39707-nys_72-2 Sheet No. 1 Side A 01/15/2018 10:23:44 ALL H ANDERBILT T. V New York City ISSUE 2 Washington Square RTHUR VOLUME 72 A ANNUAL SURVEY ANNUAL NEW YORK UNIVERSITY SCHOOL OF LAW OF AMERICAN LAW NEW YORK UNIVERSITY \\jciprod01\productn\n\nys\72-2\FRONT722.txt unknown Seq: 1 15-JAN-18 9:55 39707-nys_72-2 Sheet No. 1 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 1 39707-nys_72-2 39707-nys_72-2 Sheet No. 1 Side B 01/15/2018 10:23:44 A Uniform System of is published quarterly at 110 West New York University Annual Survey of American ISSN 0066-4413 All Rights Reserved (212) 998-6540 (212) 995-4032 Fax invites the submission of unsolicited manuscripts. L.C. Cat. Card No.: 46-30523 2017 by the author, except when otherwise expressly © http://www.annualsurveyofamericanlaw.org is in its seventy-fifth year of publication. Annual Survey New New York University Annual Survey of American Law Editorial Office: 110 West 3rd Street, New York, N.Y. 10012 editorial office. 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For what avail the plough or sail \\jciprod01\productn\n\nys\72-2\FRONT722.txt unknown Seq: 3 15-JAN-18 9:55 39707-nys_72-2 Sheet No. 2 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 2 39707-nys_72-2 39707-nys_72-2 Sheet No. 2 Side B 01/15/2018 10:23:44 iv \\jciprod01\productn\n\nys\72-2\FRONT722.txt unknown Seq: 4 15-JAN-18 9:55 39707-nys_72-2 Sheet No. 2 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 2 39707-nys_72-2 39707-nys_72-2 Sheet No. 3 Side A 01/15/2018 10:23:44 . U U R AK EN HAI Y ANG ANN , J ONG W TEIN S S TERN HANE OOLE EHAM IENER OUNG T NYDER EBUCK ITELLO ALHIET EIDNER EB OMERO TANLEY W S ALERNO RIVETTE IELINSKI WENSON EINSTEIN EVIN D. Y I. W IRSTIE T. S D S. S ZGUN M W LICE Z OTENBERG ASCUA K A. S C. P P. Y J. W K ETH H. S A O D. R MY IONE P. V L. S P N. R B D. T A K M. S Online Editors EENA C.F. S HASE MILY M. W ARREN D. R ACHEL N AN E ANNAH ILLIAM AMUEL I D ACOB ICOLE R J S AROLINE H AMUEL ATTHEW ICHAEL ATHERINE N W H. 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G ICHAEL ICHAEL EVIKA ANIEL AROLINE LAUDIA OURTNEY LARA LLISON OBERT ATHERINE IMBERLY ANDOLL IMOTHY AYMOND ISHLINN ONY EITH RIAN ANCE DWIN LLIOTT RANCES IRAN EBASTIAN EAN UCHITA ACOB T F K E A R K C K Y R M B M L S T C S C C D E D J Development EditorsR A Note Editors Executive Article EditorsS Senior Articles Editors \\jciprod01\productn\n\nys\72-2\FRONT722.txt unknown Seq: 5 15-JAN-18 9:55 39707-nys_72-2 Sheet No. 3 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 3 39707-nys_72-2 39707-nys_72-2 Sheet No. 3 Side B 01/15/2018 10:23:44 vi \\jciprod01\productn\n\nys\72-2\FRONT722.txt unknown Seq: 6 15-JAN-18 9:55 39707-nys_72-2 Sheet No. 3 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 3 39707-nys_72-2 39707-nys_72-2 Sheet No. 4 Side A 01/15/2018 10:23:44 315 275 357 187 IME Max Yoeli T Harry I. Black Jessica A. Roth QUAL EPARATE RIMINAL E C Sarah Warburg-Johnson HY THE I.D.E.A.: S TUDENTS : W OTES EPA EW RTICLE CTIVISM IN N GE A N A A RTI S OURT IGITAL C BANDONED D ANCER AT THE A C ATHER THAN A SUMMARY SUMMARY OF CONTENTS ISTRICT R ATAL EGISLATION FOR ” D EFORM F DEA L EW R HOULD BE I S “N EW EMOCRACY IN THE ULE HE ALUING EDERAL USTICE V A N D R F T J \\jciprod01\productn\n\nys\72-2\FRONT722.txt unknown Seq: 7 15-JAN-18 9:55 39707-nys_72-2 Sheet No. 4 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 4 39707-nys_72-2 39707-nys_72-2 Sheet No. 4 Side B 01/15/2018 10:23:44 viii \\jciprod01\productn\n\nys\72-2\FRONT722.txt unknown Seq: 8 15-JAN-18 9:55 39707-nys_72-2 Sheet No. 4 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 4 39707-nys_72-2 39707-nys_72-2 Sheet No. 5 Side A 01/15/2018 10:23:44 R R R R R R R R R R . . . . 193 ...... 205 ...... 209 ...... 202 ...... 194 ...... 198 187 ...... 215 ...... 210 ...... 194 JESSICA A. ROTH* ...... 188 1. Overcharging 2. Undercharging 1. Background 2. Mass Incarceration 3. Alternatives to 4.Incarceration Collateral Consequences of Conviction IN CRIMINAL JUSTICE REFORM A. The Overly Punitive State B. The Excesses of Prosecutorial Discretion Historically, the debate over the judicial role has centered on the consti- I. Introduction * Associate Professor of Law, Benjamin N. Cardozo School of Law. I am II. A Summary of the “New” District Court Activism THE THE “NEW” DISTRICT COURT ACTIVISM speeches; and through advocacy within and This beyond Article summarizes the this judicial activity, branch. places it assesses its in value as historical well as context, its risks. and moreover, been concerned solely with the “in-court” behavior appellate judges as they carry of out their power and duty “to Article say what the law III is” in the context of resolving “cases and controversies.” This Article seeks to deepen the discussion of the appropriate role of Article III judges by broaden- an between distinguishing by and judges; appellate, as well as trial, to it ing Article III judge’s “decisional” activities on the one hand, and the “hortatory” and other judge’s activities on the other. To that end, the Article focuses on a cohort of deeply respected federal district judges-many, although not all, experienced Clinton appointees in the Southern and Eastern Districts of New York–who,judi- of norms conventional challenged have decade, last the over cial behavior to urge reform of fundamental aspects of the federal criminal justice system. These “new” judicial activists have made their case for reform in the pages of their judicial opinions, often in dicta; in articles and tutional and administrative law decisions Court, of with an the occasional glance United at the States Federal Courts of Supreme Appeals. It has, grateful to Michelle Benjamin Lawsky, Burt Adams, Neuborne, Daniel Richman, and Kate Stith for very helpful Gabriel J. comments Chin, on earlier Bruce drafts of this Green, paper and Schmooze Kyron to participants and in Huigens, CrimFest the 2016 2016, Ethics where progress. Thanks also this to Ben Cain, Article Rachel Karpoff, and Josh was Ontell for excellent presented research assistance. as a work in \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 1 15-JAN-18 9:53 39707-nys_72-2 Sheet No. 5 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 5 39707-nys_72-2 39707-nys_72-2 Sheet No. 5 Side B 01/15/2018 10:23:44 R R R R R R R R R R R R R R R R R ...... 265 ...... 252 2 ...... 246 ...... 250 ...... 240 ...... 228 ...... 267 1 ...... 236 ...... 219 ...... 259 I. Booker ...... 265 INTRODUCTION ...... 268 ...... 236 ...... 269 ...... 272 ...... 228 Clemency Judges and Exit Interviews Channel 1. A Greater Institutionalized Role in 2. Annual Open-Ended Surveys of District Court 3. A Judicial Clearinghouse and Dissent 3. Criminal Discovery 1. The Impact 2.of Social and 3.Political Context Shifting Judicial 4.Roles and Norms The New Media Environment A. The Value of B.the “New” District Court Activism . . Reasons for Concern C. 252 Possible New Mechanisms of Judicial Input Context A. A Search for B. Historical Parallel Why Now? You do not have to agree fully with Chief Justice Roberts’ insis- The role of an umpire and a judge is critical. They make sure [F]or too long, too many judges (including me) have been too 1.Statement States, United the of Court Supreme Justice, Chief Roberts, John 2. Jed S. Rakoff, U.S. Dist. Judge, S. Dist. N.Y., Mass Incarceration and the V. Conclusion IV. Evaluating the “New” District Court Activism VI. Appendix III. The “New” District Court Activism in Historical as umpires, not players. When the ground rules are relatively clear, tence that Supreme Court Justices never do anything but call balls and strikes to believe that, most of the time, judges should try to act everybody plays by the rules. But it is a limited went to role. a Nobody ballgame to ever see the umpire. quiet about an evil of incarceration of people which in the United we States today. are ourselves a part: the mass During Nomination Hearings Before the Senate Judiciary Committee 2005) (Sept. 12, (transcript roberts.statement available [https://perma.cc/69M3-GK8Z]). at http://www.cnn.com/2005/POLITICS/09/12/ “Fourth Principle,” Speech at (transcript Harvard Law available Sch. Conference at conference-full-speech/ [https://perma.cc/9T6H-7YUK]). (Apr. https://bol.bna.com/judge-rakoff-speaks-out-at-harvard- 10, 2015) 188 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:187 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 2 15-JAN-18 9:53 39707-nys_72-2 Sheet No. 5 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 5 39707-nys_72-2 39707-nys_72-2 Sheet No. 6 Side A 01/15/2018 10:23:44 N.Y. IMES , Previ- 3 5 N.Y. T , Mass Incarceration: The Silence of the Judges (Jan. 9, 2014), http://www.nybooks.com/arti The Financial Crisis: Why Have No High-Level Executives OOKS From the Bench, a New Look at Punishment . B EV Jed S. Rakoff, N.Y. R , see also , Jed S. Rakoff, ; May 21, 2015), http://www.nybooks.com/articles/2015/05/21/mass- Other judges—including, for example, now-former ( 4 See id. See, e.g. OOKS By and large, President Bill Clinton appointed these judges in 3. 4. 5. Stephanie Clifford, . B (quoting Douglas Berman). EV and declared that judges had a duty to speak out against it. R ously, he had engaged in a similar campaign regarding what he saw as federal prosecutors’ failure to aggressively prosecute white-collar criminals and corporations in the wake 2007–08. of the financial crisis of housing, and educational opportunities of persons previously con- victed of a crime. As Douglas Berman recently described the nomenon, phe- “A growing number of federal judges, usefully insulated by life tenure, are feeling a need to speak out[,] . . . moved by the broader public conversation about the need for reforms.” the 1990s. Most of them had been on the bench for at least a dec- ade before they engaged in this activity. Some, like Judges Gleeson Judge John Gleeson in the Eastern District of New York—have fo- cused on issues such as prosecutorial overcharging and the collateral consequences of convictions on the employment, in drug cases (Aug. 26, bench-a-new-look-at-punishment.html?_r=0 2015), [https://perma.cc/7DAR-D6NH] https://www.nytimes.com/2015/08/27/nyregion/from-the- (quoting Douglas Berman, law professor at the Ohio University Moritz College of Law). Moreover, “certain [judges] say, ‘That broader conversation ought to be re- flected in the work that I do, not just in the work that the political branch does.’” Id. causes them to look more like players than umpires. For example, as noted in the quote at the beginning of this Article, around 2015, Senior Judge Jed Rakoff started in to call the attention in speeches Southern and popular District articles incarceration”—ato of “mass non-judicial term New favored by York the political left— 2018]the strike zone is well-defined, and the umpire/judge should game seek THE is to “NEW” apply DISTRICT working the COURT rules ACTIVISM well, fairly and an blend into the background. What should happen, ienced umpire/judge believes that the rules are harming the though, game, when an exper- Notwith- injury? serious with players the of more or one threatening standing Justice Roberts’s insistence that “[n]obody ever went 189 to a ballgame to see the umpire,” over the last decade, a cohort of well- respected and experienced federal trial judges have engaged in an unmistakably public campaign for criminal justice reform that \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 3 15-JAN-18 9:53 incarceration-silence-judges/ [https://perma.cc/Y9SQ-SKLN]. cles/2014/01/09/financial-crisis-why-no-executive-prosecutions/ [https://perma .cc/7DAR-D6NH]. Been Prosecuted? 39707-nys_72-2 Sheet No. 6 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 6 39707-nys_72-2 39707-nys_72-2 Sheet No. 6 Side B 01/15/2018 10:23:44 . . EV , 73 RAFT OLO C note 6, ENSE OF L. R L. RENDS IN U. C S THE Second, UNY T 7 : supra C , 73 , AKING , 17 , ENCH UTURE : M F B ORRIS M in , cf. CTIVISM EDERAL . 1752, 1756 (2006–2007) A F EV . L. R UDICIAL J INN Frank B. Cross & Stefanie A. Lindquist, M Moving Toward a More Perfect World: Achiev- Judicial Activism and Conservative Politics YTH OF , 91 M EADERSHIP ON THE see also HE , L 110 (2011) (“[I]t is fair to say that in the great ORRIS III, T 3 (2006) (“‘[A]ctivist’ turns out to be little more than a , Fern Fisher, EINSTEIN But I use it nevertheless, for two reasons. First, it B. M W 6 debates that have not fully explored the hortatory 8 See, e.g. OOSEVELT ACK ECISIONS J R EFFREY Keynote Address at the Annual Meeting of the Conference of Chief Justices Do Liberals and Conservatives Differ in Judicial Activism? . 1139, 1141 (2002); 1141 1139, . J D , Lawrence H. Tribe, Senior Counselor for Access to Justice, U.S. , , 2011, at 1, 4 (describing “activism” as “the opposite of passivity—a EV ERMIT OURT K C . L. R L. . OURTS See, e.g. See, e.g. 1401, 1401 (2002) (“Everyone scorns judicial ‘activism,’ that notoriously . CTIVISM OF C I call the project that these judges collectively engaged in the 6. 7. 8. As Ernest Young has observed, the utility of the term “judicial activism” is OLO EV A C UPREME TATE at 111 (describing some aspects of the work of Judge Jack Weinstein as “hyperac- L. R it taps into important debates about the proper role of the judge in our democracy, The Scientific Study of Judicial Activism AND captures the sense in which this behavior signifies an active and en- gaged judicial posture rather than a passive, reactive one. and Conference of State Court Administrators (July 26, 2010) and other forms of judicial activity described in this Article. ever, I How- call this activity the “new” activism precisely to distinguish it passivity that disclaims responsibility for the systems of which [judges are] . . . the stewards.”). In recent years, some judges have embraced the “activist” term when used in this sense. Activism Judicial of Definition New a Through Justice to Access Equal ing S S use the term “activism” at all, given that it has become than little an epithet more for describing judges and decisions with which the speaker disagrees. 190and Rakoff, were long-time federal prosecutors before ascending to NYUhas who Iowa, in Bennett Mark Judge as such others, but bench, the ANNUAL SURVEY OFplayed AMERICAN a prominent LAW role in this effort, backgrounds. had The appendix different to this professional Article [Vol. contains 72:187 a table setting forth the professional name backgrounds, and year party of of the President cussed appointment, in the who text of and appointed this Article. the judges dis- “new” district court activism in criminal justice reform. I hesitate to \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 4 15-JAN-18 9:53 rhetorically charged shorthand for decisions the speaker disagrees with.”); Frank H. Easterbrook, slippery term.”). Dep’t of Justice, (“At the core of the criticisms of judicial activism lies a concern that the judiciary is acting outside its proper judicial role.”). majority of cases, the term ‘activist’ is thrown around by those whose ox has been gored.”); laws, the legal system, and the administration of justice.”); tive” rather than “activist”). “it focuses attention on the judiciary’s institutional role rather than the merits of particular decisions.” Ernest A. Young, 285, 286–87 (2014) (embracing vision of judicial activism emphasizing judges do less on what the bench and more judges’ “stewardship over the improvement of U. 39707-nys_72-2 Sheet No. 6 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 6 39707-nys_72-2 39707-nys_72-2 Sheet No. 7 Side A 01/15/2018 10:23:44 . G 1 ’ . ING EV -W ENT . S 457, 459 L. R IGHT . note 8, at ED F EV R , Neil S. Siegel, , 8 supra AYTON note 8, at 1144 (“ju- XTREME U. D . U.L. R See, e.g. E M . 555, 558 (2009–2010) A HY supra Limits of Judges’ Learning, EV , 20 11 Lower Court Constitutionalism: : W , 61 Unlike the “old” judicial L. R 9 OBES AUL R P E D , 59 ADICALS IN note 6, at 91 (describing the characteristics of a 42–43 (2005) (“[I]t is best to measure judicial , R note 6, at 4 (noting the relative lack of attention to supra , MERICA Judicial Opinions and Sentencing Guidelines UNSTEIN supra A , and none examining this recent burst of district ORRIS R. S 10 M ORRIS ASS M C , RONG FOR , W RE See, e.g. See generally A See, e.g. Finally, the quotation marks around “new” signify an acknowl- 9. 10. 11. Given the dangers in attempting to “characterize[e] a collective judicial 46, 46 (1995). . OURTS EP R erwise cajoling other local actors. While there is a voluminous liter- ature on decisional activism, there other forms of activity, little is on the role of the federal district court considerably less on judge these in general, activism, activism, which might also be called “decisional activism,” the “new” Article of exercise judge’s the to limited not is activism court district III power. Although some of it opinions, occurs much in of the it is context set of forth outside judicial of judicial opinions entirely—e.g., in in extrajudicial speeches dicta. Some of it also and writings, through the issuance occurs of individual court rules, or oth- court engagement in criminal justice reform. edgement that much of this activity—while distinct from the “old” tropes of judicial activism debates—is not entirely new. To be sure, judges in other eras occasionally questioned the wisdom and legal- C 2018] from the types of behavior traditionally characterized as judicial ac- tivism, e.g., decisions that THE invalidate “NEW” the DISTRICT actions COURT of ACTIVISManother branch of government or depart from precedent. 191 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 5 15-JAN-18 9:53 1759 (“The most common standard for evaluating judicial activism is the extent to which judges invalidate legislative enactments.”); Young, dicial activism” also is commonly used to describe decisions that: “depart[text ] from and/or history; . . . ‘maximalist’ depart[holdings rather than narrow or ] ‘minimalist’ ones; . . . from [or] exercis[e] judicial precedent; . that action judicial any describe to used is also term The powers.”). remedial broad . . issue broad or reflects the partisan or ideological preferences of the judge. Interring the Rhetoric of Judicial Activism activism by seeing how often a court government, strikes especially down those of the Congress.”); actions Cross of & other Lindquist, parts of gained considerable company, see Jack B. Speaking, and Weinstein, Acting: Part II Speaking and Part III Acting (2012) (noting scholarly focus on work of the U.S. Supreme Court to the exclusion the to Court Supreme U.S. the of work on focus scholarly (noting (2012) of role played by lower federal courts). For one judge who notable in many exception, ways pioneered written the “new” by district court a activism but has since (explaining contemporary conservative critiques). “Weinstein opinion” as often lengthy, “graced with scintillating prose,” sometimes including a table of contents, photographs, charts, and appendices). view,” this Article—like others of a some trends in the comments similar and criticisms” made by (admittedly the most vocal) qualitative ilk—attempts “to discern judges. Jeffrey O. Cooper, the work of federal district courts); Doni Gewirtzman, Circuit Court Discretion in a Complex Adaptive System (1994). 39707-nys_72-2 Sheet No. 7 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 7 39707-nys_72-2 39707-nys_72-2 Sheet No. 7 Side B 01/15/2018 10:23:44 , AN EIN- M RANK W F HE , United : T DWARD EROME AND The New Repub- J : E See, e.g. , H But it could also . 950, 958–62 (1976). USTICE 15 EV J See, e.g. Portrait of the Judge as an EARNED (1949). However, histor- However, (1949). But the fact that this that fact the But , L 12 L. R USTICE . 763, 764 (2014). J IGHT AND EV R UNTHER ORNELL C G Part II.A.1. at 293. MERICAN , 61 A ERALD SMU L. R URSUIT OF G P See infra See id. N , 67 , I EALITY IN see also R 4–5, 113 (2004). At a minimum, then, this is a substantial burst substantial a is this then, minimum, a At ELSON 14 UDGE E. N YTH AND J Clues of Integrity in the Legal Reasoning Process: How Judicial Biogra- : M 192–215 (2d ed. 2011) (describing some of Hand’s extrajudicial ILLIAM RIAL W T is notable. is UDGE AWYER AND 13 See J L The remainder of this Article proceeds as follows. In Part II, I 15. As discussed further below, precursors of the “new” judicial activism may 12. Judge Jerome Frank of the Second Circuit is one prominent example of 14. Judge Learned Hand, who sat on the United States District Court for the 13. ). Later in his career, Hand questioned whether he had gone too far in his politi- his in far too gone had he whether questioned Hand career, his in Later ). OURTS ON C AND THE FELD AS and the Supreme Court, as well as Congress, actors, the the academy, Executive, and the local public. summarize the “new” district court activism, with a section devoted to each of the two overarching issues that have attracted substantial and state punitive overly our decade: past the over attention judicial the excesses of prosecutorial discretion. “new” district court activism in historical context. This section notes In Part III, I place the reflect the emergence of a more robust model Article III judge, especially of the federal district court judge, one that the role of the provides for an active dialogic engagement with Courts of Appeals activity is happening in the federal district courts, the lowest level of level lowest the courts, district federal the in happening is activity our federal judiciary (where the famously sionate meticulous but Edward dispas- Weinfeld for judge), generations exemplified the ideal be found in the 1980s, in the federal judiciary’s vocal reaction to Congress’s expan- Congress’s to reaction vocal judiciary’s federal the in 1980s, the in found be sion of mandatory mandatory sentencing guidelines. minimum sentencing statutes and the creation of the Activist: Jerome Frank and the Supreme Court an appellate judge who frequently used his opinions to question “the constitutionality of past rulings,” and “[e]laborate reasons that supported change,” wisdom or including citation to unconventional sources such as fiction, psychological litera- ture, and the history of science. Robert J. Glennon, Jr., of activity that we have seen iterations of before. 192practices. government and laws various of ity NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:187 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 6 15-JAN-18 9:53 Southern District of New York United States Court of Appeals for the Second Circuit, stands for out as one of the few fifteen years before he historical examples of a was district judge who explicitly questioned prevailing law and elevated to the governmental practices in his opinions and in extrajudicial fora. activities as a district court judge, including Party’s Convention his in 1912 and his participation writings on political subjects in in the Progressive lic cal activities while a sitting judge. ically, judges “refrained from giving interviews, rarely wrote books, and avoided the avoided and books, wrote rarely interviews, giving from “refrained judges ically, limelight, preferring to let their opinions speak for themselves.” Harvey Rishikof & Bernard Horowitz, phies Shed Light on the Rule of Law Frank also was a prolific writer of books and articles. vailing obscenity standards); States v. Kennerly, 209 F. 119, 120-21 (S.D.N.Y. 1913) (Hand, J.) (questioning pre- 39707-nys_72-2 Sheet No. 7 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 7 39707-nys_72-2 39707-nys_72-2 Sheet No. 8 Side A 01/15/2018 10:23:44 which realigned power dynam- 16 II. ACTIVISM , there are two overarching themes. The first is the United States v. Booker, A SUMMARY OF THE “NEW” DISTRICT COURT supra This first section is primarily descriptive, summarizing and cat- Part IV then takes a step back to evaluate the benefits and the 16. 543 U.S. 220 (2005). criminal convictions that make it difficult for a person, once victed of con- a crime, to fully participate in society. The second excesses of prosecutorial discretion with respect is to (1) charging de- the cisions, and (2) criminal discovery. activists in the Trump era. aloguing what I am calling noted the “new” district court activism. overly punitive nature of the criminal justice system, which includes As (1) the overuse of imprisonment as a criminal sanction (“mass in- carceration”), and (2) the collateral consequences attached to its social and economic judges, costs; including members the of example the United set and States the new Supreme by media era. Court; higher level risks of “new” judicial activism, including whether it has been effec- tive in achieving reform and the extent to which it challenges tradi- tional concepts of the judicial role. It finds these federal that district there court is judges’ efforts value to to reshape the workings of the criminal justice system, but that there are aspects of this en- terprise that merit a hard look. Finally, the Article considers some alternative mechanisms to channel judicial expertise, energy, and concern over the future of cludes the with criminal some thoughts justice about the system calculus and for would-be con- “new” ics at the district court level by holding unconstitutional the United States Sentencing Guidelines as a violation of a defendant’s right to trial by jury to the extent they were clude, a mandatory. broader cultural Other shift in factors thinking about in- incarceration and 2018]the absence of historical parallels for the existing federal district ferment courts THE in over “NEW” DISTRICT criminal the COURT justice ACTIVISMissues. It then explores some of the potential contributing “new” factors district court to activism. the These include advent the decision of Supreme in Court’s the 193 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 7 15-JAN-18 9:53 39707-nys_72-2 Sheet No. 8 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 8 39707-nys_72-2 39707-nys_72-2 Sheet No. 8 Side B 01/15/2018 10:23:44 . AL OR- V UIDE- F ENAL- 5–15 With P G AKE , 39 19 W ONGRESS In the 1950s, INIMUM , 28 C M 691, 696 (2010); ENTENCING See id. : S EPORT TO The judge could se- ANDATORY R UDGING 17 Under the Sentencing RIMINOLOGY J , M 21 N ’ PECIAL Congress also created a new EAR OF OMM . L. & C : A S A : 20 , F C RIM YSTEM J. C S ABRANES Rethinking Mandatory Minimums A Short History of American Sentencing: Too Little ENTENCING , 100 1. Background A. C USTICE ´ 9 (1998). E J That fundamentally changed in the 1980s, OS Id. U.S. S 18 A. The Overly Punitive State OURTS & J RIMINAL C C TITH see also S The Return of Federal Judicial Discretion in Criminal Sentencing EDERAL ATE EDERAL F K Hon. Nancy Gertner, Stephen J. Schulhofer, 28 U.S.C. § 991 (2012) (establishing the U.S. Sentencing Commission 199, 200–01 (1993) (reviewing history of federal mandatory minimum at 201; F . 693, 697 (2005). . See See See See EV Id. EV For most of American history, federal trial court judges en- 18. 17. 19. 20. Pub. L. No. 98-473, 98 Stat. 1987 (codified 21. as amended at 18 U.S.C. L. R U. L. R EST the Sentencing Reform Act of 1984, TIES IN THE LINES IN THE lect the sentence the judge deemed most statutory maximum appropriate, sentence, drawing up upon the to judge’s own the expe- rience in sentencing. Reform Act, judges were required to impose narrow range dictated by a a calculation of various factors articulated sentence within a body, the United States Sentencing Commission, with and creating a charged set it of sentencing guidelines judges’ that sentencing discretion would in constrain all cases. for many drug crimes and required that judges impose at least the crimes. those of convicted person any on sentence minimum when Congress enacted statutory mandatory minimum sentences joyed broad latitude in imposing sentences. 194 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:187 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 8 15-JAN-18 9:53 sentencing statutes). Although there have been mandatory minimum penalties for some federal crimes since the beginning of the nation, they were rare until gress Con- seriously got into the business of regulating narcotics. Law, Too Much Law, or Just Right (1991). §§ 3551–673 (1984)). Susan R. Klein, books.” Congress established mandatory minimum sentences for certain but drugs it offenses, repealed nearly all of those laws in 1984, the Congress reinstated 1970s, many mandatory deeming minimum penalties for them drugs offenses a failure. In and created new, consecutive ones for the use crimes. From of 1986 a through gun 1990, in Congress furtherance repeatedly of enacted drug mandatory mum sentences mini- for additional crimes or “stiffened some of those already on the as an independent commission in the judicial branch, consisting of members seven and one voting nonvoting member, to be appointed by the President, with the advice and consent of the Senate). By least statute, three federal the judges. Commission must include at 39707-nys_72-2 Sheet No. 8 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 8 39707-nys_72-2 39707-nys_72-2 Sheet No. 9 Side A 01/15/2018 10:23:44 R R R R , 110th 22 Even beyond Even at times 27 29 , courts used their deci- , federal judges also Mistretta 11 (1989). . at 5 n.12 (collecting opinions and EP at 5 & n.12. at 67–72 (describing structure of the has continuously registered its 17, . R 17, 23 17, NN Fear of Judging A Before the Supreme Court upheld . note note N note and the challenge brought decades 25 ’ supra supra over two hundred district court judges supra OMM , , , 26 , C note 11, at 47–48 (after And, as Kate Stith and Judge Jose Cabranes Mistretta 24 ABRANES ABRANES ABRANES , https://www.fjc.gov/history/administration/administrative- supra 28 . ENTENCING & C TR & C & C & , federal judges by and large devoted themselves to Mandatory Minimum Sentencing Laws—The Issues: Hearing Before the , . C Administrative Agencies: Judicial Conference of the United States, 1948–Pre- TITH TITH TITH S U.S. S S S UD Cooper, 28 U.S.C. § 331 (1948) (setting forth authority of the Judicial Confer- Booker . J See See See See See See See, e.g. ED Between the Supreme Court’s resolution of the Guidelines’ Since Congress expanded the use of mandatory minimum sen- F 29. 22. 26. 488 U.S. 361, 388 (1989). 27. 23. 28. 25. 24. , the Guidelines against a separation of powers challenge in 1989 in Mistretta v. United States with the complicity of prosecutors, judges also “found” facts that holding the guidelines unconstitutional, many judges voiced their disapproval of the Guidelines as a opinions, policy matter in in their law judicial review before Congress. and popular articles, and in testimony held the Sentencing Reform Act unconstitutional. chronicled in their 1998 book, constitutionality in tencing statutes in the 1980s, federal judges have protested them as an unwarranted intrusion upon the judges’ previously sentencing authority. unfettered For example, the Judicial Conference, the of- ficial voice of the federal judiciary, opposition to mandatory minimum sentencing ports statutes to in Congress. its re- articles in which federal judges Guidelines). expressed their disapproval of the Sentencing sional powers to interpret and distinguish guidelines and their interstices). U.S. Sentencing Guidelines). 2018]in the Guidelines, including the type of role in offense, the THE offense, the “NEW” and DISTRICT the defendant’s COURT defendant’s ACTIVISMcriminal history. 195 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 9 15-JAN-18 9:53 the United States) (documenting “the Judicial Conference’s long-standing opposi- tion to mandatory minimum sentencing schemes”). agencies-judicial-conference-united-states-1948-present-0 agencies-judicial-conference-united-states-1948-present-0 [https://perma.cc/VRT 8-UVDE]. Subcomm. on Crime, Terrorism & Homeland Sec. of the H. Comm. on the Judiciary Cong. 43–45 (2007) (statement of Judge Paul G. Cassell, Judicial Conference of protested the Sentencing Guidelines before into and effect, loudly after and often. they went interpreting and distinguishing specific guidelines. later in ence). The Judicial Conference was created in 1922 and was formerly known as the as known formerly was and 1922 in created was Conference Judicial The ence). Conference of Senior Circuit Judges. It changed its name and expanded member- ship in 1948. sent 39707-nys_72-2 Sheet No. 9 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 9 39707-nys_72-2 39707-nys_72-2 Sheet No. 9 Side B 01/15/2018 10:23:44 R R R R R note 357, 365 . supra 214 (2012) After all, , EV EP 31 A Trial Judge’s . R G ’ . L. R ABRANES But over time, AL ENT 30 . S in an effort to achieve a & C S. C ED F affirming trial judges’ TITH S 34 , 66 the law , , 24 Also, the Supreme Court’s at 6 (“Judges as a group aspire to be 33 at 90 (noting the temptation under see also 17, 17, note note on district courts’ discretion). supra supra and there were moments of renewed col- , , Koon 36 Weinstein on Sentencing note 11, at 46 (noting, in the years since the Guidelines’ Koon v. United States note 11, at 46. ABRANES ABRANES As Jeffrey Cooper observed, the decrease in overt supra 32 & C & C supra , United States v. Green, 346 F. Supp. 2d 259, 283–84 (D. Mass. , Kate Stith, TITH TITH S S Cooper, Cooper, and possibly released some of the pressure to rebel. 35 See, e.g. See See See See, e.g. To be sure, some judges never stopped registering their oppo- 34. 518 U.S. 81, 92, 99 (1996). 35. 30. 32. 33. Cooper, 36. 31. at 6 (noting that, as the Guidelines became entrenched, judicial criticism had the Guidelines at that point bound to apply. were law, which judges were duty- authority to depart from the Guidelines for reasons not considered of abuse for reviewed be would departures that holding and therein discretion gave back to trial judges a “modicum” of sentencing au- thority, much much of the most Guidelines ebbed, as voluble judges adjusted to individual the new order. judicial resistance to the resistance resistance did not necessarily indicate judicial acquiescence, but in- stead perhaps an understandable bec[ame] reluctance, an established “as part the of the guidelines legal beating landscape, one’s to head against continue the wall.” decision in 1996 in lective protest. For example, in 2002, Judge James Rosenbaum, the Chief Judge of the District of Minnesota, testified before the House Judiciary Committee that the Guidelines were too the subpoena to threatened Committee the response, In cases. drug harsh in many records of all cases in which Judge Rosenbaum had departed from vigilant law-abiders, and the Guidelines—whatever their faults . . . are, of the course, law.”). the binding Guidelines regime for judges to “reconsider factual ‘findings’ in order to alter the Guidelines calculation” or “manipulate their Guidelines calculation to avoid the results called for by the Guidelines”); Jack B. Weinstein, Second Impression of the Federal Sentencing Guidelines constitutionality was resolved, an “apparent diminution in the frequency of overt criticism” of the Guidelines has occurred); 17, “begun to dissipate—especially as new judges are appointed, some of whom welcome may reduced responsibility over criminal sentencing”). sition to the Guidelines, 196 avoided the Guidelines’ NYU harshest ANNUAL SURVEY application. OF AMERICAN LAW [Vol. 72:187 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 10 15-JAN-18 9:53 2004) (explaining impact of (1992) (quoting another district judge as bemoaning made charlatans that and dissemblers of us all. We spend our time “the plotting and schem- Guidelines have ing, bending and twisting, distorting and ignoring just result.”). (chronicling Judge Weinstein’s ongoing critical engagement with the guidelines). 39707-nys_72-2 Sheet No. 9 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 9 39707-nys_72-2 39707-nys_72-2 Sheet No. 10 Side A 01/15/2018 10:23:44 , EP HE IMES . R : T G see also ’ ENT N.Y. T , OLLIDE . S and state- 40 ED C F 295, 297 (2004) 15 in ONGRESS C , prompted judges to Congress also passed 269–70 (2009). RIMINOLOGY 38 However, the Feeney 42 Koon YSTEM Let Judges Do Their Jobs S . L. & C OURTS AND C RIM UDICIAL J J. C HEN S ’ The Feeney Amendment and the Continuing Rise of . 1, 28–29 (2010) (describing organized opposi- , W , 94 The American Inquisition: Sentencing After the Federal EV EYH New York’s Federal Judges Protest Sentencing Procedures MERICA A few resigned. A G L. R 41 1420, 1466 (2008) (same). The Arc of the Pendulum: Judges, Prosecutors, and the Exercise of OREST Over judicial opposition, ARDNER F L.J. 37 G ONTROL OF , Letter from William Rehnquist, Chief Justice, U.S. Supreme , United States v. Kirsch, 287 F. Supp. 2d 1005, 1007 (D. Minn. AKE , John S. Martin, Jr., Opinion, This additional encroachment upon judicial author- , Stephanos Bibas, ALE ., Ian Urbina, Y C W 39 note 37, at 269–70 (2009) (describing judicial backlash against the Dec. 8, 2003), http://www.nytimes.com/2003/12/08/nyregion/new- ( HARLES , 45 , 117 C See, e.g. See, e.g See, e.g. See, e.g. See, e.g. supra IMES , 42. 41. 37. 40. 39. 38. EYH TRUGGLE FOR the so-called Feeney Amendment in 2003, which imposed new re- cordkeeping and reporting requirements on stricted trial courts trial and courts’ re- discretion Guidelines. to downwardly depart from the ments to the press. ity, undoing much that was gained fight in back, including through their judicial opinions, Feeney Amendment). ranted intimidation of the judiciary”); United States v. Kim, No. 03 Cr. 413, 2003 WL 22391190, at *5–6 (S.D.N.Y. Oct. 20, 2003) (Patterson, J.) (criticizing Feeney Amendment, including hasty process resulting in Dyck, 287 F. Supp. 2d 1016, 1022 (D.N.D. 2003) (Webb, J.) (judge dissenting from its passage); United States v. his own sentencing opinion “as an appeal for a restoration of individualized tencing”); sen- United States v. Thurston, 286 F. Supp. 2d 70, 71 n.4 (Harrington, J.) (district court (D. judge recused himself rather Mass. than impose required 2003) sentence on remand noting that the Feeney Amendment’s provisions for de novo appellate review of sentencing “renders the trial judge standing superfluous . the . fact . that notwith- the trial judge based on knowledge acquired from presiding at two complex criminal jury trials”). possesses deep understanding of the case 2003) (Magnuson, J.) (predicting that Feeney ment “will have a Amendment’s devastating effect on our system of justice” because of its “unwar- reporting require- G (June 24, 2003), their-jobs.html [https://perma.cc/D65U-N4GH] http://www.nytimes.com/2003/06/24/opinion/let-judges-do- (Op-Ed by U.S. John S. District Martin, the former Judge U.S. Attorney for the Southern announcing District of that New he York, was retiring in protest of the lines and mandatory the Sentencing Feeney Amendment). Guide- N.Y. T S 345 (2003); Ricardo J. Bascuas, Guidelines 2018]the Guidelines. THE “NEW” DISTRICT COURT ACTIVISM 197 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 11 15-JAN-18 9:53 Walker, Jr. and twenty six other federal Amendment judges and protests registered calling by other federal for judges in New repeal York); of the Feeney york-s-federal-judges-protest-sentencing-procedures.html york-s-federal-judges-protest-sentencing-procedures.html [https://perma.cc/ MF6A-ZFBF] (discussing letter signed by Second Circuit Chief Judge John M. tion to Feeney Amendment from, among others, individual federal judges and the Judicial Conference). Court, to Patrick Leahy, Senator, U.S. Cong. (Apr. 4, 2003), (describing impact of Feeney Amendment to the 2003 PROTECT Congress); Kate bill Stith, passed by Discretion Prosecutorial Power to Plea Bargain 39707-nys_72-2 Sheet No. 10 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 10 39707-nys_72-2 39707-nys_72-2 Sheet No. 10 Side B 01/15/2018 10:23:44 cris de cris Booker Similar 46 In a 2011 opin- effectively undid 44 and suggested that 43 Booker 2. Mass Incarceration United States v. Whigham, 754 F. Supp. 2d 239, 242–43 , as well as the wisdom of the now-advisory sen- see also Booker . at 203; Id Id. Senior Judge Jack Weinstein in the Eastern District of New appear in the opinions or in-court statements of numerous Examples of the “new” activist critiques of sentencing policy Perhaps paradoxically, since the Supreme Court in 45 43. United States v. Haynes, 557 F. Supp. 2d 200, 207 (D. Mass. 2008) (Gert- 44. 45. United States v. Bannister, 786 F. Supp. 2d 46. 617, 689 (E.D.N.Y. 2011) ion, “[c]ourts may no longer ignore the possibility that mass incarcera- tion of nonviolent drug offenders has disrupted families and com- munities . . . without necessarily deterring the next young generation men of from committing the same crimes.” American experiment in mass incarceration” abound. Long before Harvard Judge calling upon Rakoff judges to made speak tion,” other judges were up identifying his the problem. For example, in a about “mass 2015 incarcera- speech 2008 opinion, at now-former Judge Nancy Gertner in wrote Massachusetts about the “significant downside to what has been called the ner, J.). 198 Amendment persisted until NYU 2005, most when ANNUAL of SURVEY its provisions OF when only. AMERICAN it rendered LAW the Guidelines advisory [Vol. 72:187 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 12 15-JAN-18 9:53 York warned that grave costs mandatory not only on minimum the punished but on sentencing the depends.” justice criminal of system our which upon moral credibility “impose[s] (D. Mass. 2010) (Gertner, J.) (criticizing career offender and crack cocaine guide- lines as “wholly inconsistent § to 3553(a)”). the purposes of sentencing under 18 (Weinstein, J.). U.S.C. coeur other judges, including Judge warned Gleeson, that who we in need a to lengths 2012 make of the opinion prison “smart, terms we bold impose” and choices” “the categories about of de- “the does not do more to create alternatives to incarceration, and why it makes it so difficult for former offenders to reintegrate into society. discussed policy, sentencing of critiques activist “new” the are These further below. handed trial judges a major victory, judicial advocacy about sentenc- about advocacy judicial victory, major a judges trial handed ing policy has taken on a new urgency. Its subjects include the pro- priety of statutory mandatory minimum sentences, which were left untouched by tencing guidelines. Judges also have started to ask why the system 39707-nys_72-2 Sheet No. 10 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 10 39707-nys_72-2 39707-nys_72-2 Sheet No. 11 Side A 01/15/2018 10:23:44 47 Many 48 49 9, 10 (2011) D 2 AG B (May 18, 2016), http:// REEN G EWS N , 15 AILY D , N.Y. Brandeis Brief Myths Brooklyn perv who sexually exploited underage boys, including United States v. Dokmeci, No. 13-CR-00455, 2016 WL 915185, WL 2016 13-CR-00455, No. Dokmeci, v. States United 50 see also John Marzulli, David E. Bernstein, See See Other judges have more recently joined the call for reform— 49. 48. United States v. Feauto, 146 F. Supp. 3d 1022, 1024–25 (N.D. Iowa 2015) 47. United States v. Dossie, 851 F. Supp. 2d 478, 484 (E.D.N.Y. 2012) 50. such as Judge Nicholas Garaufis of the Eastern District of New York, New of District Eastern the of Garaufis Nicholas Judge as such and not just talk about—our over-incarceration problem.”); United States v. Vas- of these statements appear in the context of sentencing wherein they constitute dicta. But the discussions of decisions sentencing pol- icy surrounding them are often lengthy anyway, incorporating ex- tensive social science and Brandeis academic brief. literature in the style of a (Bennett, J.). at *1 (E.D.N.Y. Mar. 9, 2016) (Gleeson, J.) (“As a nation, we need to deal with— quez, No. 09-CR-259, 2010 WL 1257359, at *2 (E.D.N.Y. Mar. 30, 2010) (Gleeson, J.). sion doesn’t want to do justice, they should all just resign.” who during a 2016 sentencing called the Guidelines “incredibly ex- cessive and irrational,” and stated that “if the Sentencing Commis- (Gleeson, J.); 2018] fendants we routinely” put in prison who do not need to be there. In a 2015 opinion, Judge Mark Bennett of Iowa THE wrote that “NEW” “in most DISTRICT COURT ACTIVISMof the over 1,000 congressionally-mandated mandatory minimum sentences that I have imposed over the past twenty-two years, I have stated on the record that they were unjust and too harsh.” 199 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 13 15-JAN-18 9:53 one with brain cancer, sentenced to 15 years (a so-called “Brandeis Brief,” named for the brief filed by then attorney Louis cause “I would government’s not agreement”); have United been States 499–500 free (N.D. v. Ohio to 2012) Marshall, (Zouhary, select J.) 870 conclusion: (“[T]his it is statutorily bound to impose a sentence of 60 Court months, and such does so, F. arrives at a Supp. a frustrating sentence 2d while at 489, without the same time the emphasizing its Shull, strong 793 F. Supp. disagreement.”); 2d 1048, 1050 United (S.D. Ohio 2011) States (Marbley, J.) (“The v. history of unfairness in crack cocaine sentencing is well known, but the inaccuracies based it on and was the injustices it caused make its retelling all the more necessary.”). www.nydailynews.com/new-york/nyc-crime/rooklyn-perv-sexually-exploited-under- age-boys-15-years-article-1.2641566 [https://perma.cc/7W6V-RLMY] statements (reporting by Judge Nicholas Garaufis of the Eastern District of New York at sen- tencing in United States v. Naim, 13-CR-660 (E.D.N.Y. May. 19, J.)). For 2015) additional voices (Garaufis, outside of New York, see, for example, United States v. McDade, 121 F. Supp. 3d 26, 29–31 court continued (D.D.C. to 2014) believe that (Friedman, the J.) sentence (noting it was that just,” required to urging impose was defendant “un- to seek court’s efforts executive to bring case to the attention clemency, of the Pardon Attorney at the Depart- and recounting history ment of of Justice); United States v. Childs, 2013) (Graham, J.) (accepting 976 plea agreement in child pornography F. case stipulat- Supp. 2d 981, 982 ing to (S.D. a below-Guidelines Ohio sentence, but noting that the case was “disturbing” be- 39707-nys_72-2 Sheet No. 11 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 11 39707-nys_72-2 39707-nys_72-2 Sheet No. 11 Side B 01/15/2018 10:23:44 . see OC S TLAN- . 173, A see also UTGERS EV , Other R FOR R 52 Y ’ J. , 66 OL granted in- AUL (June 6, 2015), . P 54 E D OST A “Holocaust in Slow . L. & P . P . , 7 ARV ASH (Oct. 24, 2012), https:// H W , , 4 ATION N Did the Man I Sentenced to 18 Years , Acknowledging that “[f]ederal that Acknowledging (May 6, 2014), https://www.amazon 51 IVE Juror Sentiment on Just Punishment: Do the and opinion pieces, L One Judge Makes the Case for Judgment 53 Why Mandatory Minimum Sentences On Drug Ar- OST P UFF The Judge Who Says He’s Part of the Gravest Injustice in or made public speeches. For example, in H Against His Better Judgment Better His Against How Mandatory Minimums Forced Me to Send More Than 55 (June 3, 2017), http://www.cnn.com/2017/06/02/polit- (Jan. 23, 2016), https://www.nytimes.com/2016/01/24/ A Slow Motion Lynching? The War on Drugs and Mass Incarcera- IMES OLITICS , Judge James S. Gwin, , Stefan R. Underhill, Opinion, , Matthew Van Meter, , Eli Saslow, Eli , N.Y. T , ? . CNN P See, e.g. See, e.g. See, See, e.g. See, e.g. , . 873 (2014); Mark Osler & Judge Mark W. Bennett, The The judicial campaign against mass incarceration has also 117 (2014). 53. 52. Mark W. Bennett, 51. 55. 54. EV . Mark K. Bennett, (Feb. 25, 2016), http://www.theatlantic.com/politics/archive/2016/02/one- UST J TIC judges also have written policy judges have a longstanding culture of not speaking out on issues of public concern,” he explained that he was “breaking with this tradi- tion” because the “daily grist” of unjust mandatory minimum sen- tencing for non-violent drug offenders “compels [him] to.” Federal Sentencing Guidelines Reflect Community Values? terviews to journalists, made made extensive use of extrajudicial fora. For example, since at least 2012, Judge Bennett has written extensively about the need to form sentencing policy re- in a variety of publications and has granted journalists. to interviews numerous that “80% of the mandatory sentences he hands down are unjust”). 1,000 Nonviolent Drug Offenders to Federal Prison L. R Brandeis in Muller v. Oregon, 208 U.S. 412 (1908), is “heavy on social science data and policy analysis, light on legal citation”). [https://perma.cc/PS4J- ics/mandatory-minimum-sentencing-sessions/index.html FEDM] (video interview with Judge Bennett in his courtroom in which he stated 200 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:187 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 14 15-JAN-18 9:53 opinion/sunday/did-i-sentence-a-murderer-or-a-cooperative-witness.html [https:// opinion/sunday/did-i-sentence-a-murderer-or-a-cooperative-witness.html for Court District U.S. the of Underhill Judge District (U.S. perma.cc/TKA3-K4A5] the District of Connecticut, calling for “a mechanism for judges to reevaluate the sentences they’ve imposed”). judge-makes-the-case-for-judgment/463380 [https://perma.cc/94FB-G5EC] District Western (in- for Court District U.S. the of Coughenour John Judge with terview Motion?” America’s Mass Incarceration and the Role of Discretion www.thenation.com/article/how-mandatory-minimums-forced-me-send-more- 1000-nonviolent-drug-offenders-federal-pri/ [https://perma.cc/G2AB-RTSY]; also tion, Doing Kimbrough Justice, and a Response to Two Third Circuit Judges .com/Mandatory-Minimum-Sentences-Arrests-Unfair/dp/B00SZ1DRUG/ ref=cm_cr_arp_d_pdt_img_top?ie=UTF8 [https://perma.cc/YY7Y-MHP2]; Mallory Simon & Sara Sidner, America http://www.washingtonpost.com/sf/national/2015/06/06/against-his-better- judgment/?utm_term=.2e3c6c5fa2f6 [https://perma.cc/8NA8-L4AE] (interview with Judge Mark Bennett of Iowa); rests Are “Unfair and Racist,” 176 (2010) (Judge Gwin, of the U.S. District Ohio, Court and for a the Clinton Northern appointee, District calling of for the Sentencing larly survey Commission jurors to on their regu- views of appropriate punishment). Deserve It 39707-nys_72-2 Sheet No. 11 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 11 39707-nys_72-2 39707-nys_72-2 Sheet No. 12 Side A 01/15/2018 10:23:44 , ex- and 58 60 And as And Mandatory 56 note 2. supra Mandatory Minimums article published , 110th Cong. 43 (2007) Outside Box, Federal Judges note 3. (Sept. 24, 2012), https://thecrimere- . For Lesser Crimes, Rethinking Life Behind EP supra R , RIME (Mar. 1, 2013), http://www.nytimes.com/2013/ 2013), 1, (Mar. C New York Review of Books , IMES Federal Judges Urges U.S. to ‘Jettison the Madness of Mass Incar- N.Y. T N.Y. , Mass Incarceration Judges also have appeared before Congress (June 23, 2016), https://www.nytimes.com/2016/06/24/nyre- Judge Regrets Harsh Human Toll of Mandatory Minimum Sentences 59 (Dec. 16, 2014), http://www.npr.org/2014/12/16/370991710/ (Dec. 11, 2012), https://mobile.nytimes.com/2012/12/12/sci- , Testimony of Judge Irene Keeley, Chair of the Judicial Confer- IMES IMES ADIO Rakoff, Speech at Harvard Law Sch. Conference, Alan Feuer, Rakoff, (citing commentary to Canon Four of the Code of Conduct for U.S. ˜ naloza, . R N.Y. T See Id. See, e.g. See See and judges’ “special duty to be heard on this issue,” , UB 57 N.Y. T Straight Talk From a Judge 57. 58. 56. 60. 59. , . P , 111th Cong. 42 (2009) (statement of Chief Judge Julie E. Carnes, U.S. District AT noted earlier, Judge Rakoff spoke in 2015 at Harvard about Law School “the mass incarceration of people in day,” the United States to- pressing similar views in a the same year. judge-regrets-harsh-human-toll-of-mandatory-minimum-sentences [https://perma mandatory that states he which in Gleeson Judge with (interview .cc/2MFM-9NQ9] minimums are “wrong” as a policy matter); Mosi Secret, Path Free a Addicts Offer gion/federal-judge-urges-us-to-jettison-the-madness-of-mass-incarceration .html?mcubz=0 [https://perma.cc/NVE7-B7HQ]. of Washington, a Reagan appointee, about sentencing policy); Carrie Johnson & Marisa Pe N 2018] 2016, Senior Judge Raymond Dearie of the Eastern District of New York gave THE “NEW” a DISTRICT COURT speech ACTIVISM to a group wondered about of the “love New affair in York this country lawyers with lengthy incar- in which nation.” civilized a as embarrassment great our to ceration, he 201 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 15 15-JAN-18 9:53 ence/mandatory-prison-sentences-face-growing-skepticism.html ence/mandatory-prison-sentences-face-growing-skepticism.html [https://perma .cc/7XMK-4YLX] (interview with Judge “[m]andatory sentences breed Roger injustice”). Vinson of Florida stating that port.org/2012/09/24/2012-09-straight-talk-from-a-judge port.org/2012/09/24/2012-09-straight-talk-from-a-judge [https://perma.cc/ 7GN9-H598 ] (interview with Judge Block on a range of subjects, including overly harsh sentencing policy); John Tierney, Bars and Unintended Consequences: Hearing on H.R. 2934, H.R. 834, and H.R. 1466 Before the Subcomm. on Crime, Terrorism, and Homeland Security of the H. Comm. on the Judici- ary of Conference Judicial the of behalf on Georgia, of District Northern the for Court the United States) (arguing that waste mandatory and system judicial the in confidence public undermine that sentences tional penalties produce unfair and irra- public resources by incarcerating offenders for longer than necessary); Minimum Sentencing Laws—The Issues: Hearing Before the Subcomm. on ism, Crime, and Terror- Homeland Security of the H. Comm. on the Judiciary (statement of Judge Paul G. Cassell on behalf of the Judicial Conference of the ence Committee on Criminal Criminalization Law, Task Force of 2014 (July Before 11, 2014) (setting forth H. position of Judi- Comm. cial on Conference the against mandatory Judiciary minimum Over- sentencing); ceration’ 03/02/nyregion/us-judges-offer-addicts-a-way-to-avoid-prison.html 03/02/nyregion/us-judges-offer-addicts-a-way-to-avoid-prison.html [https://perma .cc/P6XZ-AAQ8] (interviews with federal district court Judge Stefan Underhill of Connecticut and Judge Ricardo S. Martinez of the ton); Western District of Washing- Judges). 