Volume 94, Number 3

June 2019

Judicial Independence, Collegiality, and the Problem of Dissent in Multi-Member Courts

The Honorable Bernice B. Donald

Threats to judicial independence are most commonly viewed as arising either from politically motivated depredations by other branches of government, or from improper inducements or coercion from individuals or groups in the wider society. Both types of threats are external to the court. What of the internal environment within which judges operate, particularly the immediate environment comprised of their colleagues on the bench? Drawing on a judicial career spanning thirty-seven years, including fifteen as a U.S. District Court judge and the past seven in my present position on the U.S. Court of Appeals for the Sixth Circuit, as well as on legal scholarship and the perspectives of other jurists past and present, I will address what one scholar calls the “complicated interdependent decisions” faced by judges on multi-member courts. This Lecture will explore the often complex calculus and subtle intrajudicial considerations that go into a judge’s decision whether—and, if so, how—to dissent in a particular case. I encourage reflection both on the costs that dissent exacts on the individual judge and on the court as a whole, and on the enormous value it can have as an expression of legal conscience and even, on occasion, as a voice of prophecy pointing to future change in the law. Ultimately, I view the right to dissent as precious, and a pillar of judicial independence.


Foreign Affairs Prosecutions

Steven Arrigg Koh

Contemporary global crime and cross-border law enforcement cooperation have multiplied “foreign affairs prosecutions,” cases that encompass foreign apprehension, evidence gathering, and criminal conduct, as well as cases that implicate foreign nations’ criminal justice interests. Robert Mueller’s Russia investigation, the fugitive Edward Snowden, and the cross-border crimes of FIFA and El Chapo all exemplify such foreign affairs prosecutions. This Article argues that foreign affairs prosecutions represent a consequential shift in U.S. criminal law, offering the promise of closing global impunity gaps. At the same time, however, such cases risk defendant interests at home and U.S. foreign policy abroad. This Article calls for greater congressional engagement and judicial oversight to minimize such risks while still promoting accountability for cross-border, cyber, and international crime.

(Un)Civil Denaturalization

Cassandra Burke Robertson, Irina D. Manta

Over the last fifty years, naturalized citizens in the United States were able to feel a sense of finality and security in their rights. Denaturalization, wielded frequently as a political tool in the McCarthy era, had become exceedingly rare. Indeed, denaturalization was best known as an adjunct to criminal proceedings brought against former Nazis and other war criminals who had entered the country under false pretenses.

Denaturalization is no longer so rare. Naturalized citizens’ sense of security has been fundamentally shaken by policy developments in the last five years. The number of denaturalization cases is growing, and if current trends continue, it will continue to increase dramatically. This growth began under the Obama administration, which used improved digital tools to identify potential cases of naturalization fraud from years and decades ago. The Trump administration, however, is taking denaturalization to new levels as part of its overall immigration crackdown. It has announced plans for a denaturalization task force. And it is pursuing denaturalization as a civil-litigation remedy and not just a criminal sanction—a choice that prosecutors find advantageous because civil proceedings come with a lower burden of proof, no guarantee of counsel to the defendant, and no statute of limitations. In fact, the first successful denaturalization under this program was decided on summary judgment in favor of the government in 2018. The defendant was accused of having improperly filed an asylum claim twenty-five years ago, but he was never personally served with process and he never made an appearance in the case, either on his own or through counsel. Even today, it is not clear that he knows he has lost his citizenship.

The legal status of denaturalization is murky, in part because the Supreme Court has long struggled to articulate a consistent view of citizenship and its prerogatives.Nonetheless, the Court has set a number of significant limits on the government’s attempts to remove citizenship at will—limits that are inconsistent with the adminis- tration’s current litigation policy. This Article argues that stripping Americans of citizenship through the route of civil litigation not only violates substantive and procedural due process, but also infringes on the rights guaranteed by theCitizenship Clause of the Fourteenth Amendment. Finally, (un)civil denaturaliza- tion undermines the constitutional safeguards of democracy.


