Volume 160

Essays

People who commit a crime and are brought before a court to be sentenced expect to face a prison term or at least probation, and perhaps a fine. They may expect to experience a degree of social opprobrium, the so‐called “stigma of conviction.” They surely understand that having a criminal record is not career‐enhancing. But they also probably think that at some point they will be able to pay their debt to society and return to its good graces....But the reality...is very different. For them, the so‐called “collateral” consequences of conviction are numerous, severe, and very hard to mitigate.

It has been more than a decade since I began railing against the therapeutic jurisprudence movement in general and drug courts in particular. Much has changed in the world of therapeutic courts in that decade. Every two‐stoplight town now has a drug court, and every three‐stoplight one, a veterans court. Every town big enough to claim to be a community must have a community court. And every court everywhere dealing with low‐level crimes must be called a “problem‐solving court.” I guess that makes my felony court a “problem‐creating court.”

In 2010, fraud offenses were the third largest portion of the federal criminal docket, trailing only immigration and drug offenses. And yet, the strong criticisms of the primary advisory guideline governing the sentencing of those offenses, U.S. Sentencing Guideline § 2B1.1, remain unaddressed. Judges, defense lawyers, and commentators have long called for a reassessment of § 2B1.1's “inordinate emphasis” on the amount of loss caused by an offense.

At every stage of the criminal justice process, mandatory minimums contribute to disparate impact among racial groups. They encourage policing practices, investigative techniques, and prosecutorial strategies that are illogical, counterintuitive, and sometimes arbitrary and abusive. The ultimate example of how mandatory minimums have fostered prosecutorial excess is the unfettered prosecutorial discretion to disregard those minimums for so‐called cooperators. This essay provides a practitioner's view of how mandatory mini‐mum sentences diminish fairness and contribute to arbitrary justice.

Six years ago, the Supreme Court held in United States v. Booker that the mandatory sentencing guidelines system was unconstitutional. Since this decision, Congress has given a great deal of attention to federal sentencing and the changes that have resulted from Booker and its progeny. Recently, the Committee on the Judiciary's Subcommittee on Crime, Terrorism, and Homeland Security, of which I am the ranking member, held a hearing to examine what has happened during the six years after Booker. Despite what critics of the decision and those wary of judicial discretion claim, the Booker decision did not create a problem that needs fixing. Booker was the fix—not the problem.

When I began my career in the Pennsylvania Legislature in 1976, America's drug culture, and public awareness of drug abuse, had been on the rise for two decades. By the 1980s, America's largest urban areas were experiencing a narcotics epidemic, particularly relating to the widespread use of crack cocaine and heroin. Faced with the challenge of controlling this problem, legislators could see only one logical course of action: raise penalties to repress the increasing crime. Longer—and more mandatory—sentences passed state legislatures by wide margins, and everyone confidently waited for a corresponding reduction in drug crime.

In August 2005, Hurricane Katrina flattened the Gulf Coast from the Alabama border to 100 miles west of New Orleans. The New Orleans levees failed, and much of the city was flooded. More than 1800 people died, and property damage is estimated at $108 billion. While Katrina was not the most deadly or expensive hurricane in U.S. history, it was the worst storm in more than eighty years and destroyed public complacency about the government's ability to respond to disasters.

This Essay argues that conceptualizing the destruction of New Orleans as a negligent or intentional failure of the Corps is mistaken and will continue the cycle of catastrophic flooding in New Orleans. The implications of this mistake, however, reach far beyond New Orleans. Levees are the original geoengineering projects—large‐scale manipulations of Earth's environment intended to mitigate the consequences of climate. Thus, the Katrina levee breach litigation is the first in an upcoming wave of climate geoengineering litigation. The stakes are high—if the Katrina plaintiffs prevail, then the litigation will drive geoengineering solutions for all coastal cities.

