actions, and multidistrict litigation. I offer a solution for preserving aggregation’s advantages in the face of this trend in personal jurisdiction: authorize a broader scope of personal jurisdiction in federal court for multiparty and multiclaim cases. I defend such a regime as constitutional and consistent with the norms of both personal jurisdiction and aggregation.
Section 5's Forgotten Years: Congressional Power to Enforce the Fourteenth Amendment Before Katzenbach v. Morgan
Few decisions in American constitutional law have frustrated, inspired, and puzzled more than Katzenbach v. Morgan. Justice Brennan’s 1966 opinion put forth the seemingly radical claim that Congress—through its power, based in Section 5 of the Fourteenth Amendment, to “enforce, by appropriate legislation,” the rights enumerated in that Amendment—shared responsibility with the Court to define the meaning of Fourteenth Amendment rights. Although it spawned a cottage industry of scholarship, this claim has never been fully embraced by a subsequent Supreme Court majority, and in City of Boerne v. Flores, the Supreme Court rejected the heart of the Morgan decision as subversive of the American constitutional order. Today, Morgan stands largely as an aberration of American constitutional law.
This Article attempts to place Morgan back into the stream of historical development from which it arose. When properly situated in its historical context, Justice Brennan’s opinion appears less puzzling and less aberrational. Morgan in fact built upon several decades of debates in the courts, in Congress, and among legal commentators over the scope of congressional enforcement power under Section 5—debates that largely have been missing from Section 5 scholarship. In reconstructing the history from this period, this Article also identifies the political and legal conditions that supported claims of shared constitutional interpretive responsibility in the past and considers whether these conditions might again be met in the future.
Notes & Comments
In recent years, the problem of menstrual inequity has attracted increased attention. Most states impose a sales tax on menstrual hygiene products—a “tampon tax.” A burgeoning social movement has sought to end the tampon tax, and lawmakers have taken notice by introducing, and in some cases successfully passing, measures to repeal the tax by exempting menstrual hygiene products from the sales tax. This Note evaluates, from a tax policy standpoint, the pros and cons of repealing the tampon tax. It argues that although repeal is usually undesirable as a matter of tax design, the tax should nevertheless be repealed both because menstrual hygiene products are necessities and because the tax is discriminatory. Building on this conclusion, this Note further argues for a women’s menstrual health credit, provided to all women of menstruating age, on the basis that a tax credit would better bridge the financial disparity gap between women who must pay for menstrual hygiene products and men who do not. Along the way, this Note also compares the proposed credit to other proposals to combat menstrual inequity, such as a free-tampons program and expanding welfare benefits to include tampons, concluding that the tax credit would create fewer administrative complexities, would reach more women overall, and is less stigmatizing.
Today, an estimated 5400 people are civilly committed under state and federal sex offender programs. This Note surveys these civil commitment regimes and finds that seventeen jurisdictions (sixteen states and the federal government) have enacted legislative schemes that authorize the indefinite civil detention of people charged with, or previously convicted of, sex offenses to prisons or prison-like facilities—often for their entire lives. By charting the pervasiveness of sex offender civil commitment to prison, this Note provides new evidence that these sex offender civil commitment statutes are, in fact, punitive and, therefore, unconstitutional. Moreover, this Note argues that the Supreme Court’s decision in Kingsley v. Hendrickson calls into question the Court’s logic in upholding sex offender civil commitment regimes in prior cases. Traditionally, civil commitment jurisprudence has turned on whether the legislature intends to punish—not merely confine—sex offenders. Kingsley, however, suggests that confinement may be found punitive based solely on the objective harshness of the conditions of incarceration, regardless of whether any state actor intended for the conditions to be punitive. If incarceration conditions may now constitute punishment regardless of governmental intent, it follows that the government may be punishing thousands of sex offenders without authorization. Indeed, as this Note shows, convicted prisoners and committed sex offenders commonly experience identical conditions of confinement.
A recent wave of scholarship argues that judges often fail to comply with binding rules or precedent and sometimes apply overturned laws. Scholars have hypothesized that the cause of this “judicial noncompliance” may be flawed litigant briefing that introduces mistakes into judicial decisions—an idea this Essay calls the “Litigant Hypothesis.” The Essay presents a preliminary study aimed at exploring ways of testing the validity of the Litigant Hypothesis. Employing an empirical analysis that exploits recent amendments to Federal Discovery Rule 26, this Essay finds that the strongest predictor of noncompliance in a dataset of discovery decisions is indeed faulty briefs. This study concludes that the Litigant Hypothesis of noncompliance may have explanatory value.