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In this Response Note to Jeremy Waldron's The Core of the Case Against Judicial Review, the Authors defend judicial majoritarianism, which is the use of majority decisionmaking among judicial officers who possess the power of judicial review. In defending judicial majoritrianism, the Authors contend that Professor Waldron's arguments against majoritarian decisionmaking merely reassert traditional arguments against judicial review rather than adding any new ideas to the debate.
The Authors first dispel the notion that judicial majoritarianism makes courts comparable to legislative bodies, arguing that courts use majoritarian decisionmaking to maximize the chances of reaching the right answer, while legislatures use the majoritarian process to express the wishes of the people. Next, the Authors offer defenses of judicial majoritarianism that comport with both the instrumentalist and non-instrumentalist approaches to judicial review. In offering these defenses, the Authors point out that the focus of the dialectic shifts back to the original arguments against judicial review.
In this response piece, Professor Mae C. Quinn examines Brian Tamanaha's efforts to recast the "who" and "what" of the Legal Realism movement in his recent article. Professor Quinn applauds Professor Tamanaha's attempt to rescue from obscurity some of Legal Realism's forgotten pioneers. But as Professor Tamanaha, like others examining the Realist movement, neglected to discuss the contribution of women to the movement, Professor Quinn seeks to recover this history. Specifically, she examines the story of Judge Anna Moscowitz Kross, whose legal career embodied the tenants of Realism that Professor Tamanaha acknowledged as most significant.
In this Essay, Douglas tells us that "[t]he most surprising action from the Supreme Court’s latest term may be what it did not do: strike down Section 5 of the Voting Rights Act . . . as unconstitutional." Douglas explores the Court's recent decision in Northwest Austin Municipal Utility District Number One v. Holder (NAMUDNO), in which the Justices managed to avoid invalidating Congress's reauthorization of the "preclearance" provision of the Voting Rights Act (which requires preapproval for changes to voting procedures in covered jurisdictions). This Essay explores the reasons behind the Court's 8–1 opinion, which resolved the issue on narrow statutory grounds, and what the comments in dicta by various Justices may mean for future election law cases.
Douglas first discusses the Court’s statutory interpretation and constitutional avoidance approach in NAMUDNO. He then explains how each current Justice generally views the Voting Rights Act (VRA) by analyzing their voting patterns in previous VRA cases. He concludes that the Court’s recent approach in NAMUDNO and other election law cases reveals a trend toward “strategic compromise” among the Justices in this area. Over the past few years, Douglas argues, Justices on the Court have "compromised their usual positions in election law cases in favor of a strategic and incremental approach to effectuate their long-term goals (or ward off starker and less favorable results)."
This Essay includes an Appendix -- a table of VRA cases and individual Justices' voting records in them used by the author in his analysis, which may be useful to those seeking more in-depth information about the Supreme Court's jurisprudence concerning the Voting Rights Act.
In this comment, Professor Tuerkheimer advances the notion of “control killings,” or viewing domestic violence homicide as the final act in a pattern of various forms of abusive conduct.
She begins by noting that the Supreme Court evinced a fairly sophisticated understanding of domestic violence as a pattern of conduct in Giles, but that it was still wanting in some respects. The Court overlooks the centrality of power and control to the batterer’s design, and so fails to capture the true essence of battering. Next, she focuses on Professor Lininger’s third per se rule—inferring intent to silence a victim from a history of abuse and isolation. This, she says, raises the complex issues that need to be addressed properly. Professor Lininger suggests that the inquiry under this rule would properly be to quantify the amount of domestic violence necessarily entailing an intent to silence the victim, but Professor Tuerkheimer is not convinced. She believes that the aim should be to focus on demystifying the connection between the murder and the past abuse. This would require lower courts to recognize that the central feature of domestic violence is power/control and that homicide in this context is the ultimate act of control. She then proceeds to provide evidence that the central feature of domestic violence is power or control over the victim, including conduct other than acts of physical violence. Finally, Professor Tuerkheimer concludes that in the forfeiture context courts should be concerned whether the defendant has, through all of his battering conduct, acted to reinforce the victim’s connection to him, fortifying her reluctance to ally herself with the state against him in a prosecution.
