NewYorkUniversity
LawReview

Articles

2022

Reasonable Moral Doubt

Emad H. Atiq

Sentencing outcomes turn on moral and evaluative determinations. For example, a finding of “irreparable corruption” is generally a precondition for juvenile life without parole. A finding that the “aggravating factors outweigh the mitigating factors” determines whether a defendant receives the death penalty. Should such moral determinations that expose defendants to extraordinary penalties be subject to a standard of proof? A broad range of federal and state courts have purported to decide this issue “in the abstract and without reference to our sentencing case law,” as the Supreme Court recently put it in Kansas v. Carr. According to these courts, “it would mean nothing” to ask whether the defendant “deserves mercy beyond a reasonable doubt” or “more-likely-than-not deserves it” because moral questions are not “factual.” Instead, moral determinations are highly subjective “value calls” to which concepts of doubt and certainty do not intelligibly apply.

Implicit in these rulings is a controversial view of the nature of moral judgment. This Article traces the contours of the view and argues that it is out of step with the way the broader public thinks about morality and fails to address the issues defendants have raised. Courts should avoid wading into such controversial waters for two reasons. First, the judiciary has historically maintained neutrality on issues of significant public concern. Second, even if moral determinations are not factual, applying a standard of proof to at least some moral decisions at sentencing would change the outcome of the sentencer’s deliberations and improve the legitimacy of the legal system. For the reasonableness of doubt depends on context, and moral questions—“Are you certain the defendant deserves death?”—make salient the stakes relative to which a person should decide what to believe about ordinary empirical matters. On the resulting view, reasonable doubt in the final moral analysis is not just intelligible, but essential for correcting a bias in the structure of the bifurcated criminal trial that systematically disadvantages defendants: the tendency for de-contextualized “factual findings” in the guilt phase to control outcomes at sentencing.

Regulating for Energy Justice

Gabriel Chan, Alexandra B. Klass

In this Article, we explore and critique the foundational norms that shape federal and state energy regulation and suggest pathways for reform that can incorporate principles of “energy justice.” These energy justice principles—developed in academic scholarship and social movements—include the equitable distribution of costs and benefits of the energy system, equitable participation and representation in energy decisionmaking, and restorative justice for structurally marginalized groups.

While new legislation, particularly at the state level, is critical to the effort to advance energy justice, our focus here is on regulators’ ability to implement reforms now using their existing authority to advance the public interest and establish just, reasonable, and nondiscriminatory rates, charges, and practices. Throughout the Article, we challenge the longstanding narrative that utility regulators are engaged solely in a technical ratemaking exercise in setting utility rates. We argue that rate setting is and always has been social policy implemented within a legislative framework designed to promote the public interest. As we explain, when regulators and advocates expressly recognize this fact, it creates new opportunities for the regulatory system to achieve energy justice goals.

Through our reexamination of energy system governance, we evaluate new approaches to advance the public interest and set just and reasonable rates for energy consumers. These new approaches consider system benefits as well as costs, enhance universal and affordable access to utility service, alleviate income constraints on residential energy consumption as an economic development tool, increase equitable access to distributed energy resources such as energy efficiency upgrades and rooftop solar, and enhance procedural justice in ratemaking proceedings. We argue that over the long run, these pathways to a more just energy system align the interests of all system stakeholders by creating community wealth and collective prosperity.

War Torts

Rebecca Crootof

The law of armed conflict has a built-in accountability gap. Under international law, there is no individualized remedy for civilians whose property, bodies, or lives are destroyed in war. Accountability mechanisms for civilian harms are limited to unlawful acts: Individuals who willfully target civilians or otherwise commit serious violations of international humanitarian law may be prosecuted for war crimes, and states that commit internationally wrongful acts must make reparations under the law of state responsibility. But no entity is liable for lawful but unintended harmful acts—regardless of how many or how horrifically civilians are hurt. This Article proposes developing an international “war torts” regime, which would require states to pay for both lawful and unlawful acts in armed conflict that cause civilian harm. Just as tort and criminal law coexist and complement each other in domestic legal regimes, war torts and war crimes would overlap but serve different aims. Establishing war torts and creating a route to a remedy would not only increase the likelihood that victims would receive compensation, it would also create much-needed incentives for states to mitigate or reduce civilian harms. Ultimately, a war torts regime would further the law of armed conflict’s foundational purpose of minimizing needless civilian suffering.

Lawless Surveillance

Barry Friedman

Policing agencies in the United States are engaging in mass collection of personal data, building a vast architecture of surveillance. License plate readers collect our location information. Mobile forensics data terminals suck in the contents of cell phones during traffic stops. CCTV maps our movements. Cheap storage means most of this is kept for long periods of time—sometimes into perpetuity. Artificial intelligence makes searching and mining the data a snap. For most of us whose data is collected, stored, and mined, there is no suspicion whatsoever of wrongdoing.

