Remapping the Path Forward: Toward a Systemic View of Forensic Science Reform and Oversight

Jennifer E. Laurin

91 Texas L. Rev. 1051

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The 2009 report of the National Academy of Sciences (NAS) on the state of forensic science in the American criminal justice system has fundamentally altered the landscape for scientific evidence in the criminal process, and is now setting the terms for the future of forensic science reform and practice.  But the accomplishments of the Report must not obscure the vast terrain that remains untouched by the path of reform that it charts.  This Article aims to illuminate a critical and currently neglected feature of that territory: namely, the manner in which police and prosecutors, as upstream users of forensic science, select priorities, initiate investigations, collect and submit evidence, choose investigative techniques, and charge and plead cases in ways that have critical and systematic, though poorly understood, influences on the accuracy of forensic analysis and the integrity of its application in criminal cases.  By broadening our understanding of how forensic science is created and used in criminal cases—by adopting a systemic perspective—the Article points to a raft of yet unaddressed issues concerning the meaning of scientific integrity and reliability in the context of investigative decisions that are by and large committed to the discretion of decidedly unscientific actors.  Critically, the Article demonstrates that systemic dynamics affecting upstream use of forensic science might well undermine the reliability-enhancing goals of the reforms advocated by the National Academy Report.  As the NAS Report begins to set the agenda for active conversations around legislative and executive action to reform forensic science, it is critical to consider these questions.  Moreover, the Article suggests that the embrace of science as a unique evidentiary contributor within the criminal justice system problematizes some of the bedrock assumptions of American criminal procedure that have, to date, prevented more robust doctrinal intervention in the investigative stages and decisions that the Article explores.

What Do We Talk About When We Talk About the Constitution?

Akhil Reed Amar & Sanford Levinson

91 Texas L. Rev. 1119

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Amar and Levinson review Akhil Reed Amar’s America’s Unwritten Constitution: The Precedents and Principles We Live By and Sanford Levinson’s Framed: America’s 51 Constitutions and the Crisis of Governance.

Making Sense of the Marriage Debate

Jane S. Schacter

91 Texas L. Rev. 1185

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Schacter reviews Michael J. Klarman’s From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage.

Jury Unanimity and the Problem with Specificity: Trying to Understand What Jurors Must Agree About by Examining the Problem of Prosecuting Child Molesters

Brian Bah

91 Texas L. Rev. 1203

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In this Note, Mr. Bah argues that one way to approach questions about the level of specificity required for jury agreement is by examining current state laws and their various jury agreement doctrines.  Continuous course of conduct offenses in particular can be helpful in examining these types of questions.  This Note focuses on one particular type of continuous course of conduct offenses—“continuous sexual abuse of a child” (CSA) statutes—that has become popular in the last two decades.

Part I provides a general overview of CSA statutes and their history.  Part II briefly discusses the current constitutional doctrinal framework.  Part III focuses on California and Texas to show what their respective case law says about jury unanimity, specificity requirements for unanimity, and the continuous course of conduct exception.  Part IV provides an analysis of CSA statutes and will attempt to answer the questions of (1) whether these statutes are staying true to the purpose behind specificity in jury agreement and (2) whether these statutes may bump up against constitutional problems in the future.  Part V discusses some of the possible ways to address current CSA statutes and then provides possible solutions for how to better address the problem of prosecuting child molesters.

U-Turns on the One-Way Street: Public Rights and Representation Theory in Patent Validity Litigation

Brett Rosenthal

91 Texas L. Rev. 1227

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In this Note, Mr. Rosenthal contends that a vigorous challenge against a patent’s validity fully vindicates the public right to access ideas in the public domain and should preclude successive challenges by future infringers.  Part I looks at the foundational tools of group litigation—joinder and consolidation—as applied in patent law, including recently adopted restrictions in the America Invents Act of 2011.  Part II asks whether the Rule 23 class action allows certification of present and future infringers for validity determinations.  Part III examines whether the “public law” nature of the validity inquiry reinvigorates the notion of “virtual representation” rejected in Taylor v. Sturgell.  Part IV analyzes whether procedural rules that facilitate the establishment of patent validity further the substantive goals of patent law and the imperatives of wise judicial administration.

Pursuing Academic Freedom After Garcetti v. Ceballos

Lauren K. Ross

91 Texas L. Rev. 1253

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In this Note, Ms. Ross argues that the Court should recognize a constitutional, individual right to academic freedom.  The Note begins by updating and reposing William Van Alstyne’s concept of a specific theory of academic freedom, distinguishing the right to academic freedom from a more general notion of First Amendment rights.  It then turns to Garcetti v. Ceballos, providing historical context in order to understand why Garcetti marks such a change in our understanding of free speech.  The next portion of this Note considers how courts have applied Garcetti to cases raising academic freedom issues.  Using the problems revealed in the post-Garcetti decisions, this Note then suggests the Court should officially recognize a right to academic freedom and offers thoughts on what that right should encompass.

Legal Realism Untamed

Frederick Schauer

91 Texas L. Rev. 749

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In this piece, Professor Schauer argues that law is not only about hard cases. There are easy ones as well, and understanding law requires awareness not only of litigated and then appealed disputes, but also the routine application of legal rules and doctrine.

One consequence of the existence of easy cases along with hard ones is the alleged marginalization of the skeptical challenges of Legal Realism. Legal Realism is conventionally understood, in part, to question legal doctrine’s determinacy and positive law’s causal effect on judicial decisions. But if Legal Realism’s skepticism about the constraints of positive law applies only to the sliver of legal events that are litigated cases, Legal Realism’s challenges can be kept at bay. Legal Realism may remain a valuable corrective to the view that even most appellate cases have a legally right answer, but not as a claim that undermines the routine determinacy of law.

This marginalization of Legal Realism turns out, however, to ignore a central Realist theme: the distinction between “paper rules,” on the one hand, and “real rules,” or “working rules,” on the other. The distinction between real and paper rules is well-known, but the effect of the distinction upon the supposed marginalization of Legal Realism has remained unnoticed. For when the paper rules do not describe the actual rules that judges use in making decisions, the divergence between paper and real rules will influence the distribution between easy and hard cases. Thus the distinction between paper and real rules pervades the entirety of law. The gap between paper and real rules, therefore, by producing consequences throughout law and not merely to a small subset of it, reveals the Realist challenge to be more foundational, and—importantly—less tamed.

The question Professor Schauer addresses is as fundamental as it is simple: What makes hard cases hard, and easy ones easy? The answer is empirical, varying with time, place, and area of law. But Legal Realism in its untamed version not only directs us to this question, but also suggests that the answer to the empirical question might, in some contexts and in some domains, challenge the standard view of how law works even in its routine and nonlitigated operation.