Category Archives: Courts

Can a Public Defender Really Handle 700 Cases a Year?

Source: Gabrielle Canon, Mother Jones, July 27, 2015

A new ACLU lawsuit takes on a California county where 60 public defenders work 42,000 cases every year….

ACLU Sues Over Failing Public Defense System in Fresno County, California / Tens of Thousands Go Without Legal Representation that the Constitution Guarantees
Source: American Civil Liberties Union (ACLU), Press Release, July 15, 2015

The American Civil Liberties Union of Northern California, the ACLU’s Criminal Law Reform Project, and the law firm Paul Hastings LLP filed a lawsuit against Fresno County and the state of California, seeking an overhaul of the county’s deficient public defense system. Because public defenders do not receive the resources necessary to represent their clients, thousands of Fresno County residents are forced to navigate the criminal justice system without the adequate legal representation that is guaranteed by the Constitution.

Gideon’s Servants and the Criminalization of Poverty

Source: Alexandra Natapoff, Ohio State Journal of Criminal Law, Vol. 445, 2015

From the abstract:
In ways that slip beneath the doctrinal radar, public defenders often behave like social workers. They find drug treatment and jobs for their clients, and intervene with landlords and employers. Conversely — and ironically — many civil welfare service providers act increasingly like law enforcement officials. Teachers call the police on their students, while welfare case workers often refer their clients for prosecution. This role-switching — by criminal lawyers and civil servants alike — is a function of the tight connection between criminalization and poverty: poor people tend to get swept up in the criminal system and such encounters tend to make people poor. This nexus is particularly powerful in the world of minor offenses and urban policing in which crime, unemployment, racial segregation, and lack of social infrastructure swirl around in one large, nearly inextricable mass. As a result, criminal justice actors are heavily preoccupied with defendants’ social welfare even as the welfare state routinely treats its clients as presumptive criminals. These hydraulic forces affect every official actor — from police officers to prosecutors to emergency room nurses and public school teachers. But public defenders play a special role. Their multi-faceted service commitments to both criminal and welfarist outcomes reveal deep features of the criminal system itself and its conflicted governance relationship to its most vulnerable constituents.

A Theory of Justices’ Retirement

Source: Álvaro Bustos, Tonja Jacobi, American Law and Economics Review, Advance Access, July 2, 2015
(subscription required)

From the abstract:
This paper introduces a formal model of Supreme Court retirement, in which the justices, the President and the Senate are rational agents who aim to shift the median ideology of the Court as close as possible to their own ideologies. The model shows that the probability of retirement depends on a set of personal, contextual, and political variables. It provides a rigorous theory for the effect of extant variables, and identifies variables that have not previously been fully appreciated. In particular, it shows the impact of the ideologies of the non-retiring justices and whether the ideology of the retiring justice is moderate or extreme. This more complete explanation of strategic judicial retirements raises empirically testable predictions to differentiate among the disparate findings of the existing literature.

Preferential Judicial Activism

Source: Sudha Setty, Western New England University School of Law Legal Studies Research Paper No. 15-5, 2015

From the abstract:
The Author examines the Supreme Court’s use of “preferential judicial activism” — whereby justices decide whether to formalistically dismiss cases or instead choose to engage judicial activism based on their policy preferences — through contrasting the Court’s reasoning in Shelby v. Holder with its decisions in cases concerning national security. In Shelby, the majority characterized the Court’s review of the Voting Rights Act of 2006 as necessary given the fundamental rights at stake and the unusually broad reach of the Act in mandating federal jurisdiction over voting matters. However, in national security-related cases in which plaintiffs have alleged violations of fundamental rights, the Court’s response has been a rigid and formalistic refusal to address the plaintiffs’ claims, usually based on the acceptance of government invocations of procedural barriers to litigation. This judicial formalism has consistently led to the dismissal of cases alleging serious government abuse in the post-September 11 context. The Author argues that these instances of judicial formalism illustrate the judiciary’s internal struggle to determine its appropriate role when confronted with questions of constitutional rights during times of war or perceived emergency.

Ultimately, taking this dynamic together with Shelby’s preferential judicial activism and its undermining of voter protections for racial minorities, it becomes clear that multiple reforms must be undertaken to protect individual rights. The Author concludes that Congress should better assert its role to protect the civil rights of vulnerable populations through passing additional legislation and that courts must acknowledge their own ongoing preferential judicial activism.

