A Message from the Editor-in-Chief
Emily Goldberg Knox
Volume 66, Issue 6
Sixty-six years after the founding of the Hastings Law Journal, much has changed. The times of physically turning a page are all but gone. Now we prefer the swipe of a finger or the click of a mouse. It is a challenge for long-standing institutions to keep up with the times. Inertia is powerful—it is far easier to watch things change than change with the times. Nevertheless, this year, Hastings Law Journal met the challenge head on. In addition to overhauling our website, we launched SCOCABlog, a blog dedicated to covering the Supreme Court of California. Launching a blog, I have learned, is no small feat, and I am grateful for the assistance of a number of people, including David Carrillo, Executive Director of the California Constitution Center, Michael Charlebois, Executive Technology Editor of Volume 66, and our sponsors Kerr & Wagstaffe LLP and Horvitz & Levy LLP. Although we have a ways to go, I am confident that future generations of Journal members are up to this challenge. . . .
Keynote Address: Federal Sentencing Reform Ten Years After United States v. Booker
Hon. Charles R. Breyer
Volume 66, Issue 6, 1525-48
Hon. Charles R. Breyer gave the keynote address for Hastings Law Journal’s Federal Sentencing Reform Symposium held on February 13, 2015. Professor Rory Little provided the introduction.
Merit-Based Sentencing Reductions: Moving Forward on Specifics, and Some Critique of the New Model Penal Code
Rory K. Little
Volume 66, Issue 6, 1535-48
In the Essay that follows, Michael Santos tells a remarkable story. Arrested at age twenty-three, Santos served twenty-six years in the federal prison system. While in prison, Santos published articles and books, and earned college and master’s degrees, despite what he describes as affirmatively obstructionist decisions by “corrections” personnel. Immediately after his release in 2013, Santos began lecturing at a respected state university. Today, he has a website; course materials for persons facing lengthy prison sentences; scores of supporters and mentors; and the charisma and character to hold a law symposium audience spellbound for every minute of his thirty-minute presentation. Those who teach know how difficult that can be! . . .
Incentivizing Excellence: A Suggestion for Merit-Based Reductions from a Twenty-Six-Year Federal Prison Insider
Volume 66, Issue 6, 1549-66
America’s prison population has soared since the early 1970s, when a commitment to mass incarceration began. We now incarcerate more people than any other nation. Further, recidivism rates show that the longer we expose people to “corrections,” the less likely those people become to emerge as law-abiding, contributing citizens.
As Justice Kennedy has said, our nation incarcerates far too many people, and they serve sentences that are far too long. We can improve the outcomes of our nation’s prison system by incentivizing a pursuit of excellence, creating mechanisms through which people in prison can earn freedom in gradually increasing levels through merit. The late University of Chicago Law Professor Norval Morris wrote about a merit-based system on Australia’s Norfolk Island. Stanford Law Professor Joan Petersilia has also written about merit-based systems in The Oxford Handbook of Sentencing and Corrections.
This Essay, authored by someone who served twenty-six years in federal prisons of every security level, offers suggestions to implement a merit-based system in the U.S. prison system. The article disrupts the concept that we should measure justice through the length of time that an individual serves in prison. Rather, following the principles that have made America prosperous, this Essay posits the theory that we should pursue justice differently. Instead of waiting for calendar pages to turn, we should incentivize people in prison to pursue a path that will lead to their emergence as law-abiding, contributing citizens. The Essay suggests that we should measure the success of our prison system by the outcomes it produces. It makes a contribution to discussions on how we should reform our nation’s sentencing and prison systems.
Federal Sentencing in the States: Some Thoughts on Federal Grants and State Imprisonment
John F. Pfaff
Volume 66, Issue 6, 1567-1600
As the movement to reduce the outsized scale of U.S. incarceration rates gains momentum, there has been increased attention on what federal sentencing reform can accomplish. Since nearly ninety percent of prisoners are held in state, not federal, institutions, an important aspect of federal reform should be trying to alter how the states behave. Criminal justice, however, is a distinctly state and local job over which the federal government has next to no direct control.
