Articles

The growing centrality of “criminal aliens” to American immigration enforcement is one of the most significant historical shifts in the federal immigration system. However, little is known about how this dramatic restructuring of federal immigration priorities affects local criminal justice systems. Do noncitizens experience the same type of criminal justice as citizens? This Article seeks to answer this question by offering the first empirical study of how local criminal process is organized around immigration enforcement and citizenship status. It accomplishes this task by analyzing the criminal justice systems of the three urban counties that prosecute the highest number of noncitizens: Los Angeles County, California; Harris County, Texas; and Maricopa County, Arizona.

Comparative review of law, procedure, and practice in these three counties reveals that immigration’s interaction with criminal law has a far more powerful impact on local criminal practice than previously understood. Across all three counties, the practical effects of the federal government’s reliance on arrests and convictions in making enforcement decisions are felt at every stage of the criminal process: Immigration status is part of routine booking at local jails, “immigration detainers” impede release on criminal bail, immigration officials encourage criminal prosecutors to secure plea agreements that guarantee removal, and noncitizens are sometimes deported before their criminal cases are completed. Yet, there is surprising variation in how these three counties have structured their criminal practices in light of the consistently deep connections between criminal process and immigration enforcement. As this Article develops, the three jurisdictions have adopted distinct models of noncitizen criminal justice—what I term alienage neutral, illegal-alien punishment, and immigration enforcement. Each model reflects significant agreement across county agencies about the appropriate role of noncitizen status in criminal case adjudication and of local involvement in deportation outcomes. These findings have important implications for the institutional design of both local criminal systems and federal immigration enforcement.

Enforcement of law is at the core of the President’s constitutional duty to “take Care” that the laws are faithfully executed, and it is a primary mechanism for effecting national regulatory policy. Yet questions about how presidents oversee agency enforcement activity have received surprisingly little scholarly attention. This Article provides a positive account of the President’s role in administrative enforcement, explores why presidential enforcement has taken the shape it has, and examines the bounds of the President’s enforcement power. It demonstrates that presidential involvement in agency enforcement, though extensive, has been ad hoc, crisis-driven, and frequently opaque. The Article thus reveals the need for institutional design reforms—namely more coordination across agencies and greater disclosure of enforcement policy. The seeds for such reforms can be found in several recent efforts that have yet to be made systematic. Concerns about politicization of law enforcement should not override the considerable benefits that would derive. Rather, by acknowledging the President’s role in, and responsibility for, enforcement, we can better ensure the structure and transparency that promote appropriate presidential influence.

The determinacy revolution in federal sentencing, which culminated in the passage of the Sentencing Reform Act of 1984, has since been upended by a little-noticed phenomenon: the evolution of federal supervised release. A “determinate” sentencing regime requires that prison terms be of fixed and absolute duration at the time of sentencing. Because of the manner in which supervised release now operates, however, contemporary federal prison terms are neither fixed nor absolute. Instead, the court has discretion to adjust the length of a prison term after sentencing based on its evaluation of the post-judgment progress of the offender. This power to amend the duration of the penalty is the classic marker of the “indeterminate” sentence.

In this Article, I show how federal supervised release has dismantled the ambitions of the determinacy movement and made federal prison terms structurally indeterminate in length. I conclude that the widespread use of supervised release has created a muddled and unprincipled form of indeterminate sentencing: one that flouts the insights and vision of the nineteenth-century indeterminacy movement as well as the twentieth-century determinacy movement. Having dislocated once-celebrated theories of sentencing, federal supervised release now controls the lives of more than 100,000 people without offering any alternative theoretical basis for doing so. This Article draws on the lessons of a 200 year history to expose the current nature of supervised release and to envision a more coherent role for its future.

This Article examines the difficult question of the deference congressional fact-findings merit when they support legislation expanding or limiting individual rights. The deference question is crucial to judicial review of such legislation, yet the Supreme Court has offered little by way of a principled answer: platitudes about Congress’s expertise and co-equal status when it wishes to defer to such findings, and bromides about the Court’s superiority in constitutional interpretation when it does not. Scholars have described this important question as “radically under-theorized.” Any stable and useful theory addressing Congress’s ability to participate in the process of constitutional construction requires a better answer to the deference question than those which have been thus far offered. This Article proposes the outlines of such an answer.

This Article begins in Part I by identifying the three axes that should govern the deference question. Based on the insights gleaned from this analysis, Part II identifies six principles guiding the deference inquiry and applies them to congressional deference claims in several contexts: legislation enforcing the Equal Protection Clause, the Partial Birth Abortion Ban Act, a “human life” statute of the sort that has been proposed in the past, and the Voting Rights Act’s preclearance requirements. This Article concludes with a call for further research on this troublesome yet crucial question, which has so far generated only incomplete, unsatisfying answers.

