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Vol. 167, Issue 2

  January 2019


Featured Article

Data-Driven Originalism

By
Thomas R. Lee* & James C. Phillips**
167 U. Pa. L. Rev. 261 (2019)

The threshold question for all originalist methodologies concerns the original communicative content of the words of the Constitution. For too long this inquiry has been pursued through tools that are ill‐suited to the task. Dictionaries generally just define individual words; they don’t typically define phrases or allow for consideration of broader linguistic context. And while dictionaries can provide a list of possible senses, they can’t tell us which sense is the most ordinary (or common).

Originalists have also turned to other methods, but those methods have also fallen short. But all is not lost. Big data—and the tools of linguists—have the potential to bring greater rigor and transparency to the practice of originalism. This article will explore the application of corpus linguistic methodology to aid originalism’s inquiry into the original communicative content of the Constitution. We propose to improve this inquiry by use of a newly released corpus (or database) of founding‐era texts: the beta version of the Corpus of Founding‐Era American English.

This paper will showcase how typical tools of a corpus—concordance lines, collocation, clusters (or n‐grams), and frequency data—can aid in the search for original communicative content. We will also show how corpus data can help determine whether a word or phrase in question is best thought of as an ordinary one or a legal term of art. To showcase corpus linguistic methodology, this paper will analyze important clauses in the Constitution that have generated litigation and controversy over the years (commerce, public use, and natural born citizen) and another whose original meaning has been presumed to be clear (domestic violence). We propose best practices, and also discuss the limitations of corpus linguistic methodology for originalism.


Featured Comment

Ineffective Assistance of Padilla: Effectuating The Constitutional Right to Crimmigration Counsel

By
Greta A. Wiessner
167 U. Pa. L. Rev. 463 (2019)

The Supreme Court decided in Padilla v. Kentucky that noncitizens in criminal proceedings have a Sixth Amendment right to advice on the immigration consequences of a guilty plea. Despite the promise of Padilla, many noncitizens with unconstitutional criminal convictions find themselves without a remedy. Discovering the adverse immigration consequences of their convictions only once they face removal in federal immigration proceedings, noncitizens are faced with strict temporal and custodial requirements that foreclose state avenues for Padilla relief. While the states can partially alleviate the ineffective assistance of Padilla by creating new criminal procedural rules to raise Padilla claims in state forums, a uniform federal solution is needed. Federal courts should interpret the definition of “conviction” under the INA to exclude convictions entered without effective crimmigration counsel. Congress did not intend for convictions entered without procedural safeguards guaranteed by the Constitution to make noncitizens removable. Furthermore, immigration judges can use their expertise in immigration law to the advantage of all parties by hearing Padilla claims in a federal forum. Sharing the burden of redressing Padilla violations between the federal and state forums will ultimately improve the implementation of crimmigration counsel and remedy the current ineffective assistance of Padilla.


Online Exclusives
 Last updated: June 23, 2019


Essay

Reconsidering Judicial Independence: Forty Years in the Trenches and in the Tower

By
Stephen B. Burbank
168 U. Pa. L. Rev. Online 17 (2019)

Trusting in the integrity of our institutions when they are not under stress, we focus attention on them when they are under stress or when we need them to protect us against other institutions. In the case of the federal judiciary, the two conditions often coincide. In this Essay, I aim to provide practical context for some of the important lessons to be learned from the periods of stress for the federal judiciary that I have observed as a lawyer and concerned citizen and to provide theoretical context for lessons I have deemed significant as a scholar.


Response

The Creditors' Bargain Reconstituted: Comments on Barry Adler's The Creditors' Bargain Revisited

By
Edward J. Janger
167 U. Pa. L. Rev. Online 47 (2019)

In his book, The Logic and Limits of Bankruptcy Law, Thomas Jackson asserts that bankruptcy law should approximate the bargain creditors would strike at the initiation of the firm (T1) regarding the possibility that the firm might later fail and default on its debts (T2). Jackson reasons that the firm’s creditors would choose a collective remedy that limits the power of individual creditors to force an inefficient liquidation. They would agree to stop the race of diligence.

