Volume 65, Number 1 – October 2015

Articles

Judicial Independence and the Rationing of Constitutional Remedies
Aziz Z. Huq
PDF

This Article analyzes the doctrinal instruments federal courts use to allocate scarce adjudicative resources over competing demands for constitutional remedies. It advances two claims. First, a central, hitherto underappreciated, doctrinal instrument for rationing judicial resources is a demand that most constitutional claimants demonstrate that an official violated an exceptionally clear, unambiguous constitutional rule—that is, not only that the Constitution was violated, but that the violation evinced a demanding species of fault. This fault rule first emerged in constitutional tort jurisprudence. It has diffused to the suppression and postconviction review contexts. The Article’s second claim is that fault-based rationing of constitutional remedies flows, to an underappreciated degree, from an institutional commitment to judicial independence. Federal courts have developed branch-level autonomy, along with distinctly institutional interests, over the twentieth century. These interests are inconsistent with the vindication of many individualized constitutional claims. Although ideological preferences and changing socioeconomic conditions have had well-recognized influences on the path of constitutional remedies, I argue that the judiciary’s institutional preferences have also played a large role. This causal link between judicial independence and remedial rationing raises questions about federal courts’ function in the Separation of Powers.

Regulatory Textualism
Jennifer Nou
PDF

This Article proposes a textualist approach to regulatory interpretation. Regulatory textualism, however, should be distinct from statutory textualism. Judges should interpret regulations armed not with dictionaries or other general linguistic aids, but rather with a hierarchy of sources that sheds light on the text’s public meaning. Methodologically, this approach tailors positive political theory insights to the rulemaking process. That process features a number of pivotal actors, or veto-gates, who must sign off on a regulation before it can proceed. The court’s interpretive task is to privilege those statements that are more likely to be credible—sincere, not strategic—reflections of the text’s public meaning.

Specifically, the judge should first consider the preamble’s provision-by-provision explanations, which frequently respond to public comments raising potential ambiguities. If ambiguity persists, the judge should then consult the regulatory analyses, which predict the rule’s consequences under specific factual scenarios. Both congressional and presidential veto-gates, as well as the public more generally, rely on these analyses when engaging with the regulatory process. Finally, if these materials conflict, the court should then defer to the agency’s interpretation—provided that the agency provides a reasoned explanation. In this manner, regulatory textualism asks how the reasonable reader of a rule would have understood its meaning as negotiated by the President, Congress, and other politically legitimate actors.

Notes

Analog Solutions: E-discovery Spoliation Sanctions and the Proposed Amendments to FRCP 37(e)
Scott M. O’Brien
PDF

The ever-increasing importance of digital technology in today’s commercial environment has created several serious problems for courts operating under the Federal Rules of Civil Procedure’s (FRCP) discovery regime. As the volume of discoverable information has grown exponentially, so too have the opportunities for abuse and misinterpretation of the FRCP’s outdated e-discovery rules. Federal courts are divided over the criteria for imposing the most severe discovery sanctions as well as the practical ramifications of the preservation duty as applied to electronically stored information. As a result, litigants routinely feel pressured to overpreserve potentially discoverable data, often at great expense.

At a conference at the Duke University School of Law in 2010, experts from all sides of the civil-litigation system concluded that the e-discovery rules were in desperate need of updating. The subsequent four years saw a flurry of rulemaking efforts. In 2014, a package of proposed FRCP amendments included a complete overhaul of Rule 37(e), the provision governing spoliation sanctions for electronically stored information. This Note analyzes the proposed Rule and argues that the amendment will fail to accomplish the Advisory Committee’s goals because it focuses too heavily on preserving the trial court’s discretion in imposing sanctions and focuses too little on incentivizing efficient and cooperative pretrial discovery. The Note concludes by offering revisions and enforcement mechanisms that would allow the new Rule 37(e) to better address the e-discovery issues identified at the Duke Conference.

