Dignity has been associated with death in two very different areas of constitutional jurisprudence: assisted suicide and the death penalty. This Note seeks to analyze what the concept of dignity means in these two contexts: who is the subject of dignity and what are dignity’s requirements? It argues that assisted suicide foregrounds the subjective dignity of the individual; what dignity involves is largely, though not wholly, a question of what an individual considers a dignified way to die. By contrast, the subject of dignity in death penalty jurisprudence is the collective and not the individual. Inasmuch as the jurisprudence claims to speak to the dignity of the individual, that dignity is objective and extends no further than collective dignity’s reach. As a result, what constitutes dignity in execution is almost wholly determined by what appears dignified to society. This Note ends by critically assessing how the two constitutional areas that link death and dignity may fruitfully inform each other. It suggests that assisted suicide’s individualistic dignity includes not just a right to decide how to die, but also a responsibility to collective society to consider how the nature of that suicide may impact collective dignity. In turn, in the death penalty context, states and courts should import subjective individual dignity considerations and reconsider whether their invocation of “dignity” in fact reflects a collective valuation of dignity or merely assuages social sensibilities by masking the reality of death.
On his first day in office, President Obama called for the closure of the military prison at Guantánamo Bay, Cuba. Near the end of Obama’s tenure, the prison remains open. This Note suggests a previously undiscussed path for the President to transfer most detainees from Guantánamo, despite congressional opposition, using a robust and exclusive executive tool: the pardon power. By granting conditional pardons to eligible Guantánamo detainees, the President could unilaterally move many to the mainland United States for continued, if limited, detention, and transfer others for repatriation elsewhere. In addressing the Guantánamo problem, this Note argues that pardons have been used and should be viewed as a crucial complement to presidential war powers. The Note concludes that granting clemency for Guantánamo detainees is not only legally defensible, but also consistent with constitutional structure, original understanding, and historical practice since the Founding.
Of Constitutional Custodians and Regulatory Rivals: An Account of the Old and New Separation of Powers
The theory and reality of “administrative separation of powers” requires revisions to the longstanding legal, normative, and positive accounts of bureaucratic control. Because these leading accounts are often insufficiently attentive to the fragmented nature of administrative power, they tend to overlook the fact that internal administrative rivals—perhaps as much as Congress, the President, and the courts—shape agency behavior. In short, these accounts do not connect what we might call the old and new separation of powers. They thus fail to capture the multidimensional nature of administrative control in which the constitutional branches (the old separation of powers) and the administrative rivals (the new separation of powers) all compete with one another to influence administrative governance.
This Article, the first to connect novel insights regarding administrative separation of powers to old—and seemingly settled—debates over the design and desirability of bureaucratic control, (1) characterizes the administrative sphere as a legitimate, largely self-regulating ecosystem, (2) recognizes the capacity of three rivals—politically appointed agency heads, politically insulated civil servants, and members of the public—to internally police the administrative process, and (3) recasts judges, presidents, and legislators as custodians of the administrative arena tasked with preserving a well-functioning, rivalrous administrative separation of powers.
Labor laws in twenty-two states permit government employers to compel all employees to pay “fair share fees” to support a union’s collective bargaining activities, even if the union advocates policies to which some workers are ideologically opposed. Thousands of collective bargaining agreements include provisions to this effect, and hundreds of thousands of objecting workers are forced to pay such fees each year.
At its core, this practice implicates a significant tension between two important principles: the First Amendment’s objective of protecting individuals from compelled support of unwanted messages, and labor law’s concern with fostering the collective benefits of worker representation. When confronted with a challenge to fair share fees nearly forty years ago in Abood v. Detroit Board of Education, the Supreme Court held that labor law takes precedence, such that the First Amendment intrusions produced by fair share fees are constitutionally justified. Twice in the past four years, however, the Supreme Court has indicated that it is poised to reverse course and strike down fair share fee clauses under the First Amendment, overruling Abood in the process. And on the last day of the 2014 Term, the Court granted certiorari in a case presenting just that opportunity.
In this Article, I challenge the conventional wisdom that public sector union financing implicates an inevitable trade-off between First Amendment principles and labor law’s core objectives. There is a simple alternative to the fair share fee union financing model that would permit public employers to pursue their broad interests in effective workplace representation without sacrificing the individual expressive interests of objecting employees: In lieu of fair share fee clauses, government employers can negotiate provisions under which they reimburse a union for its collective bargaining costs directly. Such an approach would free objecting workers of the compulsion to support an objectionable message and ensure that unions have the financial security they need to zealously represent worker interests. Moreover, the government can implement this alternative in a cost-neutral fashion, reducing future wage raises or gratuitous benefits to offset the added costs of union reimbursement.