39707-nys_72-2 Sheet No. 12 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 12 39707-nys_72-2 39707-nys_72-2 Sheet No. 12 Side B 01/15/2018 10:23:44 , RO- P OURTS C TATE ONFERENCE OF ONFERENCE OF S C C 17 (Mar. 2009), EPORT OF THE R TR FOR TATES UDICIAL UDICIAL J [https://perma.cc/ J S [https://perma.cc/8R7F- ’L C TATES S AT They generally steer the NITED , N 63 NITED U (2003) (surveying various types of U OTTMAN RENDS T 62 B. R ROCEEDINGS OF THE to urge those bodies to take correc- P 61 AVID Two Supreme Court Justices Say Criminal-Justice System ONFERENCE OF THE ODELS AND & D ONFERENCE OF THE C (Mar. 24, 2015), https://www.wsj.com/articles/two-su- : M C ASEY . J. 3. Alternatives to Incarceration T EPORT OF THE OURTS S M. C R 18 (Sept. 2006), http://www.uscourts.gov/sites/default/files/ UDICIAL Jess Bravin, UDICIAL C J J ALL cf. , Chief Judge Robert J. Conrad, Jr., U.S. W. Dist. N.C., testimony to W TATES TATES AMELA , P S S OLVING -S See, e.g. See See, e.g., NITED NITED Most intriguingly, “new” activist district court judges have 61. 63. 62. U U ROBLEM P THE CEEDINGS OF THE THE tive action. Much of this advocacy has taken place pices under the of aus- the Judicial Conference, which has mandatory minimum consistently sentences. opposed 2006-09.pdftreatment differential the (opposing [https://perma.cc/53UC-XRBR] of crack and powder cocaine in the Anti-Drug Abuse Act of 1986). individual toward drug treatment or other services and counseling. Successful completion of these programs usually will result in individual facing no prison time, and often emerging with no crimi- the create local diversionary programs and tion. These alternatives programs take to a variety of incarcera- forms, but typically they volve in- diverting an offender from the usual criminal justice process, either before that process starts or after a guilty plea has been en- tered but before a sentence is imposed. Some programs are availa- ble only to certain demonstrated history of drug addiction. classes of offenders, such as those with a pushed the limits of their supervisory and persuasive authority to minimum sentences can produce results contrary to the interests of Committee justice,” on the Criminal Law seeks an amendment to 18 clude stacking U.S.C. of § counts, which “compounds that 924(c) risk”); to pre- JX6F-9FVG] (“In light of the Conference’s long-standing position that mandatory United States); 202the Sentencing Commission NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:187 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 16 15-JAN-18 9:53 preme-court-justices-say-criminal-justice-system-isnt-working-1427197613 preme-court-justices-say-criminal-justice-system-isnt-working-1427197613 [https:// perma.cc/38M9-8PDD] (quoting testimony before House subcommittee tices Breyer and Kennedy harshly critical of incarceration rates, with Justice by Breyer Jus- calling mandatory minimum sentences a “terrible idea”). http://www.uscourts.gov/sites/default/files/2009-03.pdf Isn’t Working the U.S. Sentencing Commission, at sites/default/files/pdf/amendment-process/public-hearings-and-meetings/2009 4 (Feb. 11, 2009), 0210-11/Judge%20Robert%20Conrad%20021109.pdf https://www.ussc.gov/ written Guidelines the and punishments minimum mandatory (“Statutory GHTZ]) to implement them achieve the goals of uniformity at the cost of sometimes unjust sentences.”). specialized courts developed in the United States). 39707-nys_72-2 Sheet No. 12 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 12 39707-nys_72-2 39707-nys_72-2 Sheet No. 13 Side A 01/15/2018 10:23:44 , , OX . L. EWS RIM 13 Fig. L. F L. . (show- EPORT ON . C (Mar. 24, U.S. N Id , R M TATES A ARSON S New Program in NCARCERATION IN Federal Defendants ISPATCH , 53 I , & C ATIONAL -D NITED U OST ARDIN : A N P OUIS D. H D. ICTURE . L P T LTERNATIVES TO S Drug Violators Get a Chance to Change In recent years, they have A OURTS IN THE , AROLYN , 65 C , C (August 12, 2013), http://www.nadcp URRENT . The Drug Court Paradigm C OLVING ROFS (2015), https://img.nyed.uscourts.gov/files/ -S , E.D.N.Y. ARLOWE . P T ORK (Oct. 27, 2015), https://www.bostonglobe.com/ National Association of Drug Court Professionals Ap- Y C OURT Decarceration Courts: Possibilities and Perils of a Shifting B. M B. EW ROBLEM AINTING THE 1587, 1590 (2012) (noting the proliferation of special- LOBE . C RUG P note 55 (noting that federal judges had instituted special N (Nov. 9, 2013), http://www.masslive.com/news/index ., P IST . G D . L.J. N OUGLAS ’ OS THER NST D Jessica M. Eaglin, EO B supra SS I , O G U.S. D A In 2013, there were seven such programs among the L , Since 1989, numerous state court systems have estab- ’ ISTRICT OF (Oct. 17, 2015), http://www.usnews.com/news/us/articles/2015/ EPUBLICAN OURT . 66 64 AT , 100 D C EP R N R , See generally See generally See, e.g. RUG OURTS AND ASTERN D C L ORLD 65. 64. 66. 595, 603–07 (2016) (discussing structure of drug courts and their influence ’ . E AT RUG EV PRINGFIELD N R captured captured the imagination of “new” judicial activists in trict federal courts. dis- .org/DOJ [https://perma.cc/Y7HK-SH7B] (quoting District Judge Keith Starrett urging federal courts to implement drug courts); Robert Patrick, Federal Court Here Helps Defendants Avoid Prison lished lished such diversionary programs. on the creation of other problem-solving courts such as “[m]ental reen- health courts, truancy courts, homeless courts, community courts, violence domestic courts, try courts, and veterans’ courts”). & W D S 2018]nal record. THE “NEW” DISTRICT COURT ACTIVISM 203 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 17 15-JAN-18 9:53 metro/2015/10/26/court-offer-alternatives-prison-for-drug-defendants/cl3uElXy THE .ssf/2013/11/federal_judge_in_springfield_p.html .ssf/2013/11/federal_judge_in_springfield_p.html [https://perma.cc/7H3L- T2HK] (“Joining federal judges nationally, U.S. District Judge Michael A. Ponsor has launched a fledgling effort in this city to steer young, often drug-addicted de- fendants away from prison.”); plauds Justice Department Smart Expansion on Crime Initiative; Calls for Federal Drug Court ized state courts since the early 1990s and reaching approximately 3,000 by 2010). 10/17/federal-court-programs-aim-to-keep-defendants-out-of-prison [https://per ma.cc/4VGD-D6GQ] (discussing the rise of pretrial diversion programs in federal courts in the last five years); Milton J. Valencia, Lives, Avoid Prison 1 (June 2016), http://www.nadcp.org/sites/default/files/2014/Painting%20the% 20Current%20Picture%202016.pdf [https://perma.cc/N9HN-SRAQ]; local_rules/ATI.EDNY_.SecondReport.Aug2015.pdf local_rules/ATI.EDNY_.SecondReport.Aug2015.pdf [https://perma.cc/P4H9- 4RUT] (discussing programs created in the Eastern District of New York and cata- loging programs in federal courts throughout the United States); Stephanie Barry, Federal judge in Springfield pilots pre-sentence diversion program for drug defendants treatment programs for drug-addicted defendants in California, Connecticut, Illi- nois, New Hampshire, New York, South Carolina, Virginia, volving and about Washington, 400 in- defendants nationwide); Sudhin Thanawala, Get Chance to Avoid Prison, Turn Their Lives Around in New Court Programs 2016), http://www.stltoday.com/news/local/crime-and-courts/new-program-in- federal-court-here-helps-defendants-avoid-prison/article_df453143-ff85-5101-89a9- 3068694902fa.html [https://perma.cc/S3KH-DEZA] (describing SAIL, an alterna- tive to incarceration program run by the District Court in the Eastern Missouri, District of which “is not problems”); Secret, limited to drug cases or people with substance-abuse ing Milestones in the Development of Drug Courts); Allegra Courts M. McLeod, and Other Problem-Solving Criminal Law 39707-nys_72-2 Sheet No. 13 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 13 39707-nys_72-2 39707-nys_72-2 Sheet No. 13 Side B 01/15/2018 10:23:44 U. , 69 72 Judges Seek Alterna- [https://perma.cc/ . __ (2017). EV Rachel E. Barkow & Mark William on over-incarceration, due in L. R 71 see also ARY As Judge Stefan Underhill of Con- (Nov. 27, 2009), http://www.austinchronicle 68 . & M note 66; Federal Trial Judges: Dealing with the Real World Instead of Jail, Judges Take More Hands-On Role With HRON ILLIAM C W i.e., sentencing those with drug addiction to United States v. Leitch, No. 11–CR–00039, 2013 WL supra , 2016 WL 915185, at *13 n.84 (detailing previous ask for 69 USTIN , 59 , WNPR (Aug. 5, 2014), http://wnpr.org/post/instead-jail- A , In many districts, the trial judges have been leaders see also Dokmeci 67 , 2016 WL 915185, at *2. , and presented that district’s program to judges from 355, 365 (2015) (noting Judge Gleeson’s leadership role); Secret, . 70 sources cited Jack B. Weinstein, at *3; EV Such an endorsement could promote the spread of the See Dokmeci Id. See See, e.g. 73 Designed to Fail: The President’s Deference to the Department of Justice in Advancing L. R In addition to participating in the creation of alternatives to note 55 (same). 67. United States v. Dokmeci, No. 13-CR-00455 (JG), 2016 WL 915185, at *3 68. 71. 69. Lucy Nalpathanchil, 72. 70. 73. IAMI M necticut, necticut, who championed the effort in Connecticut explained, “I had been a judge long enough that I had become the frustrated revolving door,” with prison, only to see them later re-offend because they did not receive not did they because re-offend later them see to only prison, treatment. Judge Gleeson led the effort in the New Eastern York District of .com/news/2009-11-27/921497/ [https://perma.cc/KZQ3-RJBB] (“At a meeting of the U.S. Sentencing Commission last week, Judge William K. that federal Sessions judges III are said interested in seeing more alternatives to incarceration in- cluded in federal sentencing guidelines.”). incarceration in their own districts, federal trial judges have lobbied have judges trial federal districts, own their in incarceration the Sentencing Commission to give official recognition to such pro- grams. numerous other districts.numerous other in one of his final opinions that He wrote “the tide is just beginning to turn” part to a “grassroots movement in the federal courts.” (E.D.N.Y. Mar. 9, 2016) (Gleeson, J.). supra H17FjfNGE0JeUO/story.html [https://perma.cc/SK3A-BSVG] (describing RISE, a federal alternative to incarceration program Massachusetts). created by the District Court of 20494 federal districts; as of 2016, that number had more than tripled NYUto twenty-two. ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:187 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 18 15-JAN-18 9:53 programs to other districts and help judges throughout the federal system appreciate how the programs fit in to the overall sentencing regime. in setting up such programs. Osler, Criminal Justice Reform Addicts in Connecticut judges-take-more-hands-role-addicts-connecticut#stream/0 L78H-N8HC] (cleaned up). 753445, at *2 (E.D.N.Y. Feb. 28, 2013) (Gleeson, J.). Commission to authorize a downward departure for successful participation in judge-involved a intensive supervision program) (citing letter from the Hon. Gleeson, John U.S. Dist. Judge in the E. Dist. of N.Y., Chair, U.S. Sentencing Comm’n (May 21, 2014)); Jordan Smith, to Patti B. Saris, Chief Judge & tives to Incarceration 39707-nys_72-2 Sheet No. 13 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 13 39707-nys_72-2 39707-nys_72-2 Sheet No. 14 Side A 01/15/2018 10:23:44 : ” , 78 Pa- USTICE OLLAT- J Thus, 246–47 , , C 77 Padilla v. ECORD (2013). LINGELE R K The New Jim Crow NCARCERATION IN THE I RACTICE RIMINAL ECELIA ASS P C 76 . : M , & C ROW TERNAL OLICY AND C E OBERTS IM , P HE 1789, 1814–15 (2012). J R . AW EV EW , T : L And while the Supreme Court in ENNY N J 79 , The New Civil Death: Rethinking Punishment in the HE . L. R ACOBS A OVE , T L The Mythical Divide Between Collateral and Direct Conse- Previously relegated to the corridors of U. P B. J 75 ONVICTIONS (2010). C AMES J , 160 OLGATE LEXANDER C A 4. Collateral Consequences of Convictions . 670, 671–72 (2008) (explaining constitutional jurisprudence re- , Gabriel J. Chin, EV Jenny Roberts, ICHELLE ARGARET that defense counsel’s failure to advise a client of the de- Many people are familiar with some of their harshest mani- OLORBLINDNESS M See generally See, e.g. See National Inventory of the Collateral Consequences of Conviction See . L. R M 74 C ONSEQUENCES OF For decades, federal criminal law was officially blind to these In addition to excessive incarceration, the “new” judicial activ- INN 74. 76. 77. 75. 78. 79. 559 U.S. 356, 374 (2010). C ., https://niccc.csgjusticecenter.org [https://perma.cc/BF5J-73KL] (searcha- M TR GE OF they were considered irrelevant at sentencing, to the adequacy defense representation, of and to the voluntariness of a guilty plea. ERAL real-life consequences, deeming them “non-punishment.” ists have brought attention to the consequences of criminal convic- tions for the ability employment, housing, education, and otherwise participate fully in of previously convicted society. Most of these persons consequences are imposed by to state, not fed- obtain eral, law, but they apply equally to those federal court. convicted Laws imposing such restrictions of have existed for cen- offenses in turies. defense and immigration attorneys’ offices, these collateral conse- quences have emerged in recent years through popular books like Michelle Alexander’s into public consciousness Mass Incarceration in the Age of Colorblindness A That changed in 2010 when the Supreme Court held in Kentucky portation consequences of a conviction constituted constitutionally incompetent representation. C 2018] THE “NEW” DISTRICT COURT ACTIVISM 205 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 19 15-JAN-18 9:53 convictions). ble database of approximately 45,000 distinct collateral consequences of festations, e.g., precluding convicted felons who are United States citizens from voting, or providing grounds for deportation of non- citizens. Such laws have proliferated in the economic, educational, and social spheres as well, precluding crime from individuals being eligible for convicted a variety of of professional a licenses, ex- cluding them from housing and related benefits, and from educa- tional opportunities. garding collateral consequences). (2015); Era of Mass Conviction quences of Criminal Convictions: Involuntary Commitment of “Sexually Violent Predators 93 39707-nys_72-2 Sheet No. 14 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 14 39707-nys_72-2 39707-nys_72-2 Sheet No. 14 Side B 01/15/2018 10:23:44 Lynn Adel- the Execu- 86 181 (2015) (call- . and the status see also EV 84 And in 2015 and They also explicitly 82 . L. R 85 —lower courts, espe- IS 80 W (June 17, 2011), http://www 81 Y ’ OL , 2015 L. & P Y FOR ’ , have held that other collateral conse- OC S opinions extensively survey the social sci- Booker Doe 83 . ). ); Doe v. United States, 168 F. Supp. 3d 427 (E.D.N.Y. 2016) cases, Judge Gleeson explored the role that federal ONSTITUTION Sentenced for Life: Considering the Collateral Consequences of Criminal , 110 F. Supp. 3d at 457 (“The seemingly automatic refusals by , United States v. Stewart, 590 F.3d 93, 141 (2d Cir. 2009) (af- , . C Doe I Doe II at 433. , 168 F. Supp. 3d at 429–30. Doe M A Doe v. United States, 110 F. Supp. 3d 448, 458 (E.D.N.Y. 2015) at 366. , Id. See See, e.g. See, e.g. Doe II See id. See Doe I Criminal Justice Reform: The Present Moment In the Like the campaign against mass incarceration, the “new” ac- took pains to distinguish deportation from other collateral 80. 83. 81. 82. 84. 85. 86. of various reform efforts around the country. cially in the wake of man, invite a broader conversation—among other judges, 2016, Judges Gleeson and Block of the Eastern District of New York devoted considerable space in their judicial opinions to the issue, starting with a pair of cases authored by Judge Gleeson captioned Doe v. United States example, starting at least in 2011, Judge Lynn Adelman of Wiscon- sin has, through panel discussions and writings, publicly called for the reexamination of collateral consequences. district judges could play in ameliorating collateral for consequences individuals convicted in their courts. Like many other “new” ac- tivist opinions, these ence literature on the effect of felony convictions tivist campaign against collateral consequences has For opinions. judicial of played pages the as well as statements extrajudicial out in 206dilla NYUconsequences—holding ANNUAL that SURVEY deportation is OF “uniquely “its of because consequence” collateral a or direct a either as classify AMERICAN difficult to LAWclose connection to [Vol. 72:187 the criminal process” quences may be considered at sentencing. \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 20 15-JAN-18 9:53 .acslaw.org/news/video/sentenced-for-life-considering-the-collateral-consequen ces-of-criminal-convictions [https://perma.cc/LDV8-BWW9] featuring (panel Judge Adelman discussing collateral consequences); discussion ing for widespread criminal justice reform, including to collateral consequences of conviction). firming trial court’s consideration of impact of conviction on defendant’s career as career defendant’s on conviction of impact of consideration court’s trial firming academic or translator). Convictions (Gleeson, J.) ( (Gleeson, J.) ( judges to expunge convictions when the inability to find employment is the ‘only’ ground for the application have undervalued the critical role employment plays in re-entry. They are also increasingly out of step with public opinion.”). 39707-nys_72-2 Sheet No. 14 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 14 39707-nys_72-2 39707-nys_72-2 Sheet No. 15 Side A 01/15/2018 10:23:44 In Doe 91 and 94 decision, finding that —about policies affect- Doe 89 92 , see, for example, United States v. infra and the public , discussed 88 case, Judge Gleeson tried to persuade the When the United States Attorney refused, a holding that precluded (as least in the Sec- Nesbeth 90 93 Doe Id. case, Judge Gleeson found the applicant’s hardship , 168 F. Supp. 3d at 446 n.41 (describing as “unfortunate[ ]” the , 168 F. Supp. 2d at 447 (attachment showing Certificate of Reha- legislators, , 110 F. Supp. 3d at 457 (Doe I’s case “highlights the need to take 87 at 445 (calling for congressional authorization of a “robust federal Doe , 110 F. Supp. 3d at 455. In granting the expungement, Judge Brief and Appendix for the United States at *7, Doe v. United States, See Doe II See id. See Doe I See Doe I See Doe II In the first The Second Circuit reversed the first and in dicta imploring the Department of Justice to use deferred prosecution 87. 88. 89. 90. 91. 92. 93. Doe v. United States, 833 F.3d 192, 94.196–98 (2d Cir. 2016). In addition to a certificate that he persuaded the Chief Probation Officer of the eral “certificate of rehabilitation,” modeled on similar to defendant the for easier it make to law, York New under available certificates demonstrate to future employers that she was a worthy candidate— Eastern District of New York to co-sign. the second insufficient to warrant expungement but nevertheless issued a fed- ing the re-entry into society of individuals with criminal convictions. United States Attorney to agree to the expungement of the defen- dant’s conviction. Judge Gleeson expunged it anyway on the grounds that it created an extraordinary hardship to her ability to obtain employment. Judge Gleeson did not have jurisdiction to consider the application for expungement, ond Circuit) district courts from entertaining any tions for expungement future or certificates of applica- rehabilitation. But the opinions have had a lasting effect anyway, even beyond their contri- bution to the overall policy debate. Other district court judges have started to discuss collateral consequences in their opinions, 2018]tive Branch, THE “NEW” DISTRICT COURT ACTIVISM 207 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 21 15-JAN-18 9:53 infrequency of pardons issued by the Executive branch). certification system” like that in effect in New York and several other states). a fresh look at policies that shut people out from the social, economic, and educa- tional opportunities successfully.”). they desperately need in order to reenter society 833 F.3d 192 (2d Cir. 2016) (No. 15-1967), 2015 WL issued 5559948 (describing order by Judge expungement). Gleeson asking the government to consider consenting to “terminated from half a dozen jobs [as a home health aide] because of the record of her conviction.” Saena Tech Corp., 140 F. Supp. 3d 11, 42–47 (D.D.C. 2015) (Sullivan, Doe I J.) (citing agreements and other similar tools in individual prosecutions to allow individual defendants, like corporate defendants, a chance to avoid the deleterious collateral Gleeson cited among other considerations Doe’s representation that she had been bilitation issued, co-signed by the Chief Probation Officer for the District). 39707-nys_72-2 Sheet No. 15 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 15 39707-nys_72-2 39707-nys_72-2 Sheet No. 15 Side B 01/15/2018 10:23:44 For ex- 95 Written in the 99 Nesbeth did not at laws imposing and the status of 97 102 100 The judge then held that at 200 (quoting Loretta E. Lynch, 98 Id. United States v. Nesbeth. v. States United , asked the Probation Office and the par- Finally, it nudges numerous other actors 101 sua sponte 96 at 188. at 181–83. at 183. at 198 (“It is for Congress and the states’ legislatures to determine Doe v. United States, 833 F.3d at 199 (“The unfortunate consequences The opinion went on to quote at length a speech by then-Attorney at 194. Id. Id. Id. See Id. See id. Id. In May 2016, Senior District Judge Frederic Block of the East- 95. 96. 97. 188 F. Supp. 3d 179 (E.D.N.Y. 2016) 98. (Block, J.). 99. 100. 101. 102. ample, they noted providing federal that courts with Congress jurisdiction to tions expunge of might those, like Doe, who the “want and deserve to have their convic- crimi- do well nal to consider convictions rehabilitation.” expunged after a period of successful “new” activist style, the opinion traces the history and contemporary and history the traces opinion the style, activist “new” landscape of laws imposing collateral consequences, the effect practical of such laws on those subject to them, involve expungement, but instead could the take extent to collateral which consequences First, the judge, a into judge account at ties to sentencing. address the collateral consequences the defendant was likely to face due to her drug conviction. in the criminal justice system to take action—e.g.,take to system justice criminal the in legisla- for calling tors around the country to take a “hard look” collateral consequences; observing that defense counsel and prose- modern reform efforts. collateral consequences in consequences collateral ern District of New York took up Judge Gleeson’s campaign against these consequences, which included the inability to pursue a teach- ing career and accomplish the school principal, justified a defendant’s sentence of probation. goal of becoming a consequences of criminal convictions); Stephenson v. United States, 139 F. Supp. 3d 566, 572 (E.D.N.Y. 2015) (Dearie, J.) (in dicta branches of calling government to for ensure that action individuals by who are all finished serving three their sentences are given a second chance to make a life). 208two judges on the Second Circuit, in reversing Judge Gleeson’s or- NYUder, ANNUAL expressed sympathy for SURVEYthe issue he OFhad identified. AMERICAN LAW [Vol. 72:187 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 22 15-JAN-18 9:53 of Doe’s conviction compel us to offer a few additional observations.”). General Loretta Lynch calling for reforms of the laws that effectively turns “terms of incarceration into . . . a life sentence.” loretta-e-lynch-delivers-remarks-national-reentry-week-event [https://perma.cc/4R 7X-C9DY]). Attorney Gen., Dep’t of Justice, Remarks at National Reentry Week Event in Phila- delphia (Apr. 25, 2016), https://www.justice.gov/opa/speech/attorney-general- whether the plethora of post-sentence punishments imposed upon felons is than harm truly more country the do they whether at look hard a take to and warranted, 39707-nys_72-2 Sheet No. 15 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 15 39707-nys_72-2 39707-nys_72-2 Sheet No. 16 Side A 01/15/2018 10:23:44 . N ’ EV SS the , 2004 A 106 AR . L. R . B ARV 104 M Tradition- H A Berger v. United 105 , 94 and suggesting 103 Prosecutorial Neutrality r. 3.8 cmt. [1] ( [1] cmt. 3.8 r. ONDUCT decision, the Probation Department in C L ’ ROF Nesbeth P Decent Restraint of Prosecutorial Power ULES OF R ODEL M , Bruce A. Green & Fred C. Zacharias, , B. The Excesses of Prosecutorial Discretion at 197. Following the 837, 840 (2004) (“Discretion pervades every aspect of [prosecutors’] . Id. See, e.g. See, e.g. EV The second theme of the “new” judicial activism is the excesses , 104. 105. 103. 188 F. Supp. 3d at 196–97. (citing defense counsel’s duties to advocate 106. . L. R controversy, but of a sovereignty whose obligation to govern impartially is a in therefore, interest, whose and as all; at govern to obligation its as compelling criminal prosecution is not that it shall win a case, but that justice be done. As such, he is in a peculiar and very may He suffer. innocence or escape not shall guilt that is which of aim twofold definite sense the servant of the law, the prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful con- viction as it is to use every legitimate means to bring about a just one. The United States Attorney is the representative not of an ordinary party to a IS availability of juries to serve as a check on prosecutorial charging ally, it has been justified by a variety of rationales, including prose- justice,” of “ministers and advocates both as roles dual cutors’ that the Court’s Probation Department should prepare a collateral consequences analysis in all future pre-sentence reports. tude that prosecutors enjoy in making charging and settlement de- cisions, and fundamental in to the American criminal justice system. performing other aspects of their work—is of prosecutorial discretion. Prosecutorial discretion—the wide lati- work.”); James Vorenberg, 295 U.S. 78, 88 (1935). tice,” imposed on federal prosecutors pursuant to 28 U.S.C. § 530B(a) (2012)). the Eastern District of New York has included a for collateral consequences all analysis defendants sentenced in Kelly, that Chief district. Probation Telephone Interview Officer, author). with E.D.N.Y., Eileen (Jan. 10, 2017) (notes on file W with 1983) (“A prosecutor has the responsibility of a minister of justice and not simply that of an advocate.”). As the Supreme Court famously States stated in good. Hopefully, this opinion will be of value those who to are committed the to serving bench the and ends of bar, justice.”). and to all the client’s cause, consult with the client on client important informed decisions, of and keep significant the developments, as under Rule well 3.8 of New as York’s Rules of prosecutors’ Professional Conduct as obligations a “minister of jus- 2018] cutors may be derelict in their professional duties if they do not pay greater attention to THE “NEW” collateral DISTRICT COURT consequences ACTIVISM when advising clients and the court in future sentencing proceedings; 209 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 23 15-JAN-18 9:53 1521, 1536–39 (1981) (discussing range of prosecutorial discretion). 39707-nys_72-2 Sheet No. 16 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 16 39707-nys_72-2 39707-nys_72-2 Sheet No. 16 Side B 01/15/2018 10:23:44 R R . EV 110 109 . L. . MERI- ICH A . L. R M A V , 100 , , 101 OWER OF THE P HE : T USTICE J note 105, at 1562 (discussing a variety note 17, at 130. RBITRARY supra Moreover, by overcharging a case, a , A 108 at 1849 & n.237 (gathering the “unrelenting” supra , The Corporate Criminal as Scapegoat 1. Overcharging The Pathological Politics of Criminal Law Criminal of Politics Pathological The Especially since legislators embraced AVIS 107 J. D ABRANES see also id. NGELA especially charges carrying (or increasing) a & C A , United States v. Burciaga-Duarte, No. CR 14-0592, 2015 WL 111 180–83 (2007) (calling for greater oversight of prosecutors by bar by prosecutors of oversight 180–83greater for (calling (2007) TITH S Brandon Garrett, William J. Stuntz, J. William See, e.g. See See, e.g., See See ROSECUTOR A number of judges have raised concerns about prosecutorial In the last decade, one hears echoes of these critiques in the There have long been calls for greater regulation and/or over- 111. 107. 109. 110. 108. 505, 537 (2001) (explaining how legislators have given prosecutors a menu of . P EV R criticisms by members of Congress and the press “failures of to prosecute top executives and officers” the for actions relating to the global Department of Justice’s financial crisis). CAN prosecutor can coerce a guilty plea to at least a lesser offense. mandatory mandatory sentencing regimes, critics have argued that the system concentrates too much power in the hands of prosecutors, who are effectively able to dictate the sentence through charging decisions. that a defendant receives overcharging, work of “new” activist judges. These judges have not challenged the basic premise of prosecutorial must be discretion—i.e., given a that wide berth prosecutors to do suggested their that prosecutors jobs are in effectively—but some cases have abusing their author- ity. As set forth below, these concerns have been raised most com- monly with respect to prosecutorial charging decisions (both over and under-charging) and prosecutors’ exploitation of the criminal discovery rules that can keep defendants in the dark about critical evidence. overlapping charges which support prosecutors’ “ability to induce a plea”). of mechanisms that discretion). could be leveraged to limit prosecutors’ unchecked 1789, 1792–93 (2015); Since the financial crisis, critics also have focused on prosecutors’ failures to aggressively pursue white collar and corporate crime. 210the of oversight other or judicial of impracticality the and decisions, NYU investigatory ANNUALand other aspects of SURVEY prosecutors’ work. OF AMERICAN LAWsight [Vol. 72:187 of prosecutors. \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 24 15-JAN-18 9:53 disciplinary authorities); Vorenberg, 3862946, at *3 (D.N.M. June 9, 2015) (Browning, J.) (raising concern about DOJ prosecution of marijuana distribution in New Mexico, while “turning a blind eye” to the same crime in other states that have legalized marijuana); United States v. Washington, 131 F. Supp. 3d 1007, 1018 (E.D. Cal. 2015) (Mueller, J.) (“The gov- ernment’s initial targeting of the defendants without any individualized suspicion Cal. (C.D. 788 772, 3d Supp. F. 3 Hudson, v. States United pause.”); court this gives 39707-nys_72-2 Sheet No. 16 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 16 39707-nys_72-2 39707-nys_72-2 Sheet No. 17 Side A 01/15/2018 10:23:44 United toward calling atten- 113 rev’d & remanded sub nom.,. sub remanded & rev’d to exploit these punitive statutory , 851 F. Supp. 2d at 489 (Gleeson, J.) (“The only Dossie choices note 24. , United States v. Marshall, 125 F. Supp. 3d 652, 659–60 (N.D. It can thus sometimes be difficult to disentangle the , United States v. Dossie, 851 F. Supp. 2d 478, 479 (E.D.N.Y. 2012) (E.D.N.Y. 479 478, 2d Supp. F. 851 Dossie, v. States United , 112 114 See, e.g. See, See supra See, e.g. Federal prosecutors’ use of the prior felony information provi- 112. 113. 114. tion to prosecutors’ schemes. sions set forth in Section 851 of Title 21 has particularly drawn the prosecutor required it.”); United 1257359, at States *5 (E.D.N.Y. Mar. 30, v. 2010) (Gleeson, J.) (noting Vasquez, that there was “but No. one” reason for the sentence imposed—”I was forced by a law that should not have 09-CR-259, 2010 WL been invoked to impose a five-year prison term”); 8:08CR50, 2009 WL United 35166, at *10 States (D. Neb. v. Jan. 5, 2009) Gellatly, (Bataillon, J.) (imposing No. required five year sentence for receipt of child pornography, but noting that “[i]f not constrained by the government’s charging decision, clined to sentence this defendant to a shorter term of imprisonment that would be the court would be in- more in line with the sentences possession”). impose[d] on similar defendants convicted of reason for the five-year sentence imposed on Dossie is that the law invoked by the 2014) (Wright, II, J.) (dismissing drug and robbery indictment where charges were operation), sting reserve house” “stash on based 2018] mandatory minimum sentence. Often, the judges’ prosecutors’ disapproval charging of THE decisions “NEW” DISTRICT is COURT ACTIVISM bound up with the taste for the legislative judgments reflected in the statutory schemes judges’ dis- themselves. frustra- judges’ the from conduct prosecutors’ the at distress judges’ tion with Congress. 211 Nevertheless, “new” activism away from simply there voicing the need for corrective leg- is a distinct shift islative in action the (a sentiment that judges have regard to mandatory long minimum sentences), expressed with \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 25 15-JAN-18 9:53 (Bataillon, J.) (questioning government’s decision to charge defendant in federal rather than state court, given his minor role in drug conspiracy and vastly different sentencing consequences). (Gleeson, J.) (discussing distortive effects of drug cases, mandatory but calling on the Attorney minimum General to use his powers sentences to remedy those in effects, even absent new legislation). Ohio 2015) (Zouhary, J.) (noting, in cases involving receipt of child pornography, that the court “would have preferred a charging decision that mandatory did minimum” not and include that a government’s charging decision “may have an been ‘irresponsible’ use of the Government’s broad (internal citation omitted); discretion to select charges”) States v. Dunlap, 593 F. App’x. 619 (9th Cir. 2014); United 857 States v. F. Henderson, Supp. 2d 191, 212 (D. sense of Mass. outrage 2012) out of (Woodlock, proportion J.) to the (suggesting circumstances of that has the apparently driven the “[a] case misconduct to be pursued as here a felony”); United States v. Cromi- tie, 781 F. Supp. 2d 211, 227 (S.D.N.Y. 2011) (McMahon, J.) (noting the “serious questions that this [terrorism sting] case raises about how the Government is United constraints”); budgetary and terror both of age de- an in fisc public the ploying States v. Bass, No. 8:04CR384, 2007 WL 2226007, at *3 (D. Neb. Aug. 1, 2007) 39707-nys_72-2 Sheet No. 17 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 17 39707-nys_72-2 39707-nys_72-2 Sheet No. 17 Side B 01/15/2018 10:23:44 123 Once 115 The prior fel- and contain no contain and 118 119 and to “express their 124 provides a good example. In a lengthy If the defendant has two prior qualifying A defendant who otherwise would face a 120 117 116 And in a final section of the opinion captioned “The 122 at 882. at 893, 910–932 apps. A–E. at 903. To that end, Judge Bennett included in the opinion the Id. Id. Id. Id. 121 By at least 2013, federal district court judges started to voice 116. § 841(b)(1)(A). 117. § 841(b)(1)(B). 118. § 841(b)(1)(A). 119. Act of Oct. 27, 1970, Pub. L. No. 120.91-513, 84 Stat. 1236. 960 F. Supp. 2d 881 (N.D. Iowa 2013) 121. (Bennett, J.). 122. 123. 124. 115. 21 U.S.C. § 851 (2012). that document is filed, a defendant mandatory minimum who sentence of ten otherwise years and a would maximum of life face a for a drug offense instead faces a mandatory years’ minimum imprisonment. of twenty ony information provisions were enacted in 1970, in enacted were provisions information ony restrictions on when prosecutors may invoke them. their displeasure with how prosecutors were exercising their discre- tion regarding Section 851. Judge Mark Bennett’s 2013 decision in United States v. Young convictions, a prosecutor can file triggering two a mandatory life term of imprisonment. prior felony informations, United States Attorney’s Office for the Northern District of Iowa for Iowa of District Northern the for Office Attorney’s States United what he called “the stunningly arbitrary application by the Depart- ment of Justice (DOJ) of [Section] 851 drug sentencing enhance- ments.” opinion filed as the court’s statement of reasons for imposing sen- tence, Judge Bennett berated the Department of Justice and the Role of the Judiciary in Judge Attempting Bennett to called Correct upon the his fellow Problem,” judges accountable for to their hold use prosecutors of Section 851, 212ire of “new” activist judges. Those NYU provisions give prosecutors power ANNUAL the SURVEY to OF sentences AMERICAN increase for LAW defendants the prosecuted for document—known drug as mandatory a prior felony information—alleging that the crimes by [Vol. 72:187 minimum filing a defendant and previously was convicted of a qualifying felony. maximum \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 26 15-JAN-18 9:53 mandatory minimum of five years’ imprisonment and a maximum of forty years instead faces a minimum of ten years and a maximum of life imprisonment. conclusions of his original research on DOJ’s informations, use using of prior data felony provided (at his request) States by Sentencing the Commission, summarized United in various charts and appendices. 39707-nys_72-2 Sheet No. 17 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 17 39707-nys_72-2 39707-nys_72-2 Sheet No. 18 Side A 01/15/2018 10:23:44 129 Still, opin- 131 Kupa All of this was 126 , also decrying DOJ’s , most of the and the other for provid- decision, Judge Gleeson is- 127 Young —a policy he thought he had about the issue, drawing a con- 132 Young 125 Like 130 Thus, the statutory mandatory mini- United States v. Kupa 128 opinion was a shot across the bow to the Young , 960 F. Supp. 2d at 883. , 960 F. Supp. 2d at 903 (“I believe we [judges] have an equal at 434 (recounting Judge Gleeson’s “belief that the United States at 432. at 434. at 908. Young Id. Id. See id. Id. Young , it was all dicta—theall was it , did ultimately enhancement 851 Section 133 Shortly on the heels of the 127. 18 U.S.C. § 3553(f) (2012). This safety valve is available to defendants 128. § 3553(e). 129. 130. 976 F. Supp. 2d 417 (E.D.N.Y. 2013) (Gleeson, 131. J.). 132. 133. 125. 126. ing “substantial assistance” to the government in the investigation or prosecution of others. persuaded the United States Attorney’s drop. Office in his district to nection nection to the problem of mass incarceration. mation, did not bind Judge Bennett’s hands in sentencing. mum sentence, before or after the filing of the prior felony infor- Judge Gleeson used his statement of reasons express for his concerns the about sentence DOJ’s to strategic use of Section hancements 851 to coerce en- guilty pleas dicta, because the prior felony information case had no effect at in the hand; mandatory minimum sentence pursuant to two other statutory pro- the defendant visions—one known as the safety qualified valve for escape from the who do not have a significant criminal record who disclose information about their about information disclose who record criminal significant a have not do who offense to the government. Attorney had agreed to refrain from using prior felony informations to coerce right—even duty—to call out the DOJ on its application of the new national policy [reflected in a 2013 memo from Attorney General Holder], its secrecy in applying § 851 enhancements, and the completely arbitrary way in which it could continue to apply these devastating enhancements, which add to tion’s mass incarceration the problems, in burdens the absence of of new transparency our accompa- Na- nying the new policy.”). Nevertheless, the Department of Justice. 2018] continuing concern to the DOJ” THE “NEW” DISTRICT COURT ACTIVISM 213 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 27 15-JAN-18 9:53 ion is not devoted to the facts of the case or the pertinent law. stead, In- it offers a history of mandatory minimum sentencing statutes and DOJ charging policy, a survey of contemporary charging prac- tice, and a strongly-worded Young message of disapproval. not And increase as the defendant’s in sentence—in government this case withdrew because it the pursuant to a plea agreement. sued a lengthy opinion in policy regarding Section 851. 39707-nys_72-2 Sheet No. 18 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 18 39707-nys_72-2 39707-nys_72-2 Sheet No. 18 Side B 01/15/2018 10:23:44 In 135 That 141 136 United States In another 134 note 62, at 17, (“In supra (Mar. 2009), If there are two or more stacked 138 Like Section 851 enhancements, prose- 137 ONFERENCE C 139 UDICIAL J , in which he referred to prosecutors’ use of stacked 140 at 311–12. See, e.g. Id. In 2014, Judge Gleeson wrote a lengthy opinion in In a similar vein, judges have started to question prosecutors’ Although Although less fulsome in their critiques, other judges during 136. 134. Ross v. United States, No. 6:03-cv-729, at *9–10 (M.D. Fla. filed July 11, 135. United States v. Jones, No. CR 08-0887-2, 2009 WL 2912535, at *7 (N.D. 137. 18 U.S.C. § 924(c)(1)(A) (2012). 138. § 924(c)(1)(D)(ii). 139. § 924(c)(1)(C)(i). 140. 68 F. Supp. 3d 310 (E.D.N.Y. 2014) 141. (Gleeson, J.). provision provides for a mandatory minimum sentence for carrying or possessing a gun in furtherance of a crime of violence offense—of or five, drug seven, or ten years, depending which the on gun was the used. extent to Section 924(c) counts, the person must be sentenced to at least 25 years’ imprisonment. that the government “exercised its amounts to a discretion due process violation in and prosecutorial abuse.” a manner that case, Judge Marilyn Hall Patel of the Northern District of California struck a prior felony information filed against a defendant, finding sentence, including the sentence imposed for the underlying drug offense or crime of violence. cutors have total discretion over whether to charge a Section 924(c) Section a charge to whether over discretion total have cutors count, and how many to charge, Sec- each for sentence The possessed. or used gun each for charged since a different count can tion 924(c) count of conviction must run consecutive to every other be v. Holloway exploitation of the consecutive, mandatory minimum sentences au- thorized by Title 18, United States Code, Section 924(c). the past decade also have criticized federal prosecutors’ use of Sec- tion 851. For example, in 2013, Judge Anne Conway of the Middle District of Florida expressed a prosecutor’s decision similar to file concern, a prior characterizing felony information a as tive,” “vindic- and warning that Section 851 enhancements should used not to be force minor participants to accept a plea. pleas after the office’s longstanding practice of doing so was brought to her atten- tion in 2010”). 2013), ECF No. 40 (Conway, J.). Cal. Sept. 9, 2009) (Patel, J.). 214 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:187 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 28 15-JAN-18 9:53 Section 924(c) counts as a “misuse of prosecutorial power.” light of the sentences can produce results contrary to Conference’s the interests of justice,” the Conference long-standing sought an position amendment to 18 U.S.C. § 924(c) to preclude that stacking of counts, which mandatory “compounds that risk”). minimum 39707-nys_72-2 Sheet No. 18 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 18 39707-nys_72-2 39707-nys_72-2 Sheet No. 19 Side A 01/15/2018 10:23:44 Hollo- Hollo- SEC v Ci- and 144 143 he publicly embarrassed SEC lawyers , 752 F.3d 285 (2d Cir. 2014). 145 Not surprisingly, applications for “ , 2. Undercharging 142 SEC v. Bank of America Corp. , United States v. Rivera, Nos. 83-00096-01-CR & 83-00138-02-CR vacated and remanded SEC v. Bank of America Corp., No. 09 Civ. 6829, 2009 WL 2842940, at 2842940, WL 2009 6829, Civ. 09 No. Corp., America of Bank v. SEC at 311 (“In the spirit of fairness—and with the hope of inspiring Id. See See, e.g. The “new” district court activism also can be found at the other the at found be can also activism court district “new” The 142. 144. 143. 145. SEC v. Citigroup Glob. Mkts., Inc., 827 F. Supp. 2d 328 (S.D.N.Y. 2011) ” relief are now working their way through United States Attor- to charge. For example, in a variety of fora, Judge Rakoff of the relief so that court could impose a sentence “that better serves the interests of tigroup Global Markets Inc. by refusing to approve consent judgments with banks, with consid- erable commentary. end of the criminal justice spectrum, in the white-collar area, where decision the regarding policies prosecutors’ questioned have judges not Southern District of New York has criticized the DOJ and the Secur- ities and Exchange Commission (SEC) for their response to the fi- nancial crisis of 2007–08officials. Most notably, in two cases brought by the SEC in the and wake failure to of the financial crisis, charge any high-level 2018]that case, Judge Gleeson vacated two Section 924(c) convictions of a defendant THE “NEW” who DISTRICT COURT had ACTIVISM already served nearly prison sentence and had no legal grounds for seeking correction of 20 years of a 57-year his sentence. Ultimately, the court acted with the consent of both parties. However, as the opinion makes clear, the prosecutor’s con- sent was wrangled by 215 Judge Gleeson, vehicle who to publicize used the the maneuver and opinion celebrate the as United States a Attorney for relenting. \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 29 15-JAN-18 9:53 neys’ Offices and courts throughout the country. way 2014) (granting joint motion of the parties to reduce mandatory sentence of life imprisonment, imposed pursuant to Government’s filing U.S.C. § of 851, a to a 25-year notice term). under 21 other United States Attorneys to show similar wisdom and courage—I write to ap- plaud the admirable use of prosecutorial power in this case.”). (E.D. Okla. Sept. 15, 2015) (granting defendant’s motion to vacate and resentence after government agreed to support the motion); United States 815-01, v. at *23–27 Ezell, (E.D. No. Pa. Aug. 02- 18, 2015), ECF No. 253 (asking the government to consent to such 4941820, at relief); *16 (E.D. Pa. Aug. 19, United 2015) (asking government to States consent to v. way Trader, No. 04-680-06, justice”); 2015 United WL States v. Martinez–Blanco, No. 06–cr–396 (N.D. Ga. Mar. 31, *2 (S.D.N.Y. Aug. 25, 2009) (Rakoff, J.) (discussing Court’s request for additional submissions and briefing); SEC v. Bank of America Corp., 653 F. Supp. 2d 507, 508 (S.D.N.Y. 2009) (Rakoff, J.) (rejecting consent judgment even after reviewing addi- tional submissions). (Rakoff, J.), 39707-nys_72-2 Sheet No. 19 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 19 39707-nys_72-2 39707-nys_72-2 Sheet No. 19 Side B 01/15/2018 10:23:44 The 148 New York Review of of future settle- at 295. 150 , 827 F. Supp. 2d at 333 Id. New York Review of Books note 4 (including digital image Citigroup but only after the parties sub- supra 147 In both cases, the judge repeat- 146 Rakoff, Jed Rakoff and the Lonely Fight for Wall Street Jus- See , 653 F. Supp. 2d at 509 (noting that the shareholders published in 2014 in the 154 , 827 F. Supp. 2d at 330–35. 152 , 752 F.3d at 294 (2d Cir. 2014). The Second Circuit held that , Sasha Abramsky, On remand, Judge Rakoff approved the decree but He also gave numerous interviews to journalists explor- (these included the allocation of resources within DOJ, a shift toward (June 18, 2014), https://www.thenation.com/article/jed-rakoff-and- 149 153 See Bank of America See Citigroup Citigroup Id. Id. See, e.g. Judge Rakoff followed up his in-court critiques with a ATION Judge Judge Rakoff was disturbed that the proposed consent decrees 151 issue in which it appeared. N 146. 147. Even while approving the final consent decree, Judge Rakoff called it 148. 149. 151. 152. The Article received top billing on the cover of the 153. 150. SEC v. Citigroup Glob. Mkts. Inc., 34 F. Supp. 3d 379, 380 (S.D.N.Y. 154. , agreement, concluding his written opinion with SEC for a abdicating its rebuke statutory duty to to flush the out the truth. SEC filed an interlocutory appeal with the Second reversed. Circuit, which stantially stantially modified the agreements to, among other things, give the court a role in approving the outside experts retained to implementation. audit In the other, its Judge Rakoff refused to approve the edly required the parties to submit additional evidentiary materials and briefing to address his concerns. In one case, Judge Rakoff fi- nally approved the consent decree, ments, including those “enforced by the judiciary’s contempt pow- ers.” in which he pointed to “weaknesses in that contributed to the lack our of prosecutions of senior corporate prosecutorial ex- system” ecutives. did not require an admission of wrongdoing or the payment of pen- of payment the or wrongdoing of admission an require not did alties by individual wrongdoers. will bear the brunt of the penalty assessment); 216 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:187 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 30 15-JAN-18 9:53 warned that the consequence would be “no of meaningful oversight whatsoever” the Second Circuit’s decision ing similar topics. headline article (noting that the consent agreement did not require an admission of wrongdoing). “half-baked justice at best,” because it company imposed that “very were modest” unlikely measures to change on future the conduct. Corp., Nos. 09 Civ. 6829, 10 Civ. SEC 0215, 2010 WL 624581, at *5–6 v. (S.D.N.Y. Feb. 22, Bank of America 2010) (Rakoff, J.). 2014) (Rakoff, J.). Books of cover). the district court had applied an erroneous legal standard and that it was not nec- essary for “the SEC to establish party” before the a court ‘truth’ could approve of a consent decree. the allegations against a settling corporate rather than individual prosecutions, reliance on corporate internal in- vestigations, and prosecutors’ preference for easier cases). tice 39707-nys_72-2 Sheet No. 19 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 19 39707-nys_72-2 39707-nys_72-2 Sheet No. 20 Side A 01/15/2018 10:23:44 . ASH Judge Court EPART- (Apr. , THE W EUTERS , R (Oct. 1, D , IMES , BLOOM- USTICE J N.Y. T A.B.A. J. , , (2017) (referenc- HE In a substantial : T 155 , (Jan. 22, 2013), http:/ LUB RIMINALS C BNA C OLLAR C LOOMBERG HICKENSHIT B C , HITE HE W , T Judge Balks at SEC’s Settlement with Citigroup ISINGER ROSECUTE E P ESSE J Orthofix’s Settlement of Medicare Probe Rejected by Judge Judge Rejects Plea Deal on Guidant Heart Device AILURE TO F Judge Refuses to Accept WakeMed Settlement with Federal Prosecutors TS U.S. judge tells CFTC he won’t ‘rubber stamp’ Deutsche Bank deal I see generally Judge Judge Rakoff may be the most prominent voice expressing fed- (Aug. 17, 2010), http://www.washingtonpost.com/wp-dyn/content/article/ . 