VOLUME 168, ISSUE 6 May 2020


The United States needs a Defender General—a public official charged with representing the collective interests of criminal defendants before the Supreme Court of the United States. The Supreme Court is effectively our nation’s chief regulator of criminal justice. But in the battle to influence the Court’s rulemaking, government interests have substantial structural advantages. As compared to counsel for defendants, government lawyers—and particularly those from the U.S. Solicitor General’s Office—tend to be more experienced advocates who have more credibility with the Court. Most importantly, government lawyers can act strategically to play for bigger long-term victories, while defense lawyers must zealously advocate for the interests of their clients—even when they conflict with the collective interests of defendants. The prosecution’s advantages likely distort the law on the margins.
Congress has a bureaucracy. Legal scholarship, judicial discourse, and doctrine about Congress and statutes have focused almost entirely on elected members of Congress and the ascertainability of their purported intentions about policymaking and statutory language. In recent years, we and others have broadened that perspective, with new scholarship about the on-the-ground realities of the congressional drafting process—including the essential role that staff plays in that process—and have argued the relevance of those realities for theory and doctrine.
American courts are at times required to interpret the laws of authoritarian countries. Though such cases are increasingly common, they remain—even today—a poorly understood feature of modern adjudication. This Article seeks to fill that gap: first by describing the scope and scale of American judicial engagement with authoritarian legal systems, second by spelling out the interpretive challenges posed by authoritarian laws, and third by building out a framework and vocabulary for analyzing judicial responses to these challenges. The laws of authoritarian countries raise novel questions of legal construction. Such questions stem from a gap, mostly real but sometimes imagined, between our own local assumptions about law and certain “nonconforming” features of authoritarianism: sham laws, unwritten laws, party laws, politicized courts, and bifurcated legal systems. Judicial responses to these challenges fall along a familiar spectrum. Some methods have been more formalist, stressing strict correspondences. Others have been more functionalist, embracing jurisprudential difference. The optimal approach may be one in which judges tailor method to context, balancing an open-minded pluralism against minimal but irreducible principles of legality.


The 2008 Great Recession arose from a massive, wide-scale disruption to the United States housing market. In the years leading up to it, a “bubble” of artificially inflated home prices had grown, leading some homeowners to refinance their debt or take out second mortgages. In addition, financial institutions relied more heavily on subprime mortgages, with which they lent to high-risk consumers who carried greater likelihoods of defaulting on their debt. When the bubble burst, many individuals saw the value of their houses plummet and their mortgages become “underwater,” meaning that the amount they owed exceeded the value of their homes. This collapse in the real estate market subjected many people to eviction as a result of foreclosure actions, which in turn further depressed housing values. Lending institutions ultimately foreclosed on the homes of millions of Americans over the course of the Great Recession and in the years that followed. Over the next decade, the crisis abated, and the real estate market largely—but not entirely—rebounded from the chaos of the Great Recession.
There have been only a few instances in the history of the United States when the conduct of the President has drawn the legitimate attention of criminal prosecutors. In 1973, President Richard Nixon came under scrutiny when several of his aides were convicted of crimes stemming from “a massive campaign of political spying and sabotage conducted on behalf of” the President’s 1972 reelection effort. A special prosecutor was appointed to investigate Nixon’s involvement, before being fired by Nixon himself in the “Saturday Night Massacre.” Several months later, after the Supreme Court held that the President could not claim privilege over taped conversations between he and his aides, the House Judiciary Committee passed the first of three articles of impeachment. Rather than face trial in the Senate, Nixon resigned, becoming the first and only U.S. President to resign the office. While Nixon’s resignation relieved prosecutors of the need to test whether they were constitutionally permitted to indict the President while he remained in office, the special prosecutor’s staff carefully considered the bounds of the President’s immunity in the months leading up to Nixon’s departure. Watergate thus provided the initial battleground for constitutional law scholars to debate the President’s amenability to indictment and criminal process.


History books will have much to say about the year 2020. Many stories will focus on the global battle against COVID-19. Others will mark the year as America’s racial reckoning—when our country confronted badges and incidents of slavery that have endured despite the Emancipation Proclamation, the Civil Rights Movement, and the presidency of Barack Obama. In the midst of acknowledging those realities and their deep impact on our journal, the University of Pennsylvania Law Review still found time to commemorate an occasion that history books should not overlook. In the year 2020, one hundred years after the Nineteenth Amendment granted women the right to vote, the Editors-in-Chief of the nation’s top sixteen law schools’ flagship law reviews were all women. The odds of this occurring are slim to none—a 0.0015% chance, to be exact—and such a statistically significant moment reminds us that gender equity in our profession is crucial. This achievement also reveals the underlying truth that diverse leadership in all areas of our field is a prerequisite to building a more just legal system. So, we could not allow this moment to pass without immense gratitude and reflection.
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