In this Article, I examine one way in which the federal government might be driving up state incarceration rates, and thus one way it can try to alter them: not directly through its criminal code, but through the millions of dollars in grant money it provides. A strong predictor of state prison growth is state fiscal health: states with more money spend more on everything, including prisons. And federal grants bolster state fiscal capacity. So perhaps one way that the federal government could change state sentencing would be to help prop up corrections spending less.
My final conclusion, while quite tentative, is also somewhat surprising. Contrary to my expectations I held when I started work on this Article, it does not seem as if federal spending is bolstering state spending on incarceration to a significant degree. So cutting back on federal funding for criminal justice activities may not have much impact on state decisions about incarceration. Which, perhaps somewhat ironically, may suggest we want the federal government to spend more, not less, but to allocate the money in ways that encourage states to adopt reforms that push back against excessive incarceration.
Constitutional Law, Moral Judgment, and the Supreme Court as Super-Legislature
Volume 66, Issue 6, 1601-1616
I propose to defend and explore three claims in this Essay. First, there is very little actual “law” in federal constitutional law in the United States, especially with respect to cases that end up at the Supreme Court. There, the Court operates as a kind of super-legislature, albeit one with limited jurisdiction. The jurisdiction is limited in two important ways: first, the Court can only pass on issues that are brought before it; and second, the Court is constrained, to some extent, by its past decisions and by constitutional and legislative texts. The problem, however, is that those constraints underdetermine the Court’s decisions in most cases, so the Court essentially makes its final choice among the legally viable options based on the moral and political values of the Justices, and not simply on the basis of legally binding standards. The latter claim is, in part, a jurisprudential thesis about what constitutes “legally binding standards.” I shall defend the first claim by reference to the most plausible account of the nature of law—the legal positivist theory developed by H.L.A. Hart and Joseph Raz. . . .
A Response to Professor Brian Leiter
Joseph R. Grodin
Volume 66, Issue 6, 1617-20
The editors of Hastings Law Journal have invited me to comment on Professor Brian Leiter’s provocative essay, Constitutional Law, Moral Judgment, and the Supreme Court as Super-Legislature, and I have undertaken to do so, not so much because I disagree with what he says—in fact, I agree with much of his thesis—but because what he says points to questions which deserve further consideration. . .
New York City Rules! Regulatory Models for Environmental and Public Health
Jason J. Czarnezki
Volume 66, Issue 6, 1621-60
Scholars have become increasingly interested in facilitating improvement in environmental and public health at the local level. Over the last few years, former New York City Mayor Michael Bloomberg and the New York City Council have proposed and adopted numerous environmental and public health initiatives, providing a useful case study for analyzing the development and success (or failure) of various regulatory tools, and offering larger lessons about regulation that can be extrapolated to other substantive areas. This Article, first, seeks to categorize and evaluate these “New York Rules,” creating a new taxonomy to understand different types of regulation. These “New York Rules” include bans, informational regulation, education, infrastructure, mandates, standard-setting, and economic (dis)incentives. In particular, this Article focuses on urban transportation and food systems, including the failed market-based congestion pricing plan for Lower Manhattan; the Citi Bike infrastructure; the proposed “Sugary Drink” ban; informational calorie labeling on food menus; and the emerging compost pollution prevention plan. This Article provides insight into the challenge of matching the proper regulatory tool with any environmental and public health problem, suggesting that certain approaches are more appropriate than others. In general, society requires more forceful nudges than seen to date and, where this kind of push is not possible, policymakers should proceed to lay the groundwork with norm-shifting regulation. Infrastructure shifts are also a successful type of intervention when more intrusive regulation fails. In summary, law proves to be a workable tool to change individual behavior, and major government action can influence social norms and create improved infrastructure.
