Can habeas corpus cases proceed as class actions? The Supreme Court has never squarely answered that question, even in cases where lower courts certified habeas classes. But the Trump Administration's wholesale push to expel noncitizens has forced the question to the center of modern civil rights litigation. And at least two Justices have expressed deep skepticism. This Article is the first modern work to consider the habeas class action thoroughly. Our conclusion: Applicable rules and statutes permit class treatment in appropriate habeas cases, when representative adjudication promotes efficiency and fairness. While the Supreme Court has reserved the question, practice in the lower federal courts is uniform. We review and report on sixty years of habeas class adjudication in lower courts, starting with the 1966 introduction of Rule 23(b)(2) for classes seeking injunctive and declaratory relief. Our standout finding is that half of the geographic circuits have express precedent in favor of habeas class treatment, and the remainder favor it in practice. That is, every single federal appellate jurisdiction accepts habeas class treatment. That decisional history figures into how courts should analyze applicable procedure in habeas cases. If a Federal Rule of Civil Procedure "conforms" to a history of habeas practice, then it applies of its own force. Courts also can - and do - look to the content of useful but "nonconforming" rules to craft analogous habeas procedure under other statutory authority, including the All Writs Act and the pertinent habeas corpus statute (28 U.S.C. & sect; 2243). Whether Rule 23 is "conforming," and therefore applies of its own force, is a close question. Whether courts can apply the content of Rule 23 by force of other authority is not: Habeas cases with common issues are amenable to class adjudication. In appropriate habeas cases, class treatment aligns with the purposes of representative litigation. Habeas classes can satisfy Rule 23 requirements, promote efficient adjudication of common issues, avoid inconsistent judgments, and defeat gamesmanship by defendants in more fragmented adjudication. And class treatment ensures adequate legal representation for vulnerable plaintiffs who would otherwise be unable to meaningfully assert their rights in court.
By standard accounts, there are fifty-four constitutions across the federal, state, and territorial governments of the United States. But in fact, there are 230 other governmental constitutions that currently govern peoples and territories within the United States. These constitutions not only flow from a sovereignty that existed prior to the United States but also came out of a legal movement that asserted its independence from both the U.S. Constitution and state constitutions. This Article tells the story of these constitutions - the constitutions of Native nations. Having existed for over two centuries with an archive of thousands of constitutional documents and amendments, tribal constitutions have been left out of the narratives of American constitutional history while being obscured within the fields of American constitutional law and federal Indian law. This Article corrects these oversights and calls for the recognition of a tradition of "Indigenous constitutionalism" in the United States. This Article's aims are both theoretical and historical. On one hand, it conceptualizes Indigenous constitutionalism as a distinct and shared constitutional practice through which Native nations claim and exercise self-governance while embedded in the wider constitutional - and colonial - landscape of the United States. On the other hand, this Article draws Indigenous constitutionalism's features from the two-hundred-year history of tribal constitutions. It explores, for the first time, three major eras of tribal constitutional development: the first constitutions during the early nineteenth-century period of Indian Removal, the explosion of constitutions under the Indian Reorganization Act in the early twentieth century, and the movement for tribal constitutional reform that has stretched from the late twentieth century to today. But this Article also brings theory and history together to rethink the prevalent narratives surrounding tribal law, federal Indian law, and American constitutionalism. Indigenous constitutionalism reveals the fundamental and persistent questions around which a tribal constitutional law framework can be constructed. It also revises the origin stories of federal Indian law, demonstrating that the field did not coalesce in isolation from tribal law but was actually cocreated with tribal constitutions. Finally, by placing tribal constitutions into conversation with other American charters, Indigenous constitutionalism disrupts and expands the category of constitutionalism itself. This Article demonstrates that tribal constitutions - unique among American constitutions - showcase how these documents can appear in many forms, function as external-facing declarations of sovereignty, and exist alongside other forms of fundamental law.
