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In this Review, Professors Charles and Randall Kelso discuss Professor Levinson’s book Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It). Levinson’s book has two major purposes: (1) to document and describe the many ways in which our Constitution produces or could produce countermajoritarian results and (2) to urge (in light of these antidemocratic “flaws”) that we hold a constitutional convention to draft a new constitution for submission to the electorate.
They describe Levinson as a supporter of “deliberative democracy” as an end in itself, perhaps the ultimate end of political institutions. Indeed, all of Levinson’s suggestions, from making the Senate less antidemocratic to doing away with lifetime tenure for Supreme Court Justices, are attempts to move toward a society where government “accord[s] with what the people want, as expressed in election returns, assuming a very broad electorate, with each person’s vote counting the same.”
While Professors Charles and Randall Kelso commend Our Undemocratic Constitution for its conciseness, clarity, and organization, they find it unconvincing in two respects. First, even assuming that Professor Levinson’s project for deliberative democracy is sensible, they argue that none of his proposals are pragmatic. The probability of the polity organizing for a constitutional convention to write a new constitution is nearly zero, and the political barriers that must be overcome to implement Levinson’s proposals in the manner he suggests are prohibitively high. Second, Professors Charles and Randall Kelso question the wisdom of Professor Levinson’s elevation of deliberative democracy as an end in itself. They point out that “the choice that must ultimately be made in advanced societies regarding majority rule and individual or minority rights is between rational principles of justice versus either self-interested interest-group politics or following the customs and traditions of society.” This is so because rational principles of justice are not necessary outcomes of democratic processes.
Referencing Lawrence Kohlberg’s six stages of moral reasoning, the authors of this Review argue that rational principles of justice are a higher end than democracy, and therefore the force of democratic majorities must be mitigated or mediated by those principles of justice (e.g., the “self-evident” truths espoused at the beginning of the Declaration of Independence). Thus, Professors Charles and Randall Kelso disagree with Professor Levinson’s core claim that deliberative democracy is the end to which our political institutions should be structured. They conclude by urging Professor Levinson to write a follow-up book in which he might attempt to discover solutions to the problems he identifies that work within the existing constitutional framework. They believe that a book along those lines would be worthy of generating “heated, and critically important, debate.”
This Note addresses the rule of property law providing the proper person to bring claims for injury to real property is the owner of the property at the time of the injury. This rule restricts subsequent owners of real property from bringing suit against tortfeasors who injured the property before their purchase. The inability of landowners to obtain relief from tortfeasors has many negative consequences, including preventing parties who have been harmed from obtaining relief and creates an inequitable windfall for tortfeasors. The bases of this rule are examined and found to be anachronistic and indefensible, and this Note urges that the rule be amended.
Specifically, this Note suggests that state courts add a notice provision and a free-assignment-of-claims provision to the existing rule. The notice provision would provide that the proper party to bring tort claims for injury to real property is the owner of the land at the time of injury unless the subsequent owner of the land did not have notice of the injury when she purchased the property. The second addition to the existing rule, a free-assignment-of-claims provision, would allow owners of real property to assign their property damage claims to subsequent purchasers, and this Note defends the provision from application of the doctrinal vestiges of the old (and now almost obsolete) common law prohibition against assignment of causes of action.
This Note concludes that a fully amended rule would provide that “the proper party to bring tort claims for injury to land is the person who owned the land at the time that it was injured unless either (1) the subsequent owner of the land did not have notice of the property damage when she purchased the injured land or (2) the person who owned the land when it was injured assigned her property damage claims to someone else.”
Mathematical modeling is an indispensable tool in the field of environmental science, and inevitably, such models must be used as evidentiary tools in environmental-tort litigation. However, the test for the reliability and relevance (and, ultimately, for the admissibility) of scientific testimony as articulated by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc. has proven especially problematic in evaluating the reliability of such mathematical models.
Many factors contribute to this problem: models are often plagued by uncertainty and lack of transparency; in an adversarial context, models are often used to obfuscate rather than clarify empirical evidence; and models can often be overly technical and challenging for judges and juries who may be unfamiliar with even the most basic scientific issues posed by the use of a model. In light of these problems, this Note argues that Daubert is not the correct framework for addressing the problem of model reliability because it “hits scientific modeling sideways and often obscures the benefits of modeling, while potentially ignoring many of its problems, leading to too many false positives and false negatives in decision making.”
Because the field of modeling constitutes a sui generis problem, the Daubert factors should be abandoned or at least heavily modified in the context of evaluating models. This Note looks to the use of models by regulatory agencies, particularly the U.S. Environmental Protection Agency (EPA), in formulating a new test. In line with practices of the EPA, it advocates the creation of a mandatory screening checklist to be used by decision makers.