On January 11, 2012, the Supreme Court decided the first significant case of the October 2011 Term, Hosanna‐Tabor Evangelical Lutheran Church and School v. EEOC. A unanimous Court held that a “called” teacher (a commissioned Lutheran minister) teaching secular subjects from a Christ‐centered perspective could not prevail in an action challenging her termination under the Americans with Disabilities Act (ADA). The Court for the first time recognized the “ministerial exemption” to the ADA and other federal employment discrimination laws, affirming the uniform position of the federal courts of appeals . . . A second open issue surrounded the ministerial exemption prior to Hosanna‐Tabor: its proper jurisdictional characterization. Is the exemption a jurisdictional limitation or an aspect of the merits of a claim? Does it reflect a First Amendment limitation on the reach of substantive secular law into matters of faith, doctrine, and church governance? Or does it limit the adjudicative jurisdiction of the courts in which such disputes might be resolved? Put differently, if and when the ministerial exemption defeats a claim in federal court, does the claim fail because the court lacks subject matter jurisdiction or because the plaintiff's claim fails on the merits?

Responses

Professor Linda Simard Sandstrom responds to both Professor Fitzpatrick and Professor Marcus on the topic of class action attorneys' fees. Professor Fitzpatrick provocatively argued that attorneys cannot bring many class actions that would deter harm to the public because they are not financially viable. To solve this problem, Fitzpatrick suggested that class action attorneys should be given significantly higher fees. Professor Marcus argued in response that the proposition faces doctrinal challenges and may not truly lead to greater deterrence. Professor Simard adds two additional challenges to Professor Fitzpatrick, arguing that increasing attorneys' fees could lead to more attorneys pursuing less meritorious cases. Simard argues that these cases are ultimately less likely to be successful and thus will not add to any deterrent effect. Moreover, she concludes, what small increase in deterrence may result is unlikely to outweigh the increased burden to the system which could prevent stronger cases from efficient access to relief.

In Law and Humanity, Michael Serota argues that legal scholarship and the humanities can and should complement each other. His response to Christine Stark's Run, a creative memoir published in a Law Review Symposium issue on the topic of human trafficking, argues that placing a survivor's memoir at the beginning of the issue impacts the way readers understand the articles that follow. Serota suggests that incorporating art and narrative into legal research gives a depth and perspective to scholarship that helps keep it connected to humanity.

While critics of the individual mandate to purchase health care coverage have mounted a vigorous attack on its constitutionality, Professor Mark Hall skillfully dismantles their claims. Mandate opponents have erected a Potemkin village of logic that has a facade of credibility but ultimately is deeply flawed. As Professor Hall observes, one might reject the mandate on the basis of plausible readings of the constitutional text or in terms of nineteenth-century and early twentieth-century Supreme Court opinions. However, critics cannot square their view with the Court’s understanding of constitutional doctrine and theory over the past seventy years.

In this Response, I will highlight important points in Professor Hall’s analysis and extend his argument with additional considerations. For example, the individual mandate should be upheld not only on the basis of the Commerce Clause power, as Professor Hall argues, but also on the basis of the taxing power.

If the constitutional arguments against the mandate are weak, then how can we explain the unexpectedly high level of uncertainty about the mandate’s validity? The answer to this question lies in politics, not law.

In The Role of Lawmakers, Lobbyists, and Scholars in the Normative Evaluation of Timing Rules, Frank Fagan and Michael Faure respond to Rebecca M. Kysar's argument in Lasting Legislation that legislatures should prefer permanent legislation to legislation with a sunset date. Fagan and Faure argue that while Kysar's position is compelling for tax regulation, she takes an argument that works well in a specific regulatory context and applies it too broadly. Instead, they contend, whether legislation should be lasting or temporary depends on a variety of factors and deserves more nuanced attention.

The Political Economy of Fraud on the Market provides a wide-ranging criticism of and thoughtful reforms for securities class actions....However, both their critique of contemporary class actions and their model of the reforms they propose leave unexamined a good many matters relevant to both the criticism and reform of securities class actions....Bratton and Wachter earn high marks for being less passionate and much more thoughtful than others in the chorus calling for reform; indeed, their observations are among the most thoughtful to be found in this area. Nonetheless, their analysis is incomplete in many important areas, and in addition to the lacunae in their analysis, they commit an even more fundamental error by taking the narrow view that securities class actions have only a private and not a public mission.