155. For additional examples not discussed in the text, see, for example, Nate OST P BERG NEWS (Sept. 6, 2012) (criticizing “corporate criminal criminal settlement conduct because like it a civil treated case,” penalties and limited for the ability corporate to misconduct impose when tied.”); Zachary “the A. court’s Goldfarb, hands ought not to be MENT AND number of recent cases, other judges have criticized the DOJ for including explanation for why only two executives ing); Barry were Meier, charged with wrongdo- 2010/08/16/AR2010081604807.html [https://perma.cc/A9S4-LLT6]) (describ- ing demand by United States District Judge Ellen S. Huvelle of the District of Co- lumbia for more information before approving SEC settlement with Citigroup, eral trial courts’ concern about DOJ and SEC under-enforcement in the white-collar context, but he is not alone. (Sept. 23, 2016), http://www.reuters.com/article/us-deutsche-bank-cftc-idUSKCN William Judge before action (describing ] [https://perma.cc/B3YK-TA9Q 11T1VT Pauley of the Southern District of New York); SEC v. Hohol, No. 14-C-41, 2014 WL 461217, at *2 (E.D. Wis. Feb. 5, 2014) (Randa, J.) (requiring additional tion informa- to permit court to determine whether settlement was “fair, quate, and reasonable, in the ade- public interest”); SEC v. CR Intrinsic Inv’rs, LLC, 1:12-cv-08466, at *16–17 (S.D.N.Y. Apr. “whether the regulatory and judicial practices 16, which have governed to date fail 2013), to ECF reflect what new realities demand to adequately protect the public interest”); No. 33 (Marrero, Rejects SEC Settlement in Alleged Ponzi Scam J.) (questioning 2018] THE “NEW” DISTRICT COURT ACTIVISMlonely-fight-wall-street-justice/ [https://perma.cc/5PJ2-3Z6E]; Terry Carter, 217 Jed Rakoff’s Stance on the SEC Deals Draws Fire, Praise—and Change \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 31 15-JAN-18 9:53 .cc/T6EB-2YCN] (Judge John Kane of the District of Colorado); Joseph Neff, Anne Blythe & NEWS & OBSERVER (Jan. 17, 2013)) (quoting United 5:12-cr-00398 States (E.D.N.C. v. WakeMed, Dec No. 19, 2012) “‘slap (Boyle, on the J.)) hand’ for (criticizing a ‘too settlement big Inc., to No. 1:12-cr-10169 as (D. fail Mass. Jun company’”); 07, 2012) (Young, a J.) as United quoted in States Jef Feeley v. Orthofix, & Janelle Lawrence, /www.bna.com/court-rejects-sec-settlement-in-alleged-ponzi-scam /www.bna.com/court-rejects-sec-settlement-in-alleged-ponzi-scam [https://perma 27, 2010), http://www.nytimes.com/2010/04/28/health/28device.html [https:// perma.cc/S4H5-Y4XN] (describing decision by United States District Judge Dono- van W. Frank of the District of Minnesota, rejecting plea agreement between the Department of Justice and the Guidant Corporation that would have required de- fendant corporation to plead guilty to two misdemeanors fine, on grounds that and its provisions were “not pay in the best interest $265 of justice and do million not serve the public’s interest because they do not adequately history address and Guidant’s the criminal conduct at issue”) 2013), http://www.abajournal.com/magazine/article/judge_jed_rakoffs_stance_ on_the_sec_deals_draws_fire_praiseand_change [https://perma.cc/6CHB- WYNR]; ing extensive interviews with Judge Department of Rakoff Justice in responding about to the financial the crisis). failures of the SEC and Raymond, 39707-nys_72-2 Sheet No. 20 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 20 39707-nys_72-2 39707-nys_72-2 Sheet No. 20 Side B 01/15/2018 10:23:44 156 , a DPA. The par- 158 at 737. The Speedy Trial Act Acknowledging the lim- Id. 162 United States v. HSBC Bank at *6 (discussing situations in which id. , 818 F.3d 733 (D.C. Cir. 2016). Judge Richard Leon of the District 161 , explored various bases for judicial review United States v. HSBC Bank USA, N.A., 863 F.3d 125, See , 2013 WL 3306161, at *5 (“By placing a criminal matter , 2013 WL 3306161, at *2 (concluding that the court did not sua sponte vacated and remanded 160 (noting that, at status conference, the court suggested it had author- This apparently represented the first time that a district Id. HSBC Bank See HSBC Bank But along the way, he outlined a novel theory of a district 157 United States v. Fokker Id. 159 In 156. United States v. HSBC Bank USA, 157. N.A., No. 12–CR–763, 2013 WL 158. United States v. Saena Tech Corp., 140 F. Supp. 3d 11, 25 (D.D.C. 2015). 159. 160. 162. United States v. Fokker Servs. B.V., 818 F.3d 733, 740 (D.C. Cir. 2016). 161. United States v. Fokker Servs. B.V., 79 F. Supp. 3d 160, 165 (D.D.C. full authority he initially thought DPA. he did, and he approved the ties ultimately persuaded Judge Gleeson that he did not have the of Columbia went further. He refused Dutch aerospace company suspected of evading to United States sanc- approve a DPA with tions against Iran and other nations. This marked the first time a that any federal court had denied a joint request to exclude time under the Speedy Trial Act pursuant to a DPA. 3306161, at *1 (E.D.N.Y. July 1, 2013) (Gleeson, J.). 218defendants; individual white-collar and corporate with lax too being NYUin ANNUAL some SURVEY of them, OF one boundaries AMERICANof can their authority to feel review LAW prosecutorial charging the and judges settlement straining decisions. For example, in against the [Vol. 72:187 Judge Gleeson \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 32 15-JAN-18 9:53 court judge had not “automatically approve[d]” court’s inherent supervisory power to review DPAs to a certain lim- ited extent. of the substance of a proposed (DPA). deferred prosecution agreement ity to accept or reject a 11(c)(1)(A) and DPA U.S. Sentencing pursuant Guideline § to Federal 6B1.2). Rule of Criminal Procedure have authority under the Federal Rules of Criminal Procedure or the Sentencing Guidelines to substantively review the DPA). on the docket of a federal court, the parties have subjected their DPA to the legiti- mate exercise of that court’s authority.”); As the D.C. Circuit explained, the “interplay between the operation of a DPA and the running of time limitations under the Speedy Trial Act,” a DPA “involves the formal initiation of criminal charges,” thus triggering the “Speedy Trial Act’s time limits for the commencement of a criminal trial.” provisions or implementation of a DPA might “so transgress[ ] the bounds of law- fulness or propriety as to warrant judicial intervention to protect the the integrity Court”). The of Second Circuit later held that the district court lacked such pervisory su- authority to monitor implementation of a DPA absent showing of impropriety. a particularized 2015) (Leon, J.), allows “a court to suspend the running of the time within which trial to commence for a any period during DPA.” which the government defers prosecution under a 135 (2d Cir. 2017). 39707-nys_72-2 Sheet No. 20 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 20 39707-nys_72-2 39707-nys_72-2 Sheet No. 21 Side A 01/15/2018 10:23:44 164 IG TO B Bunch of ONVICTING OO C T and (2011). Judge Leon never- (2014) D.C. District Court 163 166 RONG , 170 W O G ORPORATIONS C to brief the position that the court Federal Criminal Discovery Reform: A Legislative 167 ROSECUTIONS P Upon a defendant’s request, the prosecu- 1533, 1536 (2010) (“The scope of discovery in crimi- . 639, 642 (2013); Daniel S. Medwed, Brady’s 3. Criminal Discovery . 171 EV OMPROMISE WITH EV , 818 F.3d at 738. C L. R , 79 F. Supp. 3d at 165–66. L. R EE HERE CRIMINAL , Bruce A. Green, at 14. The case also provided an opportunity for Judge Sul- United States v. Saena Tech Corp ERCER . & L : W 169 M at 167. The court appointed as amicus curiae Professor Brandon Garrett of 165 ROSECUTORS ASH although he required additional reporting on their imple- P Id. See id. See, e.g. Fokker Servs. Id. See Fokker Servs. Id. W , 64 168 OW The rules governing criminal discovery are another focus of And in NNOCENT , 67 168. 140 F. Supp. 3d at 13. 169. 170. 171. 163. 164. 165. 166. 140 F. Supp. 3d 11, 19 (D.D.C. 2015) 167. (Sullivan, J.). I : H AIL THE had broad authority to assess the substantive DPA. Judge Sullivan reasonableness ultimately rejected that view of and approved the a DPAs, tion must disclose: the defendant’s statements and prior criminal theless theless held that the gravity of [the defendant’s] conduct in DPA a post-9/11 world” and con- was “grossly disproportionate stituted an to inappropriate “exercise the of prosecutorial discretion.” Judge Emmet Sullivan also was troubled by a set of proposed DPAs there- He him. before process the of nature non-adversarial the and fore appointed amicus curiae the “new” district court activism. As commentators have for many observed years, discovery in federal criminal cases is far more lim- ited than in civil cases. J this case.” livan to express his dismay that federal individual prosecutors criminal defendants did the full not array of offer disposition options regularly utilized for corporate defendants. 2018]ited nature of the court’s supervisory power, THE “NEW” DISTRICT COURT ACTIVISMThe government immediately appealed his decision to the D.C. Cir- cuit, which reversed, holding that the trial 219 court had no authority under the Speedy Trial Act to noting that it disapprove had “no occasion the to disagree settlement—while(or agree) with [Judge Leon’s] concerns about the government’s charging decisions in \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 33 15-JAN-18 9:53 mentation. Approach nal cases is generally (and bizarrely, given the stakes) narrower than cases.”). that of civil Flaws the University of Virginia School of Law, author of books including 39707-nys_72-2 Sheet No. 21 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 21 39707-nys_72-2 39707-nys_72-2 Sheet No. 21 Side B 01/15/2018 10:23:44 182 Upon 174 1, 12 (2015). . EV Importantly, the . L. R 176 and the results of 173 Courts deem evidence OLUM C 180 or if the prosecution’s failure to 177 Brady, 115 181 in sufficient time for it to be utilized and information that would be signifi- information. 179 178 Timing 16(a)(1)(A), (B), (D). Giglio . P. or material) material) RIM R. 15(a)(1) (authorizing depositions of witnesses, upon order of 16(a)(1)(E). 16(a)(1)(F). Brady Giglio . R. C R. R. R. 16(a)(1)(G). Brady United States v. Bagley, 473 U.S. 667, 682 (1985). Miriam H. Baer, 18 U.S.C. § 3500(a) (2012) (providing that, in any criminal prosecu- documents or other tangible items taken from the defen- ED F Id. See id. See Id. See See Id. 172 However, the government need not disclose its witness list, 175 The Supreme Court has long held that the government must 172. 175. 176. 177. 174. 181. 182. Kyles v. Whitley, 514 U.S. 419, 434 (1995). 178. Brady v. Maryland, 373 U.S. 83, 87 (1963). 179. Giglio v. United States, 405 U.S. 150, 15455 (1972). 180. 173. that the outcome of the trial, “material,” if there is a reasonable likelihood that it would affect request, prosecutors also must disclose a summary of the testimony from any expert witnesses whom the prosecution intends to call at trial. disclose it “undermines confidence in the outcome of the trial.” rules do not say when required disclosures must be made. Pursuant to Title 18, United States Code Section 3500 (known as the “Jencks statements prior any defense the to disclose must prosecutors Act”), by the witnesses whom the government their calls direct examination at is over. trial by the time examinations examinations or scientific tests of evidence material to the defense or that the government intends to offer in its case-in-chief. disclose exculpatory information that is “material” to the (known as defense cant in impeaching the credibility of (known the as government’s witnesses by the defense at trial. Prosecutors, however, get to determine what constitutes The Supreme Court has held that criminal defendants do not have a statutory or constitutional right to discovery before entering a 220record; NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:187 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 34 15-JAN-18 9:53 court, “in order to preserve testimony for trial” in “exceptional circumstances”). dant dant that are material to preparing the defense, or that the govern- ment intends to use in its case-in-chief; and witness depositions are extremely rare. “shall be the subject of subpoena [sic] discovery, or inspection until has testified on direct examination in the trial of the case”). For said decades, judges in witness some districts have ordered prosecutors to turn advance of over trial cases witness where there statements is no well danger to in witnesses. tion, no statement or report by government witnesses or prospective witnesses 39707-nys_72-2 Sheet No. 21 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 21 39707-nys_72-2 39707-nys_72-2 Sheet No. 22 Side A 01/15/2018 10:23:44 , , In RIMI- 189 See, e.g. 187 . L. & C RIM J. C , 107 Prosecutorial Accountability many never receive discovery there has been a notable shift material, but has not so held. 184 186 , Brady violations. Until recently, judges were (2016). Brady . 1091, 1104 (2014) (“[T]he federal disclosures are . 51 Federal Judge Files Complaint Against Prosecutor in Boston EV EV Discovery and Darkness: The Information Deficit in Criminal material before guilty plea). The Supreme Court has left Structuring Pre-Plea Criminal Discovery Bruce Green & Ellen Yaroshefsky, L. R 185 . L. R Giglio AME Thus, of the vast majority of criminal defendants who D ROOK 183 B United States v. Ruiz, 536 U.S. 622, 628–32 (2002) (finding no consti- Adam Liptak, In re Auerhahn, No. 09-10206-RWZ-WGY-GAO, 2011 WL 4352350, at Missouri v. Frye, 566 U.S. 133, 143 (2012) (noting that “[n]inety- Ion Meyn, at 52. (July 3, 2007), http://www.nytimes.com/2007/07/03/washington/ See See generally Id. See See See See OTRE He also referred the matter for bar disciplinary action. N 1, 9–12 (2017) (reviewing defendant’s lack of legal right to insist upon , 79 IMES That is not the case anymore. Now, judges are more likely to This discussion provides the background for an emerging 188 Prosecutorial Accountability 2.0 183. 186. 187. 188. 189. 184. 185. , 92 a 2009 case, he chastised a prosecutor for discovery violations and NOLOGY before doing so. misconduct, especially concerned with willful, rather than careless, misconduct. They gen- erally gave prosecutors the benefit which of of the the doubt two had in occurred determining and within prosecutorial trusted offices to internal punish rogue mechanisms “bad apples.” in judicial rhetoric and behavior regarding prosecutorial discovery discovery violations that was too mild and inappropriately kept se- cret. define misconduct as including negligent as well as willful failures, are more likely to see tional, and have problems become less “hands off” in as regulating prosecutors. systemic rather than For example, in 2007, Senior Judge Mark Wolf of the District Court aberra- for Massachusetts wrote directly to then-Attorney General Alberto Gonzalez to express his concerns that the DOJ’s Office sional of Responsibility Profes- had imposed a sanction on a prosecutor for sense among many judges that prosecutors extent, abused the tremendous have, discretion this regime affords them. to a significant As Ellen Yaroshefsky and Bruce Green demonstrate in a recent arti- cle, N.Y. T 2018] guilty plea. plead guilty rather than go to trial, THE “NEW” DISTRICT COURT ACTIVISM 221 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 35 15-JAN-18 9:53 predominantly oriented toward trial preparation, despite trials’ rare occurrence.”). rare trials’ despite preparation, trial toward oriented predominantly 2.0 03justice.html [https://perma.cc/XD5E-NR2Q]. *2, *17 (D. Mass. Sept. 15, 2011) (recounting Judge Wolf’s role in initiating Bar Disputes most pre-plea discovery). seven percent of federal convictions and ninety-four percent of state are the convictions result of guilty pleas”). tutional right to open the door to the possibility that a defendant could have a constitutional right to pre-plea disclosure of exculpatory Daniel S. McConkie, 39707-nys_72-2 Sheet No. 22 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 22 39707-nys_72-2 39707-nys_72-2 Sheet No. 22 Side B 01/15/2018 10:23:44 . RIM IMES . C United EV 305, 305 See the con- N.Y. T . R , 191 NN THICS E . L.J. A EGAL EO G . J. L 196 EO , 44 G , 29 For Shame: The Public Humiliation of Pros- note 186, at 55–56 nn.21–22 (summariz- supra Criminal Law 2.0 and dismissals. Judge Says Abestos Case Can Proceed 195 Lara Bazelon, Bazelon, Lara violations” that only judges could address. cf. Brady and referral for professional discipline to sanction new trials, United States v. Welton, No. CR 09-00153, 2009 WL 2390848, at 190 , Kirk Johnson, , United States v. Grace, No. CR-05-07, 2009 WL 1160401 (D. in addition to more conventional remedies like jury , United States v. Dvorin, 817 F.3d 438 (5th Cir. 2016) (district , Transcript of Motions Hearing, United States v. Annappareddy , United States v. Burns, No. 6:13-cr-00022, 2016 WL 3910273, at 192 issued an order to show cause by prosecutor should not be sanc- , http://www.nytimes.com/2009/04/28/us/28grace.html [https:/ 194 193 United States v. Jones, 620 F. Supp. 2d 163, 167 (D. Mass. 2009). Green & Yaroshefsky, see also See See, e.g. See, e.g. See, e.g. See, e.g. See, e.g. See sua sponte iii, xxxv–vi (2015) (discussing benefits of publicly “[n]aming names” when Other district judges around the country have similarly be- . . 27, 2009) 190. 191. 195. 194. 192. 196. 193. PR ROC P tempt power, /perma.cc/LN9V-DU7Y]; come more active and creative, and have used shaming, prosecutors fessional conduct had not been proven by clear and convincing evidence). (A 222 arranged a remedial discovery training program for all prosecutors NYUin ANNUALthe district. SURVEY OF AMERICAN LAW [Vol. 72:187 instructions, counsel’s disciplinary action, and ultimately concluding that the allegations of pro- \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 36 15-JAN-18 9:53 Mont. Apr. 28, 2009) (Molloy, J.) (instructing jury to disregard testimony of ernment witness in light of government’s gov- failure to disclose impeachment material concerning the witness). *12 (C.D. Cal. Aug. 1, 2009) (Morrow, J.) (naming prosecutor involved in witness coaching and referring his conduct to United States Attorney and DOJ Office Professional of Responsibility to “determine whether any ethical or were committed legal . violations . . that warrant further discipline”). prosecutors engage in misconduct). In 2013, Judge Circuit memorably declared in a dissenting opinion that the nation Alex was experienc- Kozinski of the Ninth ing an “epidemic of States v. Olsen, 737 F.3d 625, 626 (9th denial of Cir. rehearing 2013) en banc). (Kozinski, J., dissenting from (2016) (discussing shaming practices employed by the Ninth Circuit Court of Ap- peals judges); Hon. Alex Kozinski, *8 (W.D. Va. July 14, 2016) (Moon, J.); United States v. Hector, No. CR 04-00860, 2008 WL 2025069, at *22 (C.D. Cal. May 8, 2008) (Pregerson, trial in light of numerous disclosure violations, J.) and noting that the “Government’s (ordering new credibility in this case has been compromised”). tioned for failing to disclose impeachment material and permitting witness to tes- tify falsely regarding promises made to him and held evidentiary hearing); United States v. Shaygan, 661 F. Supp. 2d 1289, 1292–93 (S.D. quiring Fla. government to pay 2009) $600,000 of (Gold, the defendant’s legal J.) fees for violating (re- the Hyde Amendment); United States v. Jones, 609 sanctions why cause show to affidavits file to prosecutors (ordering J.) (Wolf, 2009) F. Supp. 2d 113, 131 (D. Mass. should not be imposed on material). the government for failure to disclose exculpatory ing cases); court ecutors by Judges to Correct Wrongful Convictions et al., 1:13-CR-374 (D. Md. Sept. 1, 2016) (Russell III, J.) (dismissing fraud charges 39707-nys_72-2 Sheet No. 22 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 22 39707-nys_72-2 39707-nys_72-2 Sheet No. 23 Side A 01/15/2018 10:23:44 or 197 United States cf. , Standing Order Standing , Revised Criminal See, e.g. See, In re Best Practices for Elec- Standing Order for Discovery In re In re [https://perma.cc/6XLH-A2QV]; violations and presentation of false testimony); United testimony); false of presentation and violations regarding criminal discovery, a number that ap- Brady 198 , S.D. Ala. L.R. 16; E.D. Cal. Crim L.R. 440; N.D. Cal. Crim. L.R. 16-1, See, e.g. Although Although much of this activity is memorialized in judicial opin- 197. A recent search of a local rule database revealed thirty-two such local 198.orders. standing such nine revealed research My standing orders .id.uscourts.gov/Content_Fetcher/index.cfml/Criminal_Procedural_Order_1553 .pdf?Content_ID=1553 [https://perma.cc/GR8C-LCD5]; General Order of covery and Scheduling (D. Kan. June 12, 2012); Dis- Procedure Order, Gen. Order No. 242 (D. Idaho Mar. 1, 2010), http://www States v. Chapman, 524 F.3d 1073, 1088 (9th Cir. dismissal 2008) of charges because of (upholding prosecutors’ discovery violations); trial court’s preme Court or the federal Courts of Appeals. Approximately forty- one of the ninety-four federal district courts have local rules ions ions and has occurred in the context of discrete cases, one most of interesting the aspects of the “new” district court activism in this area over the past decade has come in the form of judges exploring intra-judicial mechanisms to address these issues ex ante. For exam- ple, numerous trial judges have participated in the creation of local discovery rules or standing orders on discovery, many of which are far more demanding of prosecutors than are the Federal Rules of Criminal Procedure or the constitutional law decisions of the Su- and Inspection and Fixing Motion Cut-Off Date in Criminal Cases, Admin. Order No. 03-AO-027 (E.D. Mich. Sept. 30, 2003), https://www.mied.uscourts.gov/PDF- FIles/03-AO-027.pdf [https://perma.cc/A8JZ-B4TG]; Standing Order Regarding Discovery in Criminal Cases, Admin. 2006), Order http://www.miwd.uscourts.gov/sites/miwd/files/Administrative%20Order No. 06-085 (W.D. %2006-085.pdf Mich. [https://perma.cc/EX4W-NXP6]; Aug. 28, tronic Discovery of Documentary Materials in Criminal Cases General Order No. Standing Order on Discovery, L. Cr. R. App. 145 (D. Conn. Dec. 1, 2009), http:// www.ctd.uscourts.gov/sites/default/files/local_rules/Revised%20Local%20Rules %20%2011-15-2012.pdf [https://perma.cc/ES6P-ZY2S]; based on prosecutors’ on based 2018] THE “NEW” DISTRICT COURT ACTIVISM 223 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 37 15-JAN-18 9:53 on Criminal Discovery, Cr. Misc. No. 534 (M.D. Ala. .almd.uscourts.gov/download/file/fid/87 Feb. 4, 1999), https://www v. Stein 495 F. Supp. 2d 390, 427 (S.D.N.Y. 2007) (Kaplan, J.) ment against several (dismissing former executives at indict- the accounting firm KPMG after finding Fifth defendants’ violated opinion, the in named judge the whom prosecutors, that and Sixth Amendment right to counsel by pressuring KPMG to ment discontinue of pay- defendants’ legal fees). rules. 16.2; D. Haw. L.R. 16.1, 17.1; C.D. Ill. L.R. 16.1; N.D. Ill. L.R. 16.1; N.D. Md. L.R. 17.1.1; D. Mass. L.R. 116.1, 116.2, 116.6, 116.7, 116.8; Mont. L.R. D. Cr. Minn. 16.1, L.R. 16.3, 16.5; 12.1(a); D. D. Neb. L.R. 16.1; D. Nev. 16.1, L.R. 16.2; 16-1; D.N.H. D.N.M. L.R. L.R. 16.1, 16.2; N.D.N.Y. L.R. Cr. L.R. Pa. W.D. 16.1; L.R. Pa. E.D. 16.1; L.R. Okla. W.D. V; App. 16.1, L.R. Okla. E.D. P. 14.1; E.D.N.C. L.R. 16.1; 16; M.D. Tenn. L.R. 16.01; W.D. Tex. R. 16, 15-B(b)(3); D. Vt. L.R. 16; E.D. Wash. L.R. 16; W.D. Wash. L.R. 16; N.D. W. 16.05, Va. 16.06; S.D. L.R. W. Cr. Va. L.R. P. Cr. P. 16.01, 16.1; 16.02, E.D. Wis. 16.03, Cr. R. 16.04, 16. 17-1; N.D. Fla. L.R. 26.2; S.D. Fla. L.R. 88.10; N.D. Ga. L.R. 16.1; S.D. Ga. L.R. 16.1, 39707-nys_72-2 Sheet No. 23 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 23 39707-nys_72-2 39707-nys_72-2 Sheet No. 23 Side B 01/15/2018 10:23:44 8 , & For HELIA TATES ASES EDERAL UDICIAL S ARSH 199 4 (2004) C F . J nn. 60–61 & S ATERIAL IN ED They also They material). NITED M E. M 200 ., F OF THE U OLICIES RIMINAL OOPER Brady P C 16 H ENNIFER ARYLAND AND ULE , 138, 147–48 , J R . M AURAL L OOPER ET AL RDERS OOPER ATERIAL IN THE RACTICES IN See H Criminal Trial Scheduling and , O DE NOVO RADY V P 7–8 (2007) (thirty-seven of the . M B URVEY OF EV In re S L. H ULES AURAL L ’ R OLICIES L. R ARYLAND AURAL P ISCLOSURE L ATIONAL . M , to include information that tends to tends that information include to , OURTS D N AND C REATMENT OF ARDOZO , Enforcing Compliance with Constitutionally-Required C RADY V ., T Brady TATE B material as of 2007 and eight more than the number obligations “in either very general or specific terms, RDERS S TR Appendix C (including a sample of individual judge ., All of this material ordinarily must be dis- , 2016 C , O TR disclosures); Brady 201 Brady C ESPONSES TO A ROCEDURE AND ULES R P Brady UDICIAL : R see also id. ISTRICT AND . J UDICIAL D Criminal Discovery, Standing Order No. 2015-5 (D. Or. Mar. 16, ED . J L.R. 116.2 (Disclosure of Exculpatory Evidence). This includes crimi- F RIMINAL OURTS , ED Id. C TATES F UMMARY OF In re C EH , (collecting local district court rules and standing orders). S Hon. Emmet G. Sullivan, materiality standard. Y material); 200. See D. Mass. L.R. 116.1 (Discovery in Criminal Cases). 201. 199. In 2011, thirty-eight districts had a local rule or standing order that codi- ., A S NITED ISTRICT TR ULES OF HORPE RIAN B example, example, the local rules of the District of Massachusetts, developed with the help of Judge Wolf, which are among the require most prosecutors rigorous, to disclose information about search warrants, electronic surveillance, consensual interceptions, and unindicted co-conspirators—in identifications, addition to everything already enumerated in Federal Rule of Criminal Procedure 16. negate the defendant’s guilt or to cast doubt on the admissibility of the government’s evidence, or that could be used to impeach gov- ernment witnesses. require the government to disclose all exculpatory evidence—de-than broadly more fined fied the government’s and/or provide[d] timing requirements.” of districts with a similar rule or order in 2004. U download=442:2015-5-in-re-criminal-discovery download=442:2015-5-in-re-criminal-discovery [https://perma.cc/WQ5B-QGHW]; see also Disclosures: A Proposed Rule (2016) C R T D 09-05 (W.D.Okl. Aug. 20, 2009) (summarizing proposed electronic discovery best practices), http://www.okwd.uscourts.gov/wp-content/uploads/2014/09/ge- nord09-5.pdf [https://perma.cc/H6ZT-6FYJ]; Discovery, Standing Order .njd.uscourts.gov/sites/njd/files/Standing%20Order%2015-2_In%20Re%20Crimi No. 15-2 nal%20Trial%20Scheduling%20%26%20Discovery.pdf (D.N.J. [https://perma.cc/T3J3- Sept. TULV]; 22, 2015), 2015), http://www https://www.ord.uscourts.gov/index.php/court-info/standing-orders? 224 pears to have been steadily increasing over the past decade. NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:187 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 38 15-JAN-18 9:53 nal records, pending criminal cases, and promises of any rewards or inducements made to government witnesses, regardless of Brady’s whether the material would meet (2011). This was one more than regarding the disclosure of number of districts reporting a local rule (thirty districts had local rule or order governing disclosure of Brady orders addressing ninety-four districts reported having a local rule or order governing disclosure of 39707-nys_72-2 Sheet No. 23 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 23 39707-nys_72-2 39707-nys_72-2 Sheet No. 24 Side A 01/15/2018 10:23:44 206 The Special 205 In re violations sur- case, Judge Brady Ever since, Judge since, Ever Stevens ever since the deba- the since ever 207 203 In the Ted Stevens, Longtime Alaska Senator, 204 note 205, at 29. Adam Clymer, 202 See Order, (D.D.C.) http://www.dcd.uscourts.gov/sites/ supra Brady (Aug. 10, 2010), https://www.nytimes.com/2010/08/11/us/ L.R. 116.6 (Declination of Disclosure and Protective Orders). IMES Id. Order Appointing Henry F. Schuelke, United States v. Stevens, No. Standing L.R. 116.1–116.2. Other forms of impeachment material, such as at 29 (although the evidence established that the misconduct was in- N.Y. T Id. See See Id. , LR. 116.2. If the prosecutor is concerned about the safety of witnesses, or Even in those districts in which the entire court has not yet Id. 202. 205. 203. 206. Schuelke Report, 207. 204. Senator Theodore (“Ted”) Stevens was a three-term United States Sena- special counsel determined that the prosecution had “systematic engaged in concealment of significant exculpatory evidence.” Sullivan has issued a standing order on discovery that specifically Sullivan appointed a special counsel to investigate the prosecutors’ behavior and consider the propriety of contempt charges. cle in the Ted Stevens trial of 2008. adopted adopted a local rule or standing order, individual judges have. For example, Judge Sullivan in the District of standing discovery order in all criminal cases Columbia has issued a Nevertheless, he also concluded that contempt sanctions were not appropriate because no specific court order required prosecutors to comply with their constitutional obligations. 2018] closed within twenty-eight days of arraignment, without any request by prior the THE defense. “NEW” DISTRICT COURT ACTIVISM 225 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 39 15-JAN-18 9:53 politics/11stevens.html, [https://perma.cc/AD88-M9QN]. During the trial, Judge Sullivan repeatedly chastised the prosecutors as allegations of faced. After Stevens’ conviction, the prosecution forwarded to the court a “whistle- blower” complaint from an FBI agent detailing additional allegations duct. Later, Judge of Sullivan granted a motion by newly-appointed Attorney miscon- General Eric Holder to vacate the conviction. and supporting memorandum citing legal authority, why such disclosure not be should made.” prior inconsistent statements, must be disclosed at trial. least twenty-one days before otherwise deems that it would be “detrimental to the interests of justice” to make the disclosures required by the local rules, the prosecutor upon can notifying the decline defense. to The do defense so, can then seek a court disclosure, with the prosecution bearing order the burden of demonstrating “by to affidavit compel 1:08-cr-23100231 (D.D.C. Apr. 8, 2009), ECF. No. 375 counsel (Sullivan, J.). The delivered special a vens_report.pdf. Notice of 512-page Filing Report to Hon. Emmet G. Sullivan, report, http://legaltimes.typepad.com/files/ste- Proceedings, Misc. No. 1:09-0198 (mc-00198 (D.D.C. filed Mar. 12, 2012), http:// legaltimes.typepad.com/files/stevens_report.pdf [https://perma.cc/8F84-55VL] [hereinafter Schuelke Report]. dcd/files/StandingBradyOrder.pdf, [https://perma.cc/2BDH-AEJS]. tor from Alaska who was charged with lying on received, Senate including forms of about repairs gifts to he his had ski home in Alaska. plane crash He in August 2010. was killed in an air- Dies at 86 tentional, it was not done in contravention of a “clear and unambiguous order”). 39707-nys_72-2 Sheet No. 24 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 24 39707-nys_72-2 39707-nys_72-2 Sheet No. 24 Side B 01/15/2018 10:23:44 , 208 and Brady Criminal Law 2.0 Kozinski, noting circuit split on whether 8 ( see also n.64 148 material two weeks after indictment, note 183 (reviewing local rules and individual note 198, at 144 (recounting his effort to reinvig- material during plea discussions). Brady although it has occasionally been expressed been occasionally has it although A New Rule Could Help Ensure Prosecutors Share Info with note 198, at supra supra Brady 212 http://www.nysd.uscourts.gov/cases/show.php?db=judge (Mar. 20, 2016), https://www.washingtonpost.com/opin- , supra OST Sullivan, . P , Editorial, , Standing Order for Criminal Cases (Hayes, Mag. J.) (W.D. Mo.), 211 ASH Sullivan, W Many other judges have adopted similar standing or- , See, e.g., See, e.g. See, e.g. See even if not as expansive as Judge Sullivan’s. For example, 209 material. He also has (thus far unsuccessfully) urged his col- note 191, at xxxiii–xxxv (2015) (collecting local court rules and individual 210 District court judges also have participated in efforts to amend 211.10–1210–12,J. Practice Rakoff, of S. Rules Jed (effective Individual Hon. 212. 208. 210. 209. standing orders). S.D.N.Y. Feb. 13, 2017) _info&id=1369 [https://perma.cc/DM3J-LX84]. orate interest in the Advisory Committee in amending Rule 16 in the aftermath of the Stevens case); Letter from Hon. Emmet G. Richard Sullivan, C. Tallman, Judge, Chair, D.D.C., Judicial Conference to Advisory Hon. Comm. on the Rules of the Federal Rules of Criminal Procedure to codify broader and ear- lier discovery requirements. That effort has largely involved lobby- ing within the bureaucracy Advisory Committee, of the Judicial Conference or the the Defense 226 directs prosecutors to produce, among other things, all NYU ANNUAL SURVEY OF AMERICAN LAWJudge Sullivan regularly amends his own order [Vol. in 72:187 response to new case law developments, most recently adding prosecutors a requirement “disclose that exculpatory evidence tions.” during plea negotia- \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 40 15-JAN-18 9:53 ders, supra court orders); McConkie, prosecutors must disclose government to produce and in any event “no later guilty than plea.” four weeks prior to any trial or Judge Rakoff recently amended his individual rules to require the Giglio leagues to adopt a local discovery rule for the entire district. http://www.mow.uscourts.gov/sites/mow/files/SWH_COMBINED_STANDING_ ORDER.pdf [https://perma.cc/V3T6-S2MF]; Certificate Criminal Pre-Trial Order (Glasser, J.) (E.D.N.Y.), https://www.nyed.uscourts.gov/ of Engagement pub/pretrial/ILG-crpto.pdf [https://perma.cc/7W3Q-2R87]; Trial Procedure Or- and der—Criminal Trial (Black, J.) (S.D. Ohio), http://www.ohsd.uscourts.gov/sites/ ohsd/files/Criminal%20Procedures%20Form%20%28website%29%203.16.pdf [https://perma.cc/85AG-D3UF]; Criminal Preliminary Trial Order (Barrett, (S.D. Ohio), http://www.ohsd.uscourts.gov/sites/ohsd/files/Criminal%20Pretrial J.) %20order.pdf [https://perma.cc/S984-ANUQ]; Criminal Cases (Carr, J.) Ohio), (N.D. http://www.ohnd.uscourts.gov/home/judges/judge-james-g-carr/crimi- nal-cases/ [https://perma.cc/RM99-QQRL]; Columbia local rules). ions/getting-prosecutors-to-share-what-they-know/2016/03/20/cd5e42cc-eabb- 11e5-a6f3-21ccdbc5f74e_story.html?utm_term=.b8ea6c797f37 [https://perma.cc/ 7PQK-RGVZ] (noting Judge Sullivan’s role in pushing for changes to District of 39707-nys_72-2 Sheet No. 24 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 24 39707-nys_72-2 39707-nys_72-2 Sheet No. 25 Side A 01/15/2018 10:23:44 , . L. AND Plea Bar- V , 64 , at 19. However, it did note 199, at 4 (2011). 242 (2012). 214 supra supra RIEF R. Michael Cassidy, ., took the lead in draft- See 215 . L. B RIM OOPER ET AL https://www.fjc.gov/history/judges/reiss- . U. C ., H See Biographical Directory of Article III Federal M TR A C , 7 AURAL D.C. Judges Weigh Rule to Curb Prosecutor Misconduct L note 198, at 146–47. note 213. See UDICIAL (discussing need for a proposed amendment to Federal . J supra supra ED F So far, the effort to amend the Federal Rules of , 141–47 and the Intractable Problem of Impeachment Disclosures , Zoe Tillman, 213 Id. , In 2011, the Advisory Committee on Criminal Rules again consid- Id. Tillman, Sullivan, (Feb. 3, 2016), https://advance.lexis.com/search?crid=f2e86a3f-ad1b- See See See, e.g. This section provides district court judges with information Closing Fed. R. Crim. P. 16(a)’s Loopholes: Why Criminal Defendants Are Entitled to note 198, at L.J. L 216 215. 214.endorsed Rules Criminal on Committee Advisory the 2006, as recently As 216. 213. ’ . 1429, 1451–52 (2011); Memorandum from Hon. Reena Raggi, Chair, Advi- AT EV R ing. lead to a new section of the Center 2013 Bench edition of Book the for Federal federal Judicial judges—which man of the Judge D.C. Circuit (who along Paul with Judge Sullivan has Fried- been a leader in the push for an amendment to the local rules on criminal discovery for the District of Columbia) However, in 2007, the DOJ persuaded the Judicial Conference’s Standing Commit- tee on the Rules of Practice and Procedure Committee amendment. to oppose the proposed sory Comm. on Federal Rules of Criminal Chair, Procedure, Standing to Comm. on Hon. Rules Mark of Practice R. and Kravitz, Procedure (May 17, porting on proposed amendments to the Federal Rules of Criminal Procedure). In 2012) (re- a 2010 survey of federal district and magistrate judges conducted at the request of the Advisory Committee, researchers with the Federal Judicial Center found that judges were evenly split (51% in favor) on whether to amend Rule 16 to increase prosecutors’ discovery obligations. Laural Hooper et. al, Criminal Criminal Procedure has not succeeded, nor does it presently have the endorsement of the Judicial Conference. Criminal Procedure (Apr. 28, 2009); Judge, D. Vt., Letter to Hon. from Reena Raggi, Hon. Chair, Advisory Comm. Christina Criminal Procedure (Feb. 9, on 2012). President Obama appointed Judge Reiss to the Federal Reiss, Rules of Chief District Court of Vermont in Judges, 2009. 1789–present N 2018]in other fora. THE “NEW” DISTRICT COURT ACTIVISM 227 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 41 15-JAN-18 9:53 the court, the prosecution, the supra defense, and ultimately, the public”); Sullivan, 4227-8e82-ad89fe9bc990&pdsearchterms=LNSDUID-ALM-NTLAWJ-120274871183 7&pdbypasscitatordocs=False&pdmfid=1000516&pdisurlapi=true [https://perma .cc/Y92F-RBWK] (noting that Judge Sullivan emailed the National Law Journal to explain that “[a] federal rule that requires the government to produce all exculpa- tory material in a readily useable format to the defense serves the best interests of Rule 16 of Criminal Procedure and framing it in the broader context of criminal Christina Hon. “over-incarceration”); address to need the including reform, justice Reiss, Discovery of All of Their Statements an amendment to Rule 16. ered the idea, debating a “discussion draft” of a proposal to amend Rule 16. After hearing objections from DOJ, the Standing Committee again voted (6–5) recommend not any proposed to amendment that year. christina-clairhttps://www.fjc.gov/history/judges christina-clairhttps://www.fjc.gov/history/judges [https://perma.cc/ETT7-LQP9] (entry for Christina Reiss). She was previously a state court judge and a lawyer in private practice. gaining, Discovery 39707-nys_72-2 Sheet No. 25 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 25 39707-nys_72-2 39707-nys_72-2 Sheet No. 25 Side B 01/15/2018 10:23:44 UDGES J REATING ., C OURT TR 217 C C at 18. ISTRICT UDICIAL See id. . J The First Judiciary Act of ED Id. , F disclosures. U.S. D Brady ARRISON But, although it is impossible to H III. 218 ENCHBOOK FOR YNTHIA ., B TR & C 3–8 (2d ed. 1994). The current structure of the fed- C HISTORICAL HISTORICAL CONTEXT YSTEM HEELER S A. A Search for Historical Parallels UDICIAL . J R. W ED F UDICIAL J THE “NEW” DISTRICT COURT ACTIVISM IN USSELL R See EDERAL If there were historical precedents for the “new” district court Having described in Part II the “new” district court activism— 217. See 218. The federal judiciary has undergone several structural changes in its his- F i.e., federal district judges’ muscular engagement, in and out of the circuit court—to serve as the intermediate court of appeals for those circuits, THE as well as the trial court for other types of cases, typically more serious cases than those heard in the district courts. However, the hiring of 1789 distinct “circuit” Act court judges; rather did Supreme Court not justices “riding cir- authorize the cuit” and district court judges sat together in court. panels that constituted the circuit 163–79 (6th ed. 2013). tory and has grown considerably, but it has had a inception. three-tiered structure The since its Constitution provides that States, “[t]he shall be judicial vested in Power one supreme of Court, and the in Congress may from such time to United time inferior ordain and establish.” U.S. Courts Const. art. III, as §the 1. All federal judges are entitled to Article III’s protections good Behaviour,” with of no diminution of holding their salary. Office “during 1789 created thirteen district courts, each with area, to preside as jurisdiction the trial courts in over admiralty cases, minor federal criminal a cases, geographical and minor civil cases in which the United States government was the plaintiff, and authorized the appointment of one district court judge per district. The 1789 Act placed each district in one of three circuits, and created another type of court— 228 about their options, including their supervisory authority to dictate NYUby ANNUALorder or local rule SURVEYthe timing of OF AMERICAN LAW [Vol. 72:187 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 42 15-JAN-18 9:53 now attempts to place it in historical context. First, it notes the ap- parent absence of historical precedents for the existing ferment in the federal district courts over these criminal justice issues. Second, it posits some possible explanations “new” for activism in the district the courts with respect development to criminal justice of the in recent years. activism, one might expect to find them during periods when the federal judiciary was regularly were controversial presented in their time. with prosecutions that court, with a set of fundamental criminal justice issues—this justice criminal fundamental of set a with court, section eral courts, including a permanent court of appeals for each of the circuits (which grew in number as the nation grew), with judges courts, appointed dates to the specifically Circuit Court of to Appeals Act of those 1891, also known as the Evarts Act for its sponsor, Senator William Evarts of New York. 39707-nys_72-2 Sheet No. 25 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 25 39707-nys_72-2 39707-nys_72-2 Sheet No. 26 Side A 01/15/2018 10:23:44 R , . 5 HE : T RIGG V P , REEDOM AKER ONSTITUTION F B C NTISLAVERY AND THE OBERT 220 RISIS IN : A , C Prigg v. Pennsylvania, 24 H. R MBIVALENT The Bill of Rights as a Constitu- a as Rights of Bill The A CCUSED and the special status of ILLER A It was juries, popular senti- 222 at 232; at 190–91. When such cases were 219 C. M id. AND THE , The Fugitive Slave Clause and the Antebel- Sorting Out USTICE OHN , J J , supra , OURT 1133 (2012). While the first Fugitive Slave . at 208. C OVER EV OVER note 221; Id. C . R See, e.g. M. C See IST supra UPREME , S 117–20 (1951) (describing how U.S. Supreme Court Jus- at 191. Moreover, the federal circuit courts “were unani- & H Judicial Engagement and Civic Engagement: Four Case Studies OBERT THE OVER . 887, 889–90 (2012) (describing how the Sedition Act was , Id. R CTS AW C at 138–39 (describing how Federalist federal judges as a EV L A id. 1131, 1209 (1991) (“Less than a decade after the Bill of Rights , (1975); H. Robert Baker, LAVERY L. R , 30 L.J. , S , 605, 664 (1993). Many of the cases that arose under the Fugitive Slave EDITION ASON ALE ROCESS The reasons for judicial reticence in this area have been S See, e.g. See generally See generally Y L.J. P . M 221 Similarly, federal trial judges appear to have done little to pro- EO 219. To the contrary, the historical record suggests that some of the judges 220. 221. 222. , 100 G UTGERS LIEN AND ENNSYLVANIA UDICIAL ment, and political agitation that ended such prosecutions, appar- ently with little encouragement from the bench. 19 of escaped slaves and criminal prosecution them. of those who helped test slavery, including the federal statutes providing for the return Act of 1850 were criminal proceedings brought against abolitionists who sought to rescue or aid fugitive slaves. supported these prosecutions. R P J A 2018]say conclusively whether it happened or not, it is hard to find dence evi- of similar THE “NEW” moments DISTRICT of COURT ACTIVISMsustained judicial protest. For exam- ple, the prosecutions brought in the pursuant to Alien and early Sedition Act of 1798 did not appear years to rouse of the Republic the public ire of the federal judiciary. 229 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 43 15-JAN-18 9:53 lum Constitution thoroughly explored by Robert Cover and other scholars. The ex- planations have included the need by antislavery judges to reduce the cognitive dissonance caused by enforcing laws they believed im- action Congressional of review judicial of novelty relative the moral, as a feature of American jurisprudence, became law, federal judges cheerfully sent men to jail ment.”); for Eric criticizing R. Claeys, the govern- purpose, thus placing “the prestige of the national government behind the rendi- tion of fugitive slaves.” Paul Finkelman, Act of 1793 gave federal and state courts concurrent jurisdiction over cases involv- ing escaped slaves, and contemplated “self help” by slave passed owners, a later in statute, 1850, created exclusive Clause of the Constitution federal and created a federal administrative power apparatus for that to enforce the Fugitive Slave tice Samuel Chase, riding circuit, took an case, Act Sedition a for point that to sentence heaviest the imposed and defendant, active role in the questioning of in the the 1799 prosecution of an obscure pamphleteer). tried in federal court, the judges neither proclivities to acquit.” “welcomed [n]or easily tolerated jury brought to an end through political action after “inferior federal judges appointed by the Federalists all upheld the Act”). tion whole supported the Sedition Act); Akhil Reed Amar, Reed Akhil Act); Sedition the supported whole mous in upholding the new act.” 39707-nys_72-2 Sheet No. 26 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 26 39707-nys_72-2 39707-nys_72-2 Sheet No. 26 Side B 01/15/2018 10:23:44 , For AKER N.Y.U. B 223 AND THE Regulating , , 64 OBERT And there 227 519, 555 (2012) H. R . EV such statements . 513, 538–39 (1974) ONSTITUTION 225 EV C . L. R AL THE . L. R C , United States v. Hanway, 26 F. ARV LAVE H , 100 S But see , 87 UGITIVE note 221, at 119. : A F supra rather than federal courts. But they also avoided the kinds of horta- , 226 224 The Impact of the Anti-Slavery Movement Upon Styles of 37 (2006) (“Judicial deference to congressional consti- LOVER note 221, at 233. note 222; Bruce A. Green & Rebecca Roiphe, OVER C AR G W supra supra , , IVIL . 497, 509–10 (2009) (as the Civil War approached, “judges, who OSHUA , Ex parte Bushnell, 9 Ohio St. 77, 196 (1859) (“Is a judge to treat J C OVER AKER . L C B M . A See, e.g. See See URV ESCUE OF The Rise and Fall of Judicial Self-Restraint 226. 225. Cover describes these statements as examples of the judicial “can’t”— 223. 224. . S R OMING OF THE HE NN i.e., rhetoric aimed not at justifying the result and its underlying principles, but at T A perhaps perhaps these and other reasons, federal judges passed up impor- tant opportunities to rule on constitutional and statutory issues in ways favorable to slaves. tory dicta that one finds in the opinions of “new” district court activ- court district “new” of opinions the in finds one that dicta tory ists. Although some antebellum judges opposition to expressed slavery in their their judicial personal opinions, are comparatively brief and modest. They also are more prevalent in the opinions of state were motivated by a largely instrumental view of the law, rejected the rhetoric the of anti-slavery movement by appealing union”); to William E. the Nelson, practical need to Judicial maintain Reasoning in the the Nineteenth Century Discourtesy on the Bench: A Study in the Evolution of Judicial Independence (2012) (“The courts themselves demonstrated a remarkable deference to legisla- tive construction of the Constitution, at least until the 1830s.”); C 230the Fugitive Slave Laws as a means of preserving the Union. NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:187 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 44 15-JAN-18 9:53 (“[A]dvocates of antislavery lost nearly all these cases, for . . . judges steeped in the instrumental style of reasoning continued to give effect to the related objectives of economic growth and national unity.”). tutional interpretation was a fundamental feature of the early republic’s constitu- tionalism. Whatever tacit right to review legislation the courts claimed, the power of judicial review was circumscribed by constitutional practice.”); Richard A. Pos- ner, compelled to reach it.” the settled interpretation of the constitution, announced to the country in a previ- ous generation, by Congress assuming to legislate, sanctioned by an unbroken cur- rent of judicial overthrown decisions, by the as authority of of should his have a different no individual interpretation? And if convictions a state judge binding can that thus, by his the inter- judicial pretation, constitution alter the constitution when it has obligation, received such acquiescence and sanc- and tion, to what provisions of the be constitution, state or national, are and alteration, safe under the from assumption of change such judicial power? They would be writ- Cas. 105, 121, 126–27 (C.C.E.D. Pa. 1851) (federal district court charged jury that partic- a of enforcement the to resistance armed than more required treason of law ular law, in trial for murder of a slave catcher). justifying the judge, who thus communicates that “morally he indefensible” or but she wishes knows to the explain result “the is sense in which [he or she is] (noting that judicial deference in the early years been of related the to Republic the also fact may that have “key members of volved Congress in the drafting had and ratification of been the Constitution [so personally their] constitutional in- arguments were more than rhetoric”). 39707-nys_72-2 Sheet No. 26 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 26 39707-nys_72-2 39707-nys_72-2 Sheet No. 27 Side A 01/15/2018 10:23:44 229 787, OUTH . S EV 228 REAT L. R G EE HE , T . & L ASH W ILLIAMS The dockets of federal W 231 , 56 . 869, 884 (2009) (“[F]ederal crimi- ALKNER The Origins of Judicial Review Revisited, EV F OU . L. R L at 801–05. id. TAN See , S Institutional Design and the Policing of Prosecutors: 1871–1879 43 (1996). Congress also entrusted to , 61 See, e.g. RIALS note 221, at 119–21.can’t” at “judicial 221, a note of example an For Gordon S. Wood, T See LAN supra , K including the federal courts. LUX OVER K C Rachel E. Barkow, 230 U See See K In the 20th century, federal criminal law vastly increased 228. Such reticence is consistent with efforts to create a more independent, 227. 230. In the late nineteenth century, during Reconstruction, Congress created 229. AROLINA C sive, let it be repealed or modified. But this is a power which the judiciary can not reach.”). professional judiciary. Or How the Marshall Courts Made More Out of Less slave is secured to him by the federal constitution, no good citizen, whose liberty and property are protected by that constitution, will interfere to prevent this provi- sion from being carried into full effect.”); Wright v. Deacon, 1819 WL 1857, at *2 (Pa. 1819) (“Whatever may be our private opinions on the subject of slavery, it is well known that our southern brethren would not have consented to become par- prosper- much so enjoyed have States United the which under constitution a to ties ity, unless their property in slaves had been secured.”). opinion by a federal judge, see Miller v. Ohio McQuerry, 1853) 17 (“With F. the Cas. abstract 335, principles 339 of (C.C.D. slavery, courts this called law to have administer nothing to do. It representatives, in making constitutions, and in the enactment of is laws, to consider for the people, who are the laws sovereign, of and nature, their and the immutable principles judges can not explore. Their action is limited to conventional rights. They look to of right. This is a field which the law, and to the law only. undermine A and overturn disregard the social of compact. If this, the by law be the injudicious or judicial oppres- powers, would 2018]is scant evidence of extrajudicial public engagement by federal trial judges, once they THE became “NEW” judges, DISTRICT in COURT the ACTIVISM antislavery cause. and so did the resources of the federal criminal apparatus, law enforcement 231 discretion.”); judicial such any of exercise the disclaim I myself, For sand. upon ten JACK a negro man v. MARY MARTIN, 1835 WL 2938, at *528 (N.Y. 1835) (“How- ever much . . . we may deplore the existence of slavery in any part of the Union, as fugitive his reclaim to master the of right the as yet, evil, local a as well as national a \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 45 15-JAN-18 9:53 the DOJ the enforcement of other new federal crimes such as conspiracy to de- nal law itself was a limited category for much of the nation’s history. Federal crimi- nal law barely existed prior to before 1896. that date.”). Indeed, there was no federal penitentiary the Department of Justice and entrusted it, along with the Freedmen’s Bureau and Federal Marshals Service, with enforcement of the newly enacted Reconstruction Amendments and civil rights acts. 803–05 (1999) (noting that, before 1800, judges were appointed based on and political social connections, and “were involved in politics and governing to an tent ex- that we today find astonishing,” but after courts purely judicial bodies increased dramatically. 1800, More and more, law grew sep- the “tendency to make the arate from politics . . . . [and] cases and to avoid the most explosive courts and partisan political issues.”). Several schol- now tended to concentrate on individual ars have suggested that this repositioning of the judiciary as professional and inde- pendent was a necessary precondition practice of for judicial review. the development of a more robust Lessons from Administrative Law 39707-nys_72-2 Sheet No. 27 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 27 39707-nys_72-2 39707-nys_72-2 Sheet No. 27 Side B 01/15/2018 10:23:44 : , see L. The 579, . ENT Conspir- EV .-K OCTRINES Mapp v. HI D C . L. R AW AL , 74 L C and 511, 512 (2002)); . 236 , 100 , EV RIMINAL 159 (1994) (“[T]he Eight- . R C CI Abraham S. Goldstein, 771, 779–86 (1980). . S . A Statistical Study of Federal Criminal OL EV EDERAL . P , F ROHIBITION M 405 , 405–06 (1959); Jed S. Rakoff, A . L. R P See generally . 494, 497 tbl. 1 (1934) (showing that the UQ Law and the Creative Mind L.J. 1374, 1398–99 (suggesting that federal pros- D , 96 URCHISON ALE Federal Sentencing in 2007: The Supreme Court ROBS L.J. Y Miranda v. Arizona ATIONAL , 18 but it is not clear that federal judges . P N ALE The conception of the judge also had , 68 Y 234 M. M 235 Federal District Court Judges and the History of Their Courts , When Was Judicial Self-Restraint? relief and largely was concentrated in the 232 ONTEMP , 117 ENNETH K & C granted NFLUENCE OF , I AW L Daniel C. Richman, Aziz Z. Huq, Susanna L. Blumenthal, Nevertheless, it is hard to find evidence of judicial agita- , 1 See See See See, e.g. How Political Parties Can Use the Courts to Advance Their Agendas: Federal 233 Erwin C. Surrency, ORGOTTEN To the extent that federal judges attempted to limit executive 234. 