In 2000, the Supreme Court held in Illinois v. Wardlow that a suspect’s presence in a “high-crime area” is relevant in determining whether an officer has reasonable suspicion to conduct an investigative stop. Despite the importance of the decision, the Court provided no guidance about what that standard means, and over fifteen years later, we still have no idea how police officers understand and apply it in practice. This Article conducts the first empirical analysis of Wardlow by examining data on over two million investigative stops conducted by the New York Police Department from 2007 to 2012. Our results suggest that Wardlow may have been wrongly decided. Specifically, we find evidence that officers often assess whether areas are high crime using a very broad geographic lens; that they call almost every block in the city high crime; that their assessments of whether an area is high crime are nearly uncorrelated with actual crime rates; that the suspect’s race predicts whether an officer calls an area high crime as well as the actual crime rate; that the racial composition of the area and the identity of the officer are stronger predictors of whether an officer calls an area high crime than the crime rate itself; and that stops are less or as likely to result in the detection of contraband when an officer invokes high-crime area as a basis of a stop. We conclude with several policy proposals for courts, police departments, and scholars to help address these problems in the doctrine.
2000年，最高法院在伊利诺伊州诉沃德洛案(Illinois v. Wardlow)中裁定，嫌疑人是否出现在“高犯罪率地区”，与警察是否有合理怀疑进行调查拦截有关。尽管这一决定很重要，但最高法院没有就这一标准的含义提供任何指导，15年过去了，我们仍然不知道警察是如何理解和在实践中应用这一标准的。本文对沃德洛进行了首次实证分析，分析了纽约警察局从2007年到2012年进行的200多万次调查拦截的数据。我们的研究结果表明，对沃德洛的判断可能是错误的。具体来说，我们发现有证据表明，警察经常使用非常广泛的地理镜头来评估某个地区是否为高犯罪率地区;他们称这个城市的几乎每个街区都是高犯罪率;他们对一个地区是否为高犯罪率的评估几乎与实际犯罪率无关;犯罪嫌疑人的种族不仅能预测实际犯罪率，还能预测警官是否认为该地区是高犯罪率地区;该地区的种族构成和警官的身份比犯罪率本身更能预测警官是否称该地区为高犯罪率地区;当一名警官以高犯罪率地区作为拦截的基础时，这种拦截更不可能或同样可能导致发现违禁品。最后，我们为法院、警察部门和学者提出了一些政策建议，以帮助解决这些理论中的问题。
{"title":"The End of Intuition-Based High-Crime Areas","authors":"Ben Grunwald, J. Fagan","doi":"10.15779/Z388911R2Q","DOIUrl":"https://doi.org/10.15779/Z388911R2Q","url":null,"abstract":"In 2000, the Supreme Court held in Illinois v. Wardlow that a suspect’s presence in a “high-crime area” is relevant in determining whether an officer has reasonable suspicion to conduct an investigative stop. Despite the importance of the decision, the Court provided no guidance about what that standard means, and over fifteen years later, we still have no idea how police officers understand and apply it in practice. This Article conducts the first empirical analysis of Wardlow by examining data on over two million investigative stops conducted by the New York Police Department from 2007 to 2012. \u0000 \u0000Our results suggest that Wardlow may have been wrongly decided. Specifically, we find evidence that officers often assess whether areas are high crime using a very broad geographic lens; that they call almost every block in the city high crime; that their assessments of whether an area is high crime are nearly uncorrelated with actual crime rates; that the suspect’s race predicts whether an officer calls an area high crime as well as the actual crime rate; that the racial composition of the area and the identity of the officer are stronger predictors of whether an officer calls an area high crime than the crime rate itself; and that stops are less or as likely to result in the detection of contraband when an officer invokes high-crime area as a basis of a stop. We conclude with several policy proposals for courts, police departments, and scholars to help address these problems in the doctrine.","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":"107 1","pages":"345"},"PeriodicalIF":2.4,"publicationDate":"2019-05-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48945777","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
A high-stakes debate has emerged around the legislative expansion of forensic DNA databases, a move that would assist thousands of criminal investigations but also raise profound privacy issues. In Maryland v. King, where the Court upheld the constitutionality of forced DNA sampling of arrestees, Justice Alito described the Court’s 2013 decision as “perhaps the most important criminal procedure case” in “decades.” But this debate fails to account for a different, less-well-understood practice: DNA collection by prosecutors, with the alleged consent of those giving samples. The Orange County District Attorney’s Office offers certain defendants charged with petty misdemeanors a deal: if you want a dismissal or a plea offer, give us your DNA. This innovative practice has come to be known colloquially as “Spit and Acquit.” So far, over 