Volume 80, Number 5

November 2005

Speechless: The Silencing of Criminal Defendants

Alexandra Natapoff

Over one million defendants pass through the criminal justice system every year, yet we almost never hear from them. From the first Miranda warnings, through trial or guilty plea, and finally at sentencing, most defendants remain silent. They are spoken for by their lawyers or not at all. The criminal system treats this pervasive silencing as protective, a victory for defendants. This Article argues that this silencing is also a massive democratic and human failure. Our democracy prizes individual speech as the main antidote to governmental tyranny, yet it silences the millions of poor, socially disadvantaged individuals who directly face the coercive power of the state. Speech also has important cognitive and dignitary functions: It is through speech that defendants engage with the law, understand it, and express anger, remorse, and their acceptance or rejection of the criminal justice process. Since defendants speak so rarely, however, these speech functions too often go unfulfilled. Finally, silencing excludes defendants from the social narratives that shape the criminal justice system itself, in which society ultimately decides which collective decisions are fair and who should be punished. This Article describes the silencing phenomenon in practice and in doctrine, and identifies the many unrecognized harms that silence causes to individual defendants, to the effectiveness of the criminal justice system, and to the democratic values that underlie the process. It concludes that defendant silencing should be understood and addressed in the context of broader inquiries into the (non)adversarial and (un)democratic features of our criminal justice system.

Representation Reinforcement Through Advisory Commissions: The Case of Election Law

Christopher S. Elmendorf

An increasingly prominent strain of legal commentary warns that the democratic good of robust political competition is endangered by legislators’ penchant for enacting, and preserving, statutes that entrench incumbent officials and dominant political parties. This political entrenchment dynamic is thought to warrant external regulation of election law by a politically insulated constitutional court or regulatory commission. Drawing on recent institutional innovations in Australia, Canada, and the United Kingdom, this Article suggests a different institutional remedy for the entrenchment problem: a permanent advisory commission, authorized to draft bills for the legislature to consider under a closed-rule procedure, or for the citizenry to address by referendum. The approach suggested here provides an answer to the two main criticisms that have been lodged against external regulation in the interest of fair political competition: that such regulation is democratically illegitimate, and that the regulator itself is likely to be captured by political insiders. The standing advisory commission can be expected to do a better job of identifying and pursuing normatively appropriate reforms than would an otherwise similar external regulator. The very tenuousness of the advisory commission’s de facto power to reform the law (depending as it does on public opinion) should make the body a more reliable agent of the citizenry’s interests and concerns. And in the event that the body falls under the sway of political insiders, it stands to do much less damage than a captured external regulator, thanks to the voters’ freedom to ignore it.


Challenges Facing an Independent Judiciary

Ronald M. George, Chief Justice of California

Challenges to an independent judiciary are not unique to our time, but recent events have highlighted the difficulties facing a branch that can neither enforce its own decisions nor fund its own operations. In this installment of the annual William J. Brennan, Jr. Lecture on State Courts and Social Justice, I recount my state’s pragmatic approach to securing the institutional independence of its judiciary. To shore up the independence of the Western world’s largest court system, California began by making sweeping structural changes. In this Lecture, I discuss three of these structural reforms in detail: shifting of funding responsibilities from the counties to the state, transfer of ownership of local courthouse facilities to the state, and consolidation of different trial court levels into a single, unified whole. These changes have drastically increased the institutional independence of California’s judiciary and helped to solidify its status as coequal to its sister branches. I further argue that these basic structural changes also bear the promise of greater decisionmaking independence for judges in the state of California.


The Unworkable Unworkability Test

Lauren Vicki Stark

In this Note, Lauren Vicki Stark argues that the Supreme Court’s approach to overruling precedent based on “unworkability” is flawed and should be discarded. The Court has listed several factors that may constitute special justifications for overruling, including whether the precedent is “unworkable.” This Note examines each of the cases in which the Court has relied on unworkability to overrule and highlights the problems with the Court’s analysis. The author concludes that, rather than relying on unworkability to overrule its precedents, the Court could have clarified them or, in limited situations, applied the doctrine of justiciability instead.

Exclusionary Conduct After Trinko

Frank X. Schoen

The Supreme Court’s decision in Verizon Communications, Inc. v. Law Offices of Curtis V. Trinko, LLP marks a significant doctrinal shift in the long struggle to develop standards for exclusionary conduct prohibited by Section 2 of the Sherman Act. Yet Trinko‘s incautious treatment of exclusionary conduct and its uncertain scope threaten to add more confusion to Section 2 jurisprudence. In this Note, Frank X Schoen examines the manner in which Trinko has narrowed the grounds for stating a claim for exclusionary conduct and argues that Trinko should be interpreted as signaling a doctrinal departure from traditional frameworks for determining unlawful exclusionary conduct in favor of a short-term profit-sacrifice standard. However, the doctrinal tensions within the decision itself counsel a much narrower reading than might otherwise seem appropriate. This Note concludes that Trinko must be read narrowly to apply only to unilateral refusals to deal where prior courses of dealing or dealings with third parties provide the appropriate baseline for evaluating the conduct. Limiting Trinko to these circumstances addresses the Court’s concerns regarding the identification of and remedy for illegal exclusionary conduct and, moreover, accords with the rationales underlying the Court’s deferential treatment of price competition and innovation.