231. 235. 372 U.S. 335 (1963) (holding that indigent defendants in state prosecu- 233. 232. 151, 225–26 (1998) (noting that “the creativity of the judge was increasingly F . EV HE R T authority in criminal law enforcement, that effort was reflected in decisions that opinions of the Supreme Court. For example, the Warren Court’s revolution in criminal procedure was largely a “top down” revolu- tion, with many of the most significant cases Gideon of that period—like v. Wainwright pushed back. shifted, with the braced. judge’s creative functions increasingly em- recognized and celebrated in the nineteenth century . . . . It was not the mechani- cal jurisprude but the judicial genius who embodied the professional ideal”). fraud the United States and mail fraud. 232 district judges, especially on the criminal side, became considerably NYU more crowded, as ANNUAL Prohibition and other vice crimes became staples SURVEY OFof AMERICAN law LAW enforcement. [Vol. 72:187 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 46 15-JAN-18 9:53 tion about what today we might Some call prosecutors balked at enforcement of some of the least popu- federal over-criminalization. lar of these new laws, generally eenth Amendment and the Volstead Act produced inundated the federal courts.”); Edward Rubin, a flood of cases that nearly Prosecutions Holds—the Center Doesn’t acy to Defraud the United States 40 F.R.D. 139 (1966). Federal Mail Fraud Statute (Part I) ecutors around the country may not have shared DOJ’s commitment to prosecut- DOJ the between battle such vivid one describing and Prohibition, of violations ing and the United States Attorney for the Southern District of New York). tions are entitled to appointment of counsel). federal courts’ criminal docket in 1932 had more than doubled since 1918, the last year before Prohibition). second half of the nineteenth century,” eventually going from an and unpaid’ judicial infrastructure “‘understaffedheaded by justices perennially distracted by the travails of riding circuit” to “a real third branch of government”) (quoting Howard Gillman, Courts in the United States, 1875–1891 588 (2012) (noting the “institutional transformation of the federal courts in the 39707-nys_72-2 Sheet No. 27 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 27 39707-nys_72-2 39707-nys_72-2 Sheet No. 28 Side A 01/15/2018 10:23:44 , id. See But see See, e.g. In fact, Brady v. Ma- 240 967, 1015 (2000) . But see EV B.U. L. R note 232, at 23–31 (same). , 80 note 6, at 94 (district court judges supra , supra , ORRIS Separate But Equal?: The Supreme Court, the Lower M URCHISON decision also involved an appeal of a criminal con- M Lochner see also , United States v. Wade, 388 U.S. 218 (1967) (new trial required This lesser role in generating legal change is, of course, legal change role in generating This lesser Ashutosh Bhagway, 239 However, even the Warren Court cases involving federal See See, e.g. —bypassing the lower federal courts because they were ap- 238 237 236. 384 U.S. 436 (1966) (holding that criminal defendants subjected to cus- 237. 367 U.S. 643 (1961) (holding that evidence obtained by state agents pur- 238. The infamous 239. 240. at 94 (noting that “[f]ar fewer district judges view their role as ‘law makers’” than peals peals by criminal defendants from the highest courts of the various states. dant’s Sixth Amendment right to counsel); Elkins v. United States, (1960) 364 U.S. 206 (evidence acquired by Amendment state rights could not be used in federal prosecution). agents in violation of defendant’s Fourth todial interrogation must be advised of, and waive, their constitutional rights their for statements to be admissible). suant to unconstitutional search was inadmissible). viction from a state’s highest court, which bypassed the lower Lochner federal v. courts. New York, 198 U.S. 45 (1905) Process (holding Clause unconstitutional state under labor Due law limiting number of week). hours bakers could work per where defendant deprived of counsel at line up); U.S. 201 (1964) (requiring suppression of evidence Massiah obtained in violation of defen- v. United States, 377 2018]Ohio THE “NEW” DISTRICT COURT ACTIVISM 233 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 47 15-JAN-18 9:53 generally “anticipate that changes in case law will [largely] come from above”); do other judges). consistent with district courts’ place in the judicial hierarchy, which most district court judges historically have internalized. criminal criminal prosecutions reflected the “top down” aspect of with the the Supreme era, Court (and occasionally the circuit courts), but not the district courts, generally leading the way in articulating new doctrine. Federal Courts, and the Nature of the “Judicial Power” (noting that the “institutional culture of the lower judiciary . come . a . culture of . obedience”); has largely be- rights could not be used against him in subsequent criminal prosecution). in originated entrapment of (defense (1932) 435 U.S. 287 States, United v. Sorrells lower federal courts); ryland, 373 U.S. 83 (1963) (federal district petitioner court who granted was habeas deprived relief of to materially state exculpatory tion). The leadership role of the evidence Supreme Court in criminal procedure, relative to by the prosecu- the district courts, also is reflected in cases that predate the Warren Court. McNabb v. United States, 318 U.S. 332 (1943) (statements obtained in violation of defendant’s statutory right to prompt presentment must be excluded); Nardone v. United States, 308 U.S. 338 (1939) (requiring suppression of indirectly evidence as obtained a result of illegal wiretap); Nardone (1937) v. (same as United to States, evidence obtained 302 directly U.S. from illegal 379 wiretap); poison- the of fruit the Silverthorne (invoking (1920) 385 U.S. 251 States, United v. Co. Lumber ous tree doctrine (though not using that term)); Weeks v. United States, 232 U.S. 383 (1914) (evidence obtained in violation of defendant’s Fourth Amendment 39707-nys_72-2 Sheet No. 28 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 28 39707-nys_72-2 39707-nys_72-2 Sheet No. 28 Side B 01/15/2018 10:23:44 R : AS- O. O. H IMES ERROR- T ; see also , 17 T ILLIAM ILLIAM W W AR ON McNabb-Mallory ERILOUS W , P note 14, at 580–92, TONE TO THE supra R. S , 1798 1798 UTOBIOGRAPHY OF A 241 A Study of the Constitutional Aspects of Aspects Constitutional the of Study A CT OF Leadership in the Struggle for Law Re- EOFFREY UNTHER HE A G G Id. See See EDITION Nor did most federal judges protest S 242 1939–1975: T ROM THE Shortcomings in the Administration of Criminal Law EARS , F Comm. on the Judiciary, 85th Cong., 2d Sess. 2–6 (1958). Y S. OURT ARTIME Hearings on S. Res. 234 Before a Subcomm. on Constitutional C W HE 17, 26–28 (1965–66) (criticizing judges for ignoring the harmless error , T 92–93 (1980). Although elected state judges were the worst, “even fed- PEECH IN During the McCarthy era, the federal judiciary also was notably L.J. S 241. For example, U.S. District Judge Alexander Holtzoff, co-author of the 242. Portions of the Alien Registration Act made it a criminal offense to , 17 F.R.D. 251, 254 (1955) (address before the Missouri State Bar) 314 (2004). Judge Learned Hand was one of the few judges who spoke out OUGLAS OUGLAS REE Hon. Alexander Holtzoff, rule, which rendered inadmissible a defendant’s confession if obtained during an D F D TINGS ISM when it became clear that the sentences meted out to similarly situ- ated federal offenders—prosecuted pursuant to the ever-multiply- against McCarthyism. At the time, he was a member of the Second Circuit Court of Appeals and had taken senior status. eral judges, named for life, were affected.” silent in the face of prosecutions of alleged communists pursuant to pursuant communists alleged of prosecutions of face the in silent the Alien Registration Act. against “permit[ting] the pendulum to swing so far in [the direction of protecting the accused] as to neglect the interests of society as a whole and the rights of the victim of a crime.” Hon. Alexander Holtzoff, form criminal procedure treatise Barron & Holtzoff, now known as Wright & Miller, and Miller, & Wright as known now Holtzoff, & Barron treatise procedure criminal Secretary to the Advisory Committee that drafted the Procedure, Federal Rules was of critical Criminal of the Supreme Court’s adoption of the unnecessary delay between arrest and initial appearance before a magistrate judge. In a statement to the Senate Committee on that the the Judiciary, Advisory Committee Judge of Holtzoff the noted Federal Rules of Criminal Procedure cally specifi- rejected such a proposal and that there was no requirement to “immediately.” magistrate a before party rested bring an ar- Police Detention Prior to Arraignment and of Confessions Obtained Such from Suspects Detention: During Rights of the Senate He also made this point in United States v. Heideman, 21 F.R.D. 335, 339 (D.D.C. 1958) (“The Committee rejected this proposal on the ground that such a penalty for a violation of the Rule would be too drastic delinquent and would officer, be visited but not on on the the public.”). In other fora, Judge Holtzoff warned 654–72 (discussing Hand’s public speeches condemning liam McCarthyism). O. As Douglas Wil- wrote in his autobiography, judges sawed by during public passions and this transformed into agents of era intolerance.” “were whip- rule and reversing judgments innocence). on technicalities that do not bear on guilt propri- or desirability, . . . the teach or advise abet, advocate, willfully or “knowingly or ety of overthrowing or destroying any Government in the United States by force or violence,” or to organize or be a member of any association advocating or encour- aging such action. 18 U.S.C. § 2583 (1940). Pub. L. No. 671 76-670, § (1940) (repealed 2, 54 Stat. 1952). 670, More than under this one law hundred in people the 1940s were and prosecuted 1950s. 234in some cases, lower court NYU judges were dant” hostile ANNUAL decisions of to the the Supreme SURVEYCourt. “pro-defen- OF AMERICAN LAW [Vol. 72:187 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 48 15-JAN-18 9:53 39707-nys_72-2 Sheet No. 28 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 28 39707-nys_72-2 39707-nys_72-2 Sheet No. 29 Side A 01/15/2018 10:23:44 R R R See The (1973). 243 , 9 F.R.D. Criminal RDER O , sometimes that ITHOUT . 1, 4 (2008) (“For the EV W For the changes not supra AW This was essentially the 248 : L . L. R 250 at 5 & n.12 (collecting opinions note 243, at 2045. LA , A supra His slim 1973 book , 60 , As noted ENTENCES 244 S 249 note 17 note 17, at 9–11 (reviewing history of fed- note 17, at 2. 523, 538 (2007) (describing judges’ “over- What ensued was a loud clash be- which was arguably the single most From Omnipotence to Impotence: American Judges . L. 247 245 supra , supra supra Sentencing Guidelines: A Need for Creative Collabora- note 241) also publicly decried the discrepancies , RIMINAL , , RIM , C Defects in the Administration of Criminal Justice supra 246 . J. C T ABRANES ABRANES ABRANES S Sentencing Guidelines RANKEL HIO & C & C & C 2043, 2044 (1992). E. F 4 O TITH TITH TITH , L.J. S S S Marvin E. Frankel, Frankel, Hon. Nancy Gertner, ARVIN ALE See M See See See See See Y As Frankel later wrote, these developments prompted federal Appellate Review of Sentencing Decisions 243. 244. Judge Holtzhoff ( 245. 246. 247. 250. 248. 249. , 101 Sentences: Sentences: Law Without Order tween federal judges, Congress, the Sentencing Commission, and the Executive Branch, as judges reacted to their loss of virtually un- fettered discretion in imposing sentences. most most notable exception, of course, was Judge Marvin Frankel of the Southern District of New York. only curtailed the power of the individual district court judge, but did so in an arena in considered, which district including court by judges themselves, had uniquely long qualified mine been to the appropriate deter- outcome. first wave of the “new” district court activism—focused on a single issue, sentencing authority. As recounted in Part II, which never fully died out after the Supreme Court upheld the new this activism, judges, “so quiet about sentencing for so long,” suddenly [to come] to life—often passionately.” influential influential act of extrajudicial speech by a judge ever, laid the intel- lectual foundation for the Sentencing Reform Act of 1984, ushered in the which era of mandatory minimum sentencing statutes and the Sentencing Guidelines to curb the very judicial discretion that Frankel found lawless. among judges in sentencing pursuant to the indeterminate sentencing regime. Hon. Alexander Holtzhoff, 303 (1949) (speech before the American Bar Association’s Law). Section on Criminal eral district courts’ sentencing authority); Carissa Byrne Hessick & F. Andrew Hes- sick, and articles in which federal judges expressed their disapproval of the Sentencing Guidelines). 2018]ing federal criminal laws—varied wildly around the country. THE “NEW” DISTRICT COURT ACTIVISM 235 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 49 15-JAN-18 9:53 battle was waged in Guidelines the and the form Sentencing of Reform Act judicial fora. some of it was waged in extrajudicial unconstitutional, but opinions holding the blown sense of their own expertise in the indeterminate sentencing days”). greater part of American history, appellate review of federal criminal sentences was sentences criminal federal of review appellate history, American of part greater non-existent in most cases.”). tion and Sentencing 39707-nys_72-2 Sheet No. 29 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 29 39707-nys_72-2 39707-nys_72-2 Sheet No. 29 Side B 01/15/2018 10:23:44 . P. The RIM 251 Then, in The Invisible . R. C 252 ED The Speedy Trial F Linda M. Ariola, Deborah A. Booker United States v. Davila, 133 S. Ct. in the context of Congress’s 713, 713–23 (1979) (discussing history . see generally EV See also 11(c)(1). Prior to the amendment, federal Booker L. R . P. B. Why Now? Nancy J. King & Ronald F. Wright, RIM ORDHAM 1. The Impact of . R. C F ED F , 47 325 (2016). See generally . EV . L. R EX T First, the “new” district court activism may be attributable, at This section sets forth some of the possible reasons for the 251. Since then, Rule 11 has provided that “[t]he court must not participate 252. 18 U.S.C. §§ 3161–3174 (2012); , 95 Revolution in Plea Bargaining: Managerial Judging and Judicial Participation in Negotia- tions trial courts’ discretion in controlling their criminal dockets, citing a concern about delays in bringing criminal cases to trial. same year, Congress enacted the Speedy Trial Act, which limited 2139, 2146 (2013). Most states have not followed suit and continue court to judges to allow be involved trial in plea discussions, although the extent to which state judges do so varies. the 1980s, Congress substantially curtailed the sentencing authority application the expanding laws of passage the with judges federal of of mandatory minimum sentencing and States Sentencing establishing Commission. The trend the continued in the United 1990s, when Congress further expanded statutory sentences mandatory but minimum also restricted federal district courts’ authority over least in part, to the effect of ongoing assault on the federal judiciary’s authority in the adminis- tration of criminal law, which predates the mandatory sentencing laws of the 1980s. For example, Federal in Rules of 1974, Criminal Procedure Congress to amended kick federal the judges out of would defendants that concern a citing process, plea-bargaining the feel coerced into pleading guilty by the judge’s involvement. in [plea] discussions.” 11(e)(1), Notes of Advisory Committee committee’s note on to 1974 Rules—1974amendment. Amendment. advisory ahead of the Courts of Appeals and the Supreme Court. 236 sentencing scheme in 1989, has been resurgent in NYU the last decade with ANNUALan expanded set of SURVEY concerns. The next section OFexplores why. AMERICAN LAW [Vol. 72:187 “new” district court activism of the plains past the decade. recent It engagement by asks district what court ex- highly personal way, judges, in criminal justice reform, including visibly ad- often in a vocating for doctrinal, legal, and policy change, in many cases \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 50 15-JAN-18 9:53 of Speedy Trial Act and the negative reaction to it from various quarters, including trial judges). DeMasi, Edward D. Loughman III, & Timothy G. Reynolds, et al., judges’ participation in plea bargaining was “common practice.” Act: An Empirical Study 39707-nys_72-2 Sheet No. 29 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 29 39707-nys_72-2 39707-nys_72-2 Sheet No. 30 Side A 01/15/2018 10:23:44 R . EV Com- 256 AEDPA: . U. L. R The Sentenc- W The trend N 255 , 96 John H. Blume, 1131, 1151 (2002) (observing that see generally 259 (2006); Brian M. Hoffstadt, . EV L.J. note 17, at 136 (in an era of mandatory L. R MORY E 254 supra , and review of previously-entered stateand , 51 ORNELL C 253 , 13 (the Guidelines “increased [prosecutors’] power: the ABRANES , 91 L.J. 2 note 39 and sources cited therein. & C ALE TITH which ended more than two decades of mandatory ad- S 123 Y See See supra Padilla v. Kentucky, 559 U.S. 356, 362–64 (2010) (discussing history of the of history (discussing 362–64 (2010) 356, U.S. 559 Kentucky, v. Padilla Booker, No institutional actor in this space suffered a more substantial See 253. Legislation enacted in 1990 repealed district courts’ authority to issue a 255. 256. 254. The Anti-Terrorism and Effective Death Penalty Act of 1996 greatly re- Booker, to restrict district courts’ power to prosecutors, continued into the early 2000s, including the sentencing authority, and enactment of the Feeney Amendment shift in 2003, which subjected dis- more trict court judges’ downward departures to increased scrutiny. federal criminal judgments. sions and manipulation of the Sentencing Guidelines. herence to the United States Sentencing Guidelines, fundamentally quo status the upended it which to extent The dynamic. this altered blow as a consequence of these measures than the federal court district judge. And no group received a greater boost to its authority than federal prosecutors, who now were largely able to dictate the sentence that a defendant would receive (and the collateral conse- quences that would flow from conviction) through charging deci- ing Judge as Immigration Judge recommendation at sentencing against deportation in cases of non-citizen defend- ants. judicial recommendation against deportation (JRAD) under U.S. immigration law, which was repealed in 1990); Margaret H. Taylor & Ronald F. Wright, 1413, 1414 (2002). Guidelines, prosecutors could in effect control the sentence through careful selec- tion of the charges Effects the and Prosecutors of Role the Assessing Disparity: Racial and Sentencing Mandatory and facts presented); Sonja of B. Starr & M. Marit Rehavi, 2018]conse- deportation the over including ways, other in justice criminal convictions of quences THE “NEW” DISTRICT COURT ACTIVISM 237 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 51 15-JAN-18 9:53 choices prosecutors made more conclusively determined the sentence” than ever before). mon-Law Writs and Federal Common Lawmaking on Collateral Review JRADs were “simply washed out of the [Immigration and Nationality Act] statute among the waves of increasingly harsh congressional measures intended to crack down on noncitizen criminal offenders”). stricted federal courts’ authority to grant habeas relief to federal and state prison- ers. It imposed a one-year statute of limitations, whereas previously there had been none; tightened standards for second or subsequent federal courts’ petitions; authority to placed hear limits a petition on from a state conviction procedural in the default; case and of restricted the authority of federal where a courts claim was to previously adjudicated grant on the relief merits in state court to those in- stances where the decision was “contrary to, or involved an unreasonable applica- the of Court Supreme the by determined as law, Federal established clearly of, tion United States.” 28 U.S.C. § 2254(d) (2012); The “Hype” and the “Bite” 39707-nys_72-2 Sheet No. 30 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 30 39707-nys_72-2 39707-nys_72-2 Sheet No. 30 Side B 01/15/2018 10:23:44 . L. , 79 222 Booker RIM to hold to “foretold . C But be- ” or would M A 257 Blakely EVOLUTION Blakely R 261 to resurrect the —may have been was widely seen as an undid “every significant status quo ante 260 The Future of Federal Sentenc- Booker Booker outraged conservatives, who Booker EGIME AND THE R Booker LD 326, 330 (2011) (noting that “ Blakely v. Washington, 41 O at 1482. Train Wreck? Or Can the Federal Sentencing . R. Restored Balance? A Look at Data on Plea G HE Id. ’ , T ENT note 255, at 15 (“ to hold Washington State’s sentencing scheme Booker note 39, at 1494. . S ED supra F Has It may nevertheless have been a galvanizing supra Apprendi OCQUEVILLE 259 , 23 T note 39, at 1425. In addition to holding that the Guidelines .” Stith, 1, 14 (2008) (“Given that . , Frank O. Bowman, III, supra EV LEXIS DE A Booker Starr & Rehavi, Paul J. Hofer, in the hands of federal prosecutors that had occurred See See See, e.g. See . L. R 258 OLO 258. Stith, 257. 261. 260. 259. . 217, 262 (2004) (predicting that, if the Supreme Court applied Court Supreme the if that, (predicting (2004) 262 217, . EV cause cause it had no effect on statutory mandatory minimum sentencing (or many of the other limits above), on it only trial partly courts’ ameliorated authority the discussed power” consolidation of “indecent R Congress took no action in Guidelines the wake of by sentences—despite incorporating predictions that it them would further emboldening. The “new” judicial activism therefore may be into statutory an example of a “revolution of rising expectations.” minimum moment moment for federal trial judges, especially those whose careers pre- ceded the Guidelines but who had long given up on any real hope of change emanating from Congress or the Supreme Court. That the United States Sentencing tempt Guidelines to restore unconstitutional, the system Congress “as close would as possible impose at- to “ a system far more the harsh, far less advantageous to defendants, and far less hospitable to judicial discretion.”); David M. Zlotnick, ing Policy: Learning Lessons From Republican Judicial Appointees in the Guidelines Era System Be Saved? A Plea for Rapid Reversal of would henceforth be advisory rather than binding, provision of the Feeney Amendment.” earthquake in federal sentencing law.”). The earthquake was preceded by tremors. First, the Supreme Court revitalized the jury trial right in Apprendi v. New Jersey, 530 U.S. 466 (2000), holding that any fact increasing the statutory maximum sen- tence a defendant faced was an element that must be proven beyond a reasonable doubt to a jury rather than a sentencing factor that could be established by a pre- ponderance before a judge. In Blakely v. Washington, Supreme Court 542 extended U.S. 296 (2004), the U. C 238in federal criminal law was of “earthquake” proportions. NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:187 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 52 15-JAN-18 9:53 over several decades. viewed the opinion as a judicial coup d’etat, many commentators initially believed it was only a matter of time before Congress acted.”). has not solved all of the problems with federal sentencing,” with many remaining problems traceable “to mandatory minimum penalties and enhancements”). the continuing presence, and even expansion, of unconstitutional because the facts establishing the written, has Stith Kate As jury. a than rather judge a by found effective were maximum sentence the unconstitutionality of the mandatory Sentencing Guidelines, as next year decreed in the Bargaining and Sentencing (U. Chi. Press 1998) (1856) (explaining his theory of the revolution of rising ex- 39707-nys_72-2 Sheet No. 30 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 30 39707-nys_72-2 39707-nys_72-2 Sheet No. 31 Side A 01/15/2018 10:23:44 TUD- and Booker S Booker 264 ASES The Revenge : C Rita at 1411–12 (“More and its extension in at least in part to id. ISCRETION D decisions, Booker Apprendi Especially once the Su- UDICIAL J 263 Booker 393, 430 (2005) (describing . and the Reassertion of Judicial Limits on Limits Judicial of Reassertion the and EV also may have given judges rea- extended the Supreme Court’s that this discretion encompassed . L. R R . . . occurred in the wake of Congress’s own 266 Booker O Booker PPOINTEES AND A Booker , 84 note 234, at 1394 (“[O]rganizational cultures can note 39, at 1426 (“[I]t is not a mere coincidence, in note 249, at 533 n.40 (citing Federal Judicial Center and many have attributed supra supra Kimbrough supra 267 United States v. Booker v. States United EPUBLICAN : Blakely , R note 257 (explaining impact of , Stith, 268 may have served as a “wake-up” call which focused their Gertner, Richman, LOTNICK See See See supra See, e.g. that district courts really did have discretion in sentenc- the experience of exercising real discretion in sentencing ). M. Z Booker 265 Even Even for those judges who came of age during the Guidelines 262 262. 263. 264. Rita v. United States, 551 U.S. 338 265.(2007). Gall v. United States, 552 U.S. 38 266.(2007). Kimbrough v. United States, 552 U.S. 85 267. (2007). 268. Mullaney v. Wilbur v. Mullaney AVID judges got a taste of true engagement with sentencing policy. son to believe that their protests could make a though, difference. as For a al- formal matter, doctrinal shift of at least five years earlier regarding the meaning of the jury trial right, preme Court made clear in two post- the judiciary’s Guidelines. long-standing opposition to the Sentencing Gall, ing—and held in era, disagreements over policy with the Sentencing and its progeny thus may Commission— have injected a renewed energy into the federal judiciary to address injustices in the criminal justice system more broadly. The result in D pectations: “Every abuse that is then eliminated seems to highlight those that main re- . . . the evil has decreased . . . but the sensitivity is greater.”). 2018] THE “NEW” DISTRICT COURT ACTIVISM 239 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 53 15-JAN-18 9:53 post- attention on the disproportionality sentences of that the remained mandatory and minimum on the Guidelines irrationality as of applied the advisory in many cases. statistics showing that 89.97 percent of were confirmed after the Guidelines went then-active into effect and thus had “no experience federal district court judges with discretionary criminal sentencing”). change. Life-tenured judges had, over time and through self-selection, become in- creasingly inured to the way the Guidelines and mandatory minimums cut to the heart of what their predecessors saw as the judge’s role.”); and the cases leading up to it as “a healthy exercise in correcting power imbalances power correcting in exercise healthy “a as it to up leading cases the and among the branches of our government,” whereby “the Court circled back around to renewed concern with the limits of legislative power as the issues took on a very different cast in the world of mandatory minimums and enforceable guidelines”); extraordinary intervention in 2003 and Main Justice’s subsequent restrictions (re- quired by Feeney) on local prosecutorial autonomy.”); Ian Weinstein, of Legislative Power to Define Crimes and more judges [had] become accustomed to the Guidelines”). my view, that both Blakely 39707-nys_72-2 Sheet No. 31 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 31 39707-nys_72-2 39707-nys_72-2 Sheet No. 31 Side B 01/15/2018 10:23:44 This RIME IN C 272 Moreo- , 1 (Sharon 270 EPORTING HINKING R T RIME majority rested its holding Introduction: Mapping the New USTICE C 68 (June 2007) (unpublished J RA Booker E NIFORM Meanwhile, over the past dec- RIMINAL : U States Trim Penalties and Prison Rolls, Even 269 C EW UIDELINES G N (May 18, 2017), https://www.nytimes.com/2017/ HE T in the context of the power struggle between the NVESTIGATION IMES in I States around the country are experimenting , ENTENCING Booker 2. Social and Political Context 271 S N.Y. T , (2014), https://ucr.fbi.gov/crime-in-the-u.s/2014/crime-in- UREAU . B , Richard A. Oppel, Jr., At least before the 2016 elections, more fundamental EDERAL TATES ED F F at 27. Sharon Dolovich & Alexandra Natapoff, 273 S Id. See, e.g. See See NITED Second, the larger social and political context in which the ROM THE 273. Fair Sentencing Act of 2010, Pub. L. 111-220, 124 Stat. 2372. 271. 272. 270. 269. U F movement has gained traction at the federal level as well, where the Fair Sentencing Act of 2010 reduced the disparity between sentenc- ing for crack and powder cocaine and increased eligibility for cer- tain forms sentences. of relief from statutory mandatory minimum ade, people of different political views have coalesced around the idea that we have overly nately relied accepted on collateral incarceration consequences of and convictions. indiscrimi- THE our “current historical moment,” it is one “in justice system . . . has become a primary battleground for civil rights which the criminal and social justice.” ver, as Sharon Dolovich and Alexandra Natapoff have described with criminal justice policies to downsize their prison populations and keep people out of the criminal justice system entirely. “new” district court activism has occurred is Since an the mid-1990s, the important United States factor. has enjoyed more than two decades of declining crime rates. IES 240 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:187 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 54 15-JAN-18 9:53 05/18/us/states-prisons-crime-sentences-jeff-sessions.html [https://perma.cc/ CG3Z-YM8M] (citing changes in more than thirty states prison in sentences and recent expand years alternatives to to incarceration limit in order to down keep and costs crime rates low). demn the enormous economic costs and questionable public safety benefits of the current system.”). as Sessions Gets Tough the-u.s.-2014/tables/table-1 [https://perma.cc/7FXB-W8C] (indicating an overall decline in violent crimes—murder, rape robbery, aggravated assault—and nonvio- lent crimes—property crimes, burglary, larceny, and motor vehicle theft—between 1995 and 2014). Dolovich & Alexandra Natapoff eds., 2017) (“Liberals and conservatives alike con- report) (available at http://faculty.rwu.edu/dzlotnick/OSI-Report-june2007.pdf [https://perma.cc/7GEC-2KEN]) (“While the and academia, Congress, in many Amendment, Sixth the of interpretation its upon even the judiciary, saw branches and a delayed reaction to the Feeney Amendments and the longstanding war on judicial discretion.”). Criminal Justice Thinking 39707-nys_72-2 Sheet No. 31 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 31 39707-nys_72-2 39707-nys_72-2 Sheet No. 32 Side A 01/15/2018 10:23:44 . , 1 EV 278 274 N.Y. , L. R (2016), 1361, 1452 . ONTROVERSIES AYTON EV C 2015 3 D Keith A. Findley, in , . L. R L. . See A 2014). , 29 U. U. P U. , 152 , XONERATIONS IN The Innocence Revolution and Our , E Countermajoritarian Hero or Zero? Rethinking the Other estimates of the number of Sarah Lucy Cooper ed., The Innocence Revolution and the Death Penalty XONERATIONS 275 E 277 3 ( , https://www.innocenceproject.org, [https://perma MERICA A ROJECT EGISTRY OF Unity Was Emerging on Sentencing. Then Came Jeff Sessions. P R 573 (2004). L ’ . L. AT ASES IN (quoting Kenneth Pye’s observation in 1968: “A hundred years N C RIM Since 1989, at least 350 people in the United States have States United the in people 350 least at 1989, Since id. Corinna Barrett Lain, Mark A. Godsey & Thomas Pulley, HE NNOCENCE 276 T I See See . J. C T (May 14, 2017), https://www.nytimes.com/2017/05/14/us/politics/jeff-ses- The innocence revolution is an additional part of this larger S 278. 274. Carl Hulse, 275. 277. 276. NNOCENCE I HIO IMES T IN wrongful convictions in means other than the DNA evidence, put the number at over United 1,700. States, including through context. gether and were “on the verge sentences and creating new of programs to help offenders adjust winning to life after prison” reductions in mandatory in light minimum of “the success shown by similar changes at the state level”). 265 (2004); Lawrence C. Marshall, O The United States is now home to projects, a many of network them of non-profits local based at innocence law schools, together sions-criminal-sentencing.html [https://perma.cc/U2WK-BTSD] (describing how, prior to 2016 election, conservatives and liberals in Congress were working to- 2018] change to federal criminal sentencing law was close to passage. The financial crisis of 2007–08 THE is another “NEW” important part DISTRICT of this COURT so- ACTIVISMcial and political context, as it not only focused national attention on the economic trade-offs of doubt on mass whether government incarceration, actors could but be trusted to also and prevent address cast corporate wrongdoing. But for 241 these factors, it seems doubtful that we would be hearing the voices of the “new” judicial activism on these issues. Judges, after all, are the product social of and their political context. \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 55 15-JAN-18 9:53 been exonerated through DNA evidence of crimes for which many served decades in prison. .cc/UKK6-RVCE]. The first DNA exoneration in 1989. the United Additional States exonerations occurred followed in steadily twenty-five in thereafter, 2002. Since 2002, the reaching number of DNA a exonerations per year peak in the of United States has ranged between thirteen and twenty-three. Innocence Found: The New Revolution in American Criminal Justice Warren Court’s Role in the Criminal Procedure Revolution Procedure Criminal the in Role Court’s Warren https://www.law.umich.edu/special/exoneration/Documents/Exonera- tions_in_2015.pdf [https://perma.cc/U2WK-BTSD] (reporting tions in 1,733 the United States between 1989 exonera- and January 27, 2016). (2004) (“[P]ersonal perspectives will inevitably make their way into the decision- making process, and so will the social and political currents that shape those per- spectives.”); Court. Warren the by wrought changes the by amazed be not will lawyers now from They will wonder how it could have been otherwise in the America of the sixties.”). “Evolving Standards of Decency” in Death Penalty Jurisprudence 39707-nys_72-2 Sheet No. 32 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 32 39707-nys_72-2 39707-nys_72-2 Sheet No. 32 Side B 01/15/2018 10:23:44 , , 283 See, OST , 74 RIMI- . P C (2009). OUNCIL ASH . C HERE W ES , : W ORWARD R L F ’ AT ATH N prosecution have 471, 501–02 (2014). Sarah Lucy Cooper ed. . NNOCENT I EV : A P 21 ( Stevens L. R TATES S There is no question that MERICA OWA I 279 A NITED 282 ONVICTING THE , 99 C U (Sept. 1, 2013), http://www.abajournal , ASES IN The Innocence Network: From Beginning to Brand- C is now part of our national legal cul- 280 ARRETT OURNAL 150–53 (2011). An Integrated Justice Model of Wrongful Convictions L. G CIENCE IN THE NNOCENCE S RONG I A.B.A. J W s, O RANDON G , Crime Labs Under the Microscope After a String of Shoddy, Suspect, B ORENSIC , at 167–70; Jon B. Gould, Julia Carrano, Richard A. Leo & Katie F 1465, 1468 (2011) (defining “innocence consciousness” as “the idea Marvin Zalman, Jacqueline McMurtrie, . Predicting Erroneous Convictions In a substantial portion of these cases, prosecutorial mis- See See See id. See, e.g. EV ONTROVERSIES IN 281 C ROSECUTIONS Although the overwhelming majority of the DNA exonerations 280. 279. 282. 281. 283. The 2009 Report by the National Research Council, which found that in . L. R P , Mark Hansen , LB TRENGTHENING 2014). S “innocence “innocence consciousness” ture. Scholarship on the causes of wrongful convictions has come of come has convictions wrongful of causes the on Scholarship ture. age over the past decade, revealing that, in a substantial number of these cases, the person later exonerated had pled guilty to the fense. of- demonstrated that federal prosecutors are not immune from many of the same problems. Moreover, brought about a major cultural shift in how we think about the falli- the innocence movement has bility of our adversarial system of criminal justice more broadly, involved state prosecutors, cases like the (Apr. 20, 2015), https://www.washingtonpost.com/local/crime/after-fbi-admits- overstating-forensic-hair-matches-focus-turns-to-cases/2015/04/20/a846aca8-e766- 11e4-9a6a-c1ab95a0600b_story.html?utm_term=.4dba4af6af6b [https://perma.cc/ L3R5-YPTF]. A and the extent to which prosecutors, faith, may even contribute to those the conviction acting of in the innocent. good This helps explain why judges shift may feel that they must take a more active role in monitoring prosecutors’ compliance with their discovery ob- ligations and in seeking reform of the rules governing criminal dis- 242 serving every region of the NYU country. ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:187 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 56 15-JAN-18 9:53 NAL conduct conduct was a contributing factor. .com/magazine/article/crime_labs_under_the_microscope_after_a_string_of_ shoddy_suspect_and_fraudu [https://perma.cc/H77L-LVWD]; Spencer S. After FBI Hsu, Admits Overstating Forensic Hair Matches, Focus Turns to Cases numerous forensic sciences regularly used in criminal prosecutions were not scien- tifically valid, was an important landmark in this shift. flawed hair-match testimony in hundreds of criminal cases from 1972 to 2000. e.g. and Fraudulent Result The Report was followed by scandals in the crime laboratories of several states, and states, several of laboratories crime the in scandals by followed was Report The the FBI’s acknowledgment in April 2015 that its forensic examiners had given Hail-Jones, ing that innocent people are convicted in sufficiently large numbers as a result of sys- temic justice problems to require efforts to exonerate them, and to advance struc- tural reforms to reduce such errors in the first place”). 39707-nys_72-2 Sheet No. 32 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 32 39707-nys_72-2 39707-nys_72-2 Sheet No. 33 Side A 01/15/2018 10:23:44 See EDERAL , Jed S. F See, e.g. note 284 (“[O]ur OUTHERN 1 (Dover Publica- : S AW EN (Nov. 20, 2014) (citing L supra M OOKS 286 B OMMON ONELY OF C Rakoff, . HE EV note 186, at 93–95 (citing impact of 58 L , trial fiasco of 2008 and 2009— Illini Books ed., Univ. of Illinois Press ., T note 294 and accompanying text. see also R supra N.Y. R , J , infra 247 ( ELTASON Stevens OLMES H J.W. P ENDELL ESEGREGATION W D , Lafler v. Cooper, 566 U.S. 156, 170 (2012) (“[C]riminal justice , Green & Yaroshefsky, LIVER CHOOL O This is particularly so as courts increasingly have S See, e.g. See, e.g. See 284 Why Innocent People Plead Guilty Accordingly, the rights to trial by jury and to discovery before discovery to and jury by trial to rights the Accordingly, (“[J]ust as the laws enacted by the legislature reflect the dominance of cer- The presence of a receptive audience in the Obama Adminis- 284. 285. 286. , 313 F.3d 49 (2d Cir. 2002). Judge Rakoff was the only federal judge ap- 285 UDGES AND the Department changed its policies to expand the scope of discov- Press Release, Dep’t of Justice, Office of Pub. Affairs, U.S. Departments of Justice innocence revolution). In a number of different vealed contexts, the Judge impact Rakoff of has the re- innocence revolution on his thinking. tration also may have led some judges to decide that the time right to was speak up, at least during the Obama years of 2009–16. The Obama Justice Department implemented many initiatives that were consistent with the expressed concerns of the “new” judicial activ- ists. For example, Holder—in the wake of starting the in 2010, under ery regularly provided Attorney to the defense, improve training of prosecu- General J 1971) 2018]covery. THE “NEW” DISTRICT COURT ACTIVISM 243 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 57 15-JAN-18 9:53 tain values in the community, so do the decisions of judges. always It been so.”). is so today; it has acknowledged acknowledged that our criminal justice system, at the federal level as much as in the states, is als. overwhelmingly one of pleas, not tri- the conclusion of trial are Thus, the insufficient “new” to activist judges protect can the be reflecting viewed these innocent. larger as social channeling currents and and ways of criminal justice thinking policy that about surround them. Rakoff, States v. Quinones, 196 F. Supp. 2d 416 penalty (S.D.N.Y. unconstitutional in 2002) light of (holding undue risk federal of executing death an innocent person), rev’d pointed to the federal forensic science commission established during the Obama Administration, discussed further at and Commerce Name Experts to First-ever National Commission on Forensic Sci- ence (Jan. 10, 2014), https://www.justice.gov/opa/pr/us-departments-justice-and- commerce-name-experts-first-ever-national-commission-forensic [https://perma .cc/6GXS-BEYF] (listing appointees). studies documenting the number of innocent people who pled guilty); United tions 1991) (1881) (“The felt necessities of the time, the prevalent moral and polit- and moral prevalent the time, the of necessities felt (“The (1881) 1991) tions have fellow-men, their with share judges which prejudices the even . . . theories ical had a good deal more to do than the syllogism in determining the rules by which men should be governed.”); today is for the most part a system of Frye, pleas, 566 not a U.S. system 133, of trials.”); 143 Missouri (2012) v. (same); prosecutor alone.”). criminal justice system is almost exclusively a system of plea bargaining, negotiated behind close doors . . . [in which] [t]he outcome is very largely determined by the 39707-nys_72-2 Sheet No. 33 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 33 39707-nys_72-2 39707-nys_72-2 Sheet No. 33 Side B 01/15/2018 10:23:44 288 Cole USTICE J and expand and RIMINAL See supra C note 287 (recom- 291 Attorney General supra 290 and require greater require and EFORMING THE 287 : R Memorandum from James M. Cole, RIME C , 112th Cong. 1 (2012) (statement of James see also Memorandum from David W. Ogden, Deputy See MART ON . (Aug. 2013), https://www.justice.gov/sites/default/ , S Giglio USTICE ENTURY J and C ST T OF ’ , Memorandum from David W. Ogden, , Eric H. Holder, Jr., Remarks at the Annual Meeting of the Amer- the of Meeting Annual the at Remarks Jr., Holder, H. Eric , Brady EP 21 and in 2014 prohibiting the use of Section 851 sen- D Memorandum from Eric H. Holder, Jr., Att’y Gen., to the U.S. Att’ys Memorandum from Eric H. Holder, Jr., Att’y Gen., to Dep’t of Justice of Dep’t to Gen., Att’y Jr., Holder, H. Eric from Memorandum 289 See See, e.g. See See Ensuring that Federal Prosecutors Meet Discovery Obligations: Hearing on S. See, e.g. See, 289. 288. 290. 287. 291. YSTEM FOR THE Deputy Att’y Gen., Policy Concerning Electronic Recording 12, of 2014) Statements (requiring (May that federal officials electronically record individuals in interrogations federal of custody). documentation documentation of interrogations and meetings with witnesses. Holder committed the Department sentencing criminal of severity the reduce to proach, to a “Smart on Crime” ap- a criminal discovery coordinator, and increased and ongoing training programming requirements on Statement. discovery for all federal prosecutors. mending that, although not legally required, witness interviews should be memori- alized by the interviewing agent); and Assistant Att’ys Gen. for the Criminal Div., Mandatory Department Policy Minimum on Sentences Charging and Recidivist Cases Enhancements (Aug. 12, in 2013); Memorandum Certain from Eric H. Drug Holder, Jr., Att’y Gen., Fed. Prosecutors, Department Policy to on Charging and Sentencing (May All 19, 2010). 2197 Before the S. Comm. on the Judiciary M. Cole, Deputy Att’y Gen.) [hereinafter Cole “Blue Book” Statement] issued to federal (describing prosecutors and so-called paralegals in 2011 which “compre- hensively covers the law, policy, and tions”). practice of The prosecutors’ disclosure Blue obliga- memoranda issued in 2010 Book by then-Deputy Attorney General David Ogden, which supplemented previous reminded prosecutors guidance, that Department policy including was to provide by required that several disclosure beyond Att’y Gen., for Dep’t Prosecutors, Guidance for Prosecutors Regarding Discovery Criminal (Jan. 4, 2010). The Department of policies disclosure all oversee and lead Justice to Coordinator Discovery Criminal National also appointed a high-level and practices for the Department, required each U.S. Attorney’s Office to appoint S 244tors on NYU ANNUAL their SURVEY OF discovery Starting AMERICANin 2010, Holder obligations, LAWalso started to shift department policy to more explicitly encourage prosecutors to [Vol. 72:187 exercise their discretion in charging, ultimately directing prosecutors in 2013 not to charge drug quantities sentences requiring unless the the defendant’s conduct sanctions, called harshest for such mandatory severe minimum \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 58 15-JAN-18 9:53 tencing enhancements to induce guilty pleas. files/ag/legacy/2013/08/12/smart-on-crime.pdf [https://perma.cc/STR6- WXFN]. In a speech delivered at the United States District Court for the Eastern Att’ys, Guidance Regarding § 851 Enhancements in 2014) Plea (making Negotiations clear that (Sept. a defendant’s 24, decision to go to trial ordinarily is not an appropriate reason to file a prior felony information). ican Bar Association’s House of .gov/iso/opa/ag/speeches/2013/ag-speech-130812.html Delegates (Aug. 12, 2013), [https://perma.cc/ http://www.justice RJ8H-2CKE]; 39707-nys_72-2 Sheet No. 33 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 33 39707-nys_72-2 39707-nys_72-2 Sheet No. 34 Side A 01/15/2018 10:23:44 , see In 297 , https://www.justice.gov/ causes embraced by his USTICE 292 , U.S. H.R., 1, 6 (Feb. 24, 2016) J T OF ’ And in September 2015, the De- EP 296 In January 2013, the Obama Adminis- U.S. D , U.S. to Commit Scientists and New Commission to Fix 293 S.E.C. Has a Message for Firms Not Used to Admitting Guilt (Feb. 15, 2013), https://www.washingtonpost.com/lo- OST In June 2013, the new Chair of the SEC, Mary Jo Mary SEC, the of Chair new the 2013, June In . P 294 In April 2014, the Department of Justice an- ASH , Memorandum from Eric H. Holder, Jr., Att’y Gen., to Heads of 295 W , Spencer S. Hsu, (June 21, 2013), http://www.nytimes.com/2013/06/22/business/secs- See, e.g. See Clemency Initiative See Hearing on the Fiscal Year 2017 Dep’t of Justice Budget Request Before the See IMES 292. 296. 295. James B. Stewart, 297. Memorandum from Sally Quillian Yates, Deputy Att’y Gen., to all DOJ 293. 294. Mary Jo White, Chair, SEC, Speech at the Council of Institutional Investors partment of Justice adopted a new policy, outlined in the so-called “Yates memo” issued by then Deputy Attorney General Sally Yates, to encourage prosecutors to seek greater accountability for corpo- rate wrongdoing from the individuals who perpetrated it. nounced a clemency initiative to increase the prisoners number receiving clemency. of federal tration created a new National Commission on Forensic Science to prepare recommendations to the Attorney General on the science. forensic use of new-chief-promises-tougher-line-on-cases.html [https://perma.cc/K8BK-BDYS]; new-chief-promises-tougher-line-on-cases.html also Fall Conference: Deploying (describing new the policy). Full Enforcement Arsenal (Sept. 26, 2013) ment action. successor, successor, Loretta Lynch. White (formerly the United States Attorney in the Southern District of New York) announced a new policy for the SEC, henceforth re- quiring that in certain cases of “egregious misconduct,” defendants would be required to admit wrongdoing to settle an SEC enforce- N.Y. T District of New York during a celebration of Attorney that General Holder thanked Judge Gleeson for courts’ his leadership in establishing diversionary programs, such programs, and jested of Judge Gleeson’s influence: “I’m afraid of this You see man. him in the newspapers, he sends me letters. He and I believe in the same things, but I’m afraid of him.” Presentation of Alternatives to Incarceration in the Eastern District of New York 38 (Oct. 20, 2014) (transcript on file with author). 2018] opportunities for diversion and reentry, THE “NEW” DISTRICT COURT ACTIVISM 245 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 59 15-JAN-18 9:53 cal/crime/us-to-commit-scientists-and-new-commission-to-fix-forensic-science/ 2013/02/15/e11c31f8-77b3-11e2-8f84-3e4b513b1a13_story.html?utm_term=.9c83 fcb3292a [https://perma.cc/GW6S-UPL9]. pardon/clemency-initiative [https://perma.cc/GB6R-FULE]. Att’ys, Individual Accountability for Corporate Wrongdoing (Sept. 9, 2015). Dep’t of Justice Components and U.S. Att’ys, Consideration of Collateral quences in Conse- Rulemaking (Aug. 12, 2013). Subcomm. on Com., Just., Sci., and Related Agencies (statement of Loretta Lynch, Att’y Gen.); Loretta E. tional Lynch, Remarks Association at the of Na- Attorneys 2016), General https://www.justice.gov/opa/speech/attorney-general-loretta-e-lynch-deliv- Annual Winter Conference ers-remarks-national-association-attorneys-general (Feb. 23, [https://perma.cc/QF5B- 97EX]. Forensic Science 39707-nys_72-2 Sheet No. 34 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 34 39707-nys_72-2 39707-nys_72-2 Sheet No. 34 Side B 01/15/2018 10:23:44 . & note . U. L. CON W , E N supra , AW J. L , 110 ISINGER E , 28 What Do Federal District have been mem- (2015), https://www.ali 300 see also ROJECTS 298 , Proposed Official Draft 1962). The . ALI P NST I AW Memorandum for Advisory Comm. on Crimi- RESENT Opinions I Should Have Written P . L See M A ( AST AND ODE P , C . NST 3. Shifting Judicial Roles and Norms ENAL I P AW including the Model Penal Code; . L Stephen J. Choi, Mitu Gulati, & Eric A. Posner, ODEL M 299 521–22 (2011) (suggesting that most district judges seek elevation to A M See Id. Third, the “new” district court activism may reflect an evolving Even if national change was not likely, judges may have 298. 299. 300. . 518, . 423, 432 (2016) (noting that if a judge wants to move up the judicial ladder, RG EV R O policy-making processes, wield appellate power, and serve in quasi- legislative roles. For example, since the 1920s and 30s, district court judges have participated projects, in law reform efforts through ALI he or she “has every incentive” to avoid controversy); model of the judicial role with roots that go back decades. That is, in a variety of contexts, district court judges today participate in Judges Want? An Analysis of Publications, Citations, and Reversals ton appointees’ reaching their second decade which on point the some bench, judges’ by Others views may have decided may that they had have accumulated sufficient ex- shifted perience or to speak coalesced. with authority. Moreover, after passing the of dec- hope relinquished have may some court, district the on mark ade promotion, taken senior status, or decided to leave the bench, thus liberating them to spark controversy. 246 sum, during the Obama Administration, judges may have NYUfelt that there ANNUAL was a rare SURVEY historical moment to OFbe seized when possible—by AMERICANchange was legislation, LAW executive action, thereof—and that or their voices could some help [Vol. 72:187 bring it combination to fruition. thought that the Obama-appointed United States Attorneys in their districts—who enjoyed greater Holder memoranda charging than discretion prior Clin- the of many with coincided also years Obama the Finally, calls. under generations—would the heed their \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 60 15-JAN-18 9:53 appellate courts); Nancy Gertner, American Law Institute proposed preparation of a model penal code prior to 1931 and drafting began in the 1950s. nal Law, The Proposal to Prepare a Model Penal Code (June 1951). istration, which appeared to have an “age test for its judicial appointees”). 154 at, 226–27 (describing Judge Rakoff’s “radicalization” upon realizing that, at age 65, he would never be appointed to the appellate court by the Obama Admin- .org/media/filer_public/f5/6a/f56af0aa-719e-4cd8-b293-baccecc1163b/past_pre sent_aliprojects.pdf [https://perma.cc/9QRW-THCZ]. ALI produced four Restatements of drafts the Law of in 1923: Agency, Torts. Conflict of Laws, Contracts, and 39707-nys_72-2 Sheet No. 34 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 34 39707-nys_72-2 39707-nys_72-2 Sheet No. 35 Side A 01/15/2018 10:23:44 . 304 NN U.S. ROCE- , A EPORT- P N See ’ R IVIL OMM C C 1125, 1133–34 . EV HAIRS AND ULES OF and the Judicial C R . L. R 301 W ON 28 U.S.C. § 331 (2012). ENTENCING Given all of these ac- . N , http://www.uscourts.gov/ See 305 ROCEDURE OMM , http://www.americanbar.org/ U.S. S , 107 P N OURTS C ’ The Chief Justice, The Appointment of SS A U.S. C AR DVISORY , A . B , M RACTICE AND A P , 306 James E. Pfander, ULES OF See As of at least 1948, federal district court judges court district federal 1948, least at of As R 303 See Meeting Minutes and have participated in the ABA Criminal Justice 302 Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1837 28 U.S.C. § 331 (1948). The Judicial Conference has numerous sub- Committee Membership Selection OMMITTEES ON See See Criminal Justice Standards C . , Id Federal district court judges also may be following the example (Dec. 7, 1939), http://www.uscourts.gov/sites/default/files/fr_import/ 302. 