150,000 people — not otherwise required to give the state their DNA — have agreed. Their samples are then kept permanently in a prosecutorial database maintained with the aid of biotechnology companies and funded largely by federal grants and defendant fees. As the largest “consent”-based law enforcement DNA database in the country, Spit and Acquit is worthy of study in its own right. But it also offers a case study of prosecutorial policymaking in surveillance — an area beyond prosecutors’ typical expertise. This Article draws upon original field research, including court observations, interviews with prosecutors, defense attorneys, judges, defendants, and public records, to shed light on this understudied phenomenon. It then argues that Spit and Acquit compares unfavorably to existing legislative databases in terms of public safety benefits, privacy, and democratic accountability. The Article concludes by drawing lessons from Spit and Acquit for the future of genetic surveillance and the emerging field of “misdemeanor studies.”
一场事关重大的辩论围绕着扩大法医DNA数据库的立法展开，此举将有助于数千起刑事调查，但也会引发严重的隐私问题。在马里兰诉金案(Maryland v. King)中，最高法院维持了强制对被捕者进行DNA取样的合宪性，阿利托大法官将最高法院2013年的裁决描述为“几十年来”“可能是最重要的刑事诉讼案件”。但这场辩论未能解释另一种不太为人所知的做法:检察官收集DNA，据称是在提供样本的人同意的情况下进行的。奥兰治县地方检察官办公室为某些被控轻罪的被告提供了一项交易:如果你想被驳回或获得认罪协议，就把你的DNA交给我们。这种创新的做法被通俗地称为“吐槽和无罪释放”。到目前为止，已经有超过15万人同意了这一计划，否则就不需要向国家提供他们的DNA。然后，他们的样本被永久保存在一个由生物技术公司维护的检察数据库中，主要由联邦拨款和被告费资助。作为全国最大的基于“同意”的执法DNA数据库，Spit and Acquit本身就值得研究。但它也提供了一个关于监视方面检察政策制定的案例研究——这一领域超出了检察官的典型专长。本文借鉴了原始的实地研究，包括法庭观察，对检察官，辩护律师，法官，被告和公共记录的采访，以阐明这一未被充分研究的现象。然后，它认为，在公共安全利益、隐私和民主问责方面，与现有的立法数据库相比，Spit和Acquit是不利的。文章最后从“唾弃”和“无罪”中吸取教训，为未来的基因监测和新兴的“轻罪研究”领域提供借鉴。
{"title":"'Spit and Acquit': Prosecutors as Surveillance Entrepreneurs","authors":"Andrea L. Roth","doi":"10.15779/Z38D21RJ7J","DOIUrl":"https://doi.org/10.15779/Z38D21RJ7J","url":null,"abstract":"A high-stakes debate has emerged around the legislative expansion of forensic DNA databases, a move that would assist thousands of criminal investigations but also raise profound privacy issues. In Maryland v. King, where the Court upheld the constitutionality of forced DNA sampling of arrestees, Justice Alito described the Court’s 2013 decision as “perhaps the most important criminal procedure case” in “decades.” But this debate fails to account for a different, less-well-understood practice: DNA collection by prosecutors, with the alleged consent of those giving samples. The Orange County District Attorney’s Office offers certain defendants charged with petty misdemeanors a deal: if you want a dismissal or a plea offer, give us your DNA. This innovative practice has come to be known colloquially as “Spit and Acquit.” So far, over 150,000 people — not otherwise required to give the state their DNA — have agreed. Their samples are then kept permanently in a prosecutorial database maintained with the aid of biotechnology companies and funded largely by federal grants and defendant fees. As the largest “consent”-based law enforcement DNA database in the country, Spit and Acquit is worthy of study in its own right. But it also offers a case study of prosecutorial policymaking in surveillance — an area beyond prosecutors’ typical expertise. \u0000 \u0000This Article draws upon original field research, including court observations, interviews with prosecutors, defense attorneys, judges, defendants, and public records, to shed light on this understudied phenomenon. It then argues that Spit and Acquit compares unfavorably to existing legislative databases in terms of public safety benefits, privacy, and democratic accountability. The Article concludes by drawing lessons from Spit and Acquit for the future of genetic surveillance and the emerging field of “misdemeanor studies.”","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":"107 1","pages":"405"},"PeriodicalIF":2.4,"publicationDate":"2019-04-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44777388","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Money motivates and regulates criminal process. Conscious of adjudication costs, prosecutors incentivize guilty pleas with the prospect of a “trial penalty”—harsher post-trial sentences. Budgetary considerations motivate revenue-generating enforcement policies and asset forfeitures by law enforcement. States also charge defendants directly for nearly every criminal justice expense through mandatory fees, which can burden decisions to exercise rights. Additionally, defendants can pay for optional advantages. Right-to-counsel doctrine protects the right to pay for more and better legal assistance than the state is obligated to provide. Paying bail yields pretrial liberty. Diversion programs, for a fee, can supplant ordinary prosecution. Some defendants can choose their sentence—a