The United States makes bad choices when it comes to psychoactive drugs. Under the Controlled Substances Act (CSA), U.S. drug law has simultaneously fueled mass incarceration, inhibited needed access, and enabled an opioid crisis. To make better choices, this Article argues that the CSA's institutional design must account for three distinctive features of psychoactive drugs: the prohibition problem (drug bans tend to backfire when demand is inelastic), the pharma problem (drug companies have supercharged incentives to manipulate markets and exploit consumers), and the pluralism problem (drug policy involves irreducibly political questions that no expert discipline can answer). On their own, each of these problems calls for reform to the CSA. Taken together, they call for a fundamental reassessment of drug law structures and procedures. Reconceptualizing the nation's drug policy debacle as a failure of institutional design yields badly needed interventions for a reform movement that has stalled out and a cannabis regime that has splintered. The CSA should be fixed through pragmatic changes that foster democratization without domination in rulemaking processes and legalization without laissez faire in consumer markets. Such changes include eliminating the Drug Enforcement Administration's authority to schedule substances, broadening participation in scheduling decisions, creating new schedules for nonmedical use, and imposing administrative controls on lobbying and advertising by drug manufacturers. A pragmatic approach to drug regulation along these lines, we contend, is not only superior from the standpoint of public health and the CSA's goals but also constitutionally permissible and politically plausible.
According to the Palsgraf perspective, today's dominant philosophical picture of tort law, torts are relational wrongs: violations of legal directives that forbid mistreating other people in certain ways. On this view, each cause of action in tort law - negligence, battery, defamation, false imprisonment, and so on - defines a sort of relational legal wrong that tracks a sort of relational moral wrong recognized in ordinary moral thought and practice. It follows that an injured tort plaintiff is barred from recovery unless the defendant has behaved carelessly (or otherwise wrongfully) toward her, in the manner defined by the relevant tort. That the defendant has injured the plaintiff by behaving wrongfully toward other people, or the world at large, does not entitle the plaintiff to redress. This Article challenges the Palsgraf perspective and proposes a different moral picture of tort law in its place. Torts are remedial pigeonholes: coarse doctrinal devices that track, in a rough but serviceable way, the complex conditions under which a defendant is morally liable to provide an injured plaintiff with compensation or other remedial relief. As tort law obliquely recognizes, relational moral wrongdoing is not necessary for remedial moral liability: a defendant may be morally liable to compensate a plaintiff although he has not behaved carelessly or otherwise wrongfully toward her. Rather, the moral core of tort liability is the defendant's moral responsibility for causing unjust damage to the plaintiff, in the sense of infringing some moral right against injury (or fact-relative right, to borrow a term from analytic moral philosophy) that the plaintiff holds. Moral responsibility for rights infringement partly overlaps with, but is distinct from, relational moral wrongdoing. And where the two diverge, the law of torts tracks the former rather than the latter. That is because moral responsibility for rights infringement is tort law's central moral concern. In civil law jurisdictions, tort law is largely composed of legal liability rules that explicitly track the defendant's responsibility for infringing the plaintiff's rights against injury. These rules were extracted from the coarse formal structure of classical Roman law - which consisted of remedial pigeonholes named after relational moral wrongs, like the common law of torts does today - by means of extensive casuistry and theoretical reflection conducted over several centuries by doctrinalists, philosophers, and theologians on the European continent. In common law jurisdictions, no such sweeping attempt at normative distillation and doctrinal reconfiguration is likely to occur. Rather, where moral responsibility for rights infringement diverges from relational wrongdoing, the common law of torts enforces substantive moral judgments about the former by means of a conceptual architecture that largely refers to the latter. The law achieves this feat by means of bare-faced legal fictions (such as the transferred intent and substantial certainty fictions in battery) and doctrinal appendages (such as the derivative actions for wrongful death and loss of consortium). That the common law of torts must resort to these inelegant devices reveals that its formal architecture does not perspicuously exhibit its underlying moral commitments. The Palsgraf perspective goes awry, therefore, by taking this formal architecture at moral face value. Like classical Roman law and the medieval forms of action, the common law of torts does not wear its moral substance on its sleeves.