This growing network of surveillance is almost entirely unregulated. It is, in short, lawless. The Fourth Amendment touches almost none of it, either because what is captured occurs in public, and so is supposedly “knowingly exposed,” or because of the doctrine that shields information collected from third parties. It is unregulated by statutes because legislative bodies—when they even know about these surveillance systems—see little profit in taking on the police.

In the face of growing concern over such surveillance, this Article argues there is a constitutional solution sitting in plain view. In virtually every other instance in which personal information is collected by the government, courts require that a sound regulatory scheme be in place before information collection occurs. The rulings on the mandatory nature of regulation are remarkably similar, no matter under which clause of the Constitution collection is challenged.

This Article excavates this enormous body of precedent and applies it to the problem of government mass data collection. It argues that before the government can engage in such surveillance, there must be a regulatory scheme in place. And by changing the default rule from allowing police to collect absent legislative prohibition, to banning collection until there is legislative action, legislatures will be compelled to act (or there will be no surveillance). The Article defines what a minimally acceptable regulatory scheme for mass data collection must include and shows how it can be grounded in the Constitution.

Beyond Bristol-Myers : Personal Jurisdiction Over Class Actions

Adam N. Steinman

The Supreme Court’s 2017 decision in Bristol-Myers Squibb Co. v. Superior Court threatens a sea change in the relationship between personal jurisdiction and aggregate litigation. The most crucial concern has been what the decision means for class actions. Must a court subject the claims of every unnamed class member to separate jurisdictional scrutiny? If so, it could be impossible for a plaintiff who sues in her home state to represent class members outside that state; instead, the Constitution
would permit multistate or nationwide class actions only in states where the defendant is subject to general jurisdiction. For claims against a foreign defendant, no such state may exist.

This issue potentially implicates a range of difficult and unsettled doctrinal, practical, conceptual, and theoretical questions—about both personal jurisdiction and class actions. This Article, however, proposes a clean solution that coheres with existing case law while retaining the vitality of class actions to provide meaningful remedies in cases where systemic wrongs have nationwide consequences. On this approach, specific jurisdiction would be proper in any case where (a) there is specific jurisdiction over the named plaintiff’s claim against the defendant; and (b) a class action led by that plaintiff would satisfy the certification requirements of Rule 23. This solution finds support not only in longstanding practice prior to Bristol-Myers, but in the more fundamental principles and policies underlying specific jurisdiction. The impact of these underlying values has been further bolstered by the Supreme Court’s most recent decision on personal jurisdiction—Ford Motor Co. v. Montana Eighth Judicial District Court. The upshot is that personal jurisdiction can exist over a class action even if the forum state would not have personal jurisdiction over a hypothetical separate action by an out-of-state individual who is an unnamed member of the class.

Moreover, this Article’s proposal makes it unnecessary for courts to confront thornier questions that would otherwise arise. Those questions include: the proper timing and procedural mechanism for objecting to personal jurisdiction with respect to the claims of unnamed class members; whether the jurisdictional constraints apply differently in federal courts and state courts; whether they apply differently to claims based on substantive federal law as opposed to state-law claims; the precise scope and justification for pendent personal jurisdiction; and the extent to which post-service events in federal court (such as class certification) are subject to the more expansive Fifth Amendment test for federal court personal jurisdiction. Under this Article’s solution, courts have a straightforward way to examine personal jurisdiction over class actions that does not hinge on or implicate these other issues.

Natural Transplants

Vanessa Casado Pérez, Yael R. Lifshitz

Policymakers are constantly faced with the complex task of managing novel challenges. At times, these challenges result from new technologies: Consider fights over allocating air rights for drones or decisions about how to share scarce vaccines in a pandemic. Other times the resources are old, but the challenges are new, such as how to fairly allocate water in times of unprecedented drought or previously undesirable rare earth minerals that are in demand for modern manufacturing and energy production. Often, instead of carefully tailoring a regime to the new resource, decisionmakers simply rely on mechanisms they are familiar with. When jurisdictions borrow from each other, scholars call this a “legal transplant”—as when one state copies another state’s innovations or when the federal government learns from the “laboratories of democracy.” This Article unveils a new dimension of legal transplants: transplants across subject areas. By transplants across subject areas, this article refers to instances when a jurisdiction looks for doctrines in other legal areas, often within its own legal system, when regulating a new resource or addressing a new challenge.


This Article makes three key contributions. First, it identifies a new type of transplant—between subject matters within a jurisdiction. Second, it analyzes the reasons for internal, cross-subject legal transplants and the criteria for selecting which subject areas to copy from. Third, the Article brings the legal transplants literature to bear, specifically, on natural resource law. It explores two cases, groundwater and wind energy, where policymakers and courts have borrowed from other resource schemes, often ignoring the scientific and social differences between these natural resources. Other areas of law, such as the incorporation of contract doctrines in landlord-tenant relations, are also described to show the explanatory power of the natural transplant framework. This conceptual framework is then applied to new mineral developments in space and the deep sea. Cross-subject transplants may be more prevalent than previously appreciated, and understanding them will pave the way to analyze the regulation of new developments in natural resources, infrastructure, and beyond.

