Current Print Issue

Vol. 166, Issue 6

  May 2018


Featured Article

Our Principled Constitution

By
Mitchell N. Berman
166 U. Pa. L. Rev. 1325 (2018)

Suppose that we disagree about a matter of constitutional law. Say that one of us contends, and the other denies, that transgender persons have constitutional rights to be treated in accord with their gender identity. It appears that we disagree about “what the law is.” And, most probably, we disagree about what the law is on this matter because we disagree about what generally makes it the case that our constitutional law is this rather than that.

Constitutional theory should provide guidance. Theorists should try to explain what gives our constitutional rules the contents that they have, or what makes true constitutional propositions true; they should aim to provide what I will call a “constitutive theory” of constitutional law. It is obvious that we do not all share a constitutive theory. It is less obvious, and strikingly underappreciated, that we have precious few candidates to choose from. Few of our many prescriptive theories regarding how judges should exercise the power of judicial review have straightforward constitutive implications.

This Article presents an original constitutive theory of American constitutional law (and of law generally), founded on the familiar distinction between two types of constitutional norms: “principles” and “rules.” It argues: first, that rules are determined by the interaction of principles, in a manner that can be loosely modeled as force addition; and second, that the principles are “grounded” in mental states, speech‐acts, and behaviors of persons who make up the constitutional community, much as rules of fashion or of billiards are grounded in behaviors of persons who make up their normative communities. In short: social facts determine constitutional principles, and constitutional principles determine constitutional rules. I call the account “principled positivism.” It is positivist, pluralist, and dynamic.

Principled positivism maintains that we can come to know our constitutional rules by discerning the contents, contours, and weights of our constitutional principles. Accordingly, the Article offers a preliminary and partial inventory of our constitutional principles—principles concerning the legal significance of what the enacted text says and what its authors intended; principles about the force of judicial precedents and of extra‐judicial practices; principles of popular sovereignty, the distribution of governing power, and the demands of liberty and equality. It then puts the principles to work, illustrating how they operate in diverse constitutional controversies, from same‐sex marriage to the scope of Congress’s commerce power.


Featured Comment

Completely Exhausted: Evaluating the Impact of Woodford v. Ngo on Prisoner Litigation in Federal Courts

By
Elana M. Stern
166 U. Pa. L. Rev. 1511 (2018)

On June 22, 2006, the Supreme Court decided an unglamorous administrative exhaustion case involving the ability of prisoners to bring civil lawsuits in federal court. The case, Woodford v. Ngo, split the Court 6‐3 with Justice Alito writing for the majority. The decision itself hinges on a close reading of the term “exhaustion” and its requirements under administrative law and the 1996 Prison Litigation Reform Act (PLRA). The Woodford majority held that, in light of the PLRA, a prisoner must “properly exhaust[]” administrative remedies before filing a claim in federal court; failure to follow this procedural requirement results in dismissal of an improperly exhausted claim. “Proper exhaustion,” as defined by the Court, requires prisoners not only to go through administrative proceedings and seek the remedies “that meet federal standards,” but also to pursue “all ‘available’ [administrative] remedies” to their procedural conclusion.

Thus, on its face, Woodford appears to make filing claims in federal court even more difficult for prisoners by strictly interpreting the relevant statutory language. However, the goal of this Comment is to demonstrate that Woodford has had no such effect. Ten years after the Supreme Court’s decision, prisoners’ filings of unexhausted claims in federal court have actually increased. Prisoner litigants likely do not have adequate knowledge of the procedural prerequisites to filing a civil claim in federal court. To resolve the ongoing disconnect between the law relevant to prisoner filings and filings in reality, this Comment proposes bridging the existing knowledge gap that may be partially responsible for improperly or unexhausted claims brought by prisoners in federal court. Including an informational cover sheet on prisoner pro se civil complaint forms that gives potential claimants an overview of the exhaustion requirement may at least give prisoners pause before writing out their claims and filing a suit that would be dismissed on procedural grounds.

Without making the relevant law salient to those it directly affects, Woodford’s deterrent impact on improperly exhausted prisoner civil claims may remain minimal. As a result, prisoners will likely continue to file improperly exhausted civil claims in federal court, which require courts’ time and resources to dismiss, even via order (in lieu of a full opinion). For prisoners, an ongoing knowledge gap in this context will mean running up against the PLRA’s three strikes rule, additional filing fees, and perhaps due to procedural failings, losing the ability to bring a substantively meritorious claim.