301. The Supreme Court established a federal rules advisory committee in 306. I thank Gabriel “Jack” Chin for this point. 304. 28 USC § 292(a), (d) (1948). 305. 303. (2015), http://www.ussc.gov/about/annual-report/archive/annual-report- . (2016), http://www.uscourts.gov/sites/default/files/committee-roster.pdf (2016), OURTS EP R ERS C DURE 2015 [https://perma.cc/RDA5-KMZK]. Conference; ject-area committees, including a Committee on Criminal Law and a on Rules of Committee Practice and Procedure. The Chief Justice appoints judges to the com- mittees, which in turn are responsible for proposing policy positions on behalf of the Judicial Conference. Inferior Officers, and the “Court of Law” Requirement down by someone else. [https://perma.cc/5KU4-W84X]. have sat by designation on the United States Courts of Appeals. tivities, perhaps it is not surprising that at least some district judges have come to view themselves as responsible for more than finding facts, presiding over the occasional trial, and applying law handed set by federal appellate judges. This includes not only policy-mak- June 1935. Standards Project. Standards 2018] bers of the Federal Rules Advisory Committees THE “NEW” DISTRICT COURT ACTIVISMDistrict court judges also have been members of the U.S. Sentenc- ing Commission since its creation in 1984. 247 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 61 15-JAN-18 9:53 CV12-1939-min.pdf [https://perma.cc/NY2S-8CHF]. There are currently four thirty- district court Judges on the Federal Rules Advisory Committees. groups/criminal_justice/standards.html groups/criminal_justice/standards.html [https://perma.cc/DF85-BMS2] (noting that the initial volumes of the ABA Criminal Justice Standards were published 1968). in (1987). The Commission “was created by the Sentencing Reform Act provisions of the Comprehensive Crime Control Act of 1984.” (2013). These recommendations are presented to the Judicial Conference’s gov- erning board, which must approve them before they become official policy. governing The board is composed of twenty-seven federal judges, including the Chief Judges of each of the judicial circuits and the Court of one International Trade, district and court judge from each of the Circuits. rules-policies/about-rulemaking-process/committee-membership-selection [https://perma.cc/5QBA-AQK7]. A district judge served as a member of the advi- sory board in 1939. While the Chief Judges serve for the length court of representatives their serve terms for as terms Chief, not the less district years. than three but no more than five 39707-nys_72-2 Sheet No. 35 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 35 39707-nys_72-2 39707-nys_72-2 Sheet No. 35 Side B 01/15/2018 10:23:44 , 21 note Politi- (Jan. N.Y.L. EFORM R The ex- IMES supra , 51 311 Civility Among N.Y. T RISIS AND , : C Finkelman, some of which are see The Role of Dissenting Opin- OURTS 309 C Ethical Judicial Opinion Writing EDERAL but also the length and schol- F or their fellow judges. 307 HE Discovery from the Trenches: The Future of 310 , T 74, 85–86 (2013) (discussing retreat organized OSNER A. P note 222 at 548 (“The increase in the quality and quan- Seeking Better Legal Help for Immigrants ISCOURSE The opinions’ personal tone and the frankness . D 237, 254 (2008) (“[B]etween 1960 and 1980, the average supra EV . 1 (2010) (on the history and significance of opinion writing ICHARD 308 R EV R , Laurie L. Levenson, (noting that judges who “disagree with Congress’s choice . . . are , , Yates v. United States, 135 S. Ct. 1074, 1101 (2015) (Kagan, J., , Utah v. Strieff, 136 S. Ct. 2056, 2065–71 (2016) (Sotomayor, J., THICS E . L. R Posner, . 907 (2007) (tracing the rhetorical excesses of Justice Scalia since his INN See, e.g. See, e.g. See, e.g. See See, e.g. EGAL EV M see also id. 307. 310. 309. 308. 311. . J. L . L. R , 95 EO CH Brady, 60 UCLA L. S arly aspirations of some of the “new” activist opinions, which reflect a shift in judicial writing styles that is traceable Supreme Court. all the way to the explicitly explicitly disdainful of Congress with which they criticize fellow institutional actors also are tent consis- with opinions by higher-ranked judges, 232–33 (1985) (noting the “increasingly common manifestation of excessive judi- cial self-assertion” in the leagues “abuse—often . shrill, . . sometimes [which] nasty—of figure concurring opinions but in majority ever opinions as one’s well, now that it more is the fashion for col- prominently not only the in author of dissenting the majority and opinion, usually in footnotes, Newman, A. Stephen to opinion)”); concurring a even sometimes (and opinion attack the dissenting cal Advocacy on the Supreme Court: The Damaging Rhetoric of Antonin Scalia practices in the United States, as distinct from civil law countries). G 248ing efforts at the courthouse-level, NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:187 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 62 15-JAN-18 9:53 average number of footnotes increased from 3.8 to 7; and the average number of citations rose from 12.4 to 24.7.”). length of federal court of appeals opinions increased from 2863 to 4020 words; the by the Ninth Circuit to repair the relationship between U.S. Attorneys and Federal Defenders); Kirk Semple, 28, 2014), https://www.nytimes.com/2014/01/29/nyregion/service-program-will- recruit-law-school-graduates-to-help-represent-immigrants.html [https://perma Chief Katzmann, A. Robert by spearheaded initiative (describing .cc/V6DK-Z9AW] Judge of the U.S. Court of Appeals for the Second Circuit, to provide representa- tion for immigrants facing deportation). dissenting) (describing a statutory provision as “bad law” which “is unfortunately not an outlier, but an code”); emblem of a deeper pathology perfectly entitled to in say so—in lectures, the in law review articles, and federal even in dicta”). criminal dissenting) (speaking in an intensely personal tone about the indignity and severe consequences of the police stops authorized by the majority opinion). On the his- tory of opinion writing practices at the Supreme Court, 606–07at 221 discouraged which Court, Supreme the of practices early (discussing separate opinion writing); Hon. Ruth Bader Ginsburg, ions appointment to the Supreme Court in 1986); William G. Ross, tity of the Supreme Court’s staff (mainly law clerks) in recent decades, combined with the appointment to the Court mainly of former judges, and the steep reduc- to Court modern the enabled has hears, Court the that cases of number the in tion produce opinions that have a glossier patina of legal scholarship than the opinions of their predecessors.”); Gerald Lebovits et al., 39707-nys_72-2 Sheet No. 35 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 35 39707-nys_72-2 39707-nys_72-2 Sheet No. 36 Side A 01/15/2018 10:23:44 . , , EV (C- . L. R (Dec. 2, LA F (CBS News IMES , 51 (June 24, 2016), (Sept. 12, 2015), N.Y. T , LATE L.J. S L ’ , AT Inside the Supreme Court N , (Sept. 19, 2016), http://www . J. T S even regarding controversial le- ALL (Nov. 30, 2016), http://www.national- W Judicial Ethics: The Less-Often Asked Questions Asked Less-Often The Ethics: Judicial 312 , L.J. L ’ AT Judge Posner Slams ‘Stupid’ Decisions by Chief Justice N , 60 Minutes: The Execution of Joseph Wood Since judges operate within a set of norms Justice Scalia’s Majoritarian Theocracy The Academy is Out of Its Depth 313 , Tony Mauro, , Andrew L. Kaufman, Kaufman, L. Andrew , 851, 867 (1989) (expressing concern about “the increasing num- . Ruth Bader Ginsburg, No Fan of Donald Trump, Critiques Latest Term EV (July 10, 2016), http://www.nytimes.com/2016/07/11/us/politics/ See, e.g. See, e.g. See, . L. R Q&A: Justice Breyer’s Interview With The NLJ IMES ASH 312. 313. W gal or political issues. http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/ 2016/supreme_court_breakfast_table_for_june_2016/law_school_professors_ need_more_practical_experience.html [https://perma.cc/CU5F-8VU6] (criticiz- ing law school hiring practices, the uniformity of the Supreme Court Justices, and the application of the Constitution to modern times); SPAN television broadcast Feb. 3, 2016) (interviewing Chief Justice John Roberts regarding his view that the current Posner A. Richard Senate); the of divisiveness political the to Supreme due well” functioning Court nomination “process is not & Eric J. Segall, Opinion, opposition to the use of lethal injection in administering the death penalty); Tony Mauro, 2015), http://www.nytimes.com/2015/12/03/opinion/justice-scalias- majoritarian-theocracy.html?smid=tw-share&_r=5&mtrref=undefined&gwh= B211950D6FDB644BDFC8647CB42961E5&gwt=pay&assetType=opinion [https:// perma.cc/54HF-WEU3] (criticizing former Scalia’s views on gay Supreme rights); Court television broadcast Nov. Justice 29, 2015) (interviewing Judge Antonin Alex Kozinski about his Roberts, ‘Silly” Stances By Scalia N.Y. T 2018]are also judges activist “new” the of writings and speeches trajudicial consistent with the examples set by members of the Supreme Court THE “NEW” DISTRICT COURT ACTIVISMand the Courts of Appeals, many of whom have licly-facing embraced version a of their pub- role, 249 Judges: Charting the Bounds of Proper Criticism by Judges of Other Judges 957, 958 (1999) (noting the “apparent increase starting in with those acerbity of members in of written the U.S. opinions, Supreme Court”). \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 63 15-JAN-18 9:53 ber of articles and speeches by judges, especially Supreme which Court they Justices discuss . all . . sorts in of issues discuss that also the seem views and likely foibles of to their colleagues”). come before them and lawjournal.com/id=1202773466396/Judge-Posner-Slams-Stupid-Decisions-by- Chief-Justice-Roberts-Silly-Stances-by-Scalia [https://perma.cc/T445-S56N] cussing (dis- a video of Judge Posner criticizing certain Supreme Court how Chief decisions Justice Roberts manages and the federal judiciary); Alex Kozinski, Opinion, Rejecting Voodoo Science in the Courtroom 64 .wsj.com/articles/rejecting-voodoo-science-in-the-courtroom-1474328199 .wsj.com/articles/rejecting-voodoo-science-in-the-courtroom-1474328199 [https:/ /perma.cc/TDU2-DWYJ] (recommending that the court system adopt standards to validate forensic evidence given that current methods are generally unreliable); Adam Liptak, http://www.nationallawjournal.com/id=1202736925982/QampA-Justice-Breyers- Interview-With-The-NLJ [https://perma.cc/6FBX-FMAJ] Breyer about (interviewing issues including capital punishment). Justice ruth-bader-ginsburg-no-fan-of-donald-trump-critiques-latest-term.html ruth-bader-ginsburg-no-fan-of-donald-trump-critiques-latest-term.html [https:// perma.cc/P5BJ-PBLR] (quoting Justice Ginsburg criticizing then-presidential can- didate Donald Trump, chastising the Senate’s failure to act on President Obama’s Supreme Court nominee, and commenting Hon. on Richard specific A. Posner, Supreme Court cases); 39707-nys_72-2 Sheet No. 36 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 36 39707-nys_72-2 39707-nys_72-2 Sheet No. 36 Side B 01/15/2018 10:23:44 316 315 . L.J. 165 . R. MORY E ENT A Trial Judge’s . S , 58 sua sponte ED F 28 This increased ease 317 257, 262 (H.P. Lee ed., 2011) 1281, 1282 (1952) (“[W]hat transpires Charles E. Wyzanski, Jr., . See ERSPECTIVE EV P The Criticism and Speech of Judges in the United at 1303. . L. R Id. ARV H note 298, at 438 (noting that the Sentencing Commis- An Intellectual History of Judicial Activism OMPARATIVE , 65 C supra 4. The New Media Environment 314 Craig Green, Charles Gardner Geyh, Gertner, UDICIARIES IN See See See J in Fourth, the new media environment, and the extent to which it which to extent the and environment, media new the Fourth, , Judicial Discretion in Federal Sentencing—Real of Imagined? 314. 315. 317. 316. Since some district court judges might find the activities of other district of access to the public domain may be enough judges to to persuade speak or some publish where previously they might not. York suggests—the increased availability of judges’ opinions, facilitates facilitates dissemination of information about court activism, may be playing the a role in fueling “new” its rise. Although a district judge’s closest peers still may wield the most influence—as the con- centration of “new” activist decisions in the Eastern District of New role, following whatever principles they find applicable, and mimicking whatever role models they find appropriate. Over time, judges’ ideas about judging morph to accommodate lived experience, and so the wheel turns.”). statements, and writings may be making it easier for litigants to find examples they can cite when asking other judges to follow suit, or inspiring some judges to engage Judges in who seek to influence similar public policy—even if activity only indirectly by cultivating public opinion—now have many more means to get their message out than in the more limited media environment of the past. They are not dependent upon established media organiza- tions or on official government publications. judicial of views own their applying by job their do judges (“New (2009) 1225 1195, 250that are fluid and indeterminate, there is ample room for influence NYUby ANNUALother judges. SURVEY OF AMERICAN LAW [Vol. 72:187 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 64 15-JAN-18 9:53 States in trial courts is not readily available. One man knows the practices only of his own and perhaps a few other courts.”). Nevertheless, he noted that trial court practices, if they “win approval and imitation by other similarly circumstanced courts,” over time take on the quality of law. (“[T]he Internet has enabled information about judicial decisions to be communi- cated quickly and unfiltered. Controversial decisions by remote courts that would communi- be can media traditional through attention national to come have never cated instantaneously to a worldwide audience.”). court judges most influential, it is particularly significant that such information is increasingly accessible. Writing in 1952, Judge Charles Wyzanski of the federal Dis- trict Court in Massachusetts noted the limitations on judges’ ability to learn about the practices of judges in other districts. (2016) (noting that the Sentencing Commission web site only publishes proposals for new Guidelines, not proposals for new programs like the “[i]mportant pre-trial diversion and reentry programs [that] are cropping up around the country”). sion “only posts the decisions of the appellate courts on its website”); Nancy Gert- ner, Freedom and Responsibility 39707-nys_72-2 Sheet No. 36 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 36 39707-nys_72-2 39707-nys_72-2 Sheet No. 37 Side A 01/15/2018 10:23:44 , CNN (Apr. 27. , http://www.uscourts OURTS U.S. C , No. 16-1436 (U.S. June 26, 2017) , * * * (as federal courts always are) and that At the same time, the first few months 320 319 Trump Again Thunders Against Judiciary Justice Department to End Partnership With Forensic Science no matter how solid their legal reasoning. The new The reasoning. legal their solid how matter no vacated and remanded as moot , Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 591–92 , Memorandum from Jeffrey Sessions, Att’y Gen., to All Fed. Pros- 321 David Wright, See, e.g. See See, e.g. there may be a temptation for judges to speak out further. See Judgeship Appointments by President 318 In sum, there are a variety of plausible reasons for the “new” , UPI (Apr. 10, 2017), http://www.upi.com/Top_News/US/2017/04/10/Jus- 318. 319. President Obama appointed 270 judges to the United States District 321. 320. district court activism of the past decade, some of which tinue to be present in the years to come. As the new Administration will con- begins to implement its own criminal justice some cases policy reversing initiatives, favored initiatives in of the Obama Administra- tion, their legitimacy will be attacked whenever wishes, dent’s they thwart the Presi- of the Trump Administration suggest that called upon federal for the judges foreseeable future will to adjudicate be challenges to Executive branch policies 2018] THE “NEW” DISTRICT COURT ACTIVISM 251 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 65 15-JAN-18 9:53 for some of the Obama appointees who will soon be entering their second decade of service. This may be particularly so not herein only as “new” for activist judges those who remain already on the bench, identified but also Panel tice-Department-to-end-partnership-with-forensic-science-panel/6451491836304/ an- Sessions Jeff General Attorney that (reporting [https://perma.cc/8CHN-Y3BY] nounced that the Justice Department would not National Commission renew on its Forensic Science). partnership with the Courts. ecutors, Department Charging and Sentencing Policy (May 10, 2017) (rescinding Obama-era policies and instructing prosecutors to “charge and serious, pursue the readily most provable offense,” which “[b]y carry definition,” the includes most “those substantial that guidelines sentences”); sentence, Allen including Cone, mandatory minimum temporary restraining order on Executive Order 13769, as it would “substantially injure” plaintiffs if put into effect); Cty. of Santa Clara v. Trump, No. 17-CV-00485, 2017 WL 1459081, at *23 (N.D. Cal. Apr. 25, 2017) (Orrick, J.) (enjoining enforce- ment of Executive Order 13768, “Enhancing Public Safety in the United States,” Interior which purports of to the prevent “sanctuary jurisdictions,” considering it “unconstitutionally coercive”). .gov/sites/default/files/apptsbypres.pdf .gov/sites/default/files/apptsbypres.pdf [https://perma.cc/TG4G-XJ7R]. (4th Cir. 2017), (upholding a nationwide injunction of President Trump’s Executive Order 13769, “Protecting the Nation From Foreign Terrorist Entry Into the part United because States,” of in ample evidence that the government’s actions legitimate” were based on statements not suggesting a “facially Muslim-ban); Washington v. Trump, 847 F.3d 1151, 1169 (9th Cir. 2017) (denying the government’s motion to stay the 2017), http://www.cnn.com/2017/04/26/politics/trump-tweets-ninth-circuit- sanctuary-cities-order/index.html [https://perma.cc/TSN6-HLEV] Donald (“President Trump is again attacking the federal judiciary, this time denouncing a 39707-nys_72-2 Sheet No. 37 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 37 39707-nys_72-2 39707-nys_72-2 Sheet No. 37 Side B 01/15/2018 10:23:44 U.S. , (Feb. 5, (Feb. 4, , which es- NTREPRENEUR- WITTER WITTER E T T so-called judge UDICIAL 5 (1997) (defining an See Judicial Vacancies , J DEAS ATES I America’s Trial Court Judges: Our L. C (Apr. 26, 2017), https://www.wash- Cognizant of this new political OST 322 YNTHIA IV. . P ARKETPLACE OF These are roles that appellate judges ASH & C ACTIVISM M 323 W (May 6, 2016), https://www.nytimes.com/2016/ , NTOSH IMES I C UDGE IN J All the Times Trump Personally Attacked Judges—and Why His , Donald J. Trump, @realDonaldTrump, N.Y. T V. M , Shira A. Scheindlin, Opinion, See see, e.g. AYNE W OLE OF THE A. The Value of the “New” District Court Activism EVALUATING EVALUATING THE “NEW” DISTRICT COURT See R , http://www.uscourts.gov/judges-judgeships/judicial-vacancies [https:// HE The “new” district court activism is valuable in many respects. 322. This President may appoint as many as 130 district court judges over the 323. : T OURTS First, through their judicial quasi-legislative activity, these judges opinions, have been contributing to the extrajudicial speech, and marketplace of ideas and branches providing of accountability government in to the spirit the of from ages past and present. “entrepreneurial other judges” SHIP C environment, environment, the next section analyzes the value and “new” risks district of court activism. the sentially takes law-enforcement away from our country, is overturned!”) (emphasis ridiculous added). and will be next four years. have played for generations opinions) (often and in they dissenting have or long been concurring celebrated in our legal cul- perma.cc/MY55-WQMX]. ruling that halted implementation of an executive order targeting ‘sanctuary’ cit- ies.”); Kristine Phillips, Tirades Are ‘Worse Than Wrong’ 252 President also will have NYU the opportunity new ANNUAL federal district to court judges. appoint SURVEY hundreds of OF AMERICAN LAW [Vol. 72:187 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 66 15-JAN-18 9:53 Front Line for Justice entrepreneurial judge as “one who is alert to the opportunity for innovation, who is willing to invest the resources and assume the velop risks necessary a to genuinely offer unique and de- legal concept, and written who word to must undertake change”) strategically (emphasis omitted). employ the perma.cc/9C94-YG79]. As of October 12, 2017, there were 120 District vacancies Courts and twenty-one on the Courts on of Appeals. the tacked-judges-and-why-his-tirades-are-worse-than-wrong/?utm_term=.3b983eeb3d dd [https://perma.cc/K24A-HBUT] (listing the incidents where tacked Trump judges); has at- 05/07/opinion/americas-trial-court-judges-our-front-line-for-justice.html [https:// ingtonpost.com/news/the-fix/wp/2017/04/26/all-the-times-trump-personally-at- 2017, 5:12 AM), https://twitter.com/realDonaldTrump/status/82786731105497 4976 [https://perma.cc/3JPJ-3C7G] (“The opinion of this 2017, 12:39 PM), https://twitter.com/realDonaldTrump/status/82834220217466 8800 [https://perma.cc/9D6G-HTGB] (“Just cannot believe a our country in such peril. If something judge happens blame him and court system. Peo- would put ple pouring in. Bad!”); Donald J. Trump, @realDonaldTrump, 39707-nys_72-2 Sheet No. 37 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 37 39707-nys_72-2 39707-nys_72-2 Sheet No. 38 Side A 01/15/2018 10:23:44 L.J. See Federal ASTINGS H , 37 at 144 (separate opin- id. . 133, 133–34 (1990) (dis- EV Even when a case is ap- . L. R 325 ASH , http://www.uscourts.gov/statistics-re- In Defense of Dissents W , 65 OURTS U.S. C , , William J. Brennan, Jr., Remarks on Writing Separately See, e.g. When it comes to criminal justice issues, district court 324 324. 325. For example, in the twelve-month period ending March 31, 2015, there judgment of other institutional actors can shape future behavior. pealed, review is often limited and invariably will be based on a cold a on based be will invariably and limited often is review pealed, record that captures only a fraction of what transpired below. cause Be- many trial judges are drawn from the legal community over which they preside, and frequently are alumni of the local prosecu- tor’s office, they are well situated the on been has who judge trial a when Thus, credibility. with speak to assess issues in context and bench many years describes counters, the a judge speaks with problem a special based expertise that we on heed. The same is should true when the judge identifies an innovation that repeated en- could address the problem. Even when the judges are powerless to effect any change on their own, calling out the folly or errors of criticism of legislative judgments that require us to wrong”); United States v. uphold Then, 56 F.3d results 464, 466 n.1 we (2d Cir. 1995) think (Calabresi, J., are concurring) (“The tradition of courts engaging in dialogue with legislatures is too well-established in this and other courts to disregard.”). were 10,654 criminal appeals filed in the federal courts of appeals, out of a total of criminal 80,081 were there period, same the During (19.64%). filed appeals 54,244 filings in the district courts, out of a total of 361,689 Judicial filings Caseload Statistics (22.14%). 2015 cussing that “[s]eparate opinions in intermediate appellate alert courts function,” can for serve reviewing an courts, charting where appeal is of right or signaling “that the case “alternative is troubling and perhaps worthy grounds of decision” of a place on its calendar” where review is discretionary); ions also can serve “as a call for rectification by non-judicial hands”) (internal cita- tions omitted); United States (Calabresi, v. J., concurring) Ingram, (“[W]e judges 721 have a F.3d right—a duty 35, even—to express 43 n.9 (2d Cir. 2013) 427, 435 (1986) (“Dissents contribute to the integrity of the process, not directing only by attention but, . . . also by contributing to the marketplace of competing ideas.”); Ruth Bader to perceived Ginsburg, difficulties with the majority’s opinion, 2018]ture. THE “NEW” DISTRICT COURT ACTIVISM 253 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 67 15-JAN-18 9:53 are never heard on appeal, trial judges are the only judges who will interact with the facts and the parties. judges judges are, in many ways, better situated than any other type of fed- eral judge to contribute new ideas and informed insights the on system is how working and could be improved. In a world in which the overwhelming majority of criminal cases are resolved by a guilty plea—thereby limiting any judicial judge involvement is still more likely at than any other all—thejudge to glean meaningful trial information from each case and cumulatively to sues, including those with a local twist. Because many criminal cases spot systemic is- ports/federal-judicial-caseload-statistics-2015 [https://perma.cc/5XUB-YAAZ]. 39707-nys_72-2 Sheet No. 38 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 38 39707-nys_72-2 39707-nys_72-2 Sheet No. 38 Side B 01/15/2018 10:23:44 , 32 The 327 Judicial Speech and note 109, at 529–30 331 and otherwise “par- supra The Structure of Federal Public 328 335, 358–59 (2017) (describ- . Id. EV Canon 4. Stephen Reinhart, . L. R acknowledges the special value UDGES 805, 806–07 (1995) (suggesting that judges 329 . see also ORNELL , David E. Patton, EV C The Ascent of the Administrative State and the Demise U.S. J See, e.g. , 102 As former Judge Nancy Gertner has written, 1332, 1359 (2008) (noting “the powerful groups uni- . To Speak or Not To Speak: Musings on Judicial Silence . L.A. L. R EV 326 OY L ONDUCT FOR . L. R C note 3. , Rachel Barkow, , 28 . 1147, 1160 (2004); ARV EV H Canon 4(A)(1). commentary to Canon 4. Thus, judges are “encouraged” to engage in ODE OF C See, e.g. Id. Id. See supra It was this Commentary that Judge Rakoff cited in his L. R , 121 330 Second, the “new” judicial activism in fact has achieved mean- It is particularly important that Article III judges, who enjoy 326. 328. 329. 330. 327. Nancy Gertner, 331. OFSTRA lecture, and teach” on law-related subjects, Code of Conduct for United States Judges, which expressly allows judges to engage in “extrajudicial activities,” and to “speak, write, that judges brings to law reform efforts, “including revising substan- tive and procedural law and improving criminal and tice.” juvenile jus- Defense: A Call for Independence this part of the judicial role—i.e., “[e]ducation of officials”—isthe public so and important that arguably it should avocational “move aspect of from the job an to part of its central mission.” ticipate in other activities concerning the law, the legal system, and the administration of justice,” ingful reform in numerous tangible ways. For discovery rules example, and orders the discussed above local have changed the prac- tices in scores of districts, providing criminal defendants with ear- lier and more meaningful discovery than they are entitled to under life tenure, engage with issues affecting groups politically like criminal defendants, disempowered because no other institutional ac- tor is likely to do so. of Mercy H 254 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:187 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 68 15-JAN-18 9:53 should be able to say “to the general public legal that elite”). which are willing to say to the Harvard Law School speech when he suggested that judges “have a special duty to be heard” on mass incarceration. ing dramatic cuts in staffing that public make under the defender federal budget organizations cuts known were as “sequestration” forced in 2013). to the Open Judiciary formly line up in favor of greater government power and harsher penalties” such that the “[t]he process that produces criminal laws is far example less the one balanced” producing administrative law); than Stuntz, for (noting the historical absence of private intermediaries to “monitor the [criminal] law’s content and mobilize interested voters” and the dominant influence on legis- lators of prosecutors and police). Defense lawyers, particularly public defenders or appointed attorneys who are constantly under threat of losing funding, are unable to play this role as effectively. such activities, “either independently or through a bar association, judicial confer- ence, or other organization dedicated to the law.” 39707-nys_72-2 Sheet No. 38 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 38 39707-nys_72-2 39707-nys_72-2 Sheet No. 39 Side A 01/15/2018 10:23:44 U.S. , (filed 335 Pretrial Services— note 104. the Eastern District opinion, have had a United States v. Dossie supra This is immediately im- has spawned a wave of ap- 332 Nesbeth Nesbeth, The same is true regarding 336 Holloway see also Table H-1. U.S. District Courts—PretrialDistrict U.S. H-1. Table also see , , http://www.uscourts.gov/statistics-reports/ supra OURTS Part II.A.3; Part and Judge Block’s Like the discovery innovations, these programs U.S. C , 334 333 Part II.B.3. notes 140–43 and accompanying text. Telephone Interview with Eileen Kelly, decision, See supra supra generally See See supra See , http://www.uscourts.gov/sites/default/files/data_tables/jb_na_pre_ Other effects are harder to determine with precision, but the 332. 333. 334. 335. 336. For example, Attorney General Holder restricted the charging of the OURTS Judicial Business 2016 C restart their lives. plications by similarly situated defendants across the country, some of which have been granted. Following of New York Probation quences analysis Office in all subsequent has Pre-Sentence Reports. included a collateral conse- pactful in those districts. It also holds the potential to be impactful on a broader scale, especially if prosecutors in those districts the with more demanding rules grow comfortable that not these adversely rules affect do their ability to do larly, the local diversionary programs their that judges have developed in jobs effectively. Simi- their districts have benefited hundreds of individuals, giving them the opportunity to gain treatment rather than incarceration and changes of policy (at least as formally announced) at DOJ and the have the potential for even wider impact if they are smaller successful. ways, innovations In by individual judges like Judge Gleeson’s Holloway most overt criticisms—including the fil- and sentences, minimum mandatory carrying crimes of charging new policies on ing discovery, of prior felony informations. concrete effect. As noted circumstantial evidence of them is compelling. timing For of example, important policy the changes by the Obama Department Justice of correlate strongly with some of the “new” judicial activists’ Services Cases Activated During the 12-Month Period Ending September 30, 2016 0930.2016.pdf [https://perma.cc/YC2Y-UL8Z] (listing 598 total pretrial diversion cases by circuit and district court during calendar year 2016); 2018] federal law, a goal that many have long believed fairness will and reliability increase of THE the criminal “NEW” trials. DISTRICT COURT ACTIVISM 255 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 69 15-JAN-18 9:53 and 2016). harshest mandatory minimum sentences on August 12, 2013, less after Judge Gleeson expressly called on than him to do so in one year March 30, 2012). Holder then clarified that a defendant’s decision to was not go a valid reason to to file trial a prior felony information in a memo dated Septem- ber 24, 2014, less than one year after Judge Gleeson excoriated that practice in his Kupa decision, filed on October 9, 2013. pretrial-services-judicial-business-2016 [https://perma.cc/LGE2-FDKH] (provid- ing a summary of pretrial services cases, including diversion cases, between 2012 39707-nys_72-2 Sheet No. 39 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 39 39707-nys_72-2 39707-nys_72-2 Sheet No. 39 Side B 01/15/2018 10:23:44 Bank UIDE- , 103 G note 295 supra Admit It! Corporate MENDMENTS TO THE ., A N ’ Jason E. Siegel, OMM C But see ENTENCING As discussed above in Part III.B.2, broader Will Goldman Plead to a Lesser Charge? Beware the ‘Rakoff the Beware Charge? Lesser a to Plead Goldman Will 338 U.S. S (May 28, 2010, 2:46 PM), https://blogs.wsj.com/deals/ LOG , Fair Sentencing Act of 2010, Pub. L. 111-220, 124 Stat. 2372 . J. B http://www.ussc.gov/guidelines/amendments http://www.ussc.gov/guidelines/amendments [https://perma.cc/ T , S See, e.g. ); Michael Corkery, Michael ); ALL 433, 439 (2015) (noting “at least seven other federal judges questioned Of course, some of these changes could reflect correlation ANUAL W , M 337 337. 338. For example, although numerous commentators have pointed to a . L.J. EO LINES Effect’ cultural shifts have been at work, which may tions explain by fully Congress the or Executive ac- branch actors, or alternatively why they were particularly receptive to the “new” judicial activists’ calls. But it is hard not to come away with the impression that the “new” these on needle the moving for credit some deserve activists judicial issues. or refused to approve SEC settlements” following Judge Rakoff’s decision in America of fenses by producing an 18-to-1, instead quantity ratio, and eliminating mandatory minimum of sentences for the simple pos- 100-to-1, crack-to-powder ratio drug session of crack cocaine); (reducing the sentencing disparity between crack cocaine and powder cocaine of- G atic. 256 SEC regarding NYU corporate though ANNUAL the and SURVEY “new” activist OF judges white-collar were cases AMERICAN reversed (for example, prosecutions. when in they LAW refused some to approve Even of a DPA), no these one likes to be embarrassed. The judges’ opinions and [Vol. extrajudicial ac- 72:187 tivity also may have emboldened some individual prosecutors and regulators to explore new During and the past tougher decade, both enforcement Congress and strategies. Commission also took steps to ameliorate some of the issues related the U.S. Sentencing to sentencing identified by the “new” judicial activists as problem- \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 70 15-JAN-18 9:53 2010/05/28/will-goldman-plead-to-a-lesser-charge-beware-the-rakoff-effect [https://perma.cc/NAU5-7YAH] (describing the possibility of the “Rakoff Effect” on Goldman Sachs Group’s settlement negotiations with the SEC). that could strengthen the (quoting SEC’s SEC enforcement Chair Mary hand.” Jo Stewart, White). Admissions of Wrongdoing in SEC Settlements: Evaluating Collateral Estoppel Effects V2DX-AQJ4] (amending the Sentencing Guidelines to broaden compassionate re- lease requirements for prisoners, adjust monetary penalty tables for inflation, pro- vide additional guidance as to whether a mitigating role adjustment should apply, and reduce the cumulative impact of a defendant’s prior sentences). “Rakoff effect” to explain the SEC’s change in policy to require that admit wrongdoers misconduct more frequently, SEC Judge Rakoff’s Chair decisions were Mary responsible for the Jo shift. She White stated, “Judge Rakoff disclaimed and other judges put this issue that more in the public eye, but it wasn’t his comments that precipitated the change . . . . I’ve lived with this issue for a long time [includ- ing as a prosecutor], and I decided it was something that we should review, and rather than causation. 39707-nys_72-2 Sheet No. 39 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 39 39707-nys_72-2 39707-nys_72-2 Sheet No. 40 Side A 01/15/2018 10:23:44 , 83 decade that is the Booker , it is unusual and chal- infra 345 F. Supp. 2d 1227 (D. Utah 2004) (Cassell, Social Influence, Social Meaning, and Deterrence , 342 by then-District Court Judge Paul Cassell, who Part IV.B. , Dan M. Kahan, 341 at 1261. 349, 362–64 (1997) (discussing the expressive value of various behav- A poignant, self-conscious example may be found in a . Id. See infra See, e.g. This case is different. It involves a first offender who will Having disposed of the legal arguments in this case, it EV By speaking out publicly, and in some instances with moral 340 Third, Third, there is expressive value to the “new” district court activ- 339 342. 340. 341. United States v. Angelos 339. But even in those cases, the sentences seemed to be within the realm of reason. receive a life sentence for crimes offenders—includingother many by committed far offend- violent less serious than those ers and even a murderer—who have been before me. For the reasons explained in my opinion, I am legally obligated to im- pose this sentence. But I feel ethically obligated to bring injustice to this the attention of those who are in a position to something do about it. seems appropriate to make some concluding, personal obser- vations. I have been on the bench for nearly two-and-half years now. During that time, I have sentenced several fenders hundred of- under mandatory minimum the statutes. By and Sentencing large, have been the required to sentences impose Guidelines have I been tough but fair. few In cases, a and to be sure, I have felt that federal either the the Guidelines or mandatory minimums produced excessive punishment. . L. R A focus of this Article, demonstrating that strains of the “new” judicial activism, espe- cially regarding sentencing, were present earlier—and lines the when charting difficulty judicial trends. of drawing ism. iors in different contexts, depending behavior). on the social meaning attached to that J.). Judge Cassell’s opinion in Angelos precedes the post- rily mandated sentence of fifty-five years’ imprisonment for stacked Section 924(c) gun charges. In a final section of his three lengthy opinion, entitled “Recommendations to Other Branches of Govern- ment,” Judge Cassell wrote: served only five years on the bench, in which he discussed a statuto- V 2018] THE “NEW” DISTRICT COURT ACTIVISM 257 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 71 15-JAN-18 9:53 2004 opinion outrage, outrage, the judges signal the importance of the identified. issues The they expressive have value of their speech precisely is because, as high, discussed further however, lenges conventional norms judge. about the appropriate role of the 39707-nys_72-2 Sheet No. 40 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 40 39707-nys_72-2 39707-nys_72-2 Sheet No. 40 Side B 01/15/2018 10:23:44 T. 345 . L. supra LA USTICE F OOPERA- J or em- C 465, 467 NTHONY . 12 (1993); , 65 347 A EV UBLIC RIMINAL P When a judge C 1442, 1443 (1983) . L. R see also ROFESSION AL 346 P L.J. C Simon & Sidner, note 51 (quoting Judge ALE EGAL Y , 76 L NCOURAGING see also supra ACHINERY OF 344 , 92 : E M AW L HE 766, 769 (1983); . EV , T DEALS OF THE I 101–38 (2002) (“[P]eople generalize from IBAS . L. R Legal Realism Now The Dimensions of Judicial Impartiality B D The speech also may have expressive RUST IN THE M AILING OURTS The Problem with the Courts: Black-Robed Bureaucracy, or Bureaucracy, Black-Robed Courts: the with Problem The 343 , T note 327, at 811 (stating that perpetuating “the illu- : F C UO ?, 42 TEPHANOS supra S AWYER J. H L UEN OLICE AND OST P L The Bureaucratization of the Judiciary & Y Patricia M. Wald, M. Patricia Reinhart, HE See See See generally YLER , T Fourth, there is something to be said for judges setting forth Such Such expressions of outrage or despair may be significant not 344. 347. 343. 345. Joseph William Singer, 346. Charles Gardner Geyh, R. T . 493, 510 (2014). EV OM RONMAN note 51 (quoting an individual who was sentenced in federal court for a drug K offense, who “took comfort” from the judge’s remarks at sentencing that the judge considered the mandatory sentence too harsh). Collegiality Under Challenge R TION WITH THE speaks or writes in a public forum, their we tone, and take can appropriate remedial evaluate action if necessary, the such remarks, as seeking disqualification in future cases or even tion. disciplinary ac- This may be preferable to a judge remaining silent value for the individual judge who engages in it and thereby affirms his or her own continued moral agency. sion that a connection exists between judicial silence and neutral decision-making [ ] may compromise our integrity in the eyes “judges possess of values, the ideals, people” and who philosophies” recognize and that may be “suspicious of who those deny this fact”). their views transparently. Since “[w]e are all legal realists now” only only to the other institutional actors members who of register Congress them, and the such Executive as Branch, very but specific also audience to involved the in a case who charged such it. as They may the be prosecutors valuable to the defendant, some humanity injecting into a process that otherwise can be highly imper- sonal and bureaucratic. T notwithstanding notwithstanding Chief Justice Roberts’ statement at his tion hearing, confirma- we understand that no judge is completely impartial in the sense of having no question ideological is or not policy who preferences. is The a perfectly Geyh impartial has judge, suggested, but who as is Charles “impartial enough.” (2012) (describing the increased mechanization of the criminal justice system); 258 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:187 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 72 15-JAN-18 9:53 their personal experiences with police officers and judges to form views about their the broader law and about their community.”); Owen M. Fiss, carry around”). (1988). (“[B]ureaucratization tends to corrode the individualistic processes that source are of the judicial legitimacy.”); Simon & Mark Bennett Sidner, as stating he “couldn’t live with myself if I didn’t speak out . . . . The burden of having given so many unjust sentences is a very heavy thing for me to 39707-nys_72-2 Sheet No. 40 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 40 39707-nys_72-2 39707-nys_72-2 Sheet No. 41 Side A 01/15/2018 10:23:44 OF- . 1, H . L , 32 RIM see also supra . J. C M A , 36 thus “tear[ing] the 85 (1997); 352 . 1483, 1483 (2004) (describ- (2004) 1483 1483, . EV ONGRESS L. R L. & C A Judge, a Renomination and the Cross-Burn- OFSTRA How Mandatory Are Mandatory Minimums? OURTS H (May 28, 2003), http://www.nytimes.com/ , C , 32 , but it is worth noting that such a devel- IMES 350 ATZMANN B. Reasons for Concern N.Y. T or ex parte conversations with litigants or gov- or litigants with conversations parte ex or , A Meditation on the First Principles of Judicial Ethics 348 A. K 349 , Nathan Greenblatt, , In re Charges of Judicial Misconduct, 769 F.3d 762 (D.C. Cir. OBERT R Defense-Oriented Judges Defense-Oriented 1227, 1241 (2004). . an actor “with a project, an agenda,” See, e.g. See, e.g. EV 351 However, However, there are also reasons to take a hard look at the Second, the norm that historically has kept this kind of speech 349. 348. 350. As Judge Robert Katzmann observed (before he became a judge on the 351. Charles Fried, L. R note 298 and accompanying text, discussing other career-related reasons for rarity. If it were to become the new norm, pate. that For value a would dissi- variety of reasons, it would become pervasive, seems unlikely that such speech “new” judicial activism, at least in some of of value expressive the its First, widespread. too become to it were cern forms, and for con- its on precisely depends issues charged politically on speech judicial STRA opment would not necessarily be desirable. rare is grounded in important Charles Fried judicial has written, values. when a As judge appears former contentious to Judge take issues, sides the on judge cian,” starts to look “more like a politi- ernmental ernmental actors. one of the difficulties presented was compiling said). an accurate record of what she 2014) (finding no ethics violation in a case brought against Fifth Circuit Court of Appeals Judge Edith Jones based on a speech she gave at a law school about death penalty litigation, where there was no transcript, recording, or prepared text, and 2018] ploying less scrutable methods in the service of desired ends, such lecture private a as THE “NEW” DISTRICT COURT ACTIVISM 259 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 73 15-JAN-18 9:53 to a high-ranking official at the Department of Justice). United States Court of Appeals for the Second Circuit), federal have judges been hesitant generally to opine on policy issues and legislation out of concern about the courts’ legitimacy and “the need to avoid prejudging issues that before them.” might come 2003/05/28/us/a-judge-a-renomination-and-the-cross-burning-case-that-won-t-end .html [https://perma.cc/9D7A-7463] (describing various actions District Judge taken Charles W. Pickering, Sr., by of Federal District Court U.S. in Louisiana, to persuade prosecutors to lower charges in a case, including an ex parte phone call ing practice of “back-rooming cases”—i.e., “informally seek[ing] a favorable non- trial disposition with the judge in a chamber behind the courtroom” and the thor’s discomfort au- with it); Neil A. Lewis, ing Case That Won’t End How Judges Can Avoid Imposing Mandatory Minimum Sentences judges to avoid controversy. 28 (2008) (“[J]udges can ‘facilitate’ a plea bargain or other prosecutorial decision by commenting, nudging, persuading, threatening, retaliating, and obstructing.”); Smith, Abbe 39707-nys_72-2 Sheet No. 41 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 41 39707-nys_72-2 39707-nys_72-2 Sheet No. 41 Side B 01/15/2018 10:23:44 Id. Id. 356 ODE C with 357 Managerial The Code of It encompasses 355 354 Canon 2. Canon 3 provides Id. 353 Canon 1. Canon 2 provides that a judge should “act note 346, at 512 (“For over two thousand years, being a note 346, at 499–509 (describing these different types of 374, 445 (1982) (“[T]he virtues of disinterest and disen- . UDGES EV supra supra notes 328–30 and accompanying text. U.S. J . L. R Canon 4. Canon 5 generally prohibits judges from engaging in any in engaging from judges prohibits generally 5 Canon 4. Canon Id. Geyh, Geyh, ARV H Id. Id. See See See supra , 96 Impartiality Impartiality is the core value of the judge. ONDUCT FOR 352. 353. 354. 356. For example, Canon 1 provides that “An independent and honorable 355. 357. C Canon 3. Canon 4 provides that extrajudicial activity is permissible so long as it Canon 5. OF view of impartiality, repeatedly emphasizing the need to maintain axes. all along impartiality of appearance the and reality the both Conduct for United States Judges incorporates this comprehensive not only the absence of any personal interest in a ward case or or bias against to- any party in a de- judge’s the color could that commitment ideological or political dispute, but also the absence of a cision in future cases or be perceived as doing so. good judge has meant being Judges an impartial judge.”); Judith Resnik, pressed an opinion concerning the merits of the particular case in controversy.” in case particular the of merits the concerning opinion an pressed does not “detract from the dignity of the judge’s office,” “reflect adversely on the judge’s impartiality” or “lead to frequent disqualification” because of the appear- bias. of ance at all times in a manner that promotes public confidence in the integrity and im- partiality of the judiciary,” “should not allow family, social, political, financial, other or relationships to influence judicial conduct “hold or membership in judgment” any organization and that practices invidious should discrimination on not the basis of race, sex, religion, or national origin.” that a “judge should not make public comment on the merits of a matter pending or impending in any court,” and “shall disqualify himself or herself in a proceed- ing in which the judge’s impartiality when might “the judge has reasonably a personal be bias or questioned,” prejudice concerning a such party” or as “has ex- Whether a judge employs dicta or extrajudicial speech to views express on a policy subject, and perceived there impartiality. However, the are Canons omit risks how judges for are to the balance the judge’s call to actual participate in law reform efforts 260 robe of decorum which clothes [judges] in the aura of impartiality NYUand open-mindedness that . . . makes their role ANNUAL distinct and justifies SURVEY OFthe AMERICAN extraordinary power they enjoy.” LAW [Vol. 72:187 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 74 15-JAN-18 9:53 bias). judiciary is indispensable to justice in our society. enforce A high standards of conduct and judge should personally observe those should standards, maintain and so that the integrity and independence of the judiciary may be preserved.” gagement . . . form the bases of the judiciary’s authority.”). political activity related to holders of or parties, candidates or for organizations political “whose office, principal political purpose is political candidates to or advocate parties in for connection or with elections against for public office.” 39707-nys_72-2 Sheet No. 41 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 41 39707-nys_72-2 39707-nys_72-2 Sheet No. 42 Side A 01/15/2018 10:23:44 , ORDHAM F 182, 183 Justices 359 ORK , 85 360 Y EW N . 1371, 1377–78 (1995) The Rhetoric of Results and Results of Rhetoric The EV ITY OF Appeal Waivers and the Future C . L. R HI AR OF THE U. C B at 88 (noting the ambiguity in the Canons , in fact are unreviewable. Many oc- , 62 361 Limitations on Judicial Activism in Criminal Trials 209, 212 (2005) (noting that, in the authors’ ran- N OF THE The Court of Appeals as the Middle Child ’ note 350 note SS L.J. A supra UKE , D , 55 , Michael Pinard, , Nancy J. King & Michael E. O’Neill, . 243, 254–66 (2000) (trial judges’ commentary on evidence, ques- Even when an appeal is filed, doctrines such as harm- ATZMANN EV K ECORD OF THE 362 Raymond Lohier, R See See, e.g. See See, e.g. . L. R HE 945, 945 (2016) (describing judges of the Courts of Appeals as “each not . T 358 Moreover, although the decisions of a district court judge are, Maintaining Maintaining the perception of impartiality is a concern for all 358. 362. 359. 361. 360. As Judge Learned Hand once described the ephemeral nature of much ONN EV C of the Supreme Court need a majority. District court judges not persuade need anyone else. They render far more decisions, in many more cases, than any other category of judge. And unlike the Court of Appeals or the Supreme Court, only a fraction of the made decisions by a District Court judge are reduced to writing. Jeopardy). cur in the context of an ongoing trial or subject proceeding to and are review not until the proceeding has concluded. many Even then, will not be reviewed because (because, no for appeal example, is of or a may waiver be of filed appellate rights or Double in theory, subject to appellate review, more so than the decisions of the Courts of Appeals, many decisions rendered by a district court judge or other actions taken judges, but it is arguably most important for district court District court judges may judges. be the lowest-ranked judges in the Article III federal judiciary, but they wield far more unchecked individuals power than as any other kind of judge. Judges on the Courts Appeals, who generally sit in panels of of three, must persuade at least one of their colleagues before they may exercise power. L. R 2018]the need to maintain their impartiality. This walk. is THE a “NEW” DISTRICT difficult COURT ACTIVISM line to 261 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 75 15-JAN-18 9:53 33 tioning of witnesses, and non-verbal behavior can influence the outcome of a trial by, inter alia, conveying to the jury the judge’s view of the case). much more than one-third of a judge”); Patricia M. Wald, M. Patricia judge”); a of one-third than more much the Results of Rhetoric: Judicial Writings and their commentary that should leaves participate in activities much having to do unclear, with substantial legal including changes not rectly di- “whether related to a the administrative judge and procedural aspects system”). of a running a court (1952). of Sentencing Policy of the trial judge’s work, it “takes place in the courtroom and either slips away into anonymity, or remains only in the transient recollection of those who may be pre- sent.” (describing the requirement of obtaining the votes of one’s colleagues reasoning for one’s as well as particular opinions). result as a constraint on rhetoric in appellate 39707-nys_72-2 Sheet No. 42 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 42 39707-nys_72-2 39707-nys_72-2 Sheet No. 42 Side B 01/15/2018 10:23:44 note see also Thus, As An- 383, 394 . supra 363 , EV 364 . L. R RIZ A , 56 “It’s Called Lunch”: Judicial Ethics Indeed, this very concern 365 at 168 (an unprincipled district court , note 12 note 313, at 867 (noting the “relation between the supra note 346, at 544–51 (observing that, when courts’ impar- , Limits of Judges’ Learning, Speaking, and Acting supra Judicial Independence, Judicial Accountability, and Interbranch Re- RANK supra 909, 913 (2007) (“[I]f judges are policy agents, they should be F , . L.J. Geyh, Kaufman, Weinstein, EO G See, e.g. See See See , 95 If that trust erodes, the courts’ legitimacy also may be called note 349, at 9–30 (describing the myriad options available to a district court 363. 