fine or jail. But these opportunities are not available to all; their costs need not match one’s ability to pay. To examine roles and rules of money in criminal process, this paper considers the case for an optional criminal trial fee. Defendants who pay it would directly cover public litigation costs, which would leave the state indifferent, as a budgetary matter, between trials and guilty pleas. In return, defendants would get a penalty-free trial limited to the terms of a proffered plea bargain. The fee proves a useful device because its rationale and effects accord with entrenched precedents and policies, not least in how it extends the justice system’s differential treatment based on wealth. Yet the trial fee also promises positive effects. It would reduce prosecutors’ most-criticized bargaining tactics—excessively harsh trial penalties—without undermining bargaining’s important secondary functions, enlisting informants to cooperate and rewarding defendants who accept responsibility for their crimes. And even a modest increase in fee-financed trials would yield other benefits, such as citizen participation in applying criminal law and supervising government officials, and more data about “the shadow of trial” in which bargaining takes place
{"title":"The Case for a Trial Fee: What Money Can Buy in Criminal Process","authors":"Darryl K. Brown","doi":"10.15779/Z38D50FZ0D","DOIUrl":"https://doi.org/10.15779/Z38D50FZ0D","url":null,"abstract":"Money motivates and regulates criminal process. Conscious of adjudication costs, prosecutors incentivize guilty pleas with the prospect of a “trial penalty”—harsher post-trial sentences. Budgetary considerations motivate revenue-generating enforcement policies and asset forfeitures by law enforcement. States also charge defendants directly for nearly every criminal justice expense through mandatory fees, which can burden decisions to exercise rights. Additionally, defendants can pay for optional advantages. Right-to-counsel doctrine protects the right to pay for more and better legal assistance than the state is obligated to provide. Paying bail yields pretrial liberty. Diversion programs, for a fee, can supplant ordinary prosecution. Some defendants can choose their sentence—a fine or jail. But these opportunities are not available to all; their costs need not match one’s ability to pay. To examine roles and rules of money in criminal process, this paper considers the case for an optional criminal trial fee. Defendants who pay it would directly cover public litigation costs, which would leave the state indifferent, as a budgetary matter, between trials and guilty pleas. In return, defendants would get a penalty-free trial limited to the terms of a proffered plea bargain. The fee proves a useful device because its rationale and effects accord with entrenched precedents and policies, not least in how it extends the justice system’s differential treatment based on wealth. Yet the trial fee also promises positive effects. It would reduce prosecutors’ most-criticized bargaining tactics—excessively harsh trial penalties—without undermining bargaining’s important secondary functions, enlisting informants to cooperate and rewarding defendants who accept responsibility for their crimes. And even a modest increase in fee-financed trials would yield other benefits, such as citizen participation in applying criminal law and supervising government officials, and more data about “the shadow of trial” in which bargaining takes place","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":"107 1","pages":"1415"},"PeriodicalIF":2.4,"publicationDate":"2019-02-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43740838","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The British constitutional lawyer A.V. Dicey argued in the nineteenth century that the common law, as administered by superior courts, better ensured government accountability than did written constitutions. Dicey taught us to focus less on constitutional promises and more on the practical effectiveness of judicial remedies. This Essay builds on Dicey by offering a comparative assessment of military encroachments on the rights of the nation’s citizens during times of war. Rather than comparing British common-law norms to European constitutionalism, as Dicey did, this Essay compares nineteenth-century common law as applied in the courts of the United States to the constitutionally-inflected rules that those courts apply today. This Essay focuses its comparison on three common-law remedies: habeas to secure release from military detention; trespass to obtain an award of damages for wrongful or abusive military confinement; and tort and contract-based compensation for the military’s destruction or taking of property. The modern Supreme Court has recalibrated each of these common-law regimes and now evaluates the legality of the military’s actions almost exclusively in constitutional terms. As Dicey might have predicted, the shift away from hard-edged common-law rules to open-ended constitutional balancing corresponds to a marked loss of relative remedial effectiveness. This Essay examines some of the factors that have shaped the remedial decline, as reflected in Hamdi v. Rumsfeld and Ziglar v. Abbasi. It then offers suggestions as to how the Court might keep the infrastructure of rights enforcement in better repair.