A Court for the One Percent: How the Supreme Court Contributes to Economic Inequality

Source: Michele E. Gilman, University of Baltimore School of Law Legal Studies Research Paper No. 2015-05, Date posted: April 15, 2014 ; Last revised: May 20, 2015

From the abstract:
This Article explores the United States Supreme Court’s role in furthering economic inequality. The Occupy Wall Street movement in 2011 not only highlighted growing income and wealth inequality in the United States, but also pointed the blame at governmental policies that favor business interests and the wealthy due to their outsized influence on politicians. Numerous economists and political scientists agree with this thesis. However, in focusing ire on the political branches and big business, these critiques have largely overlooked the role of the judiciary in fostering economic inequality. The Court’s doctrine touches each of the major causes of economic inequality, which includes systemic failures of our educational system, a frayed social safety net, probusiness policies at the expense of consumers and employees, and the growing influence of money in politics. In each of these areas, the Court’s deference to legislative judgments is highly selective and driven by a class-blind view of the law that presumes that market-based results are natural, inevitable, and beneficial. For instance, the Court rejects government attempts to voluntarily desegregate schools, while deferring to laws that create unequal financing for poor school districts. The end result is that poor children receive subpar educations, dooming many of them to the bottom of the economic spectrum. Similarly, the Court overturned Congress’s attempt to rein in campaign financing, while upholding state voter identification laws that suppress the votes of the poor. These decisions distort the electoral process in favor of the wealthy. In short, the Court tends to defer to laws that create economic inequality, while striking down legislative attempts to level the playing field. While a popular conception of the Court is that it is designed to protect vulnerable minorities from majoritarian impulse, the Court, instead, is helping to protect a very powerful minority at the expense of the majority. This Article is one step toward understanding how law intertwines with politics and economics to create economic inequality.

Not Just a Ferguson Problem – How Traffic Courts Drive Inequality in California

Source: Lawyers’ Committee for Civil Rights of the San Francisco Bay Area (LCCR), the East Bay Community Law Center (EBCLC), the Western Center on Law and Poverty (WCLP), A New Way of Life Reentry Project, and Legal Services for Prisoners with Children (LSPC), 2015

From the abstract:
A recent Department of Justice report found that courts and law enforcement in Ferguson, Missouri, are systematically and purposefully taking money from the pockets of poor people—disproportionately from black people—to put into court coffers. The context may be different in California, but many of the practices are chillingly similar. As a result, over four million Californians do not have valid driver’s licenses because they cannot afford to pay traffic fines and fees. These suspensions make it harder for people to get and keep jobs, further impeding their ability to pay their debt. They harm credit ratings. They raise public safety concerns. Ultimately they keep people in long cycles of poverty that are difficult, if not impossible to overcome. This report highlights the growing trend of license suspensions, how the problem happens, the impact on families and communities, and what can and should be done about it.
press release

Fakers and Floodgates

Source: Sandra Sperino, Suja A. Thomas, Stanford Journal of Civil Rights and Civil Liberties, No. 10, 2014

From the abstract:
There has always been the possibility of judicial skepticism about employment discrimination claims. Recently, the Supreme Court made this skepticism explicit. In University of Texas Southwestern Medical Center v. Nassar, the Supreme Court expressed concern about fake claims and floodgates of litigation. It then used these arguments to tip the substantive law against retaliation claims. This article responds to this explicit skepticism about discrimination claims. First, it shows that the Court created reasons to limit retaliation claims that are not tied to congressional intent. Second, the factual claims that the Court makes are not grounded in evidence, and available information suggests the opposite conclusion. Third, a change to the substantive law will not prevent spurious claims. Fourth, the fakers and floodgates arguments could become accepted and embedded in judicial doctrine. Finally, it shows that Nassar is symptomatic of the broader issue that courts use procedure and substance to impede factually intensive civil rights claims.

Response: Conscious Congressional Overriding of the Supreme Court, Gridlock, and Partisan Politics

Source: James Buatti, Richard L. Hasen, University of California Irvine School of Law Research Paper No. 2014-67, November 24, 2014

From the abstract:
In a pathbreaking 1991 study of congressional overrides, Yale law professor William N. Eskridge found a rise during the 1970s and 1980s in the number of times that Congress consciously overrode Supreme Court interpretations of congressional statutes. As Eskridge explained his focus on deliberate congressional action, the term “override” does not “include statutes for which the legislative history — mainly committee reports and hearings — does not reveal a legislative focus on judicial decisions.” Replicating Eskridge’s methodology and updating the Eskridge study through 2012, we found that the number of conscious congressional overrides of Supreme Court statutory interpretations had fallen markedly after 1991 and had slowed during the Obama presidency to a trickle. The Hasen study suggested that increased party polarization in Congress was responsible for the decline in overrides since the Eskridge study, as well as for the shift from bipartisan overrides to more partisan overrides.

