Don’t Forget Due Process: The Path Not (Yet) Taken in § 2254 Habeas Corpus Adjudications

Justin F. Marceau

Volume 62, Issue 1, 1-66

Countless articles and judicial opinions have been devoted to the task of deciphering the scope and application of the limitations on habeas corpus relief announced in the Anti- Terrorism and Effective Death Penalty Act of 1996 (AEDPA). Over the past ten years courts and scholars have developed an intricate framework of analysis for nearly every subsection of § 2254. The decade-long process of interpretation and commentary has been characterized by questions of statutory meaning and federalism that appear to be as irresolvable for courts as they are intriguing to academics. But in the rush to sort out the minutiae of the AEDPA, the hallmarks of our legal system—basic due process and constitutional supremacy—have been overlooked. This Article aims to re-focus the debate.

The application and discussion of the AEDPA’s limitations on relief has devolved into a bitter argument over the meaning of a statute which lacks a discoverable meaning, much less an obvious or plain meaning. It is statutory esotericism or statutory obfuscation much more than it is statutory interpretation. The discussion has become so technical and specialized, not to mention politically polarized, that we are at risk of permanently overshadowing the historical and constitutional underpinnings of the Great Writ. The goal of this Article is to recast and simplify the habeas debate and achieve some much needed common ground. The thesis is simple: Where the aggregate of available state proceedings fail to provide a meaningful corrective process such that federal constitutional issues are not “fully and fairly” adjudicated, it is necessary for the federal courts to review the federal claims de novo. Deference to a procedural abyss is avoided. This modest procedural proposal is compelled by due process through a celebrated line of cases, and yet in the frenzy to interpret § 2254—in working out all of the (e)(2)s and the (d)(1)s—we have forgotten due process. It is time to return to it.

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Liability for Unconscious Discrimination? A Thought Experiment in the Theory of Employment Discrimination Law

Patrick S. Shin

Volume 62, Issue 1, 67-102

Recent scholarship in employment discrimination law has wrestled with the problem of unconscious bias and its implications for antidiscrimination law. This Article addresses what some might regard as a naïve question: Should actions influenced by unconscious bias be regarded as discrimination under Title VII? The question might be considered naïve because any proposal for liability based on unconscious bias would surely be unripe for present implementation, and because there is no accepted method either for detecting such bias in individual cases, or for determining whether such bias actually influenced a person’s decisionmaking. But these practical considerations provide no answer to the fundamental issue that underlies the question. Does unconsciously biased action fall within the legal concept of actionable discrimination? To reach that important issue, I devise a thought experiment that brackets practical problems of proof and squarely raises what I regard as the hard question for theorizing about unconscious discrimination. Should an employment action give rise to liability when that action was provably affected by the actor’s unconscious bias with respect to a statutorily protected classification, even when the actor consciously acted only on legitimate, nondiscriminatory reasons? The payoff of the thought experiment is not only a clearer picture of the theoretical commitments entailed by liability based on unconscious bias, but also a keener understanding of our currently prevailing notions of actionable discrimination.

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War and Peace in the Jury Room: How Capital Juries Reach Unanimity

Scott E. Sundby

Volume 62, Issue 1, 103-154,

Using data from the Capital Jury Project, this Article takes a close look inside the jury room at the process by which capital juries reach a unanimous verdict at the penalty phase. The Article first examines the relationship between first ballot voting patterns and the ultimate sentence, then explores the dynamics of group interaction in achieving unanimity. In particular, by using the jurors’ own narratives, the piece delves into the psychological process and arguments through which the majority jurors persuade the holdouts to change their votes. This process is especially intriguing because individual juries do not, of course, have any training in how to deliberate and reach unanimity, and yet they are strikingly similar from case to case in how they convert holdouts to the majority position (with striking differences between the dynamics of juries that reach a verdict of death and those that return a sentence of life without parole). Using the
closing argument in the death penalty case of Susan Smith (a mother who did the unthinkable, killing her two children by driving them into a lake and then trying to cast blame on a mysterious black man), the Article concludes by examining how a closing argument might address many of the pressures that affect holdouts.

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Note – A Reasonable Alternative to the Reasonable Alternative Design Requirement in Products Liability Law: A Look at Pennsylvania

Andrew Meade

Volume 62, Issue 1, 155-184

The manner in which design defects should be defined has caused more controversy than any other area of products liability law. The Restatement (Third) defines a product design as defective when the foreseeable risks of harm from using a product could have been avoided if the manufacturer had used a reasonable alternative design. This definition departs from the Restatement (Second), which defines defective products as unreasonably dangerous if the product fails to meet the expectations of consumers. Without so stating, the Restatement (Third) essentially changes products liability law from a regime of strict liability to one of negligence.

The debate is most unsettled in Pennsylvania. The Pennsylvania Supreme Court currently follows the approach of the Restatement (Second), holding that negligence has no place in determining whether a product is defective and, instead, modeling liability based on consumer expectations. In 2007, however, the Third Circuit predicted that the Pennsylvania Supreme Court would adopt the Restatement (Third) and apply a fault-based standard to determine liability in products liability cases. The Pennsylvania Supreme Court granted certiorari in a case to decide whether it should apply the Restatement (Third); however, in 2009, it dismissed the appeal as improvidently granted. As a result, the products liability law in Pennsylvania is in flux.

I argue that instead of following either of the Restatements, courts should apply strict liability, in which manufacturers are liable for foreseeable harm caused by their products, regardless of
whether the product was deemed “defective.” Although defect will not serve as a limitation on liability, manufacturers will be protected under my proposal by the affirmative defenses of negligent use or assumption of risk. By eliminating the elusive concept of defect from products liability, liability will be more predictable and will better reflect the costs of product use.

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Note – Invalidating Gene Patents: Association for Molecular Pathology v. U.S. Patent & Trademark Office

Ashley McHugh

Volume 62, Issue 1, 185-220

Biotechnology companies and research institutions have patented thousands of genes based on the idea that a gene in an isolated and purified form is a patentable invention. The biotechnology industry has since grown to a multibillion dollar industry using gene patents as a basis for targeting new drugs, researching genetic disease, and developing diagnostics. One company, Myriad Genetics, faces the threat of having their patents invalidated because of their monopolistic use of their patents on human breast cancer genes. In Association for Molecular Pathology v. U.S. Patent & Trademark Office, the district court found Myriad’s gene patents invalid and unenforceable. If upheld, the decision will invalidate all patents on human genes and potentially many
other patents on isolated and purified natural products, having far-reaching implications for health, science, and biotechnology.

This Note questions the district court decision in Association for Molecular Pathology to grant the plaintiffs standing to sue Myriad and the United States Patent & Trademark Office and to invalidate gene patents under existing case law. Opponents of gene patents argue that genes are products of nature and are therefore not patentable subject matter under § 101 of the Patent Act. However, circuit courts have consistently endorsed the principle that isolated and purified products of nature are still inventions and patentable subject matter in certain circumstances. Although the patentability of human genes under § 101 had not been addressed by courts until now, human genes have been upheld as patentable under other requirements of the Patent Act. Because
invalidating gene patents will not likely remedy the monopolistic effects of gene patents, this Note reviews several legislative approaches that could serve as a more appropriate vehicle to address the harms that gene patents cause.

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