{"title":"Dicey's Nightmare: An essay on the rule of law","authors":"James E. Pfander","doi":"10.15779/Z383N20F1W","DOIUrl":"https://doi.org/10.15779/Z383N20F1W","url":null,"abstract":"The British constitutional lawyer A.V. Dicey argued in the nineteenth century that the common law, as administered by superior courts, better ensured government accountability than did written constitutions. Dicey taught us to focus less on constitutional promises and more on the practical effectiveness of judicial remedies. This Essay builds on Dicey by offering a comparative assessment of military encroachments on the rights of the nation’s citizens during times of war. Rather than comparing British common-law norms to European constitutionalism, as Dicey did, this Essay compares nineteenth-century common law as applied in the courts of the United States to the constitutionally-inflected rules that those courts apply today. \u0000 \u0000This Essay focuses its comparison on three common-law remedies: habeas to secure release from military detention; trespass to obtain an award of damages for wrongful or abusive military confinement; and tort and contract-based compensation for the military’s destruction or taking of property. The modern Supreme Court has recalibrated each of these common-law regimes and now evaluates the legality of the military’s actions almost exclusively in constitutional terms. As Dicey might have predicted, the shift away from hard-edged common-law rules to open-ended constitutional balancing corresponds to a marked loss of relative remedial effectiveness. This Essay examines some of the factors that have shaped the remedial decline, as reflected in Hamdi v. Rumsfeld and Ziglar v. Abbasi. It then offers suggestions as to how the Court might keep the infrastructure of rights enforcement in better repair.","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":"107 1","pages":"737-788"},"PeriodicalIF":2.4,"publicationDate":"2019-02-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47255137","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Responding to Owen Fiss’s call for the Court to recognize the constitutional status of the Griggs principle, I question court-centered accounts of constitutional change and examine the constitutional development of disparate impact law inside and outside of the courts. To illustrate the important role that democratic actors have played in shaping the development of disparate impact law, I sample conflict over disparate impact standards across all three branches of the federal government since the 1970s, from the Burger Court to the Roberts Court, in Congress, and in the Reagan, Obama, and Trump administrations. Examining disparate impact’s history reminds us that on numerous occasions, Congress has proven more willing than the Court to protect minority rights. Further, this account shows that constitutionalization of disparate impact could take forms that Fiss does not anticipate, given conservative opposition to the use of disparate impact standards to combat race discrimination (as distinct from discrimination on the basis of religion or disability). Fiss argues that a Court in the coming decades could interpret the Equal Protection Clause to require judges to review the racially disparate impact of state action. The history I consider suggests that constitutionalization might instead take the form of a Court interpreting the Equal Protection Clause to prohibit or limit federal laws mandating such review — a prospect that grows with the shifting composition of the Court and growing hostility to disparate impact in the Trump administration. This Comment makes the case for a dialogic understanding of our constitutional law primarily on grounds of descriptive accuracy. Situating the Court’s work in dialogue with democratic actors supplies a better understanding of how our law has evolved and is likely to evolve in the coming decades. But I close by offering a brief, normative account that suggests why conflict strengthens our constitutional law. When properly constrained, constitutional conflict can give democratic authority and direction to constitutional law.