364. 366. 365. 366 prompted Chief Justice Rehnquist to write to a senior district court judge in 1993 that he did not upon mind taking senior that status, not the to accept future judge drug cases had on ideo- decided, logical grounds, only the publicity surrounding his decision to do so. disqualification motions, and hostility to reforms promoted by the bench. into doubt more broadly, leading individual judges, and their deci- sions, to come under attacks from the political branches. the threat of appellate reversal is in many instances a relatively weak relatively a instances many in is reversal appellate of threat the constraint on district court judges. This is particularly spect to so some rulings with against the re- government in criminal prosecu- tions because of Double Jeopardy. The repeat participants criminal justice in system know the all of this and nevertheless must trust district court judges to discharge their duties faithfully and impar- tially. A loss of trust at the local level could lead to judge shopping, drew Kaufman has observed, this dynamic effect—once has judges a start acting one-way more ratchet like politicians, they will viewed and be treated as such by others. dom sample of federal cases resolved by plea agreement and year sentenced 2003, in nearly fiscal two-thirds of those agreements included right defendants’ to waiver appeal). of 262less error and deference to district court findings of fact and credi- NYU bility ANNUAL determinations SURVEY often preclude OF meaningful review. AMERICAN LAW [Vol. 72:187 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 76 15-JAN-18 9:53 ‘accountable’ for their decisions in individual issues cases of high (or salience).”); at Dr. Roger least E. Hartley, those involving and the Political and Legal Space for the Judiciary to “Lobby” judge could “without fear of challenge, ‘fudge’ the supra facts he finds”); Greenblatt, judge to avoid the application of mandatory minimum sentences, many effectively unreviewable). tiality is perceived as being inadequately addressed in the ethical and procedural dimensions, regulation in the political dimension increases). (2014) (“[When judges] are viewed as taking sides on controversial issues . . . this of have public the and leaders elected that impression the to harm larger do might the branch”). 10, at 11–12 & n.55 (quoting Letter from William H. Rehnquist, Chief Justice of Stephen B. Burbank, lations willingness of judges to enter into the public fray and the increasing tendency of some academics and some media figures to equate judges with legislators”); 39707-nys_72-2 Sheet No. 42 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 42 39707-nys_72-2 39707-nys_72-2 Sheet No. 43 Side A 01/15/2018 10:23:44 L. , 81 , 113 OFSTRA H s, 32 It would be a 367 Of course, district 369 Flouting Article III’s re- note 298, at 430–32at 298, note (describing 371 supra Gertner, The Real Issues of Judicial Ethic An Old Judicial Role for a New Litigation Era Judging Under the Constitution: Dicta About Dicta see also see 368 note 346, at 545 (“To date, district judges have largely Doe v. United States, 833 F.3d 192, 200–01 (2d Cir. 2016) supra note 322 (discussing number of district court vacancies). , Alex Kozinski, see also . 1249, 1259–60 (2006) (discussing interaction between dicta and Jonathan T. Molot, Pierre N. Leval, Geyh, EV See See See See supra See, e.g. This is not a mere technicality: the case or controversy re- 27, 32 (2003) (“[T]he judiciary’s traditional adjudicative role reflects its 370 Third, district court judges’ use of dicta as a vehicle for accom- Moreover, Moreover, if trial judges come to be viewed as political actors, 371. 370. 367. 368. 369. L.J. 1095, 1097–1031095, (2004); . EV ALE quirements thus potentially signals a disregard for the judge’s most R shame if it were to be otherwise. Given the recent change in admin- istration and the number of lower court also vacancies could be to counterproductive be to the filled, aims of it many of the “new” district court activists. court judges do not have the option of writing a concurring or dis- senting opinion. But there is a tension between III’s limitation dicta of federal courts’ and jurisdiction to “cases or Article controver- sies.” (Livingston, J., concurring) (suggesting that the cluded Court that of the Appeals, court having con- below lacked tioner’s jurisdiction application to for consider expungement, the should merits might not go of about “suggest assessing peti- and weighing” to the various relevant Congress considerations). how it Article III’s grant “Controversies”). of authority to federal courts to decide “Cases” and plishing policy ends provides special cause for concern. The Code of Conduct for U.S. Judges does not address opinion writing, a fail- ure that several commentators have noted. then then there is little to stop a President from making based appointments on political views. Historically, this is a fate been avoided that at the has district court level, largely relative to appointments to the Courts of Appeals and the Supreme Court. the ethical dilemmas associated with opinion writing). Y Southern District of New York (May 25, 1993), explaining his remarks at a federal judges meeting, and referring specifically to the decisions made by Judges Knapp and Weinstein and their attendant publicity). N.Y.U. L. R the United States Supreme Court, to Whitman Knapp, District Court Judge for the 2018] THE “NEW” DISTRICT COURT ACTIVISM 263 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 77 15-JAN-18 9:53 quirement reflects in part courts’ core competency of adjudicating disputes rather than formulating policy. core institutional competence. Judges are ideally disputes, suited rather to than to resolve frame disputes party-framed themselves, because they lack tional the capacity that other government institu- officials have to initiate and conduct factual investigations.”); avoided the highly politicized confirmation preme Court and showdowns circuit court nominees.”). that have plagued Su- 39707-nys_72-2 Sheet No. 43 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 43 39707-nys_72-2 39707-nys_72-2 Sheet No. 43 Side B 01/15/2018 10:23:44 See . L. OLUM C 423, 462–65 Y , 84 ’ OL Such excesses not Thus, lengthy treat- J.L. & P 375 373 , law review article, or , 5 Canon 2. Ideally, rule changes, pro- 376 UDGES Supervising Criminal Investigations: The 57(a)(1). at 89 (“The canons do not consider how note 308, at 255–56 (suggesting that the , U.S. J . P. There are also prudential reasons to Reconsidering Supervisory Power in Criminal Cases: supra RIM 372 note 350 Law Without Order) . R. C ED ONDUCT FOR supra F , C or their supervisory power. , Lebovits et al., , Sara Sun Beale, note 183, at 55 n.275. Rule 57 provides that a local rule “must be ODE OF 374 ATZMANN C 377 K United States v. Morrison, 529 U.S. 598, 625–26 (2000) (describing supra See, e.g. See, e.g. Cf. Cf. Fourth, when district courts engage in local rulemaking, issue 1433, 1455–56 (1984); John Gleeson, 372. For example, Canon 2 of the Code of Conduct for U.S. Judges provides 375. 373. 374. 28 U.S.C. §§ 2071–77 (2012). Through Section 2017 of that Act and 377. 376. . EV R only risk legal challenges by prosecutors, but, like judicial opinions or extrajudicial speech, such quasi-legislative activities could under- mine trust in the judges’ impartiality and role fidelity. Thus judges operating in all these spheres must be very attuned to the nuances of their language, tone, and context. phylactic orders, and new programs would be initiated cultivating the genuine buy-in of all only local actors, based on a persua- after sive record of their necessity and responsiveness to local facts and conditions. avoid avoid dicta, including that it can render judicial opinions unneces- sarily long and potentially obfuscate the law. Constitutional and Statutory Limits on the Authority of the Federal Courts standing orders, or create careful diversionary not to programs, overstep they their delegated must authority under Enabling be the Act Rules ments of a policy subject, when they are not necessary to the court’s but slim Frankel’s Marvin (like book a in put better be may holding, inordinately influential speech, rather than a judicial opinion, more even likely to if get attention the or be latter considered “citable” may by lawyers. be that “[a] judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality the of judiciary.” Proper Scope of the Supervisory Power of Federal Judges 264 essential institutional role. NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:187 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 78 15-JAN-18 9:53 liberal inclusion of dicta in judicial opinions opinions longer and harder is to decipher, with unethical “the potential because to obscure holdings” it makes and the invite “incorrect predictions”). Rule 57 of the Federal Rules of Criminal Procedure, Congress has authorized the Procedure. Criminal of Rules the in gaps in fill and tune” “fine to courts district McConkie, consistent with—but not duplicative of—federal statutes and rules adopted under” the Rules Enabling Act. such variables as substance and form, conjoining in a the multiplicity propriety of of communication.”). ways, affect (1997). test developed by U.S. Supreme Court to assess prophylactic legislation under Sec- tion 5 of the Fourteenth Amendment as requiring a “congruence and proportion- 39707-nys_72-2 Sheet No. 43 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 43 39707-nys_72-2 39707-nys_72-2 Sheet No. 44 Side A 01/15/2018 10:23:44 . . ED . L. UFF F B OL See also , 16 , , 9 Mandatory U. T ; Samuel T. ) , 47 Some judges USTICE 379 J If the United States T OF ’ 381 EP 161, 162 (2001) (discussing case U.S. D . EP R G ’ Justice Department Administration of the Presi- ENT § 1-2.111 ( Clemency: A View from the Bench of Two Commuta- In the modern era, input from district . S ED 378 F ANUAL M , 13 YS ’ TT , David S. Doty, , United States v. Angelos, 345 F. Supp. 2d 1227, 1263 (D. Utah C. Possible New Mechanisms of Judicial Input U.S. A 1, 39 (2005) (discussing the pardon process). 1. A Greater Institutionalized Role in Clemency . Margaret Colgate Love, 212 (2004). . EV The more routine course, which is set forth in the non- See, e.g. See See, e.g. See EP The Politics of Grace: On the Moral Justification of Executive Clemency 380 R Because Because these concerns identified above are real—and may be One possible way for district court judges to make their views G note 342 and accompanying text. . L. R ’ 379. 378. 380. 381. . 89, 93 (2015); George Lardner, Jr., & Margaret Colgate Love, RIM EV ENT S C tions—Vignali and Willis R Attorney’s Office does not wish to seek the judge’s views, don the Attorney Par- may do so. In any event, such consultation is discre- tionary and depends upon a clemency petition having (no small been feat filed for those serving long sentences who generally lack both constraining and skewing the public debate, leading only the most intrepid and passionate judges who are unhappy with the sta- engage—thisto quo tus mech- possible other some explores section anisms to elicit feedback from trial court judges. court judges appears to be somewhat haphazard. on their own initiative have sent copies of their sentencing opinions sentencing their of copies sent have initiative own their on to the Pardon Attorney at the despaired Department of that Justice, when they they had tence. no discretion to impose a lower sen- known on sentencing policy would be to tionalized create role for district a court judges in greater the clemency process. institu- At one time, district court spoke up somewhat regularly in support of judges clemency petitions from in the United defendants they States had sentenced to mandatory apparently penalties, when they thought them too harsh. ality between the injury to be prevented or remedied and the that means end”) adopted (internal citations to omitted). 2018] THE “NEW” DISTRICT COURT ACTIVISM 265 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 79 15-JAN-18 9:53 Attorney’s Office that handled a case to ask the filed. been has it once petition a on views her sentencing judge binding United States Attorneys’ Manual, is for the United States where the judge “was not asked by anyone to respond” to a petition for clemency). its with opinion the of copy a forward to office Clerk’s (directing J.) (Cassell, 2004) commutation recommendation to the Office of supra the Pardon Attorney). dent’s Pardon Power: A Case Study in Institutional Conflicts of Interest Morison, Sentences and Presidential Mercy: The Role of Judges in Pardon Cases, 1790–1850Cases, Pardon in Judges of Role The Mercy: Presidential and Sentences 39707-nys_72-2 Sheet No. 44 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 44 39707-nys_72-2 39707-nys_72-2 Sheet No. 44 Side B 01/15/2018 10:23:44 , https://www . AWS . L EF . D Taking Another Look at Second- there is no reason why RIM C 382 art. II, § 2, cl.1. . several bar associations and N OF ’ 384 SS ONST A L ’ AT U.S. C 149 (2015) (discussing the MPC proposal to N Those groups are disbanding with the . , Meghan J. Ryan, , EV 385 These records would be helpful both in 383 See, e.g. . L. R ROOK B notes 296 and accompanying text. , 81 See supra See Clemency Project 2014 Although Although the sentencing judge’s recommendation will never District court judges also potentially could play a role in refer- 382. Article II, section 2 of the Constitution gives the power exclusively to the 384. 385. 383. This would be separate from other proposals to provide an opportunity other organizations created mechanisms for screening and taking on clients for the prosecution of clemency petitions and recruited attorneys to handle them. the judgment. ring defendants to counsel for assistance in preparing clemency pe- titions. In the reinvigorate wake the clemency process, of the Obama Administration’s effort to circumstances when the judge has died before a petition has been filed (not necessarily so uncommon, given the length of sentences often meted out), and when a living judge, by the time a petition is filed, no longer has a distinct memory of prove the case. a valuable It also resource would Commission and that the Judicial Branch—for example, the Federal Ju- researchers with the dicial Sentencing Center—could use to track judges’ with granularity views in cases where (precisely about because the judge has sentencing no discretion) the judge’s initial views generally will not be reflected in served. There also could be whereby the sentencing a judge could be asked after second-stage a set interval of part of time the to reevaluate process, the sentence in light of the judge’s subsequent sentencing experience. judges could not play a more regular role in clemency. For exam- ple, at the time of sentencing, a judge could be asked to record her initial views on whether the case is a reasonable candidate for clem- ency and why. Those views could be recorded in the original court documents generated with the judgment so that they would be pre- President to “grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” 266 counsel) and on the Executive Branch seeking the judge’s input. If NYUthe ANNUAL sentencing judge has since SURVEYdied, there is no OFjudicial input. AMERICAN LAWbe more than advisory [Vol. 72:187 to the President, \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 80 15-JAN-18 9:53 provide sentencing judges the authority to adjust a sentence fifteen years was after imposed). Unlike it true second look sentencing, the proposal I describe would not require legislative action. for “second look” sentencing—i.e., by authorizing the judge to adjust the sentence after a set period of time. Look Sentencing .nacdl.org/cp2014 [https://perma.cc/2HG4-N3ZW] (listing participating organi- zations, including the American Bar Association, the American Civil Liberties 39707-nys_72-2 Sheet No. 44 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 44 39707-nys_72-2 39707-nys_72-2 Sheet No. 45 Side A 01/15/2018 10:23:44 A.B.A. J. The re- , 34 388 Canon 2B Commentary UDGES —has not yet addressed. the jaws of judges concerned 386 U.S. J 387 . 569, 570 (2007) (quoting Felix Frankfurter, EV ONDUCT FOR and Exit Interviews , Understanding “Judicial Lockjaw”: The Debate Over Ex- C N.Y.U. L. R ODE OF note 302. C 82 , Leslie B. Dubeck See supra See See, e.g. 2. Annual Open-Ended Surveys of District Court Judges Taking the pulse of federal trial judges in this way might be Judges also could be asked, on an annual basis, what criminal 386. 387. 388. Presently, the Sentencing Commission regularly polls judges, and judges are invited to testify and submit remarks to the Commission. However, such communications are limited to The Judicial sentencing Council conducts issues. surveys of judges on other discrete issues, but they are not regular. Nor are they generally open-ended. exactly what is required to “unlock” about the future of the criminal justice system but who have been hesitant to speak in other fora, a dynamic that may be masking the depth or range of judicial views on official request various is consistent subjects. with the distinction An that judicial internal, ethics rules make in a variety of other contexts between responding to a request for information and volunteering to provide it. justice policy issues in their view need attention. The Federal Judi- cial Center, which already conducts research for the federal judici- ary, could undertake this project and analyze the results, or it could be conducted by a separate entity. For example, this would provide a forum for a judge to express support for an update to the crimi- nal discovery rules, or for greater use of diversionary programs, or some other new issue through that its the subject-area Judicial committees Conference—including Union, Families Against Mandatory Minimums, the Federal Public and nity Defenders, Commu- and the National Association of Criminal Defense Lawyers). 656, 658 (1948)). sentencing. 2018]end of the Obama Administration and its clemency initiative. But if bar associations were to reinstate those programs, judges could con- THE “NEW” DISTRICT COURT ACTIVISMto necessary resources the with sentencing, at even defendants, nect pursue the only option that remains, even if it is a long shot. could This be valuable in cases where there is no appellate reason or to collateral think that review 267 will yield dant’s any sentence, change because, for in example, the the defen- mandatory sentence is the result of a guilty plea. Neither of these initiatives would require judges to speak or write publicly about their general views on \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 81 15-JAN-18 9:53 Personal Ambitions of Judges: Should a Judge ‘Think Beyond the Judicial”? (Judges may respond to requests for information from another sentencing judge, trajudicial Activity, 39707-nys_72-2 Sheet No. 45 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 45 39707-nys_72-2 39707-nys_72-2 Sheet No. 45 Side B 01/15/2018 10:23:44 239, 259 . L. RIM Marvin Frankel’s Mis- J. C 269, 286 (2000) (“[T]he . EV ERKELEY B . L. R Its structure has resulted in , 13 AL 390 C note 350, at 100–06 (suggesting a variety Williams-Yulee v. Florida Bar, 135 S. Ct. cf. , 74 S. supra , note 350, at 100. The Programmatic Judiciary: Lobbying, Judging, and Invali- ATZMANN supra K , , See, e.g. See, ATZMANN K 3. A Judicial Clearinghouse and Dissent Channel Judith Resnik, or express dissent. Currently, the Judicial Conference sets See See The creation of an official channel for additional 389 391 A third possibility would be to create a clearinghouse channel Finally, in addition to annual surveys, the Federal Judicial 391. 390. 389. Other commentators have called for similar facilitator entities within the sitions adopted by the Judicial Conference generally aged. are discour- those communications being relatively infrequent and scope. Statements by individual limited judges who disagree with policy po- in within the Judicial Branch that could provide an authorized forum for judges to write white papers, other conduct educational judges, panels communicate for with ment, the other branches of govern- or a probation or corrections officer but Judges also may should respond to requests by screening committees for information con- not “initiate communications.” sidering potential judicial nominees); to cover a wide range of subjects with experienced trial judges, pre- serving their remarks for future research and analysis. 268 sults of the surveys could be put to a variety NYUof uses, including ting set- ANNUALthe agenda for the Judicial Conference, SURVEYwhose leadership and OF committees AMERICANmight not be LAWaware of the concerns thereby revealed, or the level of support on an issue. It also could be [Vol. used in 72:187 prepar- ing reports for internal and external consumption. Center could conduct more detailed “exit interviews” with who judges have announced their intention to retire or bench. Such interviews could take full advantage of the opportunity resign from the \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 82 15-JAN-18 9:53 the policy agenda and operates as a gatekeeper to official commu- nications on behalf of the Judiciary. federal judiciary has developed an etiquette of quieting dissent. Official policy stated, is conveyed to Congress or others through who designated disagree speakers, are and told those that it is structuring modes of inappropriate generating policy, to members of do the Article so III judiciary publicly. have Thus, crafted through mechanisms reconsideration.”). that damp down dissent and limit occasions for dating the Violence Against Women Act of means to foster inter-branch dialogue on a wide range of issues in which courts and Congress are interested); Lynn Adelman & Jon Deitrich, takes and the Need to Rethink Federal Sentencing about sentencing). (2008) (calling for the creation of a “facilitator of communication” among judges 1656 (2015) (upholding distinction drawn by Florida bar rules that allowed candi- dates for elected judicial office to send “thank you” notes for campaign donations, but not to solicit them). Branch. Judicial 39707-nys_72-2 Sheet No. 45 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 45 39707-nys_72-2 39707-nys_72-2 Sheet No. 46 Side A 01/15/2018 10:23:44 But 392 Like the State Depart- note 391, at 289 (the com- 394 White House Slap at Dissenting Dip- supra , V. , there has been a notable burst of (Jan. 30, 2017), http://www.politico.com/ CONCLUSION Booker OLITICO P , note 350, at 102. supra The Programmatic Judiciary , Resnik, 2 FAM 071 (A dissent channel adopted to facilitate “open, creative, ATZMANN K See See This clearinghouse could include an internal RSS feed for In the decade since Any judge who wishes to effect real change might well decide 392. 393. 394. 393 cially among Article III judges, could be very valuable. Judges could share concerns, ideas, and local innovations. Such would a side-channel also help ensure that future judges wider frame than view that provided by policy official Judicial Conference issues pol- in a icy. providing more opportunities for informal communication, espe- ment’s channel, this could be a vehicle for district court judges to highest the at considered are disagreements policy their that ensure levels of the Judiciary. federal district court engagement in the project of criminal justice reform. A cohort of well-respected and experienced district court 2018] communication, albeit not on behalf of the entire judiciary, might prove welcome for THE “NEW” those DISTRICT COURT judges ACTIVISMwho wish to engage other, with members of Congress and with their staff, and with the Exec- one an- utive Branch more regularly on policy issues. as a matter of 269 strategy to seek approval ence from before formally communicating the a position to Congress, Judicial as the Confer- imprimatur of the Judicial Conference “has special force.” \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 83 15-JAN-18 9:53 district court judges, regularly scheduled meetings (even by audio- visual conference) between judges and House or Senate Judiciary Committee staffers, and any number of other fora that might have seemed far-fetched years ago but that new technologies make both possible and relatively inexpensive. Another feature of this clearing- house function could be an authorized dissent channel like the one created by the State Department during the employees to express Vietnam constructive dissent. War for its story/2017/01/trump-immigration-ban-state-department-diseent-channel-memo- 234364 [https://perma.cc/8MBK-3S4Z] (discussing history of State Department Dissent Channel). turation within the judiciary itself. . . . As new judges are appointed and become a part of the judiciary, its institutional platform becomes a constitutive what element they understand of the federal judiciary to be about.”). mitments by the Judicial Conference “become a vehicle for education and accul- and uncensored dialogue on substantive foreign policy issues sional foreign affairs community”); within Nahal Toosi, the profes- lomats Sparks Fear of Reprisal 39707-nys_72-2 Sheet No. 46 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 46 39707-nys_72-2 39707-nys_72-2 Sheet No. 46 Side B 01/15/2018 10:23:44 On the other hand, how judges express their concerns matters. Some of these new means have resulted in concrete changes in What is interesting and arguably “new” about the recent activ- judges at any other level in our federal judiciary. When they speak up, we should listen. Because the core value of the judiciary is its impartiality, it is impor- tant that judges act in a manner that is and consistent that with cultivates that the public’s value trust in the judges’ fidelity to their role. That public trust is always crucial, but it is particularly so when our country is so divided, when few institutions are viewed as apolit- creation of diversionary programs, are relatively novel for courts. federal policy. But the “new” activism is valuable in other ways, even when its consequences are less sure. Through their opinions and extraju- dicial activity, the judges are providing critical sues in feedback the administration of criminal justice that deserve attention. about is- That feedback is particularly important on policies disadvantage and already laws disempowered groups that (like criminal defend- ants), or where the adversarial down (as system when the otherwise interests of tends the parties to may quick, align break in lenient seeking resolution a of a corporate prosecution). judges Trial court are in fact better positioned to identify such issues than Act and the Sentencing Guidelines went into effect federal district in court judges the joined 1980s, the rest of the federal judiciary in protesting loudly and regularly—in their opinions and in extra- judicial fora—against the Guidelines and sentencing authority. the intrusion on their ity is that it has prosecutorial charging extended and settlement beyond policies, discovery, sentencing and the to collateral consequences of conviction. issues What once might have been such as construed as a defense of the trial judge’s prerogatives in a narrow slice of the criminal justice picture has become a more comprehen- sive engagement with the criminal justice system. And some of the means pursued, such as the local criminal discovery rules and the 270 judges has employed a variety NYU of which means ANNUAL to they reform SURVEY operate, the but OF system over in Sometimes the judges have exercised that limited authority to make which AMERICAN they LAW have limited authority. incremental advances through their legal rulings [Vol. or 72:187 through exer- cise of their supervisory powers; but they also have exhorted others to action, including the Executive branch, legislators, and the pub- lic. Although as a historical matter, this is not the traditional role of the federal district court judge, none new. of In fact, in the this years immediately after behavior the Sentencing Reform is entirely \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 84 15-JAN-18 9:53 39707-nys_72-2 Sheet No. 46 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 46 39707-nys_72-2 39707-nys_72-2 Sheet No. 47 Side A 01/15/2018 10:23:44 The “new” judicial activists—most of them Clinton appoin- to embrace this model for themselves. To be sure, the changed po- litical environment may make their calculus different. It is for a careful evaluation time but not for disengagement. To the contrary, federal district court judges must continue to provide feedback and accountability to the judges, other and to branches the public, and of play a and part government, future in of the shaping criminal to the justice system. present other 2018] ical, and when so many questions regarding the limits of Executive and Legislative THE “NEW” authority DISTRICT COURT ACTIVISM are likely to courts. be decided by the federal tees—have presented a judges complex can model leverage 271 their for position, both court, how in the pursuit in of criminal justice reform. Other court judges, district espe- and court outside of cially the 270 Obama appointees, some of whom are now approach- ing their second decade on the bench, will have to decide whether \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 85 15-JAN-18 9:53 39707-nys_72-2 Sheet No. 47 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 47 39707-nys_72-2 39707-nys_72-2 Sheet No. 47 Side B 01/15/2018 10:23:44 H.W. Bush Reagan Clinton Clinton , https://www.fjc.gov/history/judges . general; law professor practice; law professor private practice; Clinton NY state assistant attorney general; FAA chief counsel legal aid lawyer Clinton judge; privatepractice Clinton including civil rights Biographical Directory of Article III Federal TR VI. C APPENDIX* UDICIAL Resigned in2007 associate deputy attorney Bush Resigned in1978 Solicitor General; private Johnson Retired in2011 lawyerResigned in2016 prosecutor Clinton Clinton . J ED F , Judge Year name) District Retirement Background President President * Information compiled from the order by last Commission/ Appointing Appointing (alphabetical Received Party of Judges Discussed in Text Judges, 1789–present Nancy Gertner D. Mass.John Gleeson 1994 E.D.N.Y. 1994 Civil rights Bill Federal Democrat Bill Democrat Marvin Frankel S.D.N.Y. 1965Paul Friedman D.D.C.Nicholas Garaufis Assistant to the E.D.N.Y. Lyndon 1994 2000 Democrat Prosecutor Prosecutor; Bill Bill Democrat Democrat Mark Bennett N.D. Iowa 1994Frederic Block E.D.N.Y.Paul Cassell Magistrate 1994 Bill D. Utah 2002Anne Conway Private practice Bill Democrat Raymond Dearie M.D. Fla. E.D.N.Y. 1991 Prosecutor; 1986 Democrat George W. Republican Private practice George Prosecutor Republican Ronald Republican 272 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:187 Lynn Adelman E.D. Wis. 1995 State senator; Bill Democrat \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 86 15-JAN-18 9:53 [https://perma.cc/HE3T-L5GB]. 39707-nys_72-2 Sheet No. 47 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 47 39707-nys_72-2 39707-nys_72-2 Sheet No. 48 Side A 01/15/2018 10:23:44 to DC courts by Presidents Bush and Reagan) Clinton Johnson Reagan prosecutor;private lawyer Clinton federal prosecutor court and courtof appeals Clinton judge (but appointed Commissioner of Housing special counselto Bush congressional investigatory committees; private practice; law professor law; CA municipal court judge Retired in2010 attorney; private practice; Reagan Died in 1988 NY State Truman Took seniorstatus in general counsel2009, retired Carter in 2012 adjunct for the INS; professor of Judge Year name) District Retirement Background President President order by last Commission/ Appointing Appointing (alphabetical Received Party of Jack Weinstein E.D.N.Y.Mark Wolf 1967 D. Mass. 1985 Law professor Lyndon Prosecutor Democrat Ronald Republican Emmett Sullivan D.D.C. 1994 DC superiorStefan Underhill Bill D. Conn.Edward Weinfeld 1999 S.D.N.Y. Democrat 1950 Private practice Bill Private practice; Harry Democrat Democrat Marilyn Hall Patel N.D. Cal. 1980 Private practice; JimmyJed Rakoff Democrat James Rosenbaum S.D.N.Y. D. Minn. 1996 1985 Federal Civil service Ronald Bill Republican Democrat 2018] THE “NEW” DISTRICT COURT ACTIVISMRichard Leon 273 D.D.C. 2001 Prosecutor; George W. Republican \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 87 15-JAN-18 9:53 39707-nys_72-2 Sheet No. 48 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 48 39707-nys_72-2 39707-nys_72-2 Sheet No. 48 Side B 01/15/2018 10:23:44 274 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:187 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 88 15-JAN-18 9:53 39707-nys_72-2 Sheet No. 48 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 48 39707-nys_72-2 39707-nys_72-2 Sheet No. 49 Side A 01/15/2018 10:23:44 R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R Annual . . . . 297 . . . . . 299 ...... 290 ...... 298 ...... 291 ...... 293 ...... 297 ...... 309 ...... 302 ...... 289 ...... 293 ...... 304 ...... 295 ...... 290 ...... 303 ...... 306 ...... 305 ...... 303 ...... 283 275 ...... 289 ...... 287 ...... 279 ...... 296 ...... 307 ...... 305 ...... 292 ...... 281 . SARAH WARBURG-JOHNSON* Events SHOULD SHOULD BE ABANDONED ...... 276 ...... 312 1. “Legally Qualified 2.Candidates” Announcement Rule 3. Third Parties 1. Abandonment of 2.Fairness Doctrine Scarcity Does 3.Not Apply to Other Media No Economic Scarcity 1. Policy Rationale 2. Immediacy Rationale 3. Diversity Rationale 1. Bona Fide 2.Newscast Bona Fide 3. News Interview Program Bona Fide 4.News Documentary On-the-spot Coverage of Bona Fide News WHY THE EQUAL TIME RULE Be Abandoned A. Technological Changes B. Political Changes C. Critiques of Past Suggestions A. Scarcity of Spectrum Rationale B. Three Other Rationales A. Section 315(a): Statute and B. Legislative History . . . Procedure C. 280 Court Interpretation D. FCC Interpretation A. The Statutory Exemptions B. Who Else Does Not Count DEMOCRACY DEMOCRACY IN THE DIGITAL AGE: I. The Equal Time Rule * N.Y.U. School of Law, J.D., 2016, Senior Articles Editor, 2015–2016, II. Problems with the Rule IV. Recommendation—Why the Equal Time Rule Should III. The Rationales for Equal Time No Longer Stand Conclusion Introduction \\jciprod01\productn\N\NYS\72-2\NYS202.txt unknown Seq: 1 15-JAN-18 9:54 Survey of American Law 39707-nys_72-2 Sheet No. 49 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 49 39707-nys_72-2 39707-nys_72-2 Sheet No. 49 Side B 01/15/2018 10:23:44 , , OST P raising 2 6 UFFINGTON H , Any speculation that less recog- 5 (Oct. 21, 2015, 10:37 AM), http://www.politifact Does Donald Trump’s Appearance Trigger Equal Time for INTRODUCTION The rule provides that candidates are enti- 4 under the equal time provision of the Commu- 3 Republicans Ask NBC for Equal Airtime After Trump Hosts SNL UNDITFACT NBC Reaches Agreement on Equal Time After Trump’s ‘SNL’ Gig Donald Trump to Host ‘Saturday Night Live’ P , , Katie Sanders, announced that Donald Trump would host the Saturday 1 (Nov. 23, 2015), http://variety.com/2015/tv/news/nbc-equal-time-agree- See, e.g. On October 13, 2015, the National Broadcasting Company Speculation of this sort is commonplace with respect to the (Nov. 17, 2015), http://time.com/4116676/gop-equal-time-nbc/ [https:// 6. 1. For purposes of this paper, the term NBC will refer to both NBC and its 2. Mollie Reilly, 3. Daniel White, 5. Ted Johnson, 4. 47 U.S.C. § 315(a) (2012). IME ARIETY during which Trump appeared for a total of twelve minutes and five and minutes twelve of total a for appeared Trump which during (NBC) Shortly thereafter, several Republican candidates filed requests for similar free airtime the hotly debated election topic of equal time for dates on political broadcast candi- television and radio. After the episode aired— seconds—NBC filed a notice Commission with (FCC) the that the Federal equal Communications time rule had been triggered. the Republican Field? nications Act of 1934. tled to equal opportunities to their opponents, subject airtime to several exceptions. In response to these on broadcast networks as requests, NBC came to seven twelve-minute slot to separate each candidate during primetime agreements on Novem- to provide ber a 27 and 28, 2015 in the three markets dential where significant presi- campaigning Hampshire, and South had Carolina. so far taken place—Iowa, New ment-donald-trump-snl-1201647112/ [https://perma.cc/AG8N-L3VR]. The four candidates were John Kasich, Mike Huckabee, James Gilmore, and ham, and Lindsey they Gra- were given time on eighteen NBC affiliate stations in mentioned the above. markets equal time rule, as it is and widely exceedingly misunderstood, complex. often NBC misapplied, took Trump a to calculated host its risk iconic weekly by comedy asking show, namely the risk of nizable Republican candidates than Trump would be afforded the opportunity to host SNL was thus never realistic, though it was dis- cussed as a potential outcome by the media at the time. parent company NBCUniversal. Night Live (SNL) episode scheduled for November 7, 2015, 7, November for scheduled episode (SNL) Live Night V (Oct. 13, 2015, 1:22 PM), http://www.huffingtonpost.com/entry/donald-trump- hosting-snl_us_561d3a8fe4b0c5a1ce60ab38 [https://perma.cc/4JXB-P3W6]. T 276 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:275 \\jciprod01\productn\N\NYS\72-2\NYS202.txt unknown Seq: 2 15-JAN-18 9:54 .com/punditfact/article/2015/oct/21/does-donald-trumps-snl-appearance-trig- ger-equal-ti/ [https://perma.cc/5N73-J6TH]. perma.cc/DC83-7LVC]. 39707-nys_72-2 Sheet No. 49 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 49 39707-nys_72-2 39707-nys_72-2 Sheet No. 50 Side A 01/15/2018 10:23:44 . T ’ Rat- supra NTM 7 E (Nov. 5, , , Brian Lowry, ERALD Hibbard, H (June 30, 2015), See See, e.g. Brian Stelter & Frank ONEY OSTON B See , CNN M , is not concerned with ratings. 9 Why Huge ‘SNL’ Ratings Won’t Help Donald Trump Be- (Nov. 7, 2015), http://www.latimes.com/entertainment/ Donald Trump Gives SNL Biggest Rating in Years IMES L.A. T , Mary McNamara, NBCUniversal Cuts Ties with Donald Trump such that election fairness mandates regulation of broadcast See (Nov. 8, 2015), http://www.ew.com/article/2015/11/08/donald-trump- 8 Politicians appear on television today more than they ever did The equal time provision is premised on the concept that the 7. James Hibbard, 8. 9. The equal time rule is often referred to by scholars as the equal opportu- EEKLY ings may be important to Trump, but do they actually translate into votes, major broadcast TV and radio stations are the most important out- lets for the electorate to receive information about candidates dur- ing a local or federal U.S. election. At the time of the the FCC, creation Congress of considered the power of these outlets to be great as so to provide a justification for limiting the First Amendment rights of networks in making choices about time allocation. ever, it is How- manifestly obvious that the media landscape has changed drastically since 1927, both in scope and in content. in the past, and those appearances have become political in nature—entertainment increasingly showcasing a candidate’s humor less Rather, it is intended to function as a leveler in election coverage of candidates in order to prevent one candidate from hijacking work time net- and leaving the others without media recourse. content? content? The equal time rule snl-ratings [https://perma.cc/2TEU-ZUKH]. In fact, the show had its highest rat- ings since a 2012 episode featuring Charles Barkley and Kelly Clarkson. NBC also risked negative press because of statements on immigration. W 2018] being required to dole out free broadcast time to other candidates who would not bring in the same ratings as Trump on SNL. DEMOCRACY IN THE DIGITAL AGE 277 \\jciprod01\productn\N\NYS\72-2\NYS202.txt unknown Seq: 3 15-JAN-18 9:54 tv/la-et-st-critics-notebook-donald-trump-snl-ratings-20151107-column.html [https://perma.cc/XJX8-2ATR] (“Once an easy and instant predictor of success, the television numbers complicated.”). game has become if not nity outdated rule. then This nomenclature. extremely Note will use the term “equal time,” as it is the popular SNL, which has faced a downturn in ratings for several years. come President http://money.cnn.com/2015/06/29/media/donald-trump-nbc-ends-relation ship/ [https://perma.cc/XMC9-GD3F] (NBCUniversal ended the relationship as a result of the derogatory comments made by Trump regarding immigration). For NBC, asking Trump to host was a risk worth taking to increase its viewership of 2015), http://www.bostonherald.com/opinion/op_ed/2015/11/brian_lowry_by_ booking_donald_trump_snl_looks_like_the_biggest_loser [https://perma.cc/WH W8-J7TF]. The program’s producers were naturally concerned with its ratings and audience metrics and not with getting Trump elected. This is especially likely con- sidering NBC’s decision to invite Trump to host after the came company only publicly a cut ties few with short the candidate. months Pallotta, By Booking Donald Trump, SNL Looks Like the Biggest Loser 39707-nys_72-2 Sheet No. 50 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 50 39707-nys_72-2 39707-nys_72-2 Sheet No. 50 Side B 01/15/2018 10:23:44 (Oct. OST P UFFINGTON Another problem H 12 HE Bill Clinton’s Sax Solo on ‘Ar- T , Therefore, today’s broadcast 11 David Zurawik, (Dec. 27, 1992), http://articles.baltimoresun The Beer President See UN S . Though mocked by political commentators at the time, it ALTIMORE After all, we live in a country where voters are B 10 , , Kurt A. Gardinier, See, e.g. Part III will delve into the problems with the rule as it stands. Not only has the rule lost practical meaning, but its theoretical Part II of this Note will discuss the evolution of the equal time 10. A breakthrough example of this was Bill Clinton playing the saxophone 11. 12. 47 U.S.C. § 315(a) (2012). The Arsenio Hall Show rule, the enactment of its exceptions, and interpretation of the rule by courts and the FCC. These problems include the breadth of the statutory exemptions to the rule as well as other ways around the rule, such as determining who constitutes a “legally qualified candidate.” dates previously appeared). underpinnings have also been called into question. The equal time rule is premised on the flawed concept of spectrum idea that scarcity—thethe broadcast spectrum is limited and thus must be regu- lated—and the idea that the role of the government in regulating TV and radio should be paramount. It has become outdated in the age of cable TV, Internet, and the digital age in general. more, the Further- trend toward deregulation of campaign finance hints at the demise of the equal time rule, which has lost most of its over teeth the years. The time has where it come belongs: in to the past. leave the equal time rule networks networks contend with an equal time rule address that the reality of the does political landscape it is meant not to monitor. seem to Over time, the rule has expanded in some directions that render it almost meaningless (such as the broad exemptions for news inter- view programs), while remaining a barrier in less meaningful areas of broadcast time (such as TV programs where actors-turned-candi- is the fact that equal time represents only an and not equivalent necessarily the same format. time Furthermore, there are broad slot inclined inclined to choose a candidate based on whether or not he or she would make a good drinking buddy. on 278or human side. NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:275 \\jciprod01\productn\N\NYS\72-2\NYS202.txt unknown Seq: 4 15-JAN-18 9:54 .com/1992-12-27/features/1992362178_1_clinton-arsenio-hall-hall-show .com/1992-12-27/features/1992362178_1_clinton-arsenio-hall-hall-show [https:// perma.cc/84BF-4FVQ]. resonated deeply with the public. senio’ Still Resonates 30, 2012, 5:03 PM), president_b_2043196.html [https://perma.cc/Q93M-V2JQ] http://www.huffingtonpost.com/kurt-a-gardinier/the-beer- (“Bush, who admits he used to drink too much, arguably became our 43rd president because, as polls showed, he was the candidate people would rather have a beer with, parently because the ap- Commander-in-Chief should be a regular beer-drinking guy just like you and your friends.”). 39707-nys_72-2 Sheet No. 50 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 50 39707-nys_72-2 39707-nys_72-2 Sheet No. 51 Side A 01/15/2018 10:23:44 When 14 John W. Berresford, See 18–20 (March 2005), https:// ERIES S I. APER P ESEARCH R and the “dangerous power rationale.” THE EQUAL TIME RULE 13 UREAU B EDIA at 20–24. Id. FCC M , Part V will examine the future for equal time. I will suggest that suggest will I time. equal for future the examine will V Part Part IV will discuss the underlying rationales that have been Every few years, usually sparked by a celebrity running in an 13. Also known as the “People’s Airwaves Rationale.” 14. finance underway since 2010 forecast a future where disclosure and transparency replace the attempts of government to way regulate the electorate the receives information about candidates running for office. I conclude that the equal time rule should be abandoned in favor of a safety net regimen for regulatory oversight. the underlying rationales that led to the imposition of a regulation do not play out in over 80 years, there are serious reasons to doubt the continued existence changes that have occurred in the of media since the equal time rule the was instituted have in regulation. no small part contributed to its lack of appli- Furthermore, the cability theoretically—particularly the advent of which the equal the time rule does Internet, not apply. to the First Amendment considerations and deregulation of campaign argument, based both on scientific and economic realities, led which to the eventual demise of the rationales that have never been proven relevant are fairness the “diversity of doctrine. Other policy opinions rationale” 2018] categories of individuals who do not count under the raises rule, questions of which fairness of restricting some while not restricting others. Finally, the lack of enforcement of the rule creates an unsta- DEMOCRACY IN THE DIGITAL AGEble landscape. This section will show that the rule is both over- and under-inclusive and is not in good working condition. advanced to justify the equal time rule and why they no longer (if of inception the since changes Theoretical true. hold did) ever they 279 scarcity spectrum the of invalidation the include rule time equal the \\jciprod01\productn\N\NYS\72-2\NYS202.txt unknown Seq: 5 15-JAN-18 9:54 over fifty years. The rule was enacted in 1927 and went major through a overhaul in 1959 with the addition of the statutory exemp- election, the equal time rule is critically examined for its complexi- ties, and its continued viability is brought into question. However, no meaningful changes have been incorporated into the rule in transition.fcc.gov/ownership/materials/already-released/scarcity030005.pdf [https://perma.cc/2PN4-T6LT]. The Scarcity Rationale for Regulating Traditional Broadcasting: An Idea Whose Time Has Passed 39707-nys_72-2 Sheet No. 51 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 51 39707-nys_72-2 39707-nys_72-2 Sheet No. 51 Side B 01/15/2018 10:23:44 See (May LOSS F Congres- 22 ENTAL M , 19 267, 286 (2005). The rule states: . 18 EV . L. R In 1959, the FCC issued a ND I 20 The End of Time for Equal Time? Revealing Time? Equal for Time of End The , 38 16 , that such licensee shall have no power of censor- What Does the FCC’s Equal Time Rule Actually Say? It was incorporated into the broader Communications Anne Kramer Ricchiuto, Note, Ricchiuto, Kramer Anne A. 47 U.S.C. § 315: Statute and Legislative History Congress swiftly responded, amending the equal time rule 17 Provided Except for a minor semantic change in 1972, the rule has See Id. If any licensee shall permit any person who is a legally 21 15 The original rule specified no limitations on the type of pro- The equal time rule was introduced as a part of the Radio Act 15. Pub. L. 86-274, § 1, 73 16. Stat. 557 (codified as amended at 47 U.S.C. 22. 47 U.S.C. § 315(a) (2012). 19. 20. Federal Communications Act of 1934, ch. 652, title III, 21. § 315, CBS, 48 Inc., Stat. 26 F.C.C. 715, 742–43 (1959). The challenge came from a 17. Radio Act, ch. 169, 44 Stat. 1162, 18.1170 (1927). 47 U.S.C. § 315(a) (2012). station, he shall afford equal opportunities to candidates for all that other office in such the use of such broadcasting tion: sta- ship over the material broadcast under the provisions section. of No this obligation is imposed upon any licensee the to use allow of its station by any such candidate. qualified candidate for any public office to use a broadcasting sional intent in enacting these exemptions was to promote election mayor. grams that qualified for equal time, which left the door wide open for candidates to request equal time in response to candidate’s any opposing appearance whatsoever. controversial ruling stating that the equal time rule had been trig- gered after a news event covering the elections for Chicago § 315(a) (2012)). the Statutory Myth of Fair Election Coverage of 1927. by adding four exemptions: (1) bona fide newscasts; (2) bona fide news interviews; (3) bona fide news documentaries (where the ap- pearance of the candidate is incidental, i.e. she is not the subject of the documentary); and (4) on-the-spot coverage of bona fide news events (including coverage of political conventions). 280tions. NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:275 Act of 1934, the organic statute of the FCC. \\jciprod01\productn\N\NYS\72-2\NYS202.txt unknown Seq: 6 15-JAN-18 9:54 remained remained unchanged. 1088 (1934) (current version at 47 U.S.C. § 315(a) (2012)). fringe candidate, Lar Daly, after the longtime mayor of Chicago, was shown Richard in Daley, a news segment greeting an Argentine diplomat Ethan at Trex, the airport. 27, 2011), http://mentalfloss.com/article/27751/what-does-fccs-equal-time-rule- actually-say [https://perma.cc/DQP6-N7RF]. 39707-nys_72-2 Sheet No. 51 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 51 39707-nys_72-2 39707-nys_72-2 Sheet No. 52 Side A 01/15/2018 10:23:44 . 23 EV . U. L. R The FCC W S 27 Reasonable Reexamining the 26 , 34 1491 (1985–1986). . L.J. EO The legislative record G 25 24 Syracuse Peace Council, 2 , 74 abandoned by Will Rick Santorum Be the Next Host of Saturday Congressional Intent Rebuffed: The Federal Com- , https://www.benton.org/blog/will-rick-santorum-be- . note 16, at 270. OUND F supra The fairness doctrine and equal time rule share 28 ENTON B. Practical Application—Section 315’s Procedure B at 92. Andrew Jay Schwartzman, , To comply with the rule, after the broadcast NBC notified Id. See 29 In practical terms, the equal time rule’s procedure is relatively For historical purposes, it is important to note that the equal 23. Ricchiuto, 24. Michael Damien Holcomb, 29. 25. 26. 47 U.S.C. § 315(a) (2012), 27. 47 U.S.C. § 312(a)(7) (2012). 28. For purposes of this paper, the reasonable access provision will not be straightforward albeit quite administratively burdensome. As a re- cent example of how the Trump made his infamous SNL appearance, NBC handled a typical rule plays out, shortly equal before time situation Donald when Hillary Clinton appeared show. on the same abandoned the fairness doctrine in 1987, but reasonable access still is in place. access requires broadcasters to permit candidates for federal office reasonable access to purchase time on their airwaves. indicates indicates that Congress was aware of the dangers that tions the presented exemp- but believed that the alternative of stations choos- ing not to air any programming involving avoid triggering political the rule was candidates unacceptable. to many underlying justifications, and the former’s demise will be dis- cussed further in Part IV regarding the equal continuing time. rationales for time rule evolved side-by-side with two other tion widely-debated broadcasting elec- rules: the fairness doctrine and access the provision. reasonable The fairness doctrine dedicate airtime to both sides of a controversial required issue. broadcasters to munications Commission’s New Perspective on 47 U.S.C. §315(a)(2) 2018] coverage and “maximize information Congress received recognized the by potential the chilling effect public.” of equal time rule an and wanted DEMOCRACY inflexible the IN rule THE to DIGITAL capture AGEthe original intent not to interfere with normal news coverage. 281 \\jciprod01\productn\N\NYS\72-2\NYS202.txt unknown Seq: 7 15-JAN-18 9:54 Night Live? next-host-saturday-night-live [https://perma.cc/L37C-D4VX]. 87, 90–91 (2004). discussed or analyzed, despite the fact that it is often discussed in conjunction with equal time. For a discussion on the merits of the reasonable access and equal time rules in a post-fairness doctrine world, see Thomas Blaisdell Smith, Reasonable Access and Equal Time Provisions These of Provisions Stand the If the Federal Fairness Doctrine Communications Falls? Act: Can F.C.C.R. 5043, para. 98 (1987). 