Volume 167, Issue 2 
January 2019
Articles

Data-Driven Originalism

Thomas R. Lee* & James C. Phillips**

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.


School Vouchers, Special Education, and The Supreme Court

Aaron Tang

Among all of the contentious debates in education policy, perhaps none is as divisive as the one over private school vouchers. Even as more than 400,000 American students currently use some form of publicly funded voucher to attend a private school—with the number growing each year—one recent survey found that just thirty‐seven percent of Americans support the practice while forty‐nine percent oppose it. This divergence of opinion, unsurprisingly, corresponds largely with political affiliation, with Republicans more likely to support vouchers than Democrats.

In this Article, I argue that a path towards consensus on the voucher debate may be discernible in an unlikely place: an arcane pocket of Supreme Court case law regarding special education. In a series of cases, the Supreme Court has offered a vision of private school choice with plausible appeal to conservatives and liberals alike—a fact evidenced by the overwhelming consensus among the Justices themselves. In each of these cases, the Court has permitted parents of students with disabilities to remove their children from public school and enroll them in a private school at the government’s expense so long as a simple condition is met: the public school must have failed to provide the child with an appropriate education and the private school must succeed in its place. The Supreme Court’s approach to private school choice in the special education context, in other words, treats it as a simple question of empirics. We should support school choice when it helps kids, but not when it does not.

Applying this view to the school voucher debate more broadly would call into doubt many of the popular values‐based arguments advanced on both the left and right, leaving just one sound reason to oppose (or support) vouchers: the argument that they are bad (or good) for students. That argument, of course, is fundamentally contingent; it turns on what the research evidence tells us. And that evidence is hardly as iron‐clad in either direction as the left or right might wish. That, in turn, suggests that liberals and conservatives alike should reconsider their positions on school vouchers in some important ways.


Doubting Domestic Violence Survivors' Credibility and Dismissing Their Experiences

Deborah Epstein* & Lisa A. Goodman**

In recent months, we’ve seen an unprecedented wave of testimonials about the serious harms women all too frequently endure. The #MeToo moment, the #WhyIStayed campaign, and the Larry Nassar sentencing hearings have raised public awareness not only about workplace harassment, domestic violence, and sexual abuse, but also about how routinely women survivors face a Gaslight‐style gauntlet of doubt, disbelief, and outright dismissal of their stories. This pattern is particularly disturbing in the justice system, where women face a legal twilight zone: laws meant to protect them and deter further abuse often fail to achieve their purpose, because women telling stories of abuse by their male partners are simply not believed. To fully grasp the nature of this new moment in gendered power relations—and to cement the significant gains won by these public campaigns—we need to take a full, considered look at when, how, and why the justice system and other key social institutions discount women’s credibility.

We use the lens of intimate partner violence to examine the ways in which women’s credibility is discounted in a range of legal and social service system settings. First, judges and others improperly discount as implausible women’s stories of abuse, based on a failure to understand both the symptoms arising from neurological and psychological trauma, and the practical constraints on survivors’ lives. Second, gatekeepers unjustly discount women’s personal trustworthiness, based on both inaccurate interpretations of survivors’ courtroom demeanor and negative cultural stereotypes about women and their motivations for seeking assistance. Moreover, even when a woman manages to overcome all the initial modes of institutional skepticism that minimize her account of abuse, she often finds that the systems designed to furnish her with help and protection dismiss the importance of her experiences. Instead, all too often, the arbiters of justice and social welfare adopt and enforce legal and social policies and practices with little regard for how they perpetuate patterns of abuse.

Two distinct harms arise from this pervasive pattern of credibility discounting and experiential dismissal. First, the discrediting of survivors constitutes its own psychic injury—an institutional betrayal that echoes the psychological abuse women suffer at the hands of individual perpetrators. Second, the pronounced, nearly instinctive penchant for devaluing women’s testimony is so deeply embedded within survivors’ experience that it becomes a potent, independent obstacle to their efforts to obtain safety and justice.

The reflexive discounting of women’s stories of domestic violence finds analogs among the kindred diminutions and dismissals that harm so many other women who resist the abusive exercise of male power, from survivors of workplace harassment to victims of sexual assault on and off campus. For these women, too, credibility discounts both deepen the harm they experience and create yet another impediment to healing and justice. Concrete, systematic reforms are needed to eradicate these unjust, gender‐based credibility discounts and experiential dismissals, and to enable women subjected to male abuses of power at long last to trust the responsiveness of the justice system.


Comments

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

Greta A. Wiessner

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.


The Corporate Practice of Gerrymandering the Voting Rights of Common Stockholders and the Case for Measured Reform

Benjamin J. Barocas

The voting rights of common stockholders have been gerrymandered through the use of dual‐class and multiclass governance structures, which drive a wedge between the economic interests and voting entitlements of shareholders. These corporate governance structures are designed to preserve control for corporate insiders, including founders and family members. Insiders can secure majority voting power in corporate affairs without needing to retain a proportionate economic interest in the enterprise. The corollary is that ordinary shareholders are not afforded a commensurate amount of voting rights with their economic interest. Main Street investors have a diminished voice, and their ability to influence the decisionmaking of firms is diluted. Although dual‐class structures date back nearly a century, this practice has been on the rise in American corporations—especially following Google’s debut as a public company.


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