In and Out—Contract Doctrines in Action
Danielle Kie Hart
Volume 66, Issue 6, 1661-92
This Article was written to test a hypothesis, namely, that it is easy to get into a contract but very difficult to get out of one. After reviewing case law from the Seventh and Ninth Circuits, contract law in action suggests that reality may be slightly different from theory. That is, the data from the cases show that it may not be so easy to get into a contract in practice, but it is extremely difficult to get out of one. Pacta sunt servanda seems to be alive and well in twenty-first century contract law. Perhaps the more significant finding from the cases, however, is that the party with more bargaining power tends to get the outcome that it wants in a given case, regardless of its preferred outcome. The implications of this finding are unsettling to say the least, in large part because it is so difficult to get out of a contract once it is formed. More specifically, misuse of unequal bargaining power by the stronger party during formation of the contract will likely go unchecked, the weaker party will be locked into whatever bargain is made, and the stronger party will get to keep even “ill-gotten gains,” so to speak, because the contract and all of its terms (both reasonable and unreasonable) will be binding. Any solution to the problems confronting contract law, therefore, will have to address bargaining power directly and effectively, which is by no means an easy task as the Home Affordable Mortgage Program reveals. Nevertheless, this task is one worth undertaking given that any discussion of contract law is, at least in part, also a discussion of contract law’s place within the American legal system and that system’s role in helping us to live up to our individual and collective aspirations.
Unmasking Mullane: Due Process, Common Trust Funds, and the Class Action Wars
Volume 66, Issue 6, 1693-1730
Although Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306 (1950) is a classic Civil Procedure case, its history has never before been written. This Article reveals that history, traced among other sources, in the papers of New York’s Governor Herbert Lehman, whose misgivings did not prevent his signing the legislation that the Supreme Court struck down, and of Justice Robert Jackson, who wrote the opinion striking it down. More or less behind the scenes, two struggles were going on. One involved and prefigured all of the tensions of the modern class action: conflicts within the class, the relative functions of notice and adequate representation, the attempt to secure “global peace” by binding nonparticipants, and more. The other struggle concerned the efforts of trust companies to enlarge their turf and get into the investment business while barring liability to their customers. The due process holding for which we remember Mullane thus emerged from and glossed over deeper and more particularized conflicts. This Article explores both the history and the contemporary relevance of Mullane.
Appealing to Reason-able Expectations of Privacy: Increasing Appellate Review Under ECPA
Andrew Tyler Ohlert
Volume 66, Issue 6, 1731-68
The Snowden revelations of 2013 sparked widespread, public discussion about the amount of government surveillance performed on American citizens under the Foreign Intelligence Surveillance Act. This dialogue often sidesteps the Electronic Communications Privacy Act, however, which is the primary statute that governs the government’s ability to obtain the electronic communications of everyday citizens. The vast majority of requests for information under ECPA are pursued ex parte, and often without notice to a targeted individual that the government has obtained her information. This secrecy regime leaves targeted individuals unable to oppose the government or appeal adverse decisions. Moreover, if a magistrate judge disagrees with the government and denies its request for an individual’s information, the government can simply apply to other judges until a judge grants access to the information.
This Note examines the resulting lack of appellate precedent that has developed from a system where the government has no opposition, and American citizens have no opportunity to be heard. This Note suggests three solutions to increase opposition to the government and incentivize the development of binding, appellate precedent under ECPA.
Piercing the Privacy Veil: Toward a Saner Balancing of Privacy and Health in Cases of Severe Mental Illness
Volume 66, Issue 6, 1769-1800
On November 19, 2013, Virginia state senator and former candidate for governor Robert Creigh Deeds suffered a high-profile attack from his son, who had been diagnosed with schizophrenia, resulting in permanent injuries to himself and his son’s self-inflicted death. On June 16, 2015, Senator Deeds addressed Congress to highlight one of the biggest challenges to providing adequate intervention and support for his son—the HIPAA Privacy Rule’s restriction on the release of protected health information to family caretakers. Senator Deeds’s high-profile story emerged as a national indication of a serious problem: the immense difficulty experienced by families trying to obtain critical information regarding their loved one diagnosed with serious mental illness. While the delivery of adequate mental health treatment is a large and complicated effort governed by many regulatory statutes, advocates have identified in particular the barrier on receiving information from health care providers regarding their loved one’s illness—particularly during involuntary psychiatric holds—as one key barrier to effectively assisting in their treatment. Although the Privacy Rule attempts to balance competing principles of respect for autonomy, the best interests of the patient, and efficiency of the system, it has created substantial barriers to effective treatment in this area without actually advancing its purposes. This Note suggests possible fixes for this exigent issue.