{"title":"The Constitutionalization of Disparate Impact—Court-Centered and Popular Pathways: A Comment on Owen Fiss’s Brennan Lecture","authors":"Reva B. Siegel","doi":"10.15779/Z380V89H66","DOIUrl":"https://doi.org/10.15779/Z380V89H66","url":null,"abstract":"Responding to Owen Fiss’s call for the Court to recognize the constitutional status of the Griggs principle, I question court-centered accounts of constitutional change and examine the constitutional development of disparate impact law inside and outside of the courts. To illustrate the important role that democratic actors have played in shaping the development of disparate impact law, I sample conflict over disparate impact standards across all three branches of the federal government since the 1970s, from the Burger Court to the Roberts Court, in Congress, and in the Reagan, Obama, and Trump administrations. \u0000 \u0000Examining disparate impact’s history reminds us that on numerous occasions, Congress has proven more willing than the Court to protect minority rights. Further, this account shows that constitutionalization of disparate impact could take forms that Fiss does not anticipate, given conservative opposition to the use of disparate impact standards to combat race discrimination (as distinct from discrimination on the basis of religion or disability). Fiss argues that a Court in the coming decades could interpret the Equal Protection Clause to require judges to review the racially disparate impact of state action. The history I consider suggests that constitutionalization might instead take the form of a Court interpreting the Equal Protection Clause to prohibit or limit federal laws mandating such review — a prospect that grows with the shifting composition of the Court and growing hostility to disparate impact in the Trump administration. \u0000 \u0000This Comment makes the case for a dialogic understanding of our constitutional law primarily on grounds of descriptive accuracy. Situating the Court’s work in dialogue with democratic actors supplies a better understanding of how our law has evolved and is likely to evolve in the coming decades. But I close by offering a brief, normative account that suggests why conflict strengthens our constitutional law. When properly constrained, constitutional conflict can give democratic authority and direction to constitutional law.","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":"106 1","pages":"2001"},"PeriodicalIF":2.4,"publicationDate":"2019-01-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49273802","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"A Profoundly Masculine Act: Mass Shootings, Violence Against Women, and the Amendment That Could Forge a Path Forward","authors":"Y. Issa","doi":"10.15779/Z382V2C98F","DOIUrl":"https://doi.org/10.15779/Z382V2C98F","url":null,"abstract":"","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":"107 1","pages":"673"},"PeriodicalIF":2.4,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67386911","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Note examines inequities in the presidential nomination process. The nomination process has developed such that African American and women voters, compared to white male voters, wield less influence over which candidates parties nominate. By examining data from recent elections and scholarship from the fields of law, political science, and economics, this Note illuminates the extent of voter disenfranchisement and argues that parties must eliminate the use of caucuses and demote Iowa and New Hampshire from their role as gatekeepers of the nomination process.