In this Comment, Professor Neuborne attempts to place his views within Professor Shapiro’s taxonomy of approaches to constitutional precedent. While Professor Neuborne believes that constitutional decisions deserve a qualified respect, he does so for different reasons than those offered in Professor Shapiro’s Article. In Professor Neuborne’s view, adherence to constitutional precedent is not justified by any particular deference to the wisdom of the past but rather by the practical restraint that it imposes on the political power of modern judges.
In this Comment to Professor Shapiro’s Article, Professor Paulsen—a known skeptic of constitutional stare decisis—colorfully analyzes how different approaches to precedent affect strategic coalition building on a multimember Court. Under this new tactical theory, Professor Paulsen speculates how his views on constitutional precedent might affect his relative power as a fellow member of Justice Shapiro’s Court.
Professor Robert S. Bickerstaff offers a response to Professor Kousser's article that includes both a contrary analysis of Supreme Court decisions regarding Section 5 and also a detailed discussion of the precise effects of Section 5 on minority representation by elected officials. Professor Bickerstaff offers insights based on his thirty-two years of experience representing jurisdictions covered by the election-change review process of Section 5. Although much has been accomplished, real-world application of Section 5, particularly against the backdrop of partisan politics, has presented new challenges for achieving the goal of meaningful minority participation.
In this Article, Professor Shapiro addresses the question of how courts should treat precedent. He focuses on the category of “horizontal” precedent, specifically application of Supreme Court precedent by Supreme Court Justices. He begins by identifying three rough categories of scholarly views on the effect of such precedent: (1) the view that precedent should not or does not influence Justices on issues where they disagree with precedent; (2) the view that when Justices disagree with precedent, it should only be followed (or is only followed) if certain other conditions are satisfied; and (3) the view that Justices should, or always do, follow precedent even when they disagree with the result unless certain conditions are satisfied.
Having laid out this schematic, Professor Shapiro takes a decidedly Burkean approach to the problem, placing himself in the third category; he takes the position that a precedent being “clearly incorrect” is a necessary, but not sufficient, condition for setting it aside. Professor Shapiro asserts that constitutional meaning derived from text or original “public meaning” is distinguishable but not separable from judicial precedent. With this in mind, and looking to Justice Kennedy’s opinion in Patterson v. McLean Credit Union to guide his analysis, Professor Shapiro articulates two criteria that should be satisfied before precedent is abandoned: (a) “the precedent(s) were clearly wrong when rendered or had clearly become unsound in the light of experience,” and (b) “the error is significantly obstructing the achievement of generally recognized and important objectives, is obstructing the vindication of basic rights, or (more cautiously) is so inconsistent with later precedent that its rejection is required in the interest of coherence and predictability in the law.”
Having stated his criteria, Professor Shapiro imagines that he himself is a newly appointed Supreme Court Justice and applies these criteria to a hypothetical test case. Professor Shapiro engages in two alternate analyses applying his criteria, one which declines to apply the precedent and one which does. After considering each, he concludes that he would vote to follow the precedent, despite his personal dislike for the outcome.
Responses in See Also:
In this Article, Professor Neil Seigel attempts to conceptualize analytically the elusive concept of “judicial statesmanship.” Judicial statesmanship, in brief, is the quality of the judicial temperament that applies practical political and social wisdom to the process of adjudication in light of the enormous interests that depend on the results of judicial opinions. This attribute of judicial role has been described and advocated as essential by various Justices of the Supreme Court including Brandeis and Frankfurter; however, the concept has evaded attempts at analytic description.
It has, at best, been described by a hodgepodge of qualities and conditions such as: understanding the open-endedness of constitutional language; recognizing the enormous difficulty of the problems facing the Court and the limited experience of any individual judge; and advancing the need for law to keep up with the times. Professor Seigel approaches the problem of describing judicial statesmanship from a different framework—he locates judicial statesmanship in the need for legitimation of legal systems. In this framework, judicial statesmanship is a virtue that is essential to maintaining trust between the government and the governed, trust in the rule of law, and a spirit of “moderation” within the polity.
Thus, judicial statesmanship furthers two potentially conflicting purposes: (1) it expresses “social values as social circumstances change” and (2) it sustains “social solidarity amidst reasonable, irreconcilable disagreement.” When judicial statesmanship as a concept is approached in this manner, it becomes possible to identify judicial opinions as either statesmanlike or unstatesmanlike. Professor Seigel applies this rubric to two recent Supreme Court opinions—Parents Involved in Community Schools v. Seattle School District No. 1 and Gonzales v. Carhart—and argues that the majority opinion for the former exhibits the virtues of judicial statesmanship while the opinion in the latter case does not.