In this comment, Professor Raeder examines the major claims in Professor Lininger’s article, agreeing with some but not all of his suggestions.
First, she agrees that an originalist approach to the Confrontation Clause will not work in the domestic violence context because domestic violence was not even criminalized at the time of the founding, and explores this area further. Next, she examines the per se rules that Professor Lininger proposed for inferring intent to silence the victim in domestic violence cases. While she thinks these rules will help simplify forfeiture decisions and believes they should provide sufficient evidence of forfeiture, she would add that the rules should be rebuttable presumptions. The defendant should be able to rebut whether in the individual case they actually prove the existence of the inferred or actual intent supporting forfeiture. Also, she believes that it would be appropriate to allow the admission of other forms of evidence sufficient to prove forfeiture. Specifically, she would expand Professor Lininger’s per se rules to include two other categories: proof that the defendant has an abusive personality, and proof that the decedent suffered from Post Traumatic Stress Disorder, explaining why this would be helpful. Finally, she focuses on Professor Lininger’s efforts to redefine the forfeiture hearsay exception. She believes that it would still be better to confine the exception to the witness tampering context because it lacks reliability, and can be more directly dealt with by other hearsay exceptions.
In this comment, Professor King-Ries explores Professor Lininger’s proposed solution to the conundrum created by the Supreme Court’s decision in Giles v. California, regarding forfeiture by wrongdoing in the domestic violence context.
Professor Lininger advocates the creation of bright-line rules for determining when it is appropriate to infer a defendant’s intent to prevent his victim from testifying. Profesor King-Ries agrees this is the right approach but finds the rules incomplete. Instead, Professor King-Ries believes that whenever the prosecution can establish that a battering relationship exists between the defendant and the victim, it is appropriate to infer the defendant’s intent to prevent the victim from testifying for the purposes of the forfeiture by wrongdoing doctrine. However, Professor King-Ries explains that a battering relationship can involve more than just violent conduct—such as control over financial resources, or emotional isolation—and that because Professor Lininger’s bright-line rules focus only on the violence aspect, they may be inadequate. For example, a defendant’s confiscation of the victim’s credit cards after the victim’s reporting of a violent incident might be far more effective at preventing testimony than a punch, but it would fall outside Professor Lininger’s per se rule regarding acts of violence during the pendency of the prosecution.
In this comment, Professor Hanna explains why she believes Professor Lininger’s article is so important: it develops a test for getting around the problem created by the Supreme Court for the prosecution of domestic violence murders.
The problem created in Giles is that prosecutors are required to prove that the defendant had the specific intent to silence his victim when he killed her, before allowing forfeiture of confrontation rights. However, Professor Lininger’s article grabs onto language in the majority and concurring opinions suggesting that lower courts are permitted to infer that intent, and develops three per se rules for when it is appropriate. She believes that since this test focuses on the broader context of domestic violence abuse, as opposed to focusing on just the moment the murder occurred, it should help prosecutions of domestic abusers.
She also focuses on the question of whether advocates for the victims of domestic abuse should emphasize the gender bias in these crimes, showing how the law treats women unfairly in this context, or whether they should de-emphasize it in order to win over the likes of Justice Scalia. After discussing the issue, she concludes that trying to win over Justice Scalia is pointless because he is too committed to originalism in the Confrontation Clause context to be affected either way by the disparate impact this has on women.
In this Comment to Professor Lininger’s article, Professor Miccio focuses on two important moral dilemmas highlighted by the Court’s decision in Giles v. California: “(1) whether a search for truth should be sacrificed to our notions of Due Process; and (2) whether Giles’s protection of the accused is premised on beliefs tainted by sexism.”
She argues that the Court’s opinions in Giles, Davis v. Washington, and Town of Castle Rock, Colo. v. Gonzalez, which were all written by Justice Scalia, reflect Scalia’s contempt for battered women. In Miccio’s opinion, Scalia’s formalistic legal reasoning in this area of the law has been inconsistent, while his misogynistic view of women has been undeniably constant.