{"title":"Disenfranchisement in the US Presidential Nomination Process Through Caucuses and the Gatekeeping Role of Iowa and New Hampshire","authors":"Thomas C. Dec","doi":"10.15779/Z38901ZG3D","DOIUrl":"https://doi.org/10.15779/Z38901ZG3D","url":null,"abstract":"This Note examines inequities in the presidential nomination process. The nomination process has developed such that African American and women voters, compared to white male voters, wield less influence over which candidates parties nominate. By examining data from recent elections and scholarship from the fields of law, political science, and economics, this Note illuminates the extent of voter disenfranchisement and argues that parties must eliminate the use of caucuses and demote Iowa and New Hampshire from their role as gatekeepers of the nomination process.","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":"14 1","pages":"267"},"PeriodicalIF":2.4,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67429514","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Perhaps the two most salient trends in complex litigation have been the rise of multidistrict litigation (MDL) and the fall of aggregation on plaintiffs’ terms. According to recent statistics, more than one third of federal cases are consolidated within MDLs — meaning that they are being litigated before judges handpicked by the Judicial Panel on Multidistrict Litigation (JPML), which itself was handpicked by the Chief Justice. Meanwhile, decisions on personal jurisdiction, class actions, and other topics have dramatically reduced plaintiffs’ abilities to select their preferred forum for complex cases. These trends intersect when jurists and scholars suggest that MDL provides a backstop for aggregate litigation because it is not constrained by rules on personal jurisdiction and class certification. The ultimate choice, then, of the forum in which large-scale cases will be litigated seems to be increasingly in the unconstrained hands of the JPML, and not the plaintiffs’. This reliance on MDL as the primary vehicle for aggregation makes it particularly important to know how plaintiffs and defendants fare before the JPML when they argue over where and before whom a new MDL should be heard. This paper presents the results of our empirical study of the relationship between party preferences and the assignment of MDLs to particular districts and judges. Based on a study of every MDL for a five-year period (2012-2016), we find that party preferences are meaningful for the selection of MDL districts. When plaintiffs and defendants agree on a preferred district, that district is very likely to be the eventual location of the MDL. When they disagree, the JPML sides with plaintiffs and defendants roughly equally. Whether this formal equality implies substantive equality, though, is an issue that merits further attention — and it raises deeper concerns about those forces that are pushing more cases into MDL in the first place. We also examine the characteristics of individual judges to which MDLs are assigned. We find that the JPML has not used its appointment power to engage in partisan behavior and it has ensured that transferee judges are as diverse as judges overall, although it has not been at the leading edge of diversification. In sum, we are encouraged by the Panel’s decisions as far as they go, though we believe that these findings call for further scrutiny of federal procedure and judicial administration. The Panel is treating plaintiffs and defendants equally with respect to forum choice, so it matters how frequently MDL is the best (or only) option for aggregation, and it is assigning cases to judges that are representative of federal district judges, so it matters who makes up the federal judiciary. And, of course, the Panel itself is a central actor in this ever-growing segment of federal litigation, so it matters whom the Chief Justice appoints to serve on the Panel in the first place. Understanding these forces is therefore critical to
{"title":"Party Preferences in Multidistrict Litigation","authors":"Andrew D. Bradt, Z. Clopton","doi":"10.15779/Z38TT4FT52","DOIUrl":"https://doi.org/10.15779/Z38TT4FT52","url":null,"abstract":"Perhaps the two most salient trends in complex litigation have been the rise of multidistrict litigation (MDL) and the fall of aggregation on plaintiffs’ terms. According to recent statistics, more than one third of federal cases are consolidated within MDLs — meaning that they are being litigated before judges handpicked by the Judicial Panel on Multidistrict Litigation (JPML), which itself was handpicked by the Chief Justice. Meanwhile, decisions on personal jurisdiction, class actions, and other topics have dramatically reduced plaintiffs’ abilities to select their preferred forum for complex cases. These trends intersect when jurists and scholars suggest that MDL provides a backstop for aggregate litigation because it is not constrained by rules on personal jurisdiction and class certification. The ultimate choice, then, of the forum in which large-scale cases will be litigated seems to be increasingly in the unconstrained hands of the JPML, and not the plaintiffs’. This reliance on MDL as the primary vehicle for aggregation makes it particularly important to know how plaintiffs and defendants fare before the JPML when they argue over where and before whom a new MDL should be heard. This paper presents the results of our empirical study of the relationship between party preferences and the assignment of MDLs to particular districts and judges. Based on a study of every MDL for a five-year period (2012-2016), we find that party preferences are meaningful for the selection of MDL districts. When plaintiffs and defendants agree on a preferred district, that district is very likely to be the eventual location of the MDL. When they disagree, the JPML sides with plaintiffs and defendants roughly equally. Whether