NewYorkUniversity
LawReview
Issue

Volume 96, Number 3

June 2021
Lectures

When Judges and Justices Throw Out Tools: Judicial Activism in Rucho v. Common Cause

Hon. James Andrew Wynn

Madison Lecture

In this Lecture, I offer my own definition of judicial activism: In deciding a case, a court or judge engages in judicial activism when the court or judge eschews the use of a judicial decisional tool traditionally employed to adjudicate that type of case. In other words, judicial activism involves throwing a long-recognized decisional tool—or, in Justice Marshall’s words, “mediating principle[]”—out of the judicial toolkit. Under my definition, for example, the Supreme Court would engage in judicial activism if it refused without explanation to apply the doctrine of stare decisis, given that stare decisis stands at the center of the common-law tradition we inherited from England and has been applied since the earliest days of the republic.

Why does such behavior amount to judicial activism? Because refusing to apply a long-recognized mediating principle eliminates a constraint on a court’s exercise of its decisional discretion. When judges refuse to apply a long-standing interpretive tool, they necessarily expand the universe of situations in which they, in Judge Posner’s words, “bring [their] own policy preferences to bear in order to decide the case at hand.”

To be sure, there necessarily are times when judges must rely on their own policy preferences to decide a case. But, from my perspective, simply ignoring without comment a well-established mediating principle generally applicable in the type of case at issue—or justifying the act of discarding a fundamental principle by relying on a legal or policy argument as to the undesirability of that principle—is a fundamentally activist enterprise.

My Lecture will proceed as follows. First, I survey the origin of the term “judicial activism” and the various ways it has been defined by judges and scholars. Those definitions generally fall into two categories: those focused on outcomes and those focused on the process a judge applies in reaching an outcome. Second, I set forth my own definition of judicial activism—which falls into the process category—and explain why I believe that definition gives meaning to the principal concern animating accusations of judicial activism: that the judiciary is stepping outside of its proper role and unjustifiably deciding cases based on its own policy preferences. Third, I explain some means by which activism (as I define it) enters judicial decisionmaking. Finally, I apply my definition to demonstrate why the judicial interpretive methodology of textualism and the recent Supreme Court partisan gerrymandering decision, Rucho v. Common Cause, are stark examples of judicial activist behavior.

Articles

Progressive Tax Procedure

Joshua D. Blank, Ari Glogower

Abusive tax avoidance and tax evasion by high-income taxpayers pose unique threats to the tax system. These strategies undermine the tax system’s progressive features and distort its distributional burdens. Responses to this challenge generally fall within two categories: calls to increase IRS enforcement and “activity-based rules” targeting the specific strategies that enable tax avoidance and evasion by these taxpayers. Both of these responses, however, offer incomplete solutions to the problems of high-end noncompliance.

This Article presents the case for “progressive tax procedure”—means-based adjustments to the tax procedure rules for high-income taxpayers. In contrast to the activity-based rules in current law, progressive tax procedure would tailor rules to the economic circumstances of the actors rather than their activities. For example, under this approach, a high-income taxpayer would face higher tax penalty rates or longer periods where the IRS could assess tax deficiencies. Progressive tax procedure could also allow an exception for low-value tax underpayments, to avoid excessive IRS scrutiny or unduly burdensome rules for less serious offenses.

Progressive tax procedure could address the unique challenges posed by high-end tax noncompliance and equalize the effect of the tax procedure rules for taxpayers in varying economic circumstances. It could also complement the alternative approaches of increasing tax enforcement and activity-based rules while avoiding the limitations of relying exclusively on these responses.

After developing the normative case for progressive tax procedure, the Article illustrates how it could be applied in three specific areas: accuracy-related tax penalties, the reasonable cause defense, and the statute of limitations. These applications illuminate the basic design choices in implementing progressive tax procedure, including the types of rules that should be adjusted and the methods for designing these adjustments.

Reality Porn

I. India Thusi

Prostitution is illegal while pornography is constitutionally protected. Modern technology, however, is complicating the relationship between prostitution and pornography. Recent technological advances make the creation and distribution of recorded material more accessible. Within our smart phones we carry agile distribution networks as well as the technical equipment required to produce low-budget films. Today, sex workers may be paid to engage in sexual activities as part of performances that are recorded and broadcast to a public audience. No longer confined to the pornography industry, this form of sexual performance can be created by anyone with a cell phone and access to the internet. In addition, modern popular culture recognizes the expressive value of reality and ordinary life. Technological advances will only continue to make broadcasting and sharing everyday life possible, raising the possibility that there will be a growing audience for, and communities organized around, sexually expressive materials online. This Article is the first to analyze this increasingly important and common phenomenon that it defines as reality porn. It argues that reality porn is pornographic paid sex work that should be accorded First Amendment recognition, notwithstanding the criminalization of the underlying act of prostitution. This Article redefines pornography and provides a framework for analyzing this sexual expression. As long as the conduct is consentable—both consented to in fact and consensual in nature—it should not be deprived of constitutional protection.

Notes

The False Promise of MDL Bellwether Reform: How Mandatory Bellwether Trial Consent Would Further Mire Multidistrict Litigation

Jonathan Steinberg

Over one third of all pending cases in the federal court system are part of a Multidistrict Litigation (MDL) proceeding. Previous and ongoing MDLs include claims stemming from the opioid epidemic, the Deepwater Horizon oil spill, the National Football League concussion cases, and a myriad of pharmaceutical and medical products liability suits. Both the percentage and sheer number of cases utilizing this form of aggregate litigation have dramatically increased in recent years. Bellwether trials, designed to test the facts and legal theories underpinning many of the consolidated cases, are a key feature of MDLs in facilitating resolution. This Note examines the role of MDL bellwether trials and the potential impact of proposed reforms. Part I surveys the functions of bellwether trials as well as current judicial limitations imposed on the practice. Part II examines proposals that would further restrict the use of MDL bellwether trials: first, a bill from the 115th Congress and second, proposed amendments to the Federal Rules of Civil Procedure. These proposals would require the consent of all parties for an MDL bellwether to ensue. Finally, Part III explores the potential effects of these proposed reforms as well as the discrepancies between their purported aims and the likely impact of their enactment. These proposals would exacerbate the MDL “black hole,” result in less informed settlements, and create more opacity in the MDL process. Principally, they are an attempt to wrest power over procedure to cement defendants’ structural advantage over the MDL.