Modern textualism has long criticized the use of practical, or consequentialist, reasoning when construing statutes. And yet in practice, textualist jurists long have invoked practical consequences arguments to help justify their statutory constructions. Over the past several years, some scholars have noted this seeming disconnect, but few have attempted to study the Court's - or textualist Justices' - use of practical consequences arguments in detail. Indeed, for too long now, statutory interpretation theory has lumped the universe of practical consequences arguments into one undifferentiated bucket, treating all such arguments as essentially equivalent. This Article provides the first in-depth empirical and doctrinal analysis of how the modern Supreme Court uses practical consequences arguments to determine statutory meaning, based on a study of 667 statutory cases decided during the Roberts Court's first sixteen-and-a-half Terms. The Article catalogues seven different forms of practical consequences-based arguments that the Court regularly invokes. The Article also notes several problems with the Court's current use of practical consequence arguments to construe statutes. For example, the Court currently invokes a hodgepodge of undefined practical concerns and provides no structure or parameters indicating what kinds of practical consequences concerns are, or should be, relevant in determining statutory meaning. Moreover, the Court's references to at least some forms of practical consequences - such as absurd, unjust, or adverse results, or results that would undermine a statute's purpose - are in tension with modern textualism's theoretical rejection of purpose, intent, and policy considerations in statutory interpretation. In the end, the Article recommends that the Court (1) abandon the categorical rhetoric used by some Justices to paint all consequentialist reasoning as illegitimate; (2) adopt clear canons or presumptions regularizing those forms of practical consequences it determines should be part of the interpretive inquiry - for example, a "workability canon" supporting the rejection of interpretations that would prove difficult or unworkable to administer; and (3) limit the universe of acceptable practical consequences canons or presumptions to those forms of practical considerations that are grounded in longstanding, well-established legal principles.
Today, it seems obvious that criminal defendants can waive constitutional rights. Plea bargains make up the vast majority of criminal convictions, and defendants routinely trade their rights - to indictment, to remain silent, to an attorney, to a jury - in exchange for afaster trial or a lesser charge. The modern criminal legal system is a regime of negotiated justice. Rights used to have more force. In the nineteenth century, the rules we now call criminal procedure rights were hard limits on judicial power. Defendants could not forfeit rights, and constitutional violations deprived courts of jurisdiction. But then, in an underappreciated and radical shift, courts changed their mind. One by one, rights became individual options, alienable upon consent. The rest is history: Grand juries declined, plea bargains soared, prosecutors became power brokers, and the system of mass processing was born. This Article recovers a lost chapter of American criminal procedure. It mines a trove of overlooked sources and traverses multiple disciplines to advance a simple claim: Between Reconstruction and the New Deal, courts transformed the rights of the accused. Long before the Warren Court revolutionized criminal procedure, there was a first revolution in constitutional criminal law. The story of that revolution reorients the field's core assumptions, embarrasses modern doctrines, and expands the canon. It also advances our collective understanding of what it could mean to protect criminal procedure rights.
Sixteen years ago, Justice Scalia warned of an "evil day on which the [Supreme] Court will have to confront the question: Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution's guarantee of equal protection?"1 That evil day approaches.2 Last Term, in Ames v. Ohio Department of Youth Services,3 the Court braced for it by reaffirming seminal disparate impact doctrine and a colorblind, anticlassification vision of equal protection.4 The Court repudiated the Sixth Circuit's "background circumstances" rule,5 which imposed a heightened evidentiary burden on majority-group plaintiffs alleging employment discrimination under Title VII.6 The surprisingly succinct opinion for a surprisingly unanimous Court rested solely on Title VII's text and the Court's Title VII precedents,7 which the Court took to mean that majority-group plaintiffs cannot be treated differently from minority-group plaintiffs.8 But the Court's embrace of a formalist, symmetrical Title VII was an implicit embrace of a formalist, symmetrical Equal Protection Clause.9 In rejecting the background circumstances rule, the Court put Title VII disparate impact doctrine (that is, liability for facially neutral actions that have a discriminatory impact10) on firmer constitutional footing, but further jeopardized an antisubordination vision of antidiscrimination law.