Blacklisted: The Unwarranted Divestment of Access to Bank Accounts

James Marvin Perez

The ability to thrive in America’s mainstream financial economy is interwined with the ability to maintain a bank account. Yet, recent studies show that millions of American families do not own a bank account. While studies have pointed to various reasons behind this phenomenon, relatively little attention has been given to the banking industry’s own exclusionary policies regarding bank accounts. This Note critiques financial institutions’ use of an obscure credit reporting agency called ChexSystems. A bank reports an account to ChexSystems if it deems the account to be a “problem.” Each bank has discretion as to what constitutes a “problem” account. Research has shown that this discretion has permitted banks to report accounts to ChexSystems for very modest sums. Problematically, if an applicant appears in ChexSystems when attempting to open a new account, evidence has shown that most banks would deny that applicant a checking account for a five-year period, effectively blacklisting the applicant from mainstream financial institutions. In turn, these rejections force many families to rely on expensive alternatives to meet their day-to-day financial needs. In this Note, James Marvin Pérez posits that we must seriously question the banking industry’s use of ChexSystems. In light of historical banking practices, Mr. Pérez argues that ChexSystems may act as a pretext for discriminatory behavior among banks to exclude unwanted clientele. Additionally, Mr. Pérez explains that ChexSystems disproportionately punishes many consumers who have made only trivial mistakes. He offers additional factors for a bank to consider other than an applicant’s ChexSystems report when evaluating that applicant for an account. Finally, exploring federal legislation, Mr. Pérez ultimately advocates employing the Community Reinvestment Act (CRA) as a legislative tool to combat the apparent deficiencies with ChexSystems in order to bring millions of families back into America’s mainstream financial economy.

Global Environmental Threats: Can the Security Council Protect Our Earth?

Alexandra Knight

The link between environmental degradation and international security has attracted new attention due to the publication of the United Nations report A More Secure World: Our Shared Responsibility, authored by the High Level Panel on Threats, Challenges and Change, a group of experts assembled by Kofi Annan and tasked with advising the Security Council about new global threats. The panel specifically focuses on desertification, deforestation, and climate change as urgent global environmental threats possibly requiring Security Council action because of their potential to cause massive loss of life and undermine state functions. The report provokes important questions: If,fo r example, a nation embarked upon a massive deforestation campaign which upset the ocean currents and threatened to send an entire continent into a deep freeze, would the Security Council be able to take measures against the offending nation to counteract this massive environmental threat? In this Note, Alexandra Knight argues that it is legally justified and legitimate for the Security Council, acting under the provisions of Chapter VII, Article 41 of the United Nations Charter, to impose measures to counter regional or global threats to the environment which pose a grave threat to human life and living conditions. While Chapter VII measures also include the use of force, Knight argues that only Article 41 measures—non-military measures like sanctions or interruption of communications—are appropriate to counter environmental threats.

Reflexive Law Solutions for Factory Farm Pollution

Warren A. Braunig

Large industrial livestock and poultry farms, known as “factory farms” or “confined animal feeding operations” (CAFOs), pose serious threats to regional air and water quality. Because the widespread existence of factory farms post-dates our nation’s environmental laws, they remain largely exempt from emissions regulation. In recent years, the Environmental Protection Agency, the states, and environmental groups—via citizen suits—have begun to bring CAFOs into the regulatory fold. However, scientific challenges, political gamesmanship, and the time and cost required to craft traditional regulation make the success of these programs uncertain at best.

This Note argues that proponents of factory farm regulation should adopt a new approach, focusing on information-based regulatory tools (so-called “reflexive law”). Reflexive law policies mandate the public disclosure of information, whether in the form of raw data, hazard warnings, or environmental labels. In practice, well-crafted reflexive law programs have had a powerful shaming effect on polluters, while also enabling consumers, business partners, and even shareholders to exercise their displeasure with polluting industries and their support for more environmentally responsible companies. Reflexive law is also faster and cheaper to implement than command-and-control regulation, and it represents a more politically palatable approach to the problem of CAFO pollution.

The Note explains why reflexive law is well-suited to factory farm pollution, identifies the key elements of a successful reflexive law program, and then proposes a series of reflexive law approaches for factory farms that could be enacted independently or in conjunction with more traditional regulation. It ecommends immediately supplementing ongoing efforts with reflexive law programs.