Volume 65, Number 1 – October 2015

Articles

Judicial Independence and the Rationing of Constitutional Remedies
Aziz Z. Huq
PDF

This Article analyzes the doctrinal instruments federal courts use to allocate scarce adjudicative resources over competing demands for constitutional remedies. It advances two claims. First, a central, hitherto underappreciated, doctrinal instrument for rationing judicial resources is a demand that most constitutional claimants demonstrate that an official violated an exceptionally clear, unambiguous constitutional rule—that is, not only that the Constitution was violated, but that the violation evinced a demanding species of fault. This fault rule first emerged in constitutional tort jurisprudence. It has diffused to the suppression and postconviction review contexts. The Article’s second claim is that fault-based rationing of constitutional remedies flows, to an underappreciated degree, from an institutional commitment to judicial independence. Federal courts have developed branch-level autonomy, along with distinctly institutional interests, over the twentieth century. These interests are inconsistent with the vindication of many individualized constitutional claims. Although ideological preferences and changing socioeconomic conditions have had well-recognized influences on the path of constitutional remedies, I argue that the judiciary’s institutional preferences have also played a large role. This causal link between judicial independence and remedial rationing raises questions about federal courts’ function in the Separation of Powers.

Regulatory Textualism
Jennifer Nou
PDF

This Article proposes a textualist approach to regulatory interpretation. Regulatory textualism, however, should be distinct from statutory textualism. Judges should interpret regulations armed not with dictionaries or other general linguistic aids, but rather with a hierarchy of sources that sheds light on the text’s public meaning. Methodologically, this approach tailors positive political theory insights to the rulemaking process. That process features a number of pivotal actors, or veto-gates, who must sign off on a regulation before it can proceed. The court’s interpretive task is to privilege those statements that are more likely to be credible—sincere, not strategic—reflections of the text’s public meaning.

Specifically, the judge should first consider the preamble’s provision-by-provision explanations, which frequently respond to public comments raising potential ambiguities. If ambiguity persists, the judge should then consult the regulatory analyses, which predict the rule’s consequences under specific factual scenarios. Both congressional and presidential veto-gates, as well as the public more generally, rely on these analyses when engaging with the regulatory process. Finally, if these materials conflict, the court should then defer to the agency’s interpretation—provided that the agency provides a reasoned explanation. In this manner, regulatory textualism asks how the reasonable reader of a rule would have understood its meaning as negotiated by the President, Congress, and other politically legitimate actors.

Notes

Analog Solutions: E-discovery Spoliation Sanctions and the Proposed Amendments to FRCP 37(e)
Scott M. O’Brien
PDF

The ever-increasing importance of digital technology in today’s commercial environment has created several serious problems for courts operating under the Federal Rules of Civil Procedure’s (FRCP) discovery regime. As the volume of discoverable information has grown exponentially, so too have the opportunities for abuse and misinterpretation of the FRCP’s outdated e-discovery rules. Federal courts are divided over the criteria for imposing the most severe discovery sanctions as well as the practical ramifications of the preservation duty as applied to electronically stored information. As a result, litigants routinely feel pressured to overpreserve potentially discoverable data, often at great expense.

At a conference at the Duke University School of Law in 2010, experts from all sides of the civil-litigation system concluded that the e-discovery rules were in desperate need of updating. The subsequent four years saw a flurry of rulemaking efforts. In 2014, a package of proposed FRCP amendments included a complete overhaul of Rule 37(e), the provision governing spoliation sanctions for electronically stored information. This Note analyzes the proposed Rule and argues that the amendment will fail to accomplish the Advisory Committee’s goals because it focuses too heavily on preserving the trial court’s discretion in imposing sanctions and focuses too little on incentivizing efficient and cooperative pretrial discovery. The Note concludes by offering revisions and enforcement mechanisms that would allow the new Rule 37(e) to better address the e-discovery issues identified at the Duke Conference.