39707-nys_72-2 Sheet No. 52 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 52 39707-nys_72-2 39707-nys_72-2 Sheet No. 52 Side B 01/15/2018 10:23:44 31 32 IRST F , 33 In response to NBC’s request for Lessig to . The local stations placed notices in their 30 ) by citing his fundraising, media appear- note 29 If NBC were to deny the request, Lessig 35 supra infra Although mediation is often preferred by parties, by preferred often is mediation Although Id. 36 (July 3, 2000), http://www.firstamendmentcenter.org/fcc-defends- . Until the primaries are over, only candidates from the same party are TR In his letter to NBC, Lessig enumerated reasons why he Id. Id. Id. Id. See FCC Defends Rules Requiring Equal Broadcast Time for Candidates Id. 34 . C In the instance of Clinton’s appearance, forty-seven stations re- Appearances triggering equal time are harder to keep track of 30. 31. 32. 34. 35. Schwartzman, 36. 33. MEND tions have to be particularly careful about how they allot time and to whom. Broadcasters also have to be aware misinterpreting the equal time rule because the FCC’s current lead- of the potential for ership tends to avoid written decisions in favor of informal media- tion of disputes. could then file a complaint with the FCC. As such, the process for requesting and receiving equal time is a typical bureaucratic obsta- cle course. as presidential elections move from primaries to general elections because fringe candidates count toward equal time, and local sta- it leaves a lack of precedent to follow. Usually this results in broad- casters erring on the side of caution, perhaps flagging appearances rules-requiring-equal-broadcast-time-for-candidates [https://perma.cc/3Y5L- M8U2]. ceived requests and NBC responded on their behalf, asking Lessig to prove that both he (and Clinton) were dates. legally qualified candi- public files which stated that the time was given without charge. A 282all of its affiliated stations that Clinton was on the air for three min- NYU utes and ANNUAL twelve seconds. SURVEY OF AMERICAN LAWThe FCC rules specify that a request [Vol. for 72:275 equal time must be made within seven days of the appearance, and in Lessig Clinton’s was the case, only Larry other Democratic candidate to file a request. The requests have to be addressed to the local stations (which are licensed by the FCC and thus subject to the regulations), but often the network will handle the requests as a group. \\jciprod01\productn\N\NYS\72-2\NYS202.txt unknown Seq: 8 15-JAN-18 9:54 counted as a legally qualified candidate (to be discussed in further detail in Part III, ances, and speeches. prove that Clinton is “surely, you also can’t be serious,” but followed that a statement with examples detailing legally qualified Clinton’s candidacy. candidate, Lessig’s lawyer wrote considered to be in “opposition” and can file for equal time. 39707-nys_72-2 Sheet No. 52 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 52 39707-nys_72-2 39707-nys_72-2 Sheet No. 53 Side A 01/15/2018 10:23:44 In his 39 NBC, Inc. v. United In holding that traditional First 40 constituting a huge expansion of 42 Instead, the Court held that the Act affirma- C. Court Interpretation 41 Part IV.A. for a discussion of the scarcity rationale. infra , 319 U.S. at 193. See at 215. at 216. . at 212–13 (“Due to the decisions of the courts, the authority of the This case provided the basis for what became known as the Id. Id NBC Id. Id. In this case, NBC sued the government in order to enjoin 37 . 38 In 1943, the Supreme Court decided Apart from the confusion it causes broadcasters and candi- 37. 319 U.S. 190 (1943). 38. 40. 39. 41. 42. the Court rejected the idea of the FCC as merely “a kind of traffic officer, policing the wave lengths to prevent stations from interfer- ing with each other.” Amendment concerns were not applicable to radio broadcasters, tively tasks composition the of that FCC traffic,” with “the burden of determining the majority opinion, Justice Frankfurter referred back to sions in the Congress that discus- led up to the Radio Act of 1927, equal where the time rule first appeared. power. However, the Court stated that the FCC would not be unfet- tered in this decision-making, but rather it was to make determina- tions with regard to “‘public interest, convenience, or necessity’, a criterion which ‘is as concrete as the complicated factors for judg- rule and justifications therefor. Many of equal these time cases rule enmesh the with the shared underlying theoretical fairness justifications. doctrine, usually due to their States 2018]that would otherwise be exempt from the equal time rule in order to be safe. DEMOCRACY IN THE DIGITAL AGEdates, courts have long struggled to make sense of the equal provision. The time cases below trace the general progression of the Su- 283 preme Court’s and lower courts’ interpretations of the equal time \\jciprod01\productn\N\NYS\72-2\NYS202.txt unknown Seq: 9 15-JAN-18 9:54 certain restrictive FCC “chain broadcasting regulations.” scarcity rationale: the idea that radio (and later television) frequen- cies were a finite or scarce resource that warranted special regula- tion. department (of Commerce) under the law of 1912 has broken down; many more stations have been operating than can be accommodated within the limited num- ber of wave lengths available . . . , and public the function whole has service of drifted this into most such important chaos destroy as its great seems value. I most likely, urgently recommend if that this not legislation should remedied, be to speedily enacted.”) (quoting H.R. Doc. No. 483, 69th Cong., 2d Sess. 10 (1926)). 39707-nys_72-2 Sheet No. 53 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 53 39707-nys_72-2 39707-nys_72-2 Sheet No. 53 Side B 01/15/2018 10:23:44 48 Red . 1, 8 1, . , the CON Perhaps the J. L. & E & L. J. 43 This case arose , 2 , 44 As a result of the 45 upholding the fairness doctrine and 49 , 295, 296 (1930))). . EV The Federal Communications Commission Communications Federal The . L. R Although the specific issue in front of the Court IR A 46 The Standard of Public Interest, Convenience or Necessity as Used in the in Used as Necessity or Convenience Interest, Public of Standard The , 1 at 526. (quoting FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 138 (1940)). 138 134, U.S. 309 Co., Broadcasting Pottsville v. FCC (quoting at 526–27. at 529. at 536 (Frankfurter, J., dissenting). For purposes of this paper, Frank- Justice Black wrote the majority opinion, and four justices, Farmers Educational and Cooperative Union v. WDAY, Inc. Id. Id. Id. Id. Id. 47 Ronald H. Coase, In In 1969, the Supreme Court decided the landmark case 43. 44. 360 U.S. 525, 535 (1959). 45. 46. 47. 48. 49. 395 U.S. 367 (1969). [i]n terms of constitutional principle, and as enforced sharing of a scarce resource, the personal attack and political editorial to A.C. Townley, a candidate in the race for senator, in response to two other candidates’ speeches on its station. in the context of WDAY—a radio a and television broadcast senatorial station—gave equal time race in North Dakota in 1956. ruling ruling accomplished the goal of taking power away from the broad- cast networks, but it gave that power instead to an agency with only vague and incredibly discretionary guidance as to how it should be used. its underlying rationale: scarcity of the both spectrum. the fairness The doctrine and Court the equal put time provision under the same doctrinal umbrella, stating that speech, in which Townley made allegedly defamatory statements ac- cusing his opponents of conspiring to create a communist organiza- tion with the help of the Union petitioner, the opposing candidates sued the station. was whether the provision’s prohibition on censorship bars stations from editing out libelous statements, the Court looked at the pur- conclusion. its at arrive to order in entirety its in 315 section of pose The Court stated that the purpose of section restricted 315 is discussion “full of and un- political issues dates.” by legally qualified candi- Lion Broadcasting Co. v. FCC including Justice Frankfurter, dissented on grounds of federalism. of grounds on dissented Frankfurter, Justice including 284 ment in such a field of delegated authority permit.’” NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:275 \\jciprod01\productn\N\NYS\72-2\NYS202.txt unknown Seq: 10 15-JAN-18 9:54 Supreme Supreme Court upheld section 315 in its entirety. Louis G. Caldwell, Caldwell, G. Louis Radio Act of 1927 (1959) (“‘[P]ublic interest, convenience or necessity’ . . . lacks any definite mean- ing. It ‘means about as little as any phrase that the drafters of the Act could used have and still comply with the constitutional requirement that there be some stan- dard to guide the administrative wisdom of the licensing authority.’” (quoting But see But furter’s discussion of express versus implied preemption of state law is not helpful in arguing that the equal time rule is outdated. 39707-nys_72-2 Sheet No. 53 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 53 39707-nys_72-2 39707-nys_72-2 Sheet No. 54 Side A 01/15/2018 10:23:44 50 279, 284 . TUD dealt mainly . S The Supreme EG 53 J. L Red Lion , 26 , it determined that the Was the Fairness Doctrine a “Chilling Red Lion Although 55 This expansive view of the fairness 56 The Court did indicate that conditions 54 Branch v. FCC, 824 F.2d 37, 49 (D.C. Cir. 1987) (“[In When Cook asked for free reply time, the station see also 51 , the radio station WGCB aired a fifteen-minute seg- , 395 U.S. at 395. , 395 U.S. at 371. airtime to a speaker demanding the right to respond to The FCC got involved and determined that the station at 391; at 399 (“Nothing in this record, or in our own researches, convinces us at 372. free 52 Red Lion Id. Red Lion Red Lion Id. Id. Id. ,] the Court held that the statutory ‘equal opportunities’ rule in section In At the time the Court decided 50. 55. 51. 56. 52. 53. 54. Thomas W. Hazlett & David W. Sosa, rules rules [related to the fairness doctrine] from the equal-time provision of § are indistinguishable 315, a specific enactment of Congress requiring stations to set aside reply time under speci- fied circumstances and to these constituent which regulations are important the complements. fairness doctrine and Court upheld the FCC’s decision “that a broadcaster could legally be forced, under the threat of license nonrenewal or revocation, to provide a controversial broadcast.” ment by Reverend Billy James Hargis in which he criticized a book by Fred J. Cook. doctrine and scarcity rationale seemed to open the door for chal- might change in the future such that emerge, a writing different that outcome “[w]e would need not approve fairness every doctrine aspect to of decide the these cases, and upon we the will constitutionality not of now these pass regulations by envisioning most extreme the applications conceivable . . . but will deal with those problems if and when they arise.” of the regulations. scarcity rationale had implications for scarcity of frequencies was indeed real and required the regulation all broadcast of broadcast radio and Amendment television considerations. even at the expense of First with the fairness doctrine rather than equal time, its endorsement owed Cook free time under the fairness doctrine, specifically invok- ing the personal attack aspect of that doctrine. 2018] DEMOCRACY IN THE DIGITAL AGE 285 \\jciprod01\productn\N\NYS\72-2\NYS202.txt unknown Seq: 11 15-JAN-18 9:54 refused. (1997). Red Lion 315 and the Commission’s own fairness doctrine rested on the same constitutional basis of the government’s power to regulate a ‘scarce resource which the Govern- ment has denied others the right to use.’”). that the resource is no longer one for which there are more immediate and poten- tial uses than can be accommodated, and for which wise planning is essential.”). Effect”? Evidence from the Postderegulation Radio Market 39707-nys_72-2 Sheet No. 54 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 54 39707-nys_72-2 39707-nys_72-2 Sheet No. 54 Side B 01/15/2018 10:23:44 57 62 FCC v. FCC in 1974. In that case, the 60 note 28, at 1493. supra Such a starkly different position different starkly a Such was decided. 59 also reiterated the issue articulated in carried over into the 1980s, when —constitute the exercise of editorial control 61 Miami Miami Herald Publishing Co. v. Tornillo that if the fairness doctrine had a chilling effect Red Lion Red i.e. core First Amendment freedom of the press. , 395 U.S. 367 (1969); Smith, 58 Red Lion at 258 (emphasis added). at 256–57. at 376 n.11. at 378 n.12. Id. Id. Id. Id. See Red Lion The prevailing rationale for broadcast regulation based on based regulation broadcast for rationale prevailing The 63 League of Women Voters The legacy of legacy The 57. 418 U.S. 241 (1974). 58. 59. 60. 468 U.S. 364 (1984). 61. 62. 63. spectrum scarcity has come under increasing criticism cent years in . . re- . . We are not prepared, our however, longstanding approach without some signal from Congress to reconsider or the FCC that technological developments have advanced so far that some revision of the may be system required. of broadcast regulation whether fair or unfair continued validity of spectrum scarcity: Supreme Court upheld core First Amendment freedoms for a pub- licly-funded broadcaster, including the right to editorialize, but de- clined to depart Congress from or the FCC. However, the Court did directly question the the scarcity rationale until signaled by for newspapers than for broadcast media raises questions that only true differences in availability of resources could justify. League of Women Voters of California The Court made its determination despite the fact that it noted that noted it that fact the despite determination its made Court The newspapers have potentially infinitely more space to use for dissem- ination of ideas than the broadcast spectrum, under the relevant spectrum scarcity theory. now less same. As academics and courts have noted, the theoretical underpinnings for the fairness doctrine and equal time provisions are virtually the and judgment,” 286any down shut Court Supreme the but well, as media print to lenges NYU such ANNUAL challenges in SURVEY OFThis AMERICAN case LAW involved a Florida statute grant that political required candidates [Vol. newspapers 72:275 equal to space to nents. respond Here to the their Court oppo- essentially held complete opposite rights under that the First Amendment to broadcast- newspapers have the ers: “The choice of material to go into a newspaper, and officials—public and the issues public of treatment . . . to as deci- made sions \\jciprod01\productn\N\NYS\72-2\NYS202.txt unknown Seq: 12 15-JAN-18 9:54 dictum in on speech, the Court would have to reconsider its justifications. 39707-nys_72-2 Sheet No. 54 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 54 39707-nys_72-2 39707-nys_72-2 Sheet No. 55 Side A 01/15/2018 10:23:44 Politically Incor- The abandon- To determine 66 64 , 71 Syracuse Peace Council 69 . In re Access Hollywood 65 , Jerry Springer Under the FCC’s approach, the in- 70 and 68 , D. FCC Interpretation Inquiry into Section 73.1910 of the Commission’s Rules and Regula- The Howard Stern Show In re (1) The format, nature, and content of the program; (2) Sally Jessy Raphael The 1980s ushered in a period of significant change in FCC The FCC has broad authority to interpret the words of the 64. 65. Infinity Broad. Operations Inc., 18 F.C.C.R. 18,603, 66.18,604 (2003). Request of Access Hollywood, 1997 WL 358720 67.(F.C.C. July 1, 1997). ABC, Inc., 15 FCC Rcd. 1355, 1359–60 68.(1999). Multimedia Entm’t Inc., 6 F.C.C.R. 1798 (1991). 69. Multimedia Entm’t Inc., 9 F.C.C.R. 2811 (1994). 70. Request by Adrien Weiss, 58 F.C.C.2d 342, 71.343–44 (1976). Codification of the Comm’n’s Political Programming Policies, 7 F.C.C.R. 67 , whether the format, nature, or content changed since of its the inception, program and, has if so, who initiates the in program; (4) what who produces and respects; controls the (3) program; (5) when the program was initiated; (6) whether the rect as the abandonment of the fairness doctrine, the FCC began to in- clude a wider range of programming outside casts of traditional and news- news interviews under the included exemptions. Such programs ment of the fairness doctrine correlated with a broad expansion of the 1959 exemptions through FCC rulings. Around the same time whether a program is a “use” the FCC looks to seven factors: policy toward broadcast regulations. The Court’s apparent retreat from reliance on the scarcity rationale and FCC took note of in 1985 published a report, subsequently issuing a decision the in 1987, stating that “we no longer believe that there is scarcity in the num- ber of broadcast outlets available to the public.” qualified candidate voluntarily appears as a performer, celebrity, or station employee in a non-exempt program, his opponents will con- tinue to be entitled to equal opportunities.” tent of the candidate to appear as a bearing candidate on whether apparently or not has such no appearance is a “use”: “if a legally equal time rule. For example, the FCC has shaped the meaning of the word “use” in the statute. In 1976, the FCC determined that movie a in which a candidate plays a role qualifies as a time “use” under of air- the equal time rule, in Reagan’s films the on television. context of airing Ronald 2018] DEMOCRACY IN THE DIGITAL AGE 287 \\jciprod01\productn\N\NYS\72-2\NYS202.txt unknown Seq: 13 15-JAN-18 9:54 Against TV Station WTVH Syracuse, 2 3349, FCC *9, 63 Rad. Rcd. Reg. 2d 5043, (P & 5044, F) 541. 1987 FCC LEXIS 678, ¶¶ 33–34 (1991). tions Concerning the General Fairness Doctrine Obligations of Broadcast sees, Licen- 102 F.C.C.2d 147, 196–221 ¶¶ 81–131 (1985); 39707-nys_72-2 Sheet No. 55 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 55 39707-nys_72-2 39707-nys_72-2 Sheet No. 55 Side B 01/15/2018 10:23:44 note 1073, . EV supra . L. R Trex, ASH See . W EO G In 1959, the economist , 76 75 Make Time for Equal Time: Can the raising the question of whether such a 74 note 16, at 273 (citing Use of Broad. Facilities by Candi- note 16, at 275 (“Exempting entire programs rather than supra supra 72 , 538 F.2d 349 (D.C. Cir. 1976). This came after the initial suspension at 274; Jonathan D. Janow, Note, Id. aff’d Often, the FCC will make a decision that makes practical The expansion of the section 315(a) exemptions through FCC 73 Thus, it becomes difficult to predict what the FCC would con- The FCC’s interpretive approach has tended to blur the lines 73. 72. Ricchiuto, 74. Aspen Inst. Program on Commc’s and Soc’y, 55 F.C.C.2d 697, ¶¶ 21–29 75. Ricchiuto, program program is regularly scheduled; and (7) if the program is regu- larly scheduled, the broadcast. time and day of week when it is the FCC to make such decisions. One commentator has noted that the FCC’s policy of exempting entire programs rather than just the portions dedicated to bona fide news interviews is part of the son that rea- the equal time rule is in decline. Ronald Coase warned of the power of airwave time the as FCC it to pleased: “It give is and difficult take for broadcasting someone industry outside the to assess the [sic] has extent been to affected which by the programing views and actions of the Commis- move was based authority. on pure convenience rather than decisions has been harshly criticized, as statutory has the broad authority of illustrated above is a common type of test used by the FCC; each of the exemptions is determined using such an approach, which tends to lead to broad interpretation of statutory terms. These multi-fac- tor analyses focus on form as well tent. as (and sometimes over) con- sider a “use” since the factors can be broadly interpreted. of the equal time rule such that it has become dates difficult and for broadcast candi- stations to determine whether an appearance would or would not fall into its realm. The multi-factor approach dates for Pub. Office, 24 F.C.C.2d 832, sec. III (1970)). 288 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:275 \\jciprod01\productn\N\NYS\72-2\NYS202.txt unknown Seq: 14 15-JAN-18 9:54 sense but is perhaps not justified by the text of the statute. For ex- ample, while the FCC initially suspended the equal time rule to al- political rule not did it 1960, in debates Kennedy/Nixon the for low debates exempt until 1975, Equal Time Rule Survive a Jon Stewart Media Landscape? 1079 n.38 (2008). (1975), of the equal time rule to air the presidential debates in 1960. 21. individual segments from equal time requirements is one of the factors accounting for the deterioration of equal time.”). 39707-nys_72-2 Sheet No. 55 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 55 39707-nys_72-2 39707-nys_72-2 Sheet No. 56 Side A 01/15/2018 10:23:44 Legislative his- 77 II. note 24, at 90–93. A. The Statutory Exemptions supra note 43, at 12. Coase argues this point in the context of the PROBLEMS WITH THE RULE supra Holcomb, The addition of the programs listed above to those covered See 76 The 1959 exemptions to the equal time rule were enacted with The next section of this paper will detail the problems that The foregoing sections begin to paint a picture of the over- 76. Coase, 77. that the class of programs being exempted from the equal time re- quirements would offer a temptation as well as an opportunity for a broadcaster to push his favorite candidate and to exclude tory indicates that Congress was aware of—and nervous about—the potential for the exemptions to swallow the whole of the rule; the Committee which presented the exemptions was “not unmindful FCC’s cautious distribution of radio licenses but his argument is equally applicable (and prescient) to the situation of seemingly overbroad FCC decisions to exempt entire shows that do not fall squarely under the exemptions. 2018]sion.” DEMOCRACY IN THE DIGITAL AGE 289 \\jciprod01\productn\N\NYS\72-2\NYS202.txt unknown Seq: 15 15-JAN-18 9:54 the idea that a strict interpretation of lead the to equal a chilling time effect rule on coverage would of political elections, broadcast as news providers would feel hesitant to cover sword politicians of Damocles were hanging over if their heads. the by the news interview exemption leaves the door open to argue that portions of SNL—like its weekly date”—could eventually be included under the exemption, possibly news satire skit “Weekend leading to Up- the exemption of the entire program. Given the current broad interpretation by the FCC, anything is possible. have arisen as a result of the broad tions and interpretation core equal of time the provisions. exemp- fied candidate” and “equal whose appearances do opportunity,” not count under and the rule. those individuals and under-inclusiveness of the equal time rule, as well as highlight- “use” of definition the as such weakness, of areas specific certain ing and the broad interpretation of the “bona fide news interview” ex- problem major a of indicative are examples specific These emption. with the equal time rule: the fact that it lacks clear standards, and the exceptions have overly weakened the substantive rule. This Part statutory FCC’s the with problems specific the into deeper delve will interpretation of the exemptions, the definitions of a “legally quali- 39707-nys_72-2 Sheet No. 56 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 56 39707-nys_72-2 39707-nys_72-2 Sheet No. 56 Side B 01/15/2018 10:23:44 82 Face Meet Under 81 and Howard Stern An Inconvenient to , fall under the Specifically the 80 note 73, at 1079. the Press Truth Meet the Press supra Request of Access Hollywood, Access of Request Lessons from the Demise of the FCC In re 79 The Howard Stern Show programevents station centered on a specific candidate note 16, at 274; Janow, 1. Bona Fide Newscast no. 1, 1998 at 3, 7 (1998) (“This trend toward an increas- an toward trend (“This (1998) 7 3, at 1998 1, no. , note 16, at 274 (citing (citing 274 at 16, note supra EXUS supra 2. Bona Fide News Interview Program N , 3 , Those fears have become a reality as the FCC interpre- Ricchiuto, Rex S. Heinke & Heather L. Wayland, 78 to illustrate what it considered as belonging to this cate- See See Exemption Short Definition Example Many of the programs that the FCC has exempted from equal In determining whether a program qualifies as a bona fide 78. S. Rep. No. 86-562, at 10 (1959). 79. 80. 81. Paramount Pictures Corp., 3 FCC Rcd. 245, 82.¶ 7 (1988). Ricchiuto, Bona Fide NewsDocumentaryOn-the-Spot Coverage Documentary ofthatBona Fide Most News live Eventsnews coverage discusses news but not Debates, political Perhaps conventions Bona Fide NewscastBona Fide News Traditional newsInterview Program discuss Interview newsworthy shows that Nightly news on local Very broad—from this exemption, it appears that if a program looks like a traditional news program, it will be considered a bona fide newscast as long as the network seems to be exercising “good faith news judgment.” FCC looks at whether a show “report[s] about some area of current events, in a manner similar to more traditional newscasts.” time requirements, such as category of bona fide news interview programs. broadest exemption category and the one that is criticized above all This is easily the others. Initially, Congress cited shows such as the Nation newscast, the FCC considers format over content. Fairness Doctrine Fairness tation tation of the rule and the exemptions purposes, thereto swallowed the have, rule. for practical An example of a bona fide newscast is the nightly news on television a station. local 290other[s].” NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:275 \\jciprod01\productn\N\NYS\72-2\NYS202.txt unknown Seq: 16 15-JAN-18 9:54 ingly liberal construction of the exemptions has substantially diluted the effect of the Equal Time Rule.”). 1997 WL 358720 (F.C.C. July 1, 1997)). 39707-nys_72-2 Sheet No. 56 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 56 39707-nys_72-2 39707-nys_72-2 Sheet No. 57 Side A 01/15/2018 10:23:44 ABC, Holcomb, note 73, at See also supra see also While the FCC Does that mean 86 89 . Janow, see also In one major decision, the 88 note 84, at ¶ 16. it has also been clear in rulings 87 supra The Tonight Show decision that even non-traditional inter- 84 note 16, at 275. 17,779 (1959) (remarks of Rep. Moss); . supra 3. Bona Fide News Documentary EC . R 85 Howard Stern ONG C Angelides for Governor Campaign, F.C.C. DA 06-2098, ¶ 9 (Oct. 26, Ricchiuto, See See (1) [W]hether the broadcast is regularly scheduled[,] (2) After 1984, however, the FCC dramatically expanded the 83 Under another factored analysis, to determine if a program Critics of the breadth of this exemption note that one remedy To determine whether a program should be exempted as a note 24, at 93. 83. 105 84. 85. Ishmael Flory, 66 F.C.C.2d 1047, 1048 (1976) (denying an equal time re- 86. 87. The Tonight Show Decision, 88. Infinity Broad. Operations Inc., 18 F.C.C.R. 18,603, 89.18,604 (2003). Angelides for Governor Campaign, F.C.C. DA 06-2098 (Oct. 6, 2006). and participants are made in the independent exercise censee’s news judgment of rather than li- political advantage of any candidate. whether whether the selection of the content, format, and participants of the program is under the exclusive control of the licensee[,] and (3) whether licensee determinations as to format, content, such as the FCC specifically opted not to rule on the applicability of equal time to non-interview segments of does follow that protocol at times, under the exemption, but if he entered the show during the open- ing monologue it would trigger equal time? Thus it becomes important very whether the FCC chooses to exempt a program entirely or only in part. Broadcasters in this legal gray area often choose to err on the side of caution, treating potentially exempt appearances as triggering equal time, in order to avoid sanctioning. that Donald Trump could appear in a traditional seated interview qualifies as a bona fide news documentary, the FCC mainly evalu- would be to exempt only the segments of programs that are actually are that programs of segments the only exempt to be would interview-based rather than the entire program. bona fide news interview program, the FCC looks at the following factors: view formats can wholly fall under this exemption so as not to dis- courage innovation in broadcasting. 2018]gory. DEMOCRACY IN THE DIGITAL AGE 291 \\jciprod01\productn\N\NYS\72-2\NYS202.txt unknown Seq: 17 15-JAN-18 9:54 realm realm of this exemption. 2006) [hereinafter The Tonight Show Decision]; supra 1080. quest to a member of the Communist Party in a gubernatorial race). Inc., 15 FCC Rcd. 1355, 1358 (1999). 39707-nys_72-2 Sheet No. 57 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 57 39707-nys_72-2 39707-nys_72-2 Sheet No. 57 Side B 01/15/2018 10:23:44 95 93 in These factors 90 An Inconvenient Truth on A&E does not fall under the note 36. In response to ABC calling the supra , . Biography TR . C 91 note 73, at 1080. note 73, at 1081. MEND A note 74 and accompanying text. supra supra This is an example of how the exemptions are treated 92 IRST F 4. On-the-Spot Coverage of Bona Fide News Events See See supra Most live news coverage is considered an exemption unless 94 The FCC included live debates under this exemption in A scenario that demonstrates the gray area defined by this ex- 92. A&E Television Networks, 15 FCC Rcd. 10796, 10799 (2000) (Declaratory 93. 90. Janow, 91. Declaratory Ruling Concerning Whether the Educ. Program “The Advo- 94. 95. Janow, coverage of the subject matter; and (4) whether the candidate had any control over the format, production, or subject matter of the broadcast. (1) whether the appearance of the candidate was incidental to the presentation of the subject; (2) whether gram or was not the designed pro- to aid paign; or (3) advance the whether candidate’s initiated the by cam- the [station] appearance on the basis of of fide the news the [station’s] bona judgment that candidate the appearance was [was] in aid of the does not fall under one of the exemptions to section 315). include: 1975. emption would be if a station aired the film emption would be a hypothetical Al Gore candidacy. about While a political issue, it it also is focuses on a one candidate and movie be could seen as advancing primarily that candidate’s campaign. The FCC ruled in 2000 that the program news documentary exemption but it does fit into the news interview exemption. merely as a formality, requiring stations to find the best fit and per- haps tweak the programming slightly to ensure that they comply. Ruling). cates” Is an Exempt Program Under Section 315, (determining that the 23 program—in which attorneys present their F.C.C.2d sides of a case— 462, 1114 (1970) This caveat is particularly designed to allow coverage of Democratic and Republican conventions and other politically significant events. 292ates whether the documentary was created to advance a specific po- NYU litical ANNUAL candidate SURVEY or rather OF to AMERICAN highlight an LAW issue. [Vol. 72:275 \\jciprod01\productn\N\NYS\72-2\NYS202.txt unknown Seq: 18 15-JAN-18 9:54 it is clear that the broadcaster is showing candidate favoritism. FCC’s equal time rule an “anachronism,” the chief of the FCC’s Office of Political Programming responded that “we’re trying to go with innovation. I couldn’t imag- a There’s . . . work. would that format a with up come couldn’t (ABC) they that ine way to make almost any kind of format that you’re imagining work as long as there are certain safeguards.” 39707-nys_72-2 Sheet No. 57 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 57 39707-nys_72-2 39707-nys_72-2 Sheet No. 58 Side A 01/15/2018 10:23:44 . see NTELL I ORDHAM F For presidential 99 98 , 20 Thus, fringe candi- 96 For example, it would 97 Harry Dermer, 40 F.C.C. 407 See also note 16, at 272. An example of a non-legally supra “I’m a Politician, But I Don’t Play One on TV”: Applying 165, 182 (2009). B. Who Else Does Not Count 1. “Legally Qualified Candidates” note 16, at 276, 280 n.90 (citing Chandler v. Georgia Pub. . L.J. Ricchiuto, NT supra & E see also Arkansas Educ. Television Comm’n v. Forbes, 523 U.S. 666 (1998); ; See Id EDIA Has publicly announced his or her intention to run for Is qualified under the applicable local, State or Federal Has met the qualifications set forth in [paragraphs below Equal time goes beyond actual seconds on the air (a reason Thus the rules of the locality of the election apply to determine to apply election the of locality the of rules the Thus The issue of who qualifies as a candidate under the equal time . M 96. 98. 47 C.F.R. §§ 73.1940 (a), 99. (d) (2012). 97. Kimberlianne Podlas, Ricchiuto, nomination or office; law to hold the office for which he or she is a candidate; and including] mak[ing] a substantial showing that he or she is a bona fide candidate for such nomination. . . . ROP rule), but it certainly does not require the exact same opportunity. The broadcaster is required to consider ence, “time, and presentation day, format” size in allotting of equal audi- time, but required to give anyone a specific time slot. is not that many scholars prefer to refer to it as the “equal opportunities” P be impossible for a broadcaster to honor an equal time request for a Super Bowl slot—the broadcaster would not be able to provide a comparable audience for a whole year. And beyond “what” a candi- it. for ask actually can “who” of question big the lies for ask can date dates have no legal recourse for equal time in the context of most televised debates. only applies to “legally qualified candidates,” defined by the FCC as anyone who: whether a person is a legally qualified candidate. rule is a further problem in the application of the rule. Equal time 2018]An important issue raised by this exemption, and one that will discussed be further below, is that debates are not required case to candidates show- outside of DEMOCRACY IN the THE major DIGITAL parties. AGE 293 \\jciprod01\productn\N\NYS\72-2\NYS202.txt unknown Seq: 19 15-JAN-18 9:54 (1964). qualified candidate under local rules was Howard Stern when he began campaign- ing to run for governor of New York. He never filed the necessary paperwork to also Telecomm. Comm’n, 917 F.2d 486, 489–90 (11th Cir. 1990)). the “Equal Time” Rule (Equally) to Actors-Turned-Candidates 39707-nys_72-2 Sheet No. 58 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 58 39707-nys_72-2 39707-nys_72-2 Sheet No. 58 Side B 01/15/2018 10:23:44 102 ROAD- Donald B , Arkansas shows a (June 3, 2007), LOG rested on differ- B U. L. Rev. 613 (2000) . David Oxenford, AW Forbes L See ATH C ROADCAST B , 100 Similarly, the Supreme Court’s deci- 101 Silencing the Minority: The Practical Effects of Effects Practical The Minority: the Silencing Law and Order: Equal Opportunities—The FCC Implications (April 17, 2011), http://www.broadcastlawblog.com/2011/04/ar- LOG Arkansas Educational Television Commission v. Forbes B AW Another problem that arises as a result of the “legally qualified The wording of the FCC’s standard for a legally qualified can- 100. David Oxenford, 101. J. Curtis Herge (NCPAC), 88 F.C.C.2d 626, 628 (1981). Although this 102.III, Ortman J. Francis L CAST sion in social media, could a candidate claim to be legally qualified by vir- tue of presence online? If so, the floodgates would open for anyone to request equal time, with vast broadcasters First were Amendment forced implications to if honor the equal Internet presence. time rule based on most the time equal need who those obvious: is criterion candidate” clearly has FCC the example, For it. request to eligible not often are ruled that “independent political committees” are not eligible for reasonable rights of access. didate is problematic insofar leaves significant as room for interpretation. In the the past, a substantial term “substantial showing has been showing” proven using actual physical presence, i.e. Larry Lessig insisting on his candidacy because and of distributed literature in published the state, made, etc. However, appearances with the in increasing reliance of the candidates on state, speeches Despite the fact that the Court’s decision in orig- case that in plaintiff the time, equal than grounds statutory ent inally brought claims requesting equal time, Amendment and implication the is larger that if First a candidate is not already “in,” become a legally qualified George Pataki, candidate had no so rights to his ask for “opponents,” equal time. Mario Cuomo and 294 races, a candidate becomes legally qualified NYU for the national tion ANNUALafter elec- qualifying in ten SURVEYstates. OF AMERICAN LAW [Vol. 72:275 \\jciprod01\productn\N\NYS\72-2\NYS202.txt unknown Seq: 20 15-JAN-18 9:54 of Fred Thompson’s Possible Presidential Bid ticles/donald-trump-may-declare-presidential-candidacy-on-the-apprentice-fcc- legal-issues/ [https://perma.cc/EK64-U5ED]. thought and whose programs were ultimately accepted” and whose absence “would be a symptom of grave illness in our society.” lack of concern for protecting the voices of the political minority, “who innumerable times have been the vanguard of democratic (quoting C.J. Warren in Sweezy v. New Hampshire, 354 U.S. 234 (1957)). http://www.broadcastlawblog.com/2007/06/articles/law-and-order-equal-oppor- tunites-the-fcc-implications-of-fred-thompsons-possible-presidential-bid/ [https:// perma.cc/PG6L-VZY5]. decision is with § regards 312(a)(7), the equal time rule to shares the “legally qualified candidate” standard. the “reasonable access” Educational provision Television Commission in v. Forbes, 47 49 U.S.C. Trump May Declare Presidential Candidacy on the Apprentice—FCC Legal Issues? 39707-nys_72-2 Sheet No. 58 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 58 39707-nys_72-2 39707-nys_72-2 Sheet No. 59 Side A 01/15/2018 10:23:44 107 LEC- E , 5 The denial of equal time to 105 (Jan. 23, 2008), http://www.broadcastlaw- LOG B State 1, 84 (Oct. 2000). Issues of Democracy: Guide to Election 2000 AW L FCC Rules Against Kusinich Request for Inclusion in CNN T OF 2. Announcement Rule ’ note 16, at 282. EP supra ROADCAST B The FCC applied the equal time rule despite disa- , U.S. D 106 104 The FCC held that as long as the network was using ob- The criteria CNN cited was “that a candidate had to have finished in OF THE 103 Id. Id. J. Furthermore, “non-incumbent candidates-to-be who have not If the purpose of the equal time rule is to ensure a wide spec- 103. David Oxenford, 107. Ricchiuto, 104. 105. 106. U.S. Dep’t of State, fringe candidates may be one of the most with the fundamental equal time rule problems because it utterly contradicts the principle of equality, particularly under a jurisprudence which, at least since the 1960s, purports to support minority viewpoints. TRONIC networks aired an hour-long interview with then-President Lyndon Johnson. Eugene McCarthy, who had recently declared his had President the because candi- denied was and time equal for filed dacy, not yet announced whether he would be running for office again. As such, “candidates time an announcement that they are running for office very carefully, so as not to requiring stations trigger to give the broadcast time Equal in equal Time measure to rule their opponents.” yet declared their candidacy can also make appearances of the sort that would trigger equal time if they were officially declared.” trum of political views prior to an election, one of the biggest short- comings of the rule is pol- incumbent meaning candidacy, her or his announces that politician it does not come into iticians are free to effect toe the line on until television and radio up a until the moment of truth when they announce candidacy. In 1967, several Presidential Debate issue on which it declined to rule. 2018]the case, FCC recent more a In time. equal get to expect cannot she Commission ruled that the Cable News Network (CNN) was not re- quired to give equal time DEMOCRACY to IN Dennis THE Kusinich, DIGITAL a AGE Democratic candi- date in 2008 who debates. had been denied access to Nevada primary 295 greement over whether it had jurisdiction over cable networks, an \\jciprod01\productn\N\NYS\72-2\NYS202.txt unknown Seq: 21 15-JAN-18 9:54 jective criteria and not excluding the candidate for obvious partisan obvious for candidate the excluding not and criteria jective leanings, it was not a First Amendment violation to deny Kusinich equal time. blog.com/2008/01/articles/fcc-rules-against-kucinich-request-for-inclusion-in-cnn- presidential-debate/ [https://perma.cc/5C22-UVL7]. the top 4 in a previous primary and be polling over 5% in an established national Presidential preference poll.” 39707-nys_72-2 Sheet No. 59 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 59 39707-nys_72-2 39707-nys_72-2 Sheet No. 59 Side B 01/15/2018 10:23:44 The same 110 that he was thinking that in twenty- Thus any of the appearances lead- 108 . 3. Third Parties Meanwhile, the “equality” of giving a politi- Meanwhile, the “equality” of giving note 99. 109 Conan: The Barbarian note 97, at 218 (“It is hard to imagine that when Arnold supra The Apprentice supra at 219. Id. A final class of people to whom the rule does not apply is sup- The example of incumbents and the example of actors pose 108. Oxenford, 109. Podlas, 110. commentator proposed that it would be in the interest of fairness to fairness of interest the in be would it that proposed commentator modify the rule to differentiate between pre- and ment post-announce- performances, which might make sense if kept. the rule is to be tor has suggested that, under these circumstances, “a true equal op- portunity would be allowing the opposing candidate to appear on air pretending to be someone other than himself.” cian two hours of free airtime to advocate his or her position versus watching a two-hour movie featuring Arnold Schwarzenegger does not seem to add up mathematically or otherwise. One commenta- posed on broadcast freedoms in the light of the Constitution. context This means that any third party can of speak elections and in porters or third parties discussing and/or endorsing a This candidate. aspect of the rule comports well sensibilities: with the our law First has Amendment to delineate how many limits can be im- different problems: incumbents could likely take advantage of the announcement rule by advocating certain positions and appealing to their audience prior to announcing candidacy, and newscasters whereas are simply doing actors their jobs and perhaps not using airtime to their advantage. It weatherman could use his position to advocate would for himself as a can- be hard to didate imagine while still delivering the how forecast (and not getting a fired). As such, TV personalities have to make a possibly career-ending choice by running for office. ing up to that announcement, as long as they were not rebroadcast, to had have still would he (and time equal triggered have not would be considered a legally qualified restrictions). candidate to be subject to the Schwarzenegger was in five years he would run for would office, happen to be and running his maybe film.”). some then-non-existent network 296 This issue comes into play with actors-turned-candidates (and NYUper- sub- the was Trump Donald 2012, In Trump). Donald like sonalities ANNUAL SURVEY OFject AMERICAN of LAW a prior debate about rumor the that he equal might [Vol. time announce 72:275 his rule presidential because candidacy television show, of on his the \\jciprod01\productn\N\NYS\72-2\NYS202.txt unknown Seq: 22 15-JAN-18 9:54 39707-nys_72-2 Sheet No. 59 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 59 39707-nys_72-2 39707-nys_72-2 Sheet No. 60 Side A 01/15/2018 10:23:44 Media Impact in , “ What has become LAREVAS 114 K OUIS L It is interesting to consider how note 106, at 85 (“As new democracies III. 111 supra 281, 281–82 (Mark J. Rozell ed., 2003)) (“As a satire of a vice-presidential candidate can be as politi- NO LONGER STAND OLITICS note 16, at 281 (citing CBS, Inc. v. FCC, 454 F.2d 1018, P note 43. note 97, at 173 (quoting A. Scarcity of Spectrum Rationale 113 supra EDIA supra M supra THE RATIONALES FOR EQUAL TIME in U.S. Dep’t of State, ,” The influence that can come about through third parties See Saturday Night Live 112 One of the primary justifications for the equal time rule is the The previous sections of this Note detailed the evolution of the 111. Ricchiuto, 112. Podlas, 114. Coase, 113. clear is that traditional broadcast is subject to an inordinately high much influence comedy and satire sketches have over potential vot- ers—when an actor plays a candidate, there quirement, but the effect may be much bigger: “Indeed, television’s is no equal time re- imagery frequently speaks ‘where not.’” words . . . or reporting do 1029 (D.C. Cir. 1971)). notion that the radio and television spectrum therefore is be scarce subject to and more must limitations despite First Amendment freedoms. As early as 1959, Ronald Coase and identified economic the weaknesses physical of this rationale. 2018]on the air in support of a candidate as long as the candidate herself is not involved in the broadcast. DEMOCRACY IN THE DIGITAL AGE 297 \\jciprod01\productn\N\NYS\72-2\NYS202.txt unknown Seq: 23 15-JAN-18 9:54 litical landscapes. Amendment restrictions. No one is arguing that we should impose equal time requirements for the SNL characters, time Alec such Baldwin appears that as Trump, the every other Republican candi- dates could request presumably). equal time (through character portrayal, equal time rule and highlighted many of its problems. This Part will discuss the rationales formerly advanced for they equal no longer make sense in light time of today’s technological and po- and why is an example of how the rule does effect not and really could reach not its do intended so without severe and burdensome First result, a around the world wrestle with issues of regulation in broadcasting to ensure fair- ness for political candidates in elections, the U.S. experience is an indication that even simple rules are not always easy to implement in practice and must be period- ically reevaluated in the light of changing well as circumstances, political.”). both technological as Media Power cally relevant as the nightly news.”). 39707-nys_72-2 Sheet No. 60 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 60 39707-nys_72-2 39707-nys_72-2 Sheet No. 60 Side B 01/15/2018 10:23:44 . & ECH . J. T W N , 9 One study took into 117 115 , several early court cases inter- supra note 79, at 8. note 54, at 299 (“The evidence suggests that the What really happened as a result of the supra 116 supra note 13, at 7–8. The Overly Active Corpse of Red Lion supra 1. Abandonment of Fairness Doctrine 51, 55 (2010). Hazlett & Sosa, . See ROP . P Though both the equal time rule and the fairness doctrine As discussed in Part II.B., Since the 1987 FCC decision to abandon the fairness doctrine, 116. Heinke & Wayland, 117. 115. Berresford, NTELL 1987 elimination of the [Fairness Doctrine] had station a formats—in pronounced favor effect of on informational radio programming”); Sarah Thomas Oh W. & Hazlett, Drew Clark, I fairness doctrine was not a promotion of equality on but the airwaves rather a chilling effect on paralyzed speech by concern that because they would have broadcasters to provide were all sides of a controversial issue with an opportunity to be heard. evidence has shown that the doctrine did effect on radio and television programming. indeed have a chilling rollary to the study’s results, which showed an increase in informa- account the decrease of content regulations crease by of licenses the granted by FCC, the FCC, the and the in- demise of ness the fair- doctrine to conclude decrease that in the informational latter broadcasters chose to air less informational programming is the co- programming. did The contribute to conclusion a that is, if anything, perverse.” rationale, which in turn became the main reason to justify both the fairness doctrine and the sense: equal why time should rule. the This FCC forms reliance of media have if makes they greater do not have regulatory a special power The special need need for for regulation of over regulation? TV and radio broadcast seemed to be that they were a finite resource. were premised on the spectrum scarcity argument, only the fairness doctrine was formally abandoned. One of the main reasons that the fairness doctrine was abandoned was that the FCC comfortable was relying no on the longer scarcity rationale. It has become abun- dantly clear that today “[t]here is no longer any realistic spectrum scarcity, and the distinction between physical and economic scarcity preting equal time and the fairness doctrine relied on the scarcity 298 First Amendment limitation with NYU essentially no and, as a result, ANNUAL“the Scarcity Rationale put[s] traditional legs broadcast- to SURVEY stand on, OFing, and especially its contents, under AMERICANfar more government control LAWthan any comparable business in the United States since the end of [Vol. 72:275 prior censorship in the colonial era.” \\jciprod01\productn\N\NYS\72-2\NYS202.txt unknown Seq: 24 15-JAN-18 9:54 39707-nys_72-2 Sheet No. 60 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 60 39707-nys_72-2 39707-nys_72-2 Sheet No. 61 Side A 01/15/2018 10:23:44 118 —because At oral argument Citizen’s United 122 Mistakenly, the govern- 123 Print media has thus been 124 (May 21, 2012), http://www.newyorker ORKER Citizens United v. Federal Election Commis- Election Federal v. United Citizens Y note 54, at 299. EW N Print, Cable, and Beyond supra Money Unlimited: How Chief Justice Roberts Orchestrated the HE T , note 28, at 1517 (“It is likely, however, that the need for the A similar argument to extend First Amendment , the government argued that the FCC had the Part V.B. in 1969, other attempts were made to extend its 120 supra 2. Scarcity Has Never Applied to Other Media— Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241 (1974). see infra ; 119 Id. Id See Red Lion and was roundly rejected by the Court. After the Supreme Court’s endorsement of the scarcity ratio- Citizens United 121 123. 124. 121. 558 U.S. 310 (2010). 122. Jeffrey Toobin, 118. Hazlett & Sosa, 119. Smith, 120. Demand TV, and the Court asked if that type of regulation would apply to books or print media as well. right to limit the broadcasting of a documentary video tion in to Hillary opposi- Clinton’s candidacy which was to air on hotels’ On for ment answered that it would, and by reverse extension of that prin- ciple, the Court completely overturned the Reform Bipartisan Campaign Act (BCRA) Amendment provision rights in allowing that context. the limitation of First consistently considered outside of the gambit of FCC regulation limitations to print media (though based on a different statute) was in considered hypothetically sion .com/magazine/2012/05/21/money-unlimited .com/magazine/2012/05/21/money-unlimited [https://perma.cc/SBL3-CX7N]. The argument is often considered part of the reason why the Court made such a sweeping holding over a seemingly narrow question in the regulations suggested by the government seemed to extend too far in the rection di- of First Amendment infringement. nale in use beyond broadcast media to other attempts forms failed. of media, but those Citizens United Decision equal time provisions by themselves is somewhat less compelling [than reasonable access provisions].”). 2018] tional programming after 1987 because it became less risky controversial to air opinions Whether the chilling effect post-fairness extends to the equal time rule as DEMOCRACY well is IN THE DIGITAL AGE doctrine a controversial issue in abandonment. itself: at least one critical examiner has sug- gested that while any decisions not to air a candidate’s speech that result from fear of violating profound equal as time those are, which collectively, equal were not caused time as by nevertheless 299 the does rationale. fairness not doctrine, hold up without the scarcity \\jciprod01\productn\N\NYS\72-2\NYS202.txt unknown Seq: 25 15-JAN-18 9:54 39707-nys_72-2 Sheet No. 61 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 61 39707-nys_72-2 39707-nys_72-2 Sheet No. 61 Side B 01/15/2018 10:23:44 ROAD- B , Morning Edi- issue, equal time on Law & Order Though much of cable TV is namely, the scarcity doctrine. 