Volume 77, Number 3

June 2002

The Politics of Fear and Death: Successive Problems in Capital Federal Habeas Corpus Cases

Bryan A. Stevenson

The Antiterrorism and Effective Death Penalty Act (AEDPA), enacted by Congress in 1996 in the wake of the Oklahoma City bombing, curtailed habeas corpus review in numerous respects, including establishing severe restrictions on prisoners’ ability to file successive federal habeas corpus petitions. In this Article, Professor Bryan Stevenson examines the origins, nature, and effects of these expanded restrictions on successive filings. In reviewing the history of the legal system’s treatment of successive petitions, Stevenson demonstrates that the Supreme Court’s and Congress’s choices in this area were shaped not only by doctrinal considerations but also political variables and unexamined assumptions about prisoners and their lawyers. Stevenson uses actual examples to illustrate the apparently unintended consequences of AEDPA’s successive petition provisions, including the foreclosure of certain types of constitutional claims and the injection of numerous procedural complexities that undermine reliability and fairness. The Article identifies a variety of potential remedies, including congressional reform, liberal judicial interpretation of the statute’s provisions, expanded use of the Supreme Court’s original habeas corpus jurisdiction, and alternative procedural devices like Federal Rule of Civil Procedure 60(b) and expanded successive state postconviction review. Stevenson concludes that these devices are a necessary part of a much larger process of rethinking America’s flawed capital punishment system.

Voting Technology and Democracy

Paul M. Schwartz

The 2000 presidential election exposed a voting-technology divide in Florida and many other states. In this Article, Professor Paul M. Schwartz critiques this phenomenon from the perspective of systems analysis. He considers both technology and social institutions as components of unified election systems. Schwartz first examines data from the Florida election and demonstrates the central importance of feedback to inform voters whether the technology they use to vote will validate their ballots according to their intent-an advantage he finds distributed on unequal terms, exacerbating built-in racial and socioeconomic bias. Schwartz then turns to the various judicial opinions in the ensuing litigation, which embraced competing epistemologies of technology. He suggests that judges who favored a recount saw election technology as a fallible instrument for converting voters’ choices into votes, while the U.S. Supreme Court majority trusted machines over fallible humans and required hard-edged rules to cabin discretion and avoid human imperfections. Finally, the Article concludes with a review of efforts to reform the unequal distribution of voting technology. Schwartz finds that some efforts at litigation and legislation show promise, but in many instances they are stalled, and in many others they exhibit shortcomings that would leave the voting-technology divide in place for future elections.

The Politics of Legislative Drafting: A Congressional Case Study

Victoria F. Nourse, Jane S. Schacter

In judicial opinions construing statutes, it is common for judges to make a set of assumptions about the legislative process that generated the statute under review. For example, judges regularly impute to legislators highly detailed knowledge about both judicial rules of interpretation and the substantive area of law of which the statute is a part. Little empirical research has been done to test this picture of the legislative process. In this Article, Professors Nourse and Schacter take a step toward filling this gap with a case study of legislative drafting in the Senate Judiciary Committee. Their results stand in sharp contrast to the traditional judicial story of the drafting process. The interviews conducted by the authors suggest that the drafting process is highly variable and contextual; that staffers, lobbyists, and professional drafters write laws rather than elected representatives; and that although drafters are generally familiar with judicial rules of construction, these rules are not systematically integrated into the drafting process. The case study suggests not only that the judicial story of the legislative process is inaccurate but also that there might be important differences between what the legislature and judiciary value in the drafting process: While courts tend to prize what the authors call the “interpretive” virtues of textual clarity and interpretive awareness, legislators are oriented more toward “constitutive” virtues of action and agreement. Professors Nourse and Schacter argue that the results they report, if reflective of the drafting process generally, raise important challenges for originalist and textualist theories of statutory interpretation, as well as Justice Scalia’s critique of legislative history. Even if the assumptions about legislative drafting made in the traditional judicial story are merely fictions, they nonetheless play a role in allocating normative responsibility for creating statutory law. The authors conclude that their case study raises the need for future empirical research to develop a better understanding of the legislative process.


The Changing Relations of Family and the Workplace: Extending Antidiscrimination Laws to Parents and Nonparents Alike

P.K. Runkles-Pearson

The infusion of women into the workforce in the 1960s brought great freedom but also great difficulty. Without women at home to tend to the sick, raise children, care for the elderly, and manage households, workers of both sexes (but particularly women) struggle to balance this “care work” with outside wage work Laws which prohibit discrimination against employees because of their status as parents purport to solve this problem by allowing parents to perform child care without workplace conflict. In this Note, P.K. Runkles-Pearson argues that these laws are an incomplete and potentially dangerous solution to the tension between work and family, because they ignore the diverse care work needs of employees who do not parent. Ignoring non-parents leads to inefficient labor markets, leaves all groups including children-with less than optimal care, discourages reproductive choice, and provides an unbalanced discrimination remedy that contravenes the very nature of American antidiscrimination laws. Instead of the current system, Runkles- Pearson proposes antidiscrimination laws that protect both parents and nonparents from discrimination on the basis of their parental status.

Compensating for Low Minority Voter Turnout in Districting

Theane Evangelis

Section 2 of the Voting Rights act guarantees minority voters an equal opportunity to elect their candidates of choice. It requires states to create effective “majority-minority” districts, in which minorities constitute the majority of voters, when voting is racially polarized and the minority population is sufficiently large, compact, and cohesive. Because voter-turnout rates traditionally have been lower in minority communities than in white ones, prevailing academic and judicial opinion holds that states must raise the population of minorities in a certain district above a simple voting-age majority in order for that district to satisfy section 2’s mandate. Theane Evangelis argues that this practice is constitutionally suspect in a situation where low minority turnout cannot be ascribed to past discriminatory practices. The Supreme Court’s holding in Shaw v. Reno dictates that “excessive reliance” on racial factors in districting triggers strict scrutiny. Under strict scrutiny, race-based government policies must be narrowly tailored to satisfy a compelling government interest in remedying past discrimination if it is to pass muster under the Equal Protection Clause of the Fourteenth Amendment. But recent empirical evidence indicates that minority voter turnout has equaled or exceeded white voter turnout in some jurisdictions, casting doubt on the widespread assumption that current low minority turnout stems from past discrimination. Because the state’s justification for augmenting a minority group’s population within a district must be remedial in order to satisfy the compelling state interest prong of the strict scrutiny test, this doubt assumes constitutional proportions. Therefore, a proper interpretation of the Voting Rights Act should not require states to compensate for low turnout when fashioning their majority-minority districts.