In this Response, I do not disagree with any of the core points made in The Political Economy of Fraud on the Market. (My scholarship has similarly emphasized the benefits of shifting away from FOTM to greater reliance on public enforcement mechanisms.) Instead, I take the opportunity to elaborate on the deterrence and governance shortcomings of FOTM, strengthening further the case Bratton and Wachter make for an enhanced public enforcement role. In conclusion, I suggest avenues for overcoming the political hurdles to reform that the authors identify, so that we might someday actually “get there from here.”

Section 2 of the Voting Rights Act is a doctrinal mess. Through a totality of circumstances inquiry, Section 2 has evolved from its modest beginnings as a codification of the Fifteenth Amendment into a “mysterious judicial inquiry" that places the Supreme Court in the enviable position of policing the contours of the politics of race . . . Professor Elmendorf's article is a welcome response to this state of affairs. He offers an understanding of Section 2 “as a delegation of authority to the courts to develop a common law of racially fair elections, guided by certain substantive and evidentiary norms, as well as norms about legal change.” This is a thoughtful and intriguing proposal...That said, I part company with Professor Elmendorf, if modestly so, in one crucial respect. His proposal requires much greater faith in the conservative Justices on the Court than the existing evidence allows me to endorse.

Voting rights law is in the midst of an existential crisis. The Voting Rights Act (VRA) is probably the most celebrated civil rights statute ever enacted by Congress. By most accounts, the central concern that gave rise to the VRA—racial animus against black voters and black candidates by white state and private actors—has, blessedly, retreated into the annals of history since the Act's passage...Though isolated instances of racial animus in voting persist, and may be with us always, the VRA has replaced the systematic, state‐sponsored racial exclusion that affected the rights of millions of American citizens seeking to participate in the political process with a new reality. Literacy tests are no more, at least as a feature of the electoral process; grandfather clauses are buried with the grandfathers; retaliation by private employers against black voters who dared to register to vote exists only in our memories, if at all; and few twenty‐first century Americans could imagine that anyone would assault a voter or group of voters for exercising their right to vote, much less that the state would fail to prosecute such an attacker. The question then is what steps remain for voting rights policy.

I was honored to be asked to respond to Professor Bellin's insightful article, Facebook, Twitter, and the Uncertain Future of Present Sense Impressions. Since I agree with much of what he says, my Response is limited to two tasks: parsing the relationship between modes of communication and the present sense impression exception, and assessing the extent to which at least certain types of electronic communication might be incorporated into the percipient witness requirement he proposes...I have, for well over a decade, devoted much of my time to researching and writing about how our use of cyberspace sometimes requires us to modify existing legal rules but often does not. As I explain when I speak and write on this topic, law—except for specialized areas such as patent and copyright—is concerned with people, not with technology, as such. Given that, I believe we need to be careful not to overestimate the impact technology has on existing law; in many instances, it may be possible to accommodate uses of technology with rules as they exist or by tweaking them only slightly.

Professor Volokh is right that American prisons are considered to be “low quality,” and that they suffer from “high violence rates, bad medical care, [and] overuse of highly punitive measures like administrative segregation . . . .” But his proposed solution—a system of “prison vouchers” that would permit prisoners to choose their facilities and thus create a market for prison services—would provide only an illusion of choice. Even worse, such a system runs the risk of strengthening the self‐interested forces that drive our overgrown system of incarceration. Just when it seems that the United States may be turning a corner, Professor Volokh's “prison vouchers” proposal would create a market that we do not need.

In a terrific new article, Professor Timothy Meyer challenges this exalted view of codification, which numerous scholars since Oppenheim have echoed. Meyer argues in Codifying Custom that codification is a self‐interested project undertaken by rational and perhaps even cunning states seeking to write the rules in their own favor. He does not dismiss the possibility that codification projects clarify or progressively develop international law, but he views this possibility, which he terms the Clarification Thesis, as overstated. He argues that another common motive for codification is what he calls the Capture Thesis: “states often use codification to capture customary international legal rules to benefit themselves at the expense of the general welfare . . . .”

