Volume 87, Issue 1
Articles
Conducting an exhaustive survey of rights protected by state constitutions in 1868 (the year the Fourteenth Amendment was ratified), Professor Steven Calabresi and Sarah Agudo set out to define empirically what rights are deeply rooted in American history and tradition. The result may be the most comprehensive catalog of state constitutional provisions from the post-Civil War period available.
The authors grouped the various rights into sixteen substantive categories. They then classified each protected right based on the percentage of states that recognized the right and the percentage of the population living in those states. They also looked at geographic regions to see if some rights were more prevalent in certain regions than others. The authors recognized that many state constitutions were relatively young in 1868, so they compared the older constitutions to the younger ones, hypothesizing that rights protected in newer constitutions might not yet be viewed as fundamental.
Calabresi and Agudo’s systematic approach lends authority to their data. They avoid drawing too many inferences, and often simply present their data to allow readers to draw their own conclusions.
The results of their survey are thought-provoking and may sometimes appear contradictory to the modern reader. For example, while every state had protections for a free press, free exercise of religion, and prohibitions on excessive bail, only slightly more than half of the states had the right to bear arms and the right to a public trial. Even fewer—just over one third—had an equivalent to the Fourteenth Amendment’s Privileges or Immunities Clause. A substantial minority of states recognized the right not to bear arms, exempting conscientious objectors from military service. Ceremonial deism, such as references to “God Almighty,” is found in thirty of thirty-seven state constitutions, leading the authors to surmise that in 1868 ceremonial deism was consistent with the free exercise and nonestablishment of religion. Almost all states had a protection again self-incrimination, yet only twelve of the thirty-seven states had the right to counsel for criminal defendants. A negligible minority of states had constitutional provisions allowing a citizen to sue the state. A substantial minority of states allowed sitting legislators to be free from civil process during a legislative session, and a large majority of states prohibited a legislator from being arrested for a criminal offense during a legislative session.
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Note that the Calabresi/Agudo piece includes an Individual Rights Appendix, which is available by clicking here. The Appendix includes embedded bookmarks to facilitate navigation to specific pages. To navigate using the bookmarks in Adobe Acrobat Reader 8, do the following:
1. If the Acrobat Reader Navigation Panel containing navigation icons is not displayed along the left edge of the document, right-click on the displayed document and select the menu item "Show Navigation Panel Buttons."
2. Select the Bookmark button from the Navigation Panel to display a list of the bookmarks in the document.
3. Scroll through the list and click on the bookmark corresponding to a section of interest.
Responses in See Also:
By examining data collected from 1,700 recent Chapter 13 bankruptcy cases, this Article explains how mortgage lenders and servicers often disobey the bankruptcy laws and undermine the ability of families going through bankruptcies to keep their homes. Professor Katherine Porter begins by explaining what happens in the bankruptcy process. When homeowners file for bankruptcy, the mortgage creditor must file a proof of claim with the court identifying how much is owed. If homeowners do not pay this amount in full over a specified time period, they will lose their homes. Along with the proof of claim, creditors are required to provide an itemized statement if their claim includes fees or interest and copies of the promissory note and the mortgage.
Professor Porter shows that mortgage creditors routinely do not follow these laws. For example, they often do not identify the fees they charged with specificity, making it impossible to determine if the charges were legal. Furthermore, in more than half of the claims surveyed, creditors lacked some of the required documentation in the proof of claim. Lack of documentation hampers legal efforts to ensure that the amount asserted as owed is in accordance with the bankruptcy laws, and not in excess of the terms of the debt itself. Creditors’ failure to provide documentation can manipulate the bankruptcy system to overpay the obligations, harming the debtor and all other creditors. Despite these violations of the law, Professor Porter explains that creditors are rarely called to task for these behaviors; the costs of doing so are too high and incentives too low in the current system.
Although the data indicate that mortgage servicers are often including illegal fees and charges in the proofs of claim, the charges usually are not objected to by any party to the proceedings. Even if an objection is made there are typically no negative consequences for failing to follow the law. One solution Professor Porter suggests would be to put some teeth in the rules for lack of compliance. For example, incomplete claims documentation could be a basis for disallowing a claim altogether. Another option detailed in the Article would be to require all bankruptcy trustees to file objections when documentation is lacking. Professor Porter believes that some changes are necessary if the bankruptcy laws are going to continue to help distressed families save their homes.