But this government-payer alternative is not just a theoretical solution to what has been widely understood as an intractable debate—it has doctrinal significance, too. For once identified, the government-payer workaround becomes part of the constitutional analysis itself. That is to say, under First Amendment doctrine, the government’s ability to reimburse a union for its bargaining costs directly is a less restrictive alternative that renders fair share fees unconstitutional by comparison.
This Article explores the theoretical and doctrinal consequences of the government-payer alternative to fair share fees. In doing so, it proposes an answer to a longstanding puzzle in the Court’s First Amendment jurisprudence regarding the proper standard of scrutiny for compelled fees—a puzzle that the Supreme Court has explicitly recognized yet left unresolved. The Article concludes by offering a few observations concerning the impact of the govern
Police interrogations in the United States are focused on one thing: getting a confession from the suspect. The Reid Technique, a guilt-presumptive nine-step method and the most common interrogation technique in the country, is integral to fulfilling this goal. With guidance from the Reid Technique, interrogators use coercion and deceit to extract confessions—regardless of the costs. When used with juvenile suspects, this method becomes all the more problematic. The coercion and deception inherent in the Reid Technique, coupled with the recognized vulnerabilities and susceptibilities of children as a group, has led to an unacceptably high rate of false confessions among juvenile suspects. And, when a juvenile falsely confesses as the result of coercive interrogation tactics, society ultimately suffers a net loss.
In the Eighth Amendment context, the Supreme Court has recognized that children are different from adults and must be treated differently in various areas of the criminal justice system. The Court’s recent Eighth Amendment logic must now be extended to the Fifth Amendment context to require that juveniles be treated differently in the interrogation room, as well. This Note suggests that the Reid Technique be categorically banned from juvenile interrogations through a constitutional ruling from the Court. Doing so would not foreclose juvenile interrogation; rather, a more cooperative and less coercive alternative could be utilized, such as the United Kingdom’s PEACE method. Nonetheless, only a categorical constitutional rule that prohibits the use of the Reid Technique in all juvenile interrogations will eliminate the heightened risk of juvenile false confessions and truly safeguard children’s Fifth Amendment rights.
The Insular Cases have, since 1901, granted the political branches significant flexibility in governing U.S. territories like American Samoa and Puerto Rico—flexibility enough, indeed, to ignore certain constitutional provisions that are not “fundamental” or which would be “impractical” to enforce in the territories. Long maligned as judicial ratification of empire, predicated on racist assumptions about territorial peoples and a constitutional theory alien to the United States, the Insular Cases had a curious renaissance in the late twentieth-century. As local territorial governments began to exercise greater self-rule, newly-enacted local laws in the territories began to pose constitutional issues, but courts generally acquiesced in these constitutional deviations. This Note argues that this accommodationist turn in Insular doctrine complicates the legacy of the cases—that their use to enable local peoples to govern themselves as they desire, and to protect their cultures, means the Insular doctrine is not merely defensible but perhaps even necessary, and finds support in arguments from political theory. Moreover, the Note contends, such constitutional accommodation has a long pedigree in the American constitutional system.
Legal injury without harm is a common phenomenon in the law. Historically, legal injury without harm was actionable for at least nominal damages, and sometimes other remedies. The same is true today of many “traditional” private rights, for which standing is uncontroversial. Novel statutory claims, on the other hand, routinely face justiciability challenges: Defendants assert that plaintiffs’ purely legal injuries are not injuries “in fact,” as required to establish an Article III case or controversy. “Injury in fact” emerges from the historical requirement of “special damages” to enforce public rights, adapted to a modern procedural world. The distinction between public and private rights is unstable, however, with the result that many novel statutory harms are treated as “public,” and thus subject to exacting justiciability analysis, when they could easily be treated as “private” rights for which legal injury without harm is sufficient for standing. Public and private act as rough proxies for “novel” and “traditional,” with the former subject to more judicial skepticism. Applying “injury in fact” this way is hard to defend as a constitutional necessity, but might make sense prudentially, depending on the novelty and legal source of value for the harm. Taxonomizing these aspects of “harm” suggests that, even with unfamiliar harms, judicial discretion over value lessens the need for exacting injury analysis.
An earlier version of this text was delivered as the James Madison Lecture at the New York University School of Law on October 13, 2016.