127 125 For example, when Arnold when example, For 128 Id. 129 Barack Obama and The Daily Show, Hillary Clinton and Much of the confusion results from the turf note 16, at 284. As an example, “both the Sci-Fi channel 126 note 97, at 169. This was the case for cable as well as broad- note 21 (“As Scott Horsley reported on NPR’s supra supra supra (Aug. 30, 2007), http://www.broadcastlawblog.com/2007/08/arti- David Oxenford, LOG See B Part IV.A.2. AW Even more confusion derives from the difference between Cable TV’s innumerable broadcast offerings intrinsically do Cable TV has also traditionally been treated differently from 129. Podlas, 125. Turner Broadcasting System, Inc. v. F.C.C. 512 U.S. 622, 126.637 (1994). Trex, 127. The amended law only covers “local origin cablecasting” which has been 128. Ricchiuto, L during the discussion of the Thompson/ David Letterman, Fred Thompson and Law and Order—What About Equal Time? CAST clearly exempt, networks often decide to comply with equal time as a precautionary measure. tion As such, cable has always lived in a legal gray area the equal time with rule. respect to cast television because of the confusion over whether equal time applies to cable. See infra Schwarzenegger ran for governor of California, several cable broad- casters chose not to air any of his movies out of equal fear time of requirements. triggering war between the FCC and cable broadcasters over whether the rules apply to cable or solely to broadcast TV. cable providers and cable networks. not support the scarcity rationale. Likely because of the number of offerings and the lack of censorship, cable has surpassed traditional national cable networks is a bit of a gray area.”). taken to exclude cable networks. Since there has been no official the FCC issue, cable networks often err on the side of caution ruling and remove questionable on material. tations of the broadcast medium,” 300and equal time, despite arguments about newspapers NYUas an actual scarce, ANNUAL dying industry today. SURVEY OF AMERICAN LAW broadcast TV [Vol. 72:275 under federal regulations. For monly known example, that it the is FCC com- is unable cable programs to the regulate way the that decency they of are the treated be cannot cable that ruled entitled even has Court Supreme The with broadcast TV. same as broadcast TV because “the justification for our distinct ap- proach to broadcast regulation rests upon the unique physical limi- \\jciprod01\productn\N\NYS\72-2\NYS202.txt unknown Seq: 26 15-JAN-18 9:54 cles/barack-obama-and-the-daily-show-hillary-clinton-and-david-letterman-fred- thompson-and-law-and-order-what-about-equal-time/ [https://perma.cc/SU6L- 2PSP]. and FX elected to suspend scheduled airings of Schwarzenegger action films” dur- ing his gubernatorial campaign. 39707-nys_72-2 Sheet No. 61 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 61 39707-nys_72-2 39707-nys_72-2 Sheet No. 62 Side A 01/15/2018 10:23:44 Citizens [rejecting [allowing First Tornillo —in a limbo of regula- 133 Red Lion Even in 2005, “[t]he vast majority of 130 note 117, at 64. note 13, at 22. supra note 13, at 21 (“This year [2005], more Americans As such, “[d]ue to the prevalence of cable tele- Even in the 1980s, the question of this distinc- note 73, at 1083. supra 131 supra 134 supra (“[A]lmost ninety percent of television viewers have cable or satel- The sheer number of cable providers that exist is—in and Id. jurisprudence would completely undercut it. 132 In general, the distinctions that have long been drawn between Cable has long lived in the space in between unregulated print 130. 131. Berresford, 132. Janow, 133. Many people read Turner Broadcasting Systems, Inc. v. F.C.C., 512 U.S. 134. Hazlett & Sosa, There may be Amendment limits on broadcast ways media] and to reconcile First Amendment limits on print media] but the broadcast ‘scarcity’ frequencies of does not appear capable Perhaps the Supreme Court will one day of revisit this area of the doing so. law and either eliminate the distinction between print and American American households [paid] money to avoid traditional TV and get other channels.” like the iPad and Kindle, have brought print and broadcast much closer together. tion was presented to courts in the context of a new form of media called “teletext.” One court specifically articulated its hope that the Supreme Court would find another rationale aside from spectrum scarcity to differentiate between print and broadcast media: tion that provides space to circumvent equal time unjustified by the scarcity rationale—but recent developments made in this zone technology even more have hazy. Nowadays newspapers are scarcer than broadcast one media. If that rationale were could argue that used, however, to justify more print media regulation, the United print and broadcast media and between cable TV and broadcast TV are being eviscerated by technological advances. The distinction be- mean- virtually becoming is media broadcast and media print tween ingless in the information age. Take toward for tablets as example a source the of reading news movement today; these inventions, vision in America, much of the their programming homes viewers receive remains in untouched time.” by the requirements of equal 2018] broadcast TV in viewership. DEMOCRACY IN THE DIGITAL AGE 301 \\jciprod01\productn\N\NYS\72-2\NYS202.txt unknown Seq: 27 15-JAN-18 9:54 media and highly-regulated broadcast TV of itself—proof of the inapplicability cable of TV. the scarcity rationale to lite.”); Berresford, watched the Republican National Convention on cable’s FoxNews on channel any traditional than TV broadcaster.”). 622 (1994), to create an intermediate scrutiny level for cable. Still, the FCC asserts more jurisdiction and cable asserts less but complies for fear of punishment. 39707-nys_72-2 Sheet No. 62 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 62 39707-nys_72-2 39707-nys_72-2 Sheet No. 62 Side B 01/15/2018 10:23:44 137 applicable to Tornillo note 117, at 62 n.60. supra 135 3. No Economic Scarcity note 43, at 7. Hazlett & Sosa, 136 supra . at 10. see also Id Perhaps the most important reason that the scarcity doctrine The use and prevalence of the Internet and digital age technol- age digital and Internet the of prevalence and use The The argument advanced by the D.C. Court of Appeals was not 137. 136. Coase, 135. Telecomms. Research & Action Ctr. v. F.C.C., 801 F.2d 501, 509 (D.C The situation in the American broadcasting industry is not es- sentially different in character from that which would be found if a commission appointed by the federal government had the task of selecting those who were to be allowed to publish news- papers and periodicals in each city, town, United and States. A village proposal of to the do this would, freedom of doctrine the with inconsistent as hand of out jected of course, be re- of the press. broadcast broadcast media, surely by pronouncing both, or announce a constitutional distinction that is more usa- ble than the present one. people would like to use more than capital are all scarce, but this, exists. of itself, does not call for govern- Land, labor, and ment regulation. It is true that some mechanism has to be em- ployed to decide who, out of many claimants, should be [I]t is a commonplace of economics that almost all resources used in the economic system (and not simply radio and televi- sion frequencies) are limited in amount and scarce, in that tion on the notion of spectrum scarcity. can no longer stand as the predominant justification for the equal time rule is that economic scarcity of the broadcast frequencies no longer exists. Additionally, just because a resource is finite does not mean that it should be regulated in an overly burdensome way. academic community. Ronald Coase, ahead of his time, pointed out pointed time, his of ahead Coase, Ronald community. academic the disturbing paradox of broadcast print: scarcity in comparison with ogies present even more challenges for justifying broadcast regula- that print media and broadcast media are legally indistinguishable as sources of information, but rather that there ought to be a better justification for restricting free speech for the funct latter scarcity rationale. than The comparison the of actual de- scarcity between the to new not was Bork Judge by invited media broadcast and print Cir. 1986); Coase described the situation first and best: 302 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:275 \\jciprod01\productn\N\NYS\72-2\NYS202.txt unknown Seq: 28 15-JAN-18 9:54 39707-nys_72-2 Sheet No. 62 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 62 39707-nys_72-2 39707-nys_72-2 Sheet No. 63 Side A 01/15/2018 10:23:44 Red 139 note 24, at 104. supra Holcomb, This policy concern took form 138 see also 141 140 1. Policy Rationale note 13, at 20. B. Three Other Rationales note 43, at 14. supra supra . at 11–12. Id Aside from the scarcity rationale, a few other justifications have One of the earliest justifications for the broadcast regulations, Furthermore, Furthermore, government created “scarcity” caused by limiting The foregoing reasons illustrate the inapplicability of the scar- Court was clearly worried about the power that the broadcast 138. Coase, 139. 140. S. Rep. No. 86-562, at 9 (1959); 141. Berresford, allowed allowed to use the scarce resource. But the way this is done in usually the American economic system is to employ the price mechanism, and this allocates resources to users need without for the government regulation. nale of “dangerous power” of the broadcast stations; the immediacy rationale, which contends that the effectiveness makes of it inherently broadcast subject TV to regulation; nale, and which suggests that the broadcast TV is diversity obligated to include ratio- a di- versity of opinions. Each of the three is explored and rejected as a basis for stricter First Amendment regulation of this section. broadcast TV in been advanced in defense of the equal time rule, particularly since spectrum scarcity has lost popularity. These include a policy ratio- in an idea called the “dangerous power rationale.” As an example of the use of this rationale to support broadcast regulation, the Lion using the media to sway elections. including the equal time rule, was the idea that the big three works net- would back a political candidate and exert undue influence city rationale to the broadcast regulations supervised and by are just the as FCC applicable to the equal time rule as doctrine. to the If fairness the scarcity rationale has been discredited, mittee [should] have no hesitation in removing completely “the the pre- com- sent provision regarding equal time and [should] urge the right of each broadcaster to follow his own conscience in the presentation of candidates on the air.” the frequencies and determining who can get licenses only creates an artificial supply problem and makes it unclear whether the de- mand for frequencies actually outperforms the supply. 2018] DEMOCRACY IN THE DIGITAL AGE 303 \\jciprod01\productn\N\NYS\72-2\NYS202.txt unknown Seq: 29 15-JAN-18 9:54 39707-nys_72-2 Sheet No. 63 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 63 39707-nys_72-2 39707-nys_72-2 Sheet No. 63 Side B 01/15/2018 10:23:44 in , 85 Tele- 144 CBS v. DNC Judge Bork of 145 . note 13, at 20. supra Court were convinced of the The flipside to the idea that the that idea the to flipside The CBS There is similarity to be drawn 142 146 2. Immediacy Rationale 768, 786–87 (1972)). , 412 U.S. at 152 n.3. (Douglas, J., concurring) (quoting Louis L. . EV Id. CBS Id. Not all the justices on the 143 The Editorial Responsibility of the Broadcaster: Reflections on Fairness and Access A short word should be noted on the ill-regarded immediacy There has, by and large, always been some healthy pushback . L. R 142. 143. 412 U.S. 94, 127–28 (1973); Berresford, 144. 145. 801 F.2d 501, 508 (D.C. Cir. 1986). 146. manipulated by the The maddening. quite find I which assumption an is prejudices media, without interests, on based be not should doctrine constitutional of development conflicts, or such hysterical overestimation of media power and underesti- mation of the good sense of the American public. The implication that the people of this proponents country—except of the the theory—are mere unthinking automatons ARV rationale was once considered, to intrude on First Amendment with the dangerous power rationale: courts seem to what prefer is seemingly an objective scientific standard, which the scarcity to use big three networks could co-opt the airwaves in favor of one candi- date is that the American public is susceptible to brainwashing the by networks, as Chief Justice Berger pointed out in the D.C. Court of Appeals trounced the immediacy rationale when he said “we are unwilling to endorse an argument that very makes the effectiveness of speech the justification First for Amendment according protection.” it less rationale, which posits that the effectiveness of the communication (here, broadcast television) justifies more ment intrusive regulations. This First rationale was Amend- advanced by the FCC in communications Research and Action Center v. FCC against what the media tells the American public. And if the 2016 election cycle has proven anything, it is that regardless of their po- litical leanings, broadcast networks will cover Trump and in beyond because the he news increases the ratings. It is clear today that the usurpation of the airwaves power rationale envisioned did not under occur and the that dangerous it would the current be media impossible landscape. in Jaffe, H 304voters. over exert could networks NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:275 \\jciprod01\productn\N\NYS\72-2\NYS202.txt unknown Seq: 30 15-JAN-18 9:54 1973. wisdom of the dangerous power rationale, and Justice Douglas said so in his concurrence: 39707-nys_72-2 Sheet No. 63 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 63 39707-nys_72-2 39707-nys_72-2 Sheet No. 64 Side A 01/15/2018 10:23:44 As sug- foot- 150 Red Lion Tornillo specifically pre- Even though it did 149 Tornillo Court adopted this justifi- Court implicitly rejected the note 79, at 8. Two commentators have, how- 148 IV. Red Lion supra Tornillo note 79, at 8 (finding that the , that theory no longer carries weight. supra and it has gained some ground since the , the “ 3. Diversity Rationale infra note 16, at 286. 147 That critic suggested either the abandonment supra 151 RULE SHOULD BE ABANDONED Red Lion Heinke & Wayland, at 8–9. RECOMMENDATION—WHY THE EQUAL TIME Id. Id. see also A few years back, one critic stated that “[e]qual time is a doc- A final rationale that was formerly advanced as justification for 147. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 400 n.28 (1969) (sug- 148. Heinke & Wayland, 149. 150. 151. Ricchiuto, trine which, despite its well-meaning roots, is currently serving no useful purpose.” argued in Part IV.A., ever, argued that the Court’s holding cludes such in a rationale as exceeding the authority of the FCC when seeking to abridge First Amendment rights. or a revamping of the rule in order to make it useful. However, at this point, it is clear based on continuing trends in technology and demise of the scarcity rationale FCC with regulation those of the who airwaves. favor continued not reference broadcast on the airwaves. The cation in a footnote, the equal time rule is the idea that a diversity of opinions should be directly or indirectly multiplying the through voices time sharing, fairness and doctrines or views other devices which presented limit or dissipate to general the with communication of channels the astride sit who those of power the the public public”); gesting that the FCC regulations would still be acceptable without the scarcity ra- tionale because First Amendment freedoms are not infringed on “by legislation 2018]effectiveness potential the about speculations than rather freedoms, or power that a form of speech speech were can a DEMOCRACY IN generate. legitimate THE DIGITAL policy If AGE rationale effectiveness for of FCC Internet regulation, the would surely control. have come under tighter governmental 305 \\jciprod01\productn\N\NYS\72-2\NYS202.txt unknown Seq: 31 15-JAN-18 9:54 view that government content regulations could be justified by the scarcity—e.g.,economic of face the the in diversity preserve to need limited number of newspapers in most cities. Rather, note “is acquiring renewed significance as the empirical assumption of spectrum scarcity has become increasingly unsound”). gested that only physical spectrum scarcity would be enough.” 39707-nys_72-2 Sheet No. 64 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 64 39707-nys_72-2 39707-nys_72-2 Sheet No. 64 Side B 01/15/2018 10:23:44 (January 2016), (June 1, 2015), An earlier study EDIA M 153 The Race for the White House , Amy Mitchell, Jeffrey Gottfried, & OURNALISM AND , J As mentioned already, most Ameri- . See, e.g. 152 ENTER C note 13, at 18 (“In sum, the decades since The Scarcity A. Technological Changes ESEARCH supra R Millenials and Political News: Social Media – The Local TV for the EW P , The rationales discussed above—scarcity, dangerous power, 152. Berresford, 153. For candidate information, 61% of respondents used digital media and particularly among younger generations—as a primary source of source for both candidates and political issues. cans pay for cable TV in order to avoid traditional broadcast televi- sion. But beyond the declining reliance on broadcast now are studies reliance, a such was ever there if opinions, of variety TV to air a clear that the Internet is eclipsing traditional broadcast television— political information. For example, a 2016 study suggests that digi- tal media is at parity with broadcast TV as a primary information by the same organization shows the increasing reliance on cable TV and the Internet for political information while local TV mainly de- of modern technologies that which the American have public receives information about politics. For vastly expanded the example, the ways expansion of the in Internet as a source of political formation in- addresses the scarcity rationale in that the widest range of opinions are reflected on the myriad media available, which are not considered to be scarce. 306 politics that any such revamping may make the rule more effective NYU(if ANNUALit were enforced and SURVEYapplied) but would not be OF justified. I rec- ommend AMERICAN abandoning the LAW rule and putting in place gime a to assuage security the fears re- that [Vol. may 72:275 still exist in the absence regulation. of the immediacy, and diversity—are all undermined by the proliferation \\jciprod01\productn\N\NYS\72-2\NYS202.txt unknown Seq: 32 15-JAN-18 9:54 http://www.journalism.org/2015/06/01/millennials-political-news/ [https://per ma.cc/3L5X-4J25] (showing that 61% of millennials rely on Facebook for political info where 37% rely on opposite). local TV versus baby boomers, where the split is the https://www.iab.com/insights/the-race-for-the-white-house-2016-registered-voters- and-media-and-information-during-the-primaries/ [https://perma.cc/LL2U- TABY]. Trends indicate an increase toward digital media as information a primary about source of political issues Katerina Eva Matsa, Next Generation? Rationale took shape have seen an explosion in the works number and channels, both of via radio distribution and other media—morenet- traditional broadcast- ers, cable television, DBS, DARS, Internet, WiFi and WiMax—and in the content mass that fills them. By of no rational, objective standard can it be said that, today in the United States, channels for broadcasting are scarce.”). 61% used TV; and for information on issues, TV was 69% compared slightly to 67%. Interactive Advertising Bureau, ahead of digital, at 2016: Registered Voters and Media and Information During the Primaries 39707-nys_72-2 Sheet No. 64 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 64 39707-nys_72-2 39707-nys_72-2 Sheet No. 65 Side A 01/15/2018 10:23:44 (Oct. Citizens EDIA M In 156 OURNALISM AND decision. , J The Supreme Court over- This outcome makes sense 158 ENTER Internet Gains Most as Campaign News 155 C Citizens United ESEARCH R EW P B. Political Changes , note 99 (“Thus far, none of the political rules have supra Under the Bipartisan Campaign Reform Act (BCRA) at 319–20. at 320–21. The proliferation of streaming TV also creates a way 157 Id. Id. 154 , a conservative nonprofit corporation wished to air a film One of the major changes in the political landscape in the last The increasing reliance on alternate media sources outside of 154. The percentage of US adults who get their news from the Internet went 155. Oxenford, 156. 558 U.S. 310 (2010). 157. 158. turned two prior decisions and portions of BCRA, finding that cor- porations are entitled to exercise First Amendment rights. One of the major criticisms of this opinion was that it essentially empow- Primary. United criticizing Hillary Clinton in the days leading up to the Democratic traditional broadcast television undermines all that were relied upon in the years prior to the abandonment of of the the rationales fairness doctrine and creates a huge incentive to eliminate the bar- equal the in codified press the of freedom Amendment First on rier time rule. two presidential election cycles has been the deregulation of cam- paign financing through the given the traditional non-regulation of the Internet. Simultaneously it makes equal time on local broadcast channels seem arbitrary and irrelevant. from 9% in January 2000 to 36% in October adults who 2012, get their news from where the local TV stations went the from 48% to 38% percentage in the of US same time frame. Pew Research Center Staff, Source but Cable TV Still Leads 2018]clined. DEMOCRACY IN THE DIGITAL AGE 307 \\jciprod01\productn\N\NYS\72-2\NYS202.txt unknown Seq: 33 15-JAN-18 9:54 and FCC regulations, such an action would have been a violation of law because corporations were barred from spending from the gen- eral treasury for either general advocacy of a political candidate or for “electioneering communications.” around around the equal time rule: because streaming does TV programming not seem to fall under broadcast the the episode of equal SNL featuring time Donald Trump on rule, its web- NBC could site and re- not be subject to equal time. 25, 2012), http://www.journalism.org/2012/10/25/social-media-doubles-remains- limited/ [https://perma.cc/T4KW-Z6NK]. broad- a that statements vague some than other Net the to extended officially been caster, who sells Internet spots as part of a package with broadcast spots, may need also to sell those spots to candidates—especially if they are sold to one candidate for a particular race.”). 39707-nys_72-2 Sheet No. 65 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 65 39707-nys_72-2 39707-nys_72-2 Sheet No. 65 Side B 01/15/2018 10:23:44 , AW OF ’ L OBBS Citizens United D , It tells us what 161 UBLICK The Hydraulics of Campaign , https://en.wikipedia.org/ , and one that has firm M. B attitude the Court may see LLEN opinion is the idea that it is This outlook reinforces tradi- & E and the Future of FCC Content Regulation 160 Citizens United AYDEN Citizens United T. H 163 51, 64 (2010). Furthermore, the Citizens United 1705, 1708 (1999) (explaining the emergence of This concept also fits well with the aban- . AUL EV 164 . L.J. , P Negative and Positive Rights NT 159 . L. R OBBS . EX Id . & E T B. D , McConnell v. FEC, 540 U.S. 93 (2003) (deferring to Congress’s OMM AN , 77 D C Samuel Issacharoff & Pamela S. Karlan, Definition, This approach certainly has its critics but inheres in all See See, e.g. See See 162 , § 259 (2d ed. 2016). A broader implication of Despite the prevailing opinions on the wisdom of that choice, ASTINGS 164. 159. 163. Then again, the recent replacement of Justice Scalia does create a possi- 160. Elizabeth Elices, Citizens United 161. 162. H ORTS reason for abandonment. Finance Reform the government (and other people) cannot do to what us the government rather should than do for us. For tort example, regime, in the black U.S. letter law negli- for liable not are you her, save not do and river a in drowning states that if you walk gence. by a person rather than a positive-rights-granting document. tional views of the Constitution as a negative-rights-protecting the campaign space in favor of a disclosure-based regime that courages transparency. en- support in the academic community, is the general deregulation of both for and against, for our theme emphasized in the purposes, the relevant overarching not the charge of the First Amendment “to equalize the ability [of participants] to impact elections.” T 308 ered corporations by ensuring that they are afforded the same First NYU Amendment ANNUAL freedoms as natural SURVEY beings, which OF has always been controversial AMERICAN a issue. LAW [Vol. 72:275 \\jciprod01\productn\N\NYS\72-2\NYS202.txt unknown Seq: 34 15-JAN-18 9:54 decision’s “relevance in telecommunications may not be in direct application, but may serve as a guide to how the current Supreme Court may analyze media regula- tion in the future.” aspects of American law, and election law is no different. If the law is willing to let a person drown, allow a candidate to metaphorically drown in an election. Given the it seems even more probable to current Court’s conservative approach, the equal time rule very well could fall if challenged. bility of a shift in this stance. However, given the lack of underlying rationales for the equal time rule, even without the ability to weigh competing constitutional concerns in enacting contribution limits designed to protect the integrity of the political process because of its interest preventing in the erosion of public confidence in the integrity of the electoral cess); Austin pro- v. Michigan Chamber of Commerce, 494 U.S. 652 (1990) (recogniz- ing that the compelling governmental interest in preventing corruption supports the restrictions on political contributions through the corporate form). 33 wiki/Negative_and_positive_rights [https://perma.cc/85HV-PRWX]. 39707-nys_72-2 Sheet No. 65 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 65 39707-nys_72-2 39707-nys_72-2 Sheet No. 66 Side A 01/15/2018 10:23:44 NLINE Fur- . O 165 Austin v. EV N.Y.U. L. R , 89 suggesting that elec- 168 , World Buckley has now been roundly rejected in note 164, at 1713. 166 supra McCutcheon v. FEC C. Critiques of Past Suggestions and 167 Market Intermediaries in the Post- Over the years, many critics have suggested either abandon- 165. Issacharoff & Karlan, 166. 494 U.S. 652 (1990) (holding that the Michigan Campaign Finance Act, 167. 558 U.S. 310 (2010) (holding that individual contribution caps to parties 168. 134 S. Ct. 1434 (2014) (holding that Congress may target only “quid pro thermore, the anticorruption rationale election restrictions in (which order to prevent the accepted appearance of corrup- tighter tion in elections) that was briefly taken to an extreme in Michigan Chamber of Commerce focus on the changes in the technological and political climate of today’s election system, advocates a total abandonment of the rule. Advocates of the abandonment of the rule have cited many differ- ent reasons. While fairness of election coverage might be mate concern, it is a one that is not well addressed by legiti- the FCC or any regulatory agency for that matter. “To the contrary, the FCC’s ex- periment with such regulations has demonstrated that such regula- tory ‘solutions’ to the problem of media stifle unfairness the flow serve of only information to to the public, while creating danger- tions should not Amendment create restrictions. special circumstances for tighter First ment or overhaul of the equal time rule. The analysis above, with a Citizens United 105 (2014) (arguing for raising contribution limits to decrease reliance on unregu- on reliance decrease to limits contribution raising for (arguing (2014) 105 lated independent spending). which prohibited corporations from using their general treasury funds, was consti- tutional under the First Amendment). is unconstitutional). quo” corruption). soft money as a hydraulic water, has outcome to go somewhere. of It never really overregulation: disappears into thin “[P]olitical air.”); Samuel Is- sacharoff, money, like tainment may be uncontrolled flood damage elsewhere.” 2018] donment of the equal time rule. To require broadcasters to comply with infringements on First Amendment discretion and not require the same regulations DEMOCRACY in IN THE other DIGITAL media AGEwill only—like water hydraulically moving from one space to another—send the the coverage unregulated spaces, into like the Internet. This analogy was first ad- vanced by Samuel Issacharoff and Pamela Karlan in the context of PACs and Super PACs and the world of campaign finance. context In the of political money, 309 the high force the regulation money elsewhere, in such one that “the area price of will apparent con- \\jciprod01\productn\N\NYS\72-2\NYS202.txt unknown Seq: 35 15-JAN-18 9:54 39707-nys_72-2 Sheet No. 66 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 66 39707-nys_72-2 39707-nys_72-2 Sheet No. 66 Side B 01/15/2018 10:23:44 169 note 24, at supra First, this com- Court realized that This contention 171 172 Aside from the fact Red Lion 174 Holcomb, note 13, at 30 (“The Scarcity supra see also and inaccurately relies on a Part IV.B.1, suggesting that it re- He further relies on the dangerous note 79, at 11. Red Lion 173 supra supra note 16, at 279. note 43; Berresford, , as well as other factors described above, have nullified note 73, at 1087–89; note 73, at 1091. note 73, at 1090 n.113. supra supra supra supra supra Red Lion Coase, See 170 However, several commentators have argued for an overhaul of overhaul an for argued have commentators several However, 174. Janow, 173. 172. Janow, 169. Heinke & Wayland, 170. Ricchiuto, 171. Janow, Rationale was intellectually questionable from its proponents knew inception. it might Moreover, not be even needed long. its The new technologies may require changes in old ideas. appeared The since technologies that have The Scarcity Rationale. It no longer provides a rational basis for regulating tradi- tional broadcasters . . . .”). 105–06 (suggesting the elimination of the exemption). “bona fide news interview program” journal article citing that decision as standing for the proposition that the broadcast spectrum is a fixed resource. that this rationale has not come to fruition in the history of broad- mentator bases his arguments on a scarcity flawed rationale. understanding He of cites the up to (and beyond) the 2005 FCC-published report on the scarcity rationale, questioning economic scarcity and premise of physical even scarcity. the scientific has been refuted by scholars dating back to Coase and all the way power rationale, discussed mains a viable interest for the government to regulate broadcast TV because of concerns of media domination. the rule to address some of its problems. Arguments for revamping polit- the either with fit really not do well-meaning, though rule, the ical trend toward deregulation of the campaign vances space or in the ad- technology obsolete. For that example, one commentator has suggested the follow- are rendering ing changes: (1) eliminating the news the interview exemption and (2) equal time extending the equal time rule rule to cable networks. 310ous opportunities for government NYU intimidation of Two aspects ANNUALof that dysfunction the are the facts that FCC enforcement media.” SURVEY OFis AMERICANin and of itself problematic, and that LAWit can have a chilling effect on the media [Vol. 72:275 rather than One encouraging commentator the has noted flow that of “[b]ecause of information. the ways non-uniform in which the equal tremely time lax rule enforcement has by been the FCC, applied critics public would even notice a difference if the rule and were abrogated for wonder its whether the ex- good.” \\jciprod01\productn\N\NYS\72-2\NYS202.txt unknown Seq: 36 15-JAN-18 9:54 39707-nys_72-2 Sheet No. 66 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 66 39707-nys_72-2 39707-nys_72-2 Sheet No. 67 Side A 01/15/2018 10:23:44 , , http://www.state- Cable: By the Numbers ENTER C If the equal time rule 176 ESEARCH R EW decision. It would be unlikely in a 2012: P EDIA note 28, at 1511–12 (“Due to the operation of the ‘mar- M world for there to be a trend toward more First EWS Citizens United supra N Smith, See 175 in Part IV.A.; and the more technological expansion that oc- TATE OF THE Citizens United A further problem with these recommendations is that this arti- this that is recommendations these with problem further A Furthermore, Furthermore, the extension of the equal time rule to cable TV Another commentator suggested revamping the rule so that it 175. 176. Jesse Holcomb, Amy Mitchell & Tom Rosenstiel, S HE access the news from these sources and prefer them precisely be- ings. In fact, FoxNews’s and MSNBC’s viewerships have both been increasing, as opposed to the decreasing viewership of (what some deem) the more politically neutral CNN. applied to cable choices television, in news it sources would and stifle more only journalistic First Amendment expression, concerns. further raising limit viewer cle predates the post- would ostensibly mean that the rule polit- their with disagree may stations these of critics While MSNBC. would apply to FoxNews or ical standpoints, there is no doubt that a huge cans—often number those who of identify with one of Ameri- the two major parties— cause they report news in a way that caters to their political lean- T 2018]cast TV, it is less likely today. to occur in the vast media DEMOCRACY landscape IN THE of DIGITAL AGE 311 \\jciprod01\productn\N\NYS\72-2\NYS202.txt unknown Seq: 37 15-JAN-18 9:54 ofthemedia.org/2012/cable-cnn-ends-its-ratings-slide-fox-falls-again/cable-by-the- numbers/ [https://perma.cc/XA2N-UAHB]. casters in providing opposing candidates with air time privileges. Even in the un- likely event that all candidate with additional programming coverage broadcasters or broadcast opportunities, the in a guarantee of reasonable access opportunities would still ensure that the electorate certain community favored had sufficient exposure to the speech of unfavored candidates to perform compar- the same isons among them.”). ketplace of ideas,’ concern about the influence of unfounded any because his speech one is counterbalanced by speaker speech from other is quarters, ordinarily all of which openly competes for acceptance by the public. This is also true in the context of speech by broadcasters; any toward favoritism a particular exhibited candidate should by be counterbalanced one by that broadcaster of other broad- supra curs, the less the sense. argument for regulating broadcast TV makes would be more fair in the context (1) of actors-turned-candidates distinguishing by pre-declaration appearances candidacy from announcements; (2) distinguishing character roles those from post- Amendment regulation of election coverage. Though was written the in 2008 article and thus took into account expansions of the the media technological since the advent of the Internet, the nine years since then have only seen more expansion and data, discussed 39707-nys_72-2 Sheet No. 67 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 67 39707-nys_72-2 39707-nys_72-2 Sheet No. 67 Side B 01/15/2018 10:23:44 The mechanism 178 ` a-vis other media to see if any new reg- Although this approach addresses some CONCLUSION 177 note 28, at 1511 (suggesting that the reasonable access note 97, at 217–23. supra supra Smith, See This Note details the multitude of reasons why the equal time Instead of attempting to tweak or overhaul a rule whose initial 178. 177. Podlas, provisions provide enough protection and that “it appears that there is no similarly no is there that appears “it that and protection enough provide provisions compelling governmental interest in ensuring that all candidates receive precisely the same opportunities for air time”). obsolete. This Note agrees with the central philosophy of another commentator on section 315(a) who states that “[i]t is hard to im- agine why a doctrine that was created to respond to advancements ulations were warranted. Here, the committee could take into count whether ac- politicians outside of news appearances were acting more as entertainers or as campaigners when appearing on shows like SNL. This type of mechanism would ensure that a new rule, if proposed, would address the real problems facing elections in the current political landscape. A published report based on indepen- dent sources would fit with the ideals of sure and give a transparency better idea of how to proceed if it and seemed necessary disclo- for the FCC to intervene again. rule should be abandoned: from the debunking of underlying the the rule, rationales like spectrum scarcity, to the current political and technological world which renders the rule ineffective if not justifications no longer stand, the equal time rule should be aban- doned, with a safety net in place consisting of the reasonable access provision codified in section 312(a)(7) and a mechanism to instate an entirely new rule if the need presented itself. could be an independent committee that meets every five years to analyze the post-equal time rule regime. This committee could fo- cus primarily on whether the broadcast networks more did time in to one fact candidate give or clearly take on partisan could stances. also It examine new technologies and determine what kind of impact broadcast TV had vis- of the minor issues raised so far in this paper and for a small subset of political candidates, it would be like using broken leg—the a fundamental First Amendment Band-Aid problems and cur- to fix a rent state of political and solved or properly technological addressed by advances the changes. would not be 312 candidate appearances; (3) applying a NYU modified “positive ance appear- ANNUAL standard to character portrayals”; SURVEYand (4) requiring “appear- OFances” AMERICANto be voluntary. LAW [Vol. 72:275 \\jciprod01\productn\N\NYS\72-2\NYS202.txt unknown Seq: 38 15-JAN-18 9:54 39707-nys_72-2 Sheet No. 67 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 67 39707-nys_72-2 39707-nys_72-2 Sheet No. 68 Side A 01/15/2018 10:23:44 In 179 note 16, at 293. supra 179. Ricchiuto, approach that would address the concerns of subsequent tions and genera- their needs. rejecting rejecting any proposed modifications of the equal Note concludes time that there does not appear to be rule, a time in the near this future where technology will cease to expand and make ever more information regarding political choices available to the such a public. time If were to come, Congress could reevaluate the status of the media and consider new posed regulations, by an particularly independent committee. those Any such pro- regulations would not be a reinstitution of the old equal time rule but rather a new 2018]in technology has so clearly failed to keep up with its roots.” DEMOCRACY IN THE DIGITAL AGE 313 \\jciprod01\productn\N\NYS\72-2\NYS202.txt unknown Seq: 39 15-JAN-18 9:54 39707-nys_72-2 Sheet No. 68 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 68 39707-nys_72-2 39707-nys_72-2 Sheet No. 68 Side B 01/15/2018 10:23:44 314 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:275 \\jciprod01\productn\N\NYS\72-2\NYS202.txt unknown Seq: 40 15-JAN-18 9:54 39707-nys_72-2 Sheet No. 68 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 68 39707-nys_72-2 39707-nys_72-2 Sheet No. 69 Side A 01/15/2018 10:23:44 R R R R R R R R R R R R R R R R R . 256 EV . . . . . 341 ...... 326 N.Y.U. L. R David W. Leebron, , 64 ...... 344 ...... 342 ...... 349 ...... 347 ...... 338 See generally ...... 344 ...... 335 ...... 345 ...... 331 ...... 353 315 Second, a new family moves to the 1 MAX YOELI* INTRODUCTION ...... 321 ...... 322 ...... 315 ...... 330 ...... 355 1. The European 2.Example The British 3.Example The Trajectory of the SCC Permanent Solution and Criticism of Its Decision State C. The Discontents of Individuation D. The Road Forward and Toward a Home-Grown, B. Latent Harms Versus Instantaneous Harms Value A. The EPA’s First B.Attempt The Science Advisory Board’s Concerns in Detail C. A Second Chance Squandered A. Toward a Temporary B.Differential Examples from Regulatory Practice A. Cost-Benefit Analysis and VSL in the Regulatory discussing near-instantaneous deaths) Imagine a widget factory in a small community. The factory’s VALUING VALUING FATAL CANCER AT THE EPA I. Background * J.D., 2017, New York University School of Law; B.A., 2012, Dartmouth 1. Or as close to instantaneously as possible. II. The EPA’s Inaction and the Promise of an Interim III. Support for a Differential at Home and Abroad production process requires a significant amount of heavy machin- ery and produces as a byproduct a carcinogen that is released into the air of the community. On the same day, two events occur. First, a worker at the widget factory slips and falls into machinery, a piece dying of heavy instantly. (1989) ( Introduction College. I am deeply grateful to Richard expertise. Additionally, I Revesz would like to thank for Barry Friedman, the members his of the guidance, support, and Furman Academic Scholars Program, Anuual and Survey of American the Law, particularly Harry editors Black. at New York University community with a ten-year-old child, who is exposed to the plant’s Conclusion \\jciprod01\productn\N\NYS\72-2\NYS203.txt unknown Seq: 1 15-JAN-18 9:54 Final Moments: Damages for Pain and Suffering Prior to Death 39707-nys_72-2 Sheet No. 69 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 69 39707-nys_72-2 39707-nys_72-2 Sheet No. 69 Side B 01/15/2018 10:23:44 See ]. A-4 IRCULAR C Part I. at 2 (Sept. 17, 2003), infra A-4, For many regulatory actions, IRCULAR 3 , C UDGET . & B GMT M , Michigan v. EPA, 135 S. Ct. 2699, 2707 (2015) (holding that the FFICE OF The reduction in mortality risk—the risk of death that 2 See, e.g. U.S. O Regulatory analysis of this nature is required (though to what extent is a . In the United States, withstanding a cost-benefit analysis is a Stark differences aside, the parallel horrors share a common The two deaths are dissimilar in all but their ultimate outcome. ultimate their but all in dissimilar are deaths two The 2. 3. Exec. Order No. 13563, 76 Fed. Reg. 3,821 (Jan. 18, 2011). Requirements of particularly in the environmental gained is the protection of human health, specifically context, in the reduc- the primary tion of mortality risk. benefit matter of much controversy and litigation, depending on the federal subject law as matter) interpreted by by the courts. Such analysis is also mandated within the executive branch through executive orders that direct the behavior of agencies. arises from an occurrence—provides a substantial component of es- timated benefits. prerequisite to viability for certain types of regulations, many of those including the EPA promulgates. EPA must consider costs when judging if a regulation is “appropriate sary”) and neces- agency cost-benefit analysis are discussed in more detail tion of the . . . alternative that generates the largest net benefits to society.” period of morbidity, fear, and dread while attempting to overcome her condition. core: the administrative state might have each regulated harm. the Maybe cause the of factory’s were the safety subject of processes federal agency and rulemaking. Similarly, machinery the perhaps Environmental Protection Agency (EPA) had authority to regu- late the factory’s carcinogenic pollutant emissions. If so, any rules targeted at regulating either scenario would likely undergo a cost- benefit analysis, which is an analytical process for determining the attractiveness of regulatory “Where action all benefits and under costs can be the quantified monetary and units, following expressed [it] in provides rubric: decision makers with a clear indica- 316 pollutant for the first time. Twenty years later, she develops cancer NYUand ANNUAL slowly passes away. SURVEY OF AMERICAN LAWThe quickness [Vol. of 72:315 the worker’s death precluded morbidity there in was no that opportunity for him to experience sickness, physical suffering, and decreased quality of life before he immediacy died. of death all but The eliminated any fear same of death, associated emotional suffering, or dread, beyond what he may have felt on the job every other day. While he died instantly, the child endured a \\jciprod01\productn\N\NYS\72-2\NYS203.txt unknown Seq: 2 15-JAN-18 9:54 https://www.transportation.gov/sites/dot.gov/files/docs/OMB%20Circular%20 No.%20A-4.pdf [https://perma.cc/SYU6-WAK7] [hereinafter 39707-nys_72-2 Sheet No. 69 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 69 39707-nys_72-2 39707-nys_72-2 Sheet No. 70 Side A 01/15/2018 10:23:44 R ISK R Guidance SAB 2017 ORTALITY VSL is calcu- M 4 , EPA-SAB-2017-005, . D Id. B PDATING U Cancerous death is the 6 DVISORY . A CI 50–51 (2017) [hereinafter S GENCY ETHODOLOGY FOR NALYSIS The state should therefore be willing . A A However, by only considering individu- 7 M 5 ROT OLICY note 2, at 29–31. . P P ROPOSED NVTL P supra S A-4, U.S. E EPA’ Part I.B. , STIMATES FOR E at 29–30 (noting that studies generally use a risk of death “in the range IRCULAR (Feb. 28, 2013), https://www.transportation.gov/sites/dot.dev/files/ See infra See, e.g. Id. C ]. EVIEW OF annually” and “have no applications to . . . very large reductions in individ- Regulators Regulators quantify reductions in mortality risk using a statisti- The juxtaposition of the two hypothetical deaths described -4 6. 7. 4. 5. EVIEW ALUATION R lated by extrapolating data regarding individuals’ willingness to pay to avoid tiny risks of death. cause the former entails morbidity accompanied by dread of the impending fear death. and above raises the question of whether, for the purposes of VSL calcu- lations, the mortality risk that latent harms pose should be valued similarly to that of instantaneous harms. Suppose the probability of death the worker and the child faced from the risks that ultimately killed them was equal. In that case, under a generic valuation of life (i.e. one that does not consider benefit cause analysis would or equally value preventing nature each of the of deaths, death), cost- meaning both would yield the same regulatory benefit. This would justify equally cumbersome regulations on both heavy and carcinogenic emissions. machinery But such a regulatory outcome is nor- matively suboptimal and empirically inaccurate. Individuals preventing value cancerous deaths more than instantaneous ones be- paradigmatic latent harm. als’ willingness to pay to avoid death generally, the underlying stud- ies used to endemic estimate to latent fatalities, such VSL as the dread, morbidity, fail and fear in to the time between adequately exposure and death. capture the costs on Treatment of Economic Value of a Statistical Life in U.S. Department of Transportation Analyses docs/VSL%20Guidance_2013.pdf [https://perma.cc/J7DR-LZRL]. For example, “when an individual is willing to pay $1,000 to reduce the annual risk of death by one in 10,000, she is said to have a VSL of $10 million.” ual risks”). Using such miniscule probabilities makes sense because “[m]ost regula- “[m]ost because sense makes probabilities miniscule such Using risks”). ual tory actions involve the reduction of risks of low probability (as in, for example, a one-in-10,000 annual chance of dying Dep’t U.S. Counsel, Gen. Rivkin, S. Robert & Sec’y, Under Trottenberg, Polly from in an automobile crash.” Memorandum Transp., of Dep’t U.S. Adm’rs, Modal & Officers Secretarial to Transp., of cal figure called the “value of a statistical life” (VSL). of 10 SAB R V 2018] VALUING FATAL CANCER AT THE EPA 317 \\jciprod01\productn\N\NYS\72-2\NYS203.txt unknown Seq: 3 15-JAN-18 9:54 to impose additional regulatory death as a means costs of accounting for the aggregate dread, morbidity, to prevent the cancerous 39707-nys_72-2 Sheet No. 70 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 70 39707-nys_72-2 39707-nys_72-2 Sheet No. 70 Side B 01/15/2018 10:23:44 U. 9 , 81 , A ques- 8 Cost-Benefit Analysis and Agency Independence Agency and Analysis Cost-Benefit . 609, 626–29 (2014) (noting the EPA’s sophistication as an agency in Michael A. Livermore, A. Michael EV See This Note demonstrates that agency regulatory analysis should Consider the following hypothetical which, though stylized to Scholars have advocated that the EPA should—and the Agency 8. Regulatory cost-benefit analysis is predicated on preferences in society to 9. . L. R HI C tory purposes at an apt intersection. The EPA is arguably the most sophisticated and cutting-edge agency that employs VSL, and latent harms constitute a distinct class of ailments that portend death. tion tion arises then of how the state may do so. value latent harms differently from instantaneous harms. Further, it regu- the increase to EPA the allow will that mechanism a for argues latory costs that may be levied to reduce the gens emission by of more carcino- precisely valuing the prevention of cancer on solely focusing narrow, is Note this Though analysis. such fatal cancers in and the EPA, it enters the broader debate of valuing life for regula- deaths at Level 2 (at a cost to polluters of $600 deaths at million), Level 1 and (at 100 a cost to polluters of $2 billion). For the sake through pollution restrictions, in turn saving more lives. promote clarity, illustrates the benefit of the EPA adopting a cancer differential. With reference to the introductory EPA example, had say instead the chosen to regulate the child (assuming pollutant statutory authority exists and requires that the measure killed the to pass a cost-benefit analysis). That pollutant—which, without reg- ulation, causes 150 cancerous deaths per year—can be regulated at Level or stringent), (somewhat 2 Level stringent), most (the 1 Level 3 (the least stringent) with annual compliance costs to the polluter varying accordingly. The regulation is expected to prevent 20 can- cerous deaths at Level 3 (at a cost to polluters of $100 million), 50 itself has previously considered whether to—increasewhether considered previously has itself regulatory the benefit of preventing cancerous deaths through the imposition of a “cancer differential.” A cancer differential reflects an justment upward of VSL ad- that accounts for morbidity, fear, and dread. The differential, also known as a cancer premium, would act as a multi- plier for the generic VSL value in cost-benefit analysis, considering multi- The math. regulatory from excluded currently are that harms plier effectively leads to more stringent regulation of carcinogens by allowing regulators to impose higher costs on various industries the extent that the value of preventing death is monetized as a regulatory benefit based on aggregate preferences. 318 latency, and fear endemic to experiencing NYU latent harms. ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:315 \\jciprod01\productn\N\NYS\72-2\NYS203.txt unknown Seq: 4 15-JAN-18 9:54 terms of economics). 39707-nys_72-2 Sheet No. 70 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 70 39707-nys_72-2 39707-nys_72-2 Sheet No. 71 Side A 01/15/2018 10:23:44 However, 11 $10 million= $1 × $10 million= $200 $10 million= $500 × × $15 million= $1.5 bil- $15 million= $300 mil- $15 million= $750 mil- × × × Though contrived, this ex- 12 Part of the problem is that discussion of tailoring Level 3, in contrast to Level 1, is cost-benefit-justified is 1, Level to contrast in 3, Level 13 Part II.A–B. 10 See infra While the EPA has suggested a cancer differential in the past, A cancer differential will make a difference in the regulatory 10. VSL without cancer differential for Level 1: 100 lives 11. VSL without cancer differential for Level 3: 20 lives 12. VSL without cancer differential for Level 2: 50 lives 13. for Level 2, the cancer premium makes a difference. That standard of regulation would fail a cost-benefit analysis without differential the but cancer would pass with one. more stringent. an outside group of advising experts dissuaded adopting one. the Agency from regardless of whether a cancer differential is utilized benefits because will the always outweigh the costs to the polluter. cancer A risk. mortality valuing of stakes the of emblematic is ample differential in this scenario would prevent thirty additional cancer- ous deaths by permitting the EPA to enact regulations that are ulation can survive cost-benefit analysis. Level 1, the most stringent regulation, is economically infeasible regardless of whether a can- cer differential is implemented since the benefits provided by acting en- the regulation will always be smaller than the expected cost billion. $2 of 2018]of simplicity, assume a VSL of $10 million with a 50% cancer differ- ential and no other costs or benefits than VALUING those FATAL CANCER listed AT above. THE EPA outcome. As a baseline matter, without any quantified VSL, which reflects the monetization of benefits accrued through implementa- tion of a regulation, the EPA would not be able to impose any level of regulation 319 because there would be no regulatory benefit to out- weigh the imposition of costs. Once we begin reg- the which in scenarios several are there differential, cancer and factoring in a VSL \\jciprod01\productn\N\NYS\72-2\NYS203.txt unknown Seq: 5 15-JAN-18 9:54 VSL to cancerous fatalities has figures VSL occurred individuating concerns debate larger This conversation. within a much broader across different types of mortality risks and demographics, thereby mapping more closely the nuanced contours of individual charac- lion. Neither level of benefit, $1 billion or $1.5 cost. billion, outweighs the $2 billion billion. VSL augmented by a cancer differential: 100 lives million. VSL augmented by a cancer differential: 20 lives million. VSL augmented by a cancer differential: 50 lives lion. The benefit would exceed the $100 million cost regardless of whether a dif- ferential is implemented. lion. Imposing a cancer differential would allow $750 million, to the outweigh the costs, benefits $600 million. Without a of differential the costs, the regulation, $600 million, would outweigh the benefits, $500 million. 39707-nys_72-2 Sheet No. 71 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 71 39707-nys_72-2 39707-nys_72-2 Sheet No. 71 Side B 01/15/2018 10:23:44 R . CON E (June 30, ESOURCE . & R NVTL (2008); Anna Alberini & E 78, 94 (Carol Mansfield & 179 , 49 Context and the VSL