In this Response, I consider the strength of Professor Meyer's Capture Thesis and discuss some implications of his findings. Professor Meyer makes a persuasive case that states might pursue codification to advance understandings of customary international law that will advantage them at the expense of other states. But I have difficulty with his further claim that such capture is in fact a common motive for codification. My objections stem from two main sources. First, Professor Meyer relies on a model that overstates the likely power of capture. Second, the landscape of codification today aligns more with the Clarification Thesis than with the Capture Thesis. Thus, I think the Capture Thesis is much less powerful than Professor Meyer suggests. Since I accept that capture could sometimes drive codification, however, I close this Response by considering how international law might respond to the risk of capture. I argue that international law already responds to these risks by codifying international law through mechanisms that partially bypass the traditional principle of state consent.

In Volume 160 of the University of Pennsylvania Law Review, I present an interpretive reconstruction of the Voting Rights Act's (VRA) core provision of nationwide application, Section 2. My account responds to longstanding critiques of Section 2 as utterly opaque, likely to worsen racial conflict, and probably unconstitutional (because inadequately tethered to the prevention or remediation of actual constitutional violations).

My paper builds upon a shared premise of liberal and conservative jurists: that the Voting Rights Act was meant “to hasten the waning of racism in American politics.” Professor Guy‐Uriel Charles responds, “[T]his move is question‐begging: what is racism in American politics, and how will we know whether it is waning?” I agree with Professor Charles that the apparent consensus against racial discrimination in America is somewhat illusory, resting on divergent understandings of what constitutes discrimination on the basis of race. But I disagree with the thrust of Professor Charles's Response, namely, that reading Section 2 to target state action that discriminates on the basis of race (1) does little to help lawyers and judges applying the statute, given the lack of societal consensus about the meaning of discrimination, and (2) is essentially pointless, because the Fourteenth and Fifteenth Amendments already prohibit race‐discriminatory state action with respect to elections.

Case Notes

After two decades of dormancy, the sleeping giant of personal jurisdiction has finally awakened with the Supreme Court's opinion in J. McIntyre Machinery, Ltd. v. Nicastro. However, as in its two most recent personal jurisdiction opinions, the Court was less than univocal. This Note attempts to understand the reasoning behind J. McIntyre</i>; to determine the status of the second prong of the Court's (in)famous two-part test for personal jurisdiction; to analyze J. McIntyre's effect on personal jurisdiction jurisprudence in the immediate future; and, ultimately, to question whether J. McIntyre, too, represents a "throwback to . . . less enlightened practices."

In the wake of a passing comment and footnote in In re Revlon, Inc. Shareholders Litigation, Delaware practitioners have grappled with the enforceability of forum‐selection provisions adopted in corporate charters and bylaws. After the Delaware Chancery Court decided In re Revlon in 2010, most practitioners concluded that such a provision would be enforceable under Delaware corporate law. However in 2011, in Galaviz v. Berg—a case of first impression— the Northern District of California rejected the contention in In re Revlon that forum‐selection provisions adopted by Delaware corporations should be contractually enforceable. The court in Galaviz instead held that a forum‐selection provision contained in a bylaw unilaterally adopted by a board of directors was not binding on shareholders under federal procedural law governing forum‐selection provisions. Still, given the uncertainty regarding the enforceability of forum‐selection provisions in other jurisdictions, many practitioners continue to advise companies to adopt these provisions "just in case."

Debates

In 2010, the Second Circuit decided Kiobel v. Royal Dutch Petroleum, holding that corporations are not proper defendants under the Alien Tort Statute. Invoking Sosa v. Alvarez-Machain, the Second Circuit found that human rights abuses committed by corporations were not sufficiently definite under international law to warrant jurisdiction in United States courts. Several other circuits have explicitly disagreed with the Second Circuit, however, and on October 17, 2011, the Supreme Court granted cert in Kiobel. Professor Farbstein and Professor Giannini argue that Kiobel is an outlier, comparing the logic and strength of its arguments to those in the Seventh and D.C. Circuits as well as the dissenting opinions in both the original decision and the Second Circuit’s 5-5 decision to deny rehearing en banc. Professor Arend expands their argument by highlighting two particular failings of the Second Circuit’s position. First, he argues that Kiobel misinterprets Sosa, relying on a distinction between state and non-state actors to find that there are different classes of defendants under the Alien Tort Statute. Second, Arend concurs with Farbstein’s and Giannini’s analysis that corporations have historically been found capable of violating international law.