Book Reviews
In his new book, How Judges Think, Judge Richard Posner makes two central claims. First, Posner argues that judges are not generally formalistic in their decision making; they are mostly pragmatic. Secondly, Posner argues that pragmatic judicial decision making is beneficial to society and should be encouraged. In his review of Posner’s book, Frank B. Cross generally agrees with Posner’s central claims, finding that the evidence supports Posner’s contentions and that the case for judicial pragmatism is even stronger than Posner’s book might suggest.
Cross begins by clarifying what is meant by Posnerian pragmatism and evaluating Posner’s claim that the judiciary is pragmatist. Acknowledging that the evidence shows that pragmatism is an undeniable part of judicial decision making, Cross nevertheless concludes that the evidence cited in Posner’s book falls short of demonstrating that judges are commonly pragmatic. Cross also considers the normative question of whether judges should be pragmatists, responding to arguments that pragmatism gives judges too much discretion. He presents evidence showing that pragmatism actually constrains judges more than other philosophies and notes the lack of evidence of judges faithfully employing the other approaches they purport to invoke.
Ultimately, Cross agrees with Posner’s contention that the judicial model of pragmatism is preferable to any number of alternatives. Of course, he argues, every approach, if adhered to without exception, will result in numerous “wrong” decisions, but a pragmatic approach to judicial decision making is best suited for the evolution and correction of bad decisions into “good” decisions. Like Posner, Cross would place his trust in judges to direct the evolution of the law in the manner that most benefits society.
Notes
In this Note, Stephen Calhoun argues that the U.S. attorney–client privilege is under threat of being weakened as it applies to U.S. companies with international operations due to lesser protection for the privilege abroad. Because of how the U.S. privilege operates, less protection in other countries could lead to less protection at home. Calhoun states that for international companies, the attorney-client privilege “will no longer be defined by U.S. courts and lawmakers, but will instead be limited to the lowest common denominator of attorney–client privileges recognized abroad.”
The Note focuses on the attorney–client privilege of the European Union and compares it to the privilege in the U.S. Calhoun concludes that the scope of protection is much narrower under E.U. law. According to the Note, this will have both direct and indirect consequences for U.S. international companies. The direct implication is that certain communications that would otherwise be privileged in U.S. courts will be subject to disclosure in E.U. courts. The Note goes further, however and argues that “some of the most significant effects . . . will be realized within the United States.” The argument is that once otherwise privileged communications under U.S. law have been disclosed in an E.U proceeding, a U.S. court might hold the privilege waived as to the communications. More severely, a U.S. court might determine that by simply acting in the E.U., with its narrower privilege rules, the communications were not made in confidence. Thus, material previously undiscoverable in the U.S. would become discoverable by virtue of the company’s business abroad. The Note concludes by assessing how tailoring the doctrine of selective waiver, which until now has been largely rejected by the federal courts, could solve the problem.
Over the past forty years, the United States has replaced its system of mental-health hospitals and asylums with more and more prisons. Currently, prisons and jails are the largest providers of psychiatric services in the country. The rate of major mental disorders is five times higher among inmates than among the general population. The astonishing data reflect the general shift from treating to incarcerating the mentally ill. Additionally, research shows that many who enter prison with no history of psychiatric disorder experience the onset of mental illness due to the trauma of incarceration. Nonetheless, criminal defendants in most states do not have a right to competency during state and federal postconviction proceedings.
In her Note, Hannah Robertson Miller argues that the absence of a competency standard for Texas death row inmates has turned postconviction state and federal habeas corpus proceedings into a “meaningless ritual.” Without such a standard, postconviction proceedings are deprived of their function, reliability, and accuracy. Noting the protections historically afforded to mentally ill defendants, Miller focuses on the void left by the denial of the right to competency during postconviction, collateral review of death sentences for prisoners on death row.
Using behavioral and social-science research and conflicting case law, Miller argues for the creation of a postconviction competency requirement to be used in both federal and state habeas corpus proceedings. In light of the goals of habeas litigation—ensuring the reliability and accuracy of death sentences—a postconviction competency standard would focus on the defendant’s ability to engage in rational and effective communication with his attorney. Without such a standard, there is a risk that a vulnerable class of criminal defendants will be denied the full extent of their due process rights.