Protecting Evolutionary Potential: Can the Endangered Species Act Save Species Before They Exist?

Natalie Jacewicz

As popularly conceived, environmental conservation is a backward-looking exercise that aims to restore and protect the biodiversity of our parents and grandparents. But this static view of nature is a fiction. Scientists have grown increasingly aware that species are still evolving and, in some cases, doing so rapidly. What’s more, scientists are beginning to be able to make predictions about when and how evolution will occur. This Note argues that such nascent biodiversity is worthy of protection. Furthermore, the text and purpose of the Endangered Species Act require protecting populations likely to evolve in the foreseeable future. Without changing the administrative criteria for implementing the Act, agencies could protect nascent biodiversity under the statutory provisions covering threatened “distinct population segments.” Finally, this Note responds to some possible difficulties with this approach. As scientific understanding of evolution and biodiversity continues to advance, agencies must consider that their statutory mandate is not to recreate the past, but to enrich the future.

Taxing Pain and Suffering

Adam Kern

Every year, billions of dollars are awarded as compensation for pain and suffering. A hard question—one that has vexed courts, legislators, and academics alike—is how we should tax them (if, indeed, we should tax them at all). In this Note, I articulate a new answer. If we take seriously the value of equality between injured people and uninjured people, we ought to tax compensatory damages for pain and suffering.

In Part I, I criticize an influential approach to the taxation of compensatory damages for pain and suffering. This approach appeals to various intuitive normative principles to justify exempting pain and suffering damages from tax. I argue that these principles are estranged from their normative foundations. Such principles are intuitive because they seem to embody an ideal of equality between injured people and uninjured people. But, as I show in Part I, equality does not always justify exempting pain and suffering damages from tax. Sometimes, a well-designed tax on pain and suffering damages serves equality better than an exemption does.

In Parts II and III, I determine which tax regime best respects the ideal of equality between the injured and the uninjured, giving that value neither too little nor too much weight. Following the optimal tax literature, I divide the work into two parts. First, I determine which tax policies would be best under the assumption that no one modifies their behavior in anticipation of tax consequences. To do this, I formulate an appropriate social welfare function, I estimate the relevant parameters, and I simulate optimal tax rates. I then consider whether the resulting taxes should be modified in light of behavioral responses that we should expect in the real world.

I conclude that we should tax some, and likely many, compensatory damages for pain and suffering—and we should do so at rates that increase with damages. Perhaps counterintuitively, this tax scheme is the best way of balancing the competing demands of creating well-being and distributing it equally.

Challenging Racist Predictive Policing Algorithms Under the Equal Protection Clause

Renata M. O’Donnell

Algorithms are capable of racism, just as humans are capable of racism. This is particularly true of an algorithm used in the context of the racially biased criminal justice system. Predictive policing algorithms are trained on data that is heavily infected with racism because that data is generated by human beings. Predictive policing algorithms are coded to delineate patterns in massive data sets and subsequently dictate who or where to police. Because of the realities of America’s criminal justice system, a salient pattern emerges from the racially skewed data: Race is associated with criminality in the United States. Because of the “black-box” nature of machine learning, a police officer could naively presume that an algorithm’s results are neutral, when they are, in fact, infected with racial bias. In this way, a machine learning algorithm is capable of perpetuating racist policing in the United States. An algorithm can exacerbate racist policing because of positive feedback loops, wherein the algorithm learns that it was “correct” in associating race and criminality and will rely more heavily on this association in its subsequent iterations.

This Note is the first piece to argue that machine learning-based predictive policing algorithms are a facial, race-based violation of the Equal Protection Clause. There will be major hurdles for litigants seeking to bring an equal protection challenge to these algorithms, including attributing algorithmic decisions to a state actor and overcoming the proprietary protections surrounding these algorithms. However, if the courts determine that these hurdles eclipse the merits of an equal protection claim, the courts will render all algorithmic decision-making immune to equal protection review. Such immunization would be a dangerous result, given that the government is hurling a growing number of decisions into black-box algorithms.