In Climate Change and the Courts, Professors Jason S. Johnston and Heidi M. Hurd debate whether there should be a public nuisance tort for greenhouse gas (GHG) emissions in light of the Court’s recent decision in American Electric Power (AEP) v. Connecticut. Professor Johnston argues that the Court has itself in a bind: relying on EPA v. Massachusetts, the Court found that the EPA’s regulation of GHGs displaced common law tort actions. However, on Johnston’s view, EPA v. Massachusetts should be overruled by statute, in which case a later challenge to AEP v. Connecticut might succeed. Johnston’s concern is that neither the courts nor the EPA are in a proper position to regulate a harm that he considers distant and speculative, ultimately concluding that if there should be any regulation of GHGs at all, it should come from Congress. Such legislation, he argues, will be nuanced based on the needs of particular states. In response, Professor Hurd suggests that Johnston incorrectly frames the question, which should be whether the petitioners “have violated the common law entitlement to be free from unreasonable injury,” a question which can only be decided by courts. Hurd argues that the purpose of tort law is “corrective justice,” and the focus should not be whether the injury caused by the GHG-emitting companies was de minimis or whether reducing emissions without an agreement from China will ultimately curb climate change, but whether the companies have caused harm to the respondents. If so, Hurd continues, the petitioners should be required to internalize the costs of these injuries, exactly what tort law is prepared to do.

In September 2011, President Obama signed the most significant patent law overhaul in decades, the America Invents Act. The central change of the Act is to shift patent rights from the first to invent to the first to file, but the act also provides immunity for claims that an inventor deceived the Patent Office if the invention is not patentable. Professor Petherbridge and Professor Rantanen take on these changes, arguing that despite the stated goal of the Act, to stimulate innovation and job creation in the American economy, the Act may well do just the opposite. In response, Professor Kesan examines other sections of the Act, arguing that they provide more reason to be optimistic, and questioning whether the reasons Professors Petherbridge and Rantanen are pessimistic truly can be evaluated without better empirical evidence.

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In September 2011, President Obama signed the most significant patent law overhaul in decades, the America Invents Act. The central change of the Act is to shift patent rights from the first to invent to the first to file, but the act also provides immunity for claims that an inventor deceived the Patent Office if the invention is not patentable. Professor Petherbridge and Professor Rantanen take on these changes, arguing that despite the stated goal of the Act, to stimulate innovation and job creation in the American economy, the Act may well do just the opposite. In response, Professor Kesan examines other sections of the Act, arguing that they provide more reason to be optimistic, and questioning whether the reasons Professors Petherbridge and Rantanen are pessimistic truly can be evaluated without better empirical evidence.

Later this month, all nine justices will be hearing oral argument on the constitutionality of the Patient Protection and Affordable Care Act and deciding the outcome of the case. But should they? In Caperton v. A.T. Massey Coal Co., the Supreme Court held that a judge of the West Virginia Supreme Court violated the Due Process Clause of the Constitution when the judge failed to recuse himself from a case involving a major campaign contributor. Many cheered the case’s outcome, but Professor Ifill believes Caperton is an “ominous sign” that a majority of the Court fails to understand how dangerous the appearance of impropriety is in the American judicial system. Professor Segall agrees that the judicial recusal system needs reform, but he disagrees with Professor Ifill over what amounts to an appearance of impropriety. As the need for reform becomes more apparent in light of the constitutional challenges to the Affordable Care Act, Professor Ifill and Professor Segall disagree over whether Justice Thomas or Justice Kagan ought to recuse themselves from the Court’s upcoming hearings. Their various perspectives highlight the confusion of contemporary recusal doctrine for America’s highest Court and make a strong case that the Court must do a better job of clarifying when a Justice should recuse him- or herself.

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