In his thoughtful and provocative contribution to this symposium, The Creditors’ Bargain Revisited, Barry Adler asks whether, in the current world of finance and bankruptcy, creditors would choose the same collective remedy? His answer is, “No.” As he sees it, creditors would prefer the unfettered right to exercise their negotiated remedies. Barry offers three pieces of evidence: (1) sophisticated creditors frequently say that they would prefer to opt out of collective bankruptcy in favor of individual collection; (2) creditors frequently seek to adopt bankruptcy remote structures such as securitization through special purpose vehicles to avoid the bankruptcy process; and (3) blanket (often second) lien financing is frequently used by undersecured creditors to control and implement an all asset sale. Instead, he posits his preferred, noncollective, approach to insolvency: an express bargain based in creditor autonomy, or as he puts it, “a contractual alternative to bankruptcy.”

My response proceeds in three steps. First, I channel Inigo Montoya from The Princess Bride to suggest that the “Creditors’ Bargain” does not mean what Barry thinks it means. Second, I situate Barry’s contractualism in relation to the alternate “collective” theories of bankruptcy value distribution: the relativism of Baird and Casey; and a more rigorous version of the creditors’ bargain articulated by me and Melissa Jacoby in previous work. Third, I argue for the normative superiority of the collective approach, both for its fidelity to the Creditors’ Bargain heuristic and because of its consistency with a broader set of corporate governance norms that seek to encourage adequate capitalization and risk internalization.


Case Note

Of Laundering and Legal Fees: The Implications of United States v. Blair for Criminal Defense Attorneys who Accept Potentially Tainted Funds

By
Philip J. Griffin
164 U. Pa. L. Rev. Online 179 (2016).

“In the common understanding, money laundering occurs when money derived from criminal activity is placed into a legitimate business in an effort to cleanse the money of criminal taint.” 18 U.S.C. § 1957, however, prohibits a much broader range of conduct. Any person who “knowingly engages” in a monetary transaction involving over $10,000 of “criminally derived property” can be charged with money laundering under § 1957.

Because § 1957 eliminates the requirement found in other money laundering statutes that the government prove an attempt to commit a crime or to conceal the proceeds of a crime, § 1957 “applies to the most open,

above‐board transaction,” such as a criminal defense attorney receiving payment for representation. In response to pressure from commentators, Congress passed an amendment two years after § 1957’s enactment defining the term “monetary transaction” so as to exclude “any transaction necessary to preserve a person’s right to representation as guaranteed by the sixth amendment to the Constitution.”

The statutory safe harbor found in § 1957(f)(1) has successfully immunized defense attorneys from money laundering prosecutions. However, United States v. Blair raised concerns among the criminal defense bar because of its holding that an attorney‐defendant was not entitled to protection under § 1957(f)(1). In Blair, an attorney‐defendant was convicted of violating § 1957 for using $20,000 in drug proceeds to purchase two $10,000 bank checks to retain attorneys for associates of his client. Noting that Sixth Amendment rights are personal to the accused and that Blair used “someone else’s money” to hire counsel for others, the Fourth Circuit held that his actions fell “far beyond the scope of the Sixth Amendment” and were not protected by the safe harbor. In his strongly‐worded dissent, Chief Judge Traxler criticized the court for “nullif[ying] the § 1957(f)(1) exemption and creat[ing] a circuit split.”

This Case Note discusses the implications of Blair for the criminal defense attorney who accepts potentially tainted funds and proposes a solution to ameliorate its unintended consequences. First, Part I provides relevant background information by discussing the money laundering statutory framework, the criticisms leveled at the framework as it was written, the Congressional response to that criticism, and § 1957(f)(1)’s application up until Blair. Next, Part II describes the Blair decision in detail and examines its implications. Part III then proposes a novel solution to the problems it created. Finally, the Case Note concludes with a brief word of practical advice for the criminal defense bar.