this formal equality implies substantive equality, though, is an issue that merits further attention — and it raises deeper concerns about those forces that are pushing more cases into MDL in the first place. We also examine the characteristics of individual judges to which MDLs are assigned. We find that the JPML has not used its appointment power to engage in partisan behavior and it has ensured that transferee judges are as diverse as judges overall, although it has not been at the leading edge of diversification. In sum, we are encouraged by the Panel’s decisions as far as they go, though we believe that these findings call for further scrutiny of federal procedure and judicial administration. The Panel is treating plaintiffs and defendants equally with respect to forum choice, so it matters how frequently MDL is the best (or only) option for aggregation, and it is assigning cases to judges that are representative of federal district judges, so it matters who makes up the federal judiciary. And, of course, the Panel itself is a central actor in this ever-growing segment of federal litigation, so it matters whom the Chief Justice appoints to serve on the Panel in the first place. Understanding these forces is therefore critical to ","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":"107 1","pages":"1713-1752"},"PeriodicalIF":2.4,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67561697","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In her book, Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay, Professor Amanda Tyler has written a definitive constitutional history of the habeas privilege in the United States.1 Rather than rehearsing the book’s many virtues, I propose to devote this short Essay to the familiar yet intractable problem of historical translation. The problem of how to translate the lessons of history into modern constitutional law remains largely unresolved.2 True, almost everyone would agree with originalists that history can help answer some modern interpretive questions.3 But just about everyone also recognizes that relevant history does not always point in one direction: well-informed observers may dispute the historical meaning of a constitution’s text, and their views may conflict with the way the
{"title":"Constructive constitutional history and habeas corpus today","authors":"James E. Pfander","doi":"10.15779/Z38XW47W75","DOIUrl":"https://doi.org/10.15779/Z38XW47W75","url":null,"abstract":"In her book, Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay, Professor Amanda Tyler has written a definitive constitutional history of the habeas privilege in the United States.1 Rather than rehearsing the book’s many virtues, I propose to devote this short Essay to the familiar yet intractable problem of historical translation. The problem of how to translate the lessons of history into modern constitutional law remains largely unresolved.2 True, almost everyone would agree with originalists that history can help answer some modern interpretive questions.3 But just about everyone also recognizes that relevant history does not always point in one direction: well-informed observers may dispute the historical meaning of a constitution’s text, and their views may conflict with the way the","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":"107 1","pages":"1005"},"PeriodicalIF":2.4,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67588923","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Note explores potential admissibility challenges that may arise when European courts use evidence of Syrian crimes collected by the newly-established International, Impartial and Independent Mechanism for Syria (“the IIIM”). The Note examines the evidentiary rules of four European countries—France, Germany, the Netherlands, and Sweden––where Syrian cases are currently being investigated or prosecuted. Specifically, it focuses on evidence that was improperly or illegally obtained, including evidence procured by private actors. This Note also looks at the European Convention on Human Rights (“ECHR”) Article 8 and relevant case law from the European Court of Human Rights concerning illegal searches and seizures. Finally, this Note highlights the importance of avoiding admissibility issues that may arise as a result of the IIIM’s close cooperation with both private groups who gather the evidence on the ground and the European authorities that will ultimately be using such evidence in court.
{"title":"The United Nations Mechanism on Syria: Will the Syrian Crimes Evidence be Admissible in European Courts?","authors":"Natalia Krapiva","doi":"10.15779/Z38Z31NP4G","DOIUrl":"https://doi.org/10.15779/Z38Z31NP4G","url":null,"abstract":"This Note explores potential admissibility challenges that may arise when European courts use evidence of Syrian crimes collected by the newly-established International, Impartial and Independent Mechanism for Syria (“the IIIM”). The Note examines the evidentiary rules of four European countries—France, Germany, the Netherlands, and Sweden––where Syrian cases are currently being investigated or prosecuted. Specifically, it focuses on evidence that was improperly or illegally obtained, including evidence procured by private actors. This Note also looks at the European Convention on Human Rights (“ECHR”) Article 8 and relevant case law from the European Court of Human Rights concerning illegal searches and seizures. Finally, this Note highlights the importance of avoiding admissibility issues that may arise as a result of the IIIM’s close cooperation with both private groups who gather the evidence on the ground and the European authorities that will ultimately be using such evidence in court.","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":"127 1 1","pages":"1101"},"PeriodicalIF":2.4,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67590352","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：