For many critical aspects of family life, all the world truly is a stage. When a parent scolds a child on the playground, all eyes turn to watch and judge. When an executive’s wife hosts a work party, the guests are witness to traditional gender roles. And when two fathers attend a back-to-school night for their child, other parents take note of this relatively new family configuration. Family is popularly considered intimate and personal, but in reality much of family life is lived in the public eye.

These performances of family and familial roles do not simply communicate messages to others. They are also central to the deep structure of family law. Drawing on sociological and feminist theory, this Article argues that iterated, everyday performances are performative—that is, they create and then maintain collective understandings of mother, father, child, and family itself. The law plays an integral role in this by imbuing the performances with legal salience to define the categories at the heart of family law. This Article terms this dynamic process “performative family law.”

Aspects of this mutually constitutive relationship between performance and family law are deeply troubling, raising significant concerns for core areas of doctrine, policy, and theory. First, family law’s prevailing approach to defining familial categories is normatively narrowing because legal actors tend to give effect only to traditional, dominant images of the family despite seismic demographic changes in family form. Second, the obscuring effects of the public face of the family often warp the policies designed to address family violence, most notably child sexual abuse. Finally, by ignoring the pressure of performance, scholarly debates over the public-private divide are incomplete and have failed to explain why the concept of family privacy retains such enormous appeal.

In response, this Article proposes a new framework for family law that decenters dominant performances and provides an alternative means to define familial categories and counter family violence. It is not possible or even desirable to eliminate performativity entirely, but it is important to resist its more troubling aspects. A denaturalizing framework promises a more pluralistic approach to the emerging demographic transformation of the family and deeper engagement with the variety of family life today.

The Earned Income Tax Credit (EITC) is the largest federal antipoverty program in the United States and garners almost universal bipartisan support from politicians, legal scholars, and other commentators. However, assessments of the EITC missed an imperative perspective: that of EITC recipients themselves. Past work relies on largely unconfirmed assumptions about the behaviors and needs of lowincome families. This Article provides a novel assessment of the EITC based on original data obtained directly from 194 EITC recipients through in-depth qualitative interviews. The findings are troubling: They show that while the EITC has important advantages over welfare, which it has largely replaced, it fails as a safety net for low-income families. The problem is that the EITC provides a large windfall to families only once per year, during tax refund season. However, low-income families are particularly vulnerable to financial shocks and instability. Not surprisingly, such events rarely coincide with tax refund season. Without a fix, the EITC leaves many families on the brink of financial collapse. In the years to come, many more low-income families may file for bankruptcy or become homeless. Despite this grim outlook, this Article suggests a straightforward and promising new way to distribute the EITC that maintains the program’s advantages while also providing a more secure safety net for low-income families in times of financial shock and instability.

The Leahy-Smith America Invents Act effectively repealed aspects of the Federal Rules of Civil Procedure by creating a new statutory section governing joinder of accused infringers and consolidation of actions for trial in most patent infringement cases. This new law codifies a substantial barrier to joinder and consolidation for trial. In so doing, it frustrates the promotion of liberal standards both for evaluating the sufficiency of pleadings and for evaluating the propriety of joinder of parties—two of the primary policies embraced by the drafters of the Federal Rules of Civil Procedure. Remarkably, Congress adopted the new statutory section despite the absence of any detailed scholarly analysis prior to its enactment regarding these issues, sparse legislative history analyzing perceived problems with the relevant Federal Rules of Civil Procedure, and the lack of any consideration of the new statutory section by the Supreme Court’s Advisory Committee on Civil Rules. This Article provides a comprehensive analysis of the reasons for the enactment of the new statutory section, the competing policies animating the Leahy-Smith America Invents Act and the Federal Rules of Civil Procedure, and the appropriate interpretation and application of the new law. Such analyses have, to date, been absent from the legal conversation.

When the Federal Rules of Civil Procedure were promulgated in 1938, they reflected a policy of citizen access for civil disputes and sought to promote their resolution on the merits rather than on the basis of the technicalities that characterized earlier procedural systems.The federal courts applied that philosophy of procedure for many years. However, the last quarter century has seen a dramatic contrary shift in the way the federal courts, especially the U.S. Supreme Court, have interpreted and applied the Federal Rules and other procedural matters. This shift has produced the increasingly early procedural disposition of cases prior to trial. Indeed, civil trials, especially jury trials, are very few and far between today.

The author examines the significant manifestations of this dramatic change, and traces the shift in judicial attitude back to the three pro-summary judgment decisions by the Supreme Court in 1986. Furthermore, he goes on to discuss the judicial gatekeeping that has emerged regarding (1) expert testimony, (2) the constriction o class action certification, (3) the enforcement of arbitration clauses in an extraordinary array of contracts (many adhesive in character), (4) the Court’s abandonment of notice pleading in favor of plausibility pleading (which, in effect, is a return to fact pleading), (5) the intimations of a potential narrowing of the reach of in personam jurisdiction, and (6) a number of limitations on pretrial discovery that have resulted from Rule amendments during the last twenty-five years.

All of these changes restrict the ability of plaintiffs to reach a determination of their claims’ merits, which has resulted in a narrowing effect on citizen access to a meaningful day in court. Beyond that, these restrictive procedural developments work against the effectiveness of private litigation to enforce various public policies involving such matters as civil rights, antitrust, employment discrimination, and securities regulation.

Concerns about abusive and frivolous litigation, threats of extortionate settlements, and the high cost of today’s large-scale lawsuits motivate these deviations from the original philosophy of the Federal Rules, but these concerns fail to take proper account of other systemic values. The author argues that these assertions are speculative and not empirically justified, are overstated, and simply reflect the self-interest of various groups that seek to terminate claims asserted against them as early as possible to avoid both discovery and a trial. Indeed, they simply may reflect a strong pro-business and pro-government orientation of today’s federal judiciary. The author cautions that some restoration of the earlier underlying philosophy of the Federal Rules is necessary if we are to preserve the procedural principles that should underlie our civil justice system and maintain the viability of private litigation as an adjunct to government regulation for the enforcement of important societal policies and values.

The recent financial crisis has jeopardized the retirement savings of twenty-seven million Americans who depend on public pension funds, leading to cuts in benefits, increased employee contributions, job losses, and the rollback of legal rights like collective bargaining. This Article examines ways in which public pension funds invest against the economic interests of their own participants and beneficiaries, and the legal implications of these investments. In particular, the Article focuses on the use of public pensions to fund privatization of public employee jobs. Under the ascendant—and flawed—interpretation of the fiduciary duty of loyalty, public pension trustees owe their allegiance to the fund itself, rather than to the fund’s participants and beneficiaries, notwithstanding the fact that the duty of loyalty commands trustees to invest “solely in the interest of the participants and beneficiaries” according to ERISA and similar state pension codes. I argue that this “fund-first” view distorts the duty of loyalty and turns the role of trustee on its head, leading to investments that undermine, rather than enhance, the economic interests of public employees. I turn to ERISA, trust law, agency law, and corporate law to argue that public pension trustees should consider the impact of the funds’ investments on the jobs and job security of the funds’ participants and beneficiaries, where relevant. I also adduce evidence that these controversial investments are widespread. I propose that public pension funds be governed by a “member-first” view of fiduciary duty focused on the economic interests of public employees in their retirement funds, which go beyond maximizing return to the funds. I argue that this view is more faithful to the original purpose of the duty of loyalty than is the fund-first view. I suggest ways to implement the member-first view, discuss potential extensions beyond the jobs impact of investments, and assess the proposed reform’s practical effects.

More than ever, the constitutionality of laws turns on judicial review of an underlying factual record, assembled by lawmakers. Some scholars have suggested that by requiring extensive records, the Supreme Court is treating lawmakers like administrative agencies. The assumption underlying this metaphor is that if the state puts forth enough evidence in the record to support the law, its action will survive constitutional scrutiny. What scholars have overlooked, however, is that the Court is increasingly questioning the credibility of the record itself. Even in cases where the state produces adequate evidence to support its action, the Court sometimes invalidates the law because it does not believe the state’s facts. In these cases, the Court treats the state like a witness in its own trial, subjecting the state’s record and the conclusions drawn from it to rigorous cross-examination and second-guessing.

In this “credibility-questioning” review of the record, the Court appears to be animated by an implicit judgment about the operation of the political process. When Justices consider the political process to have functioned properly, they treat the state as a good faith actor and merely check the adequacy of its evidence in the record. But when Justices suspect that the democratic process has malfunctioned because opponents of the law were too politically weak or indifferent to challenge distortions in the record, they treat the state as a witness, suspecting bias in its factual determinations supporting the law.

In this Article, I both support and critique this new form of review. Contrary to conventional wisdom, I argue courts should engage in credibility-questioning review of the record when the political process has malfunctioned. Public choice and pluralist defect theory imply that the record supporting a law is more likely to be distorted in contexts of democratic malfunction. But for reasons of institutional legitimacy and separation of powers, I argue courts should limit credibility-questioning review to contexts where there is actual proof of democratic malfunction.