Online Exclusives
 Last updated: May 1, 2018


Essay

Rogue Retailers or Agents of Necessary Change? Using Corporate Policy as a Tool to Regulate Gun Ownership

By
Mystica M. Alexander & Scott R. Thomas
166 U. Pa. L. Rev. Online 283 (2018)

The tragedy of the Parkland, Florida high school shooting shocked the nation and sent thousands of student protestors out of the classrooms and into the streets. Sadly, the nation once again found itself asking the increasingly familiar question of how such senseless tragedies can be prevented. As the search for an answer to this question continues, several avenues of response are being explored. Some have focused on a failure of the “system” and take federal and state authorities to task for not heeding the warning signs. Others are considering how society can deal more effectively with the problem of mental illness. Still others are calling for more restrictive gun laws to address this problem. These calls for action are familiar and the likely federal response is equally familiar: nothing. Federal legislative action that puts further significant limitations on gun ownership is unlikely in the short term. As a result of legislative inaction, we are now seeing a grassroots response not only from concerned individuals, but from corporations willing to take actions that they hope will lessen the likelihood of another act of gun violence by someone under the age of twenty‐one. To accomplish this, retailers such as Walmart, Dick’s Sporting Goods (DSG), Kroger, and L.L. Bean have modified store policies across the United States and will no longer sell long guns (shotguns and rifles) or ammunition to those under twenty‐one. DSG was one of the first to implement this restriction on February 28, 2018. These actions have already been met with resistance from consumers in Oregon and Michigan who allege that such policies violate state public accommodation laws. While the scope of the public accommodation laws’ protections varies among states, Oregon and Michigan are among nineteen jurisdictions that consider age to be a protected class. The first lawsuits in the nation were filed in Oregon against DSG and Walmart by Tyler Watson, a twenty‐year‐old Oregon resident who was unable to purchase a rifle due to the retailers’ newly enacted age restrictions, alleging violation of the public accommodation laws. This Essay explores the merits of this claim using Mr. Watson’s case against DSG as the illustration since it is the furthest along procedurally. After explaining why Mr. Watson is likely to prevail in court, this Essay then concludes with a discussion of the implications of this case for other jurisdictions.


Response

Auditing Algorithms for Discrimination

By
Pauline T. Kim
166 U. Pa. L. Rev. Online 189 (2017)

As reliance on algorithmic decisionmaking expands, concerns are growing about the potential for arbitrary, unfair, or discriminatory outcomes in areas such as employment, credit markets, and criminal justice. Legal scholars have lamented the lack of accountability of these automated decision processes and called for greater transparency. They argue that the way to avoid unfair or discriminatory algorithms is to demand greater disclosure of how they operate. Accountable Algorithms resists this call for transparency, calling it “a naive solution.” Instead, it argues that technology offers tools—“a new technological toolkit”—that can better assure accountability.

One of the examples that Kroll et al. rely on to illustrate their argument is the goal of ensuring that algorithms do not discriminate. Many commentators have pointed out the risk that automated decision processes may produce biased outcomes, and in prior work, I have argued that serious policy concerns are raised when these algorithms exacerbate historic inequality or disadvantage along the lines of race, sex, or other protected characteristics—what I’ve referred to as “classification bias.” Recognizing that the precise meaning of discrimination is uncertain and contested, Kroll et al. do not try to resolve debates over the meaning of discrimination. Instead, without choosing among the competing definitions, they simply survey the available technical tools, suggesting that these tools will be more effective at ensuring nondiscrimination than calls for transparency.

Transparency involves outside scrutiny of a decision process, for example, by allowing third parties to examine the computer code or the decision criteria it implements. Auditing is another method for promoting transparency. When the goal is nondiscrimination, auditing could involve techniques to ensure that an algorithm follows a specified rule—for example, sorting must not occur based on race or sex. Alternatively, auditing for discrimination could take the form of examining inputs and outputs to detect when a decision process systematically disadvantages particular groups. The latter form of auditing does not involve direct examination of the decision process, but is useful in detecting patterns. This type of auditing, in the form of field experiments, is well established in the social science literature as a technique for testing for discrimination in decisions such as employment and consumer transactions. Auditing the effects of decisionmaking algorithms similarly offers a method of detecting when they may be biased against particular groups. Kroll et al., however, express skepticism about auditing as a strategy, arguing that it is not only technically limited, but also likely restricted by law. More specifically, they suggest that when an algorithm is found to have a disparate impact, the Supreme Court’s decision in Ricci v. DeStefano may prevent correcting for that bias.

This Essay responds to Kroll et al., arguing that, despite its limitations, auditing for discrimination should remain an important part of the strategy for detecting and responding to biased algorithms. Technical tools alone cannot reliably prevent discriminatory outcomes because the causes of bias often lie not in the code, but in broader social processes. Therefore, implementing the best available technical tools can never guarantee that algorithms are unbiased. Avoiding discriminatory outcomes will require awareness of the actual impact of automated decision processes, namely, through auditing.

Fortunately, the law permits the use of auditing to detect and correct for discriminatory bias. To the extent that Kroll et al. suggest otherwise, their conclusion rests on a misreading of the Supreme Court’s decision in Ricci. That case narrowly addressed a situation in which an employer took an adverse action against identifiable individuals based on race, while still permitting the revision of algorithms prospectively to remove bias. Such an approach is entirely consistent with the law’s clear preference for voluntary efforts to comply with nondiscrimination goals.


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.