Now, in a fascinating and wide-ranging study published in the Texas Law Review, Matthew E. Christiansen and Professor Eskridge disagree with some of the conclusions of the Hasen study, both on the extent to which overrides have declined in the 1990s and also whether political polarization will likely keep the number of overrides low for the foreseeable future during periods of divided government.

The Christiansen-Eskridge study offers important and counterintuitive insights on the nature of congressional legislation enacted following Supreme Court statutory interpretation. However, as well explained by Professor Deborah Widiss in her perceptive analysis, the Christiansen-Eskridge study has shifted the meaning of “override” compared to the earlier Eskridge and Hasen studies. Instead of a study of conscious overrides, the Christiansen-Eskridge study uses new methodology to study cases in which congressional action consciously or unconsciously changed the understanding of a congressional statute as the Supreme Court had interpreted it. While unconscious overrides can be important to study for many reasons, they are less relevant for purposes of studying the Congress-Supreme Court dialogue.

Importantly, however, the Christiansen-Eskridge methodology also provides a much better way of identifying conscious overrides than the methodology used in either the original Eskridge or Hasen studies, and it has led us to add 25 additional conscious overrides to the 1991-2012 period of the Hasen study. Nonetheless, looking only at conscious overrides identified in the Hasen study and augmented by the later Christiansen-Eskridge study, we conclude that the Christiansen-Eskridge study mostly supports the two main claims of the Hasen study: (1) conscious overrides are on the decline, precipitously so in recent years and (2) partisan polarization is to blame.

This short Response makes four points. First, for purposes of measuring Congress-Supreme Court relations, it makes sense to limit a study of overrides to conscious overrides. Second, the Hasen study and Christiansen-Eskridge study, while differing in their particulars, are consistent in finding a marked decline in conscious overrides, especially during the Obama administration — a trend which has continued through 2014. Third, committee reports and legislative history surprisingly do not appear to have become a less reliable way of identifying overrides. Fourth, political polarization best explains the decline in conscious overrides, and there is good reason to believe the trend will continue during periods of divided government, with spurts of (conscious) overriding during periods of united government, until political polarization diminishes.

Making Schools More Separate and Unequal: Parents Involved in Community Schools v. Seattle School District No. 1

Source: Erwin Chemerinsky, University of California Irvine School of Law Research Paper No. 2014-59, November 20, 2014

From the abstract:
American public schools are increasingly separate and unequal. By every measure public schools are more becoming more racially segregated. The Supreme Court deserves a great deal of the blame for this. There has not been a single Supreme Court decision since Rodriguez in 1973 that has furthered desegregation or enhanced the equality of American public education. The Supreme Court’s major cases on equal educational opportunity – including Rodriguez, Milliken, Dowell, – have limited the ability of courts to create equal educational opportunity. But many schools boards on their own implemented plans to enhance racial diversity and desegregate their schools. In 2007, Parents Involved in Community Schools v. Seattle School Dist. No. 1, imposed significant, new limits on the ability of school systems to adopt such voluntary desegregation programs. Part I of this essay describes the Court’s decision in Parents Involved. Part II describes the effects of the decision on American public education. Part III explains why the decision is fundamentally flawed in its premises and its conclusions. Parents Involved must be understood in the context of now 40 years of Supreme Court decisions that have contributed to their being increasingly separate and unequal schools.

State Judicial Elections and Environmental Law: Case Studies of Montana, North Carolina, Washington and Wisconsin

Source: John D. Echeverria, Vermont Law School Research Paper No. 19-14, October 12, 2014

From the abstract:
This paper presents case studies of the judicial electoral process and its implications for environmental legal protections in four states: Montana, North Carolina, Washington, and Wisconsin. The paper builds on prior scholarship on judicial elections and on the efforts of special interests to secure the election or defeat of candidates for judicial office. It attempts to determine whether successful efforts to change the personnel sitting on specific state courts have, in fact, influenced subsequent rulings by these courts in environmental law cases. The paper concludes that the ideological orientation of a majority of the judges on a state’s highest court has a powerful influence on the court’s rulings in environmental law cases. In each of the four states studied, the outcomes of recent elections have had a demonstrable effect on the outcomes of subsequent environmental law cases.