Gerrylaundering

Robert Yablon

As they carry out their decennial redistricting duties, those in power sometimes audaciously manipulate district lines to secure an electoral advantage. In other words, they gerrymander. Often, however, the existing map already gives those in power a significant edge, and they may see little need for an overhaul. For them, the name of the game during redistricting is continuity rather than change.

This Article introduces the concept of “gerrylaundering” to describe mapmakers’ efforts to lock in their favorable position by preserving key elements of the existing map. Gerrylaundering and gerrymandering both serve anti-competitive ends, but they do so through different means. Unlike gerrymandering, gerrylaundering requires no conspicuous cracking and packing of disfavored voters. Instead, it involves what this Article dubs locking and stocking: Mapmakers lock in prior district configurations to the extent possible and stock each new district with one incumbent. Based on a review of redistricting practices in all fifty states, this Article concludes that gerrylaundering is widespread and that self-serving mapmakers commonly combine gerrylaundering and gerrymandering techniques in varying proportions to achieve their preferred results.


Recognizing gerrylaundering as a phenomenon enriches existing redistricting discourse by spotlighting the insidious nature of continuity strategies: They serve to advantage those in power, yet, since they appear more restrained than radical redesigns, they come with a veneer of legitimacy. This Article concludes that the veneer is thin. As a legal matter, efforts to preserve district cores and protect incumbents do not stand on the same footing as efforts to comply with traditional geographic districting principles. As a policy matter, gerrylaundering is more likely to subvert core democratic values than to foster them. At least two significant takeaways follow: First, courts should approach continuity criteria skeptically both when they review challenges to redistricting plans and when they draw maps themselves. Second, and more broadly, minimizing the legacy of prior maps has the potential to inject healthy dynamism into our system of district-based representation.

Memes on Memes and the New Creativity

Amy Adler, Jeanne C. Fromer

Memes are the paradigm of a new, flourishing creativity. Not only are these captioned images one of the most pervasive and important forms of online creativity, but they also upend many of copyright law’s fundamental assumptions about creativity, commercialization, and distribution. Chief among these assumptions is that copying is harmful. Not only does this mismatch threaten meme culture and expose fundamental problems in copyright law and theory, but the mismatch is even more significant because memes are far from an exceptional case. Indeed, memes are a prototype of a new mode of creativity that is emerging in our contemporary digital era, as can be seen across a range of works. Therefore, the concern with memes signals a much broader problem in copyright law and theory. This is not to say that the traditional creativity that copyright has long sought to protect is dead. Far from it. Both paths of creativity, traditional and new, can be vibrant. Yet we must be sensitive to the misfit between the new creativity and existing copyright law if we want the new creativity to continue to thrive.

Financial Inclusion in Politics

Abhay P. Aneja, Jacob M. Grumbach, Abby K. Wood

Our deregulated campaign finance system has a race problem. In this Article, we apply innovations in statistical methods to the universe of campaign contributions for federal elections and analyze the racial distribution of money in American politics between 1980 and 2012. We find that white people are extremely over-represented among donors. This racial gap in campaign contributions is significantly greater than the gap between white and nonwhite voter participation and white and nonwhite officer holders. It is also relatively constant across time and elected offices.

This result is an important missing piece in the conversation about equity in political participation. We argue that the courts and Congress should take steps to address the racial gaps in campaign finance participation. The participation and representation problems that flow from racial inequality in deregulated campaign finance could inform claims under the Voting Rights Act (VRA), and politico-financial inequalities certainly bear on the normative problems that the statute intends to address. But the most politically viable way to address the campaign finance racial gap lies in adoption of public financing for political campaigns, which offer the promise of increasing the racial representation of campaign contributions. When racial representation in contributions is improved, improved equality in the distribution of resources and power in electoral and political systems should follow.

Movement Judges

Brandon Hasbrouck

Judges matter. The opinions of a few impact the lives of many. Judges romanticize their own impartiality, but apathy in the face of systems of oppression favors the status quo and clears the way for conservative agendas to take root. The lifetime appointments of federal judges, the deliberate weaponization of the bench by reactionary opponents of the New Deal and progressive social movements, and the sheer inertia of judicial self-restraint have led to the conservative capture of the courts. By contrast, empathy for the oppressed and downtrodden renders substantive justice possible and leaves room for unsuccessful litigants to accept unfavorable outcomes. But some judges—movement judges—bring more to the bench than just empathy, raging against systemic injustice with an understanding of its burdens on real human lives. This Article argues that we need movement judges to realize the abolitionist and democracy-affirming potential of the Constitution. Although the judiciary is often described as the “least democratic” of the three branches of government, it has the potential to be the most democratic. With movement judges, the judiciary can become a force for “We the People.”

1 2 3 38