VOLUME 168, ISSUE 2 JANUARY 2020

Articles

This Article critically examines a cluster of rules that use the concept of prejudice to restrict the scope of criminal defendants’ procedural rights, forming what I call prejudice‐based rights. I focus, in particular, on outcome‐centric prejudice‐ based rights—rights that apply only when failing to apply them might cause prejudice by affecting the outcome of the case. Two of criminal defendants’ most important rights fit this description: the right, originating in Brady v. Maryland, to obtain favorable, “material” evidence within the government’s knowledge, and the right to effective assistance of counsel. Since prejudice (or equivalently, materiality) is an element of these rights, no constitutional violation occurs when the government suppresses favorable evidence, or defense counsel furnishes ineffective assistance, unless there is a reasonable probability that the outcome was affected thereby.

After fleshing out these concerns, I propose a two‐pronged strategy for reforming Brady, effective assistance of counsel, and potentially other outcome‐centric prejudice‐based rights. First, courts should remove prejudice from the definition of these rights, treating prejudice instead as a remedial question—one that would come into play when a convicted defendant seeks relief from an appellate or postconviction court, but generally not in other settings. Second, courts should dismantle the outcome‐centric conception of prejudice embedded in these doctrines and replace it with a non‐outcome‐centric framework that I call contextual harmless error review. These reforms would greatly improve the fairness of the criminal process, and would do so without unduly disturbing the finality of trial court judgments.

At first glance, constitutional avoidance—the principle that courts construe statutes to avoid conflict with the Constitution when possible—appears both unremarkable and benign. But when courts engage in constitutional avoidance, they frequently construe statutory language in a manner contrary to both its plain meaning and to the underlying congressional intent. Then, successive decisions often magnify the problems of avoidance—a phenomenon I call “avoidance creep.” When a court distorts a statute in service of constitutional avoidance, a later court may amplify the distortion, incrementally changing both statutory and constitutional doctrine in ways that are unsupported by any rationale for constitutional avoidance.

This Article identifies the phenomenon of avoidance creep and demonstrates its wide‐ranging effects by explaining how it has warped the development of labor law in two areas. First, courts have limited unions’ abilities to engage in “secondary” strikes and picketing. Second, the Supreme Court has reduced or eliminated unions’ abilities to assess dues or other fees from represented workers, culminating in the Court’s decision in Janus v. AFSCME. Collectively, these avoidance‐driven shifts in labor law amount to a profound change in its overall character. Yet these decisions often do not result from freestanding analysis of the relevant statutes. Rather, many of these decisions flow directly from prior cases invoking constitutional avoidance as a means of reaching a decision that is dubious as a matter of statutory interpretation, constitutional analysis, or both. After documenting these problems, the Article proposes measures to promote honest examination of the role constitutional avoidance plays in doctrinal development and to mitigate its harmful consequences.

While federal health reform sputters, states have begun to pursue their own transformative strategies for achieving universal coverage, the most ambitious of which are state‐based single‐payer plans. Since the passage of the Affordable Care Act in 2010, legislators in twenty‐one states have proposed sixty‐six unique bills to establish single‐payer health care systems. This paper systematically surveys those state legislative efforts and exposes the federalism trap that threatens to derail them: ERISA’s preemption of state regulation relating to employer‐sponsored health insurance. ERISA’s expansive preemption provision creates a narrow, risky path for state regulation to capture the employer health care expenditures crucial for financing a single‐payer system. While this paper illustrates how state proposals may survive ERISA, the threat of preemption drives states to structure their plans in convoluted ways that may undermine other systemic goals such as universality, solidarity, and streamlined administration.

This analysis demonstrates how ERISA’s uniquely broad preemption, coupled with its lack of waiver authority, elevates the interests of private employers above those of sovereign states and diminishes states’ abilities to serve as laboratories of health reform. We argue that this moment in health reform demands ERISA preemption reform. To restore balance to health care federalism and pave the way for state reforms of all kinds, this paper proposes federal legislative and jurisprudential solutions: amendments to ERISA’s preemption provisions, the addition of a statutory waiver, and/or a reinterpretation of ERISA preemption consistent with congressional intent and the presumption against preemption.

Comments

At first glance, the immigration system and the domestic child welfare system may appear to be worlds apart, but in fact they have much in common and often overlap. This Comment offers a targeted look at a particular process within the U.S. immigration system, Special Immigrant Juvenile Status (SIJS), and how it intersects with and parallels the domestic foster care system. Both SIJS and foster care struggle to meet the competing goals of preserving and reuniting families on the one hand and punishing “undesirable” families on the other. The tendency of these systems to see families in terms of innocent children against “bad” parents, and the ability of our society to tolerate systems that punish parents in this way, is part of a long history of discrimination in this country, particularly against poor families of color. This comparison between SIJS and the domestic foster care system will highlight some of the underlying assumptions that make both processes so harsh for the families involved and discuss how the apparent tensions between the two systems are actually rooted in the same harmful normative ideas.

Since the time of the Founding, actions in strict interpleader have allowed parties in possession of a fund or other asset to sue claimants who have competing claims to that asset. The party in possession of the asset or stake, also referred to as the “stakeholder,” has no ownership interest itself. Instead, it seeks only to hand off the stake to the rightful party and avoid any future liability.

Today, interpleader actions can be brought in federal courts in one of two ways. They can be brought under Congress’s Federal Interpleader Act, which confers jurisdiction on the federal courts to hear interpleader actions in which at least one claimant is diverse from another adverse claimant and $500 is at stake. Alternatively, interpleader actions can be brought pursuant to Rule 22 of the Federal Rules of Civil Procedure. Because the Rules do not on their own confer jurisdiction on the federal courts, any action brought under Rule 22 must be brought under one of Congress’s general jurisdictional statutes, such as 28 U.S.C. § 1331, which requires a federal question in the lawsuit, or 28 U.S.C. § 1332, which requires in one instance a controversy between citizens from different states. Although the Federal Interpleader Act requires diversity between adverse claimants, many federal courts exercise jurisdiction over strict interpleader actions pursuant to Rule 22 and § 1332 merely when the stakeholder is completely diverse from the claimants.

This Comment argues that anytime an interpleader action is brought in a federal court pursuant to Rule 22 and § 1332, there must be diversity between adverse claimants—not just diversity between the stakeholder and the claimants—in order to satisfy Congress’s and the Constitution’s controversy and diversity requirements. When the stakeholder hands off an asset or fund, it admits that the stake belongs to someone else—it just is not quite sure which claimant should have the stake. The only controversy, then, is the dispute between the claimants over who is the rightful receiver. The Supreme Court appeared to confirm in the mid‐twentieth century that the existing controversy in strict interpleader actions is the one between claimants, not the one between the stakeholder and the claimants. Further, Congress’s diversity jurisdiction statute and, arguably, the Constitution’s Diversity Clause require courts to realign parties to a lawsuit and determine their jurisdiction based on which parties the “actual” controversy is between. Finally, in addition to Supreme Court precedent and the realignment doctrine, this Comment argues that, based on the text and history of Article III’s Diversity Clause, the Constitution requires that claimants be diverse before federal courts may exercise jurisdiction over strict interpleader actions. The solution to this problem is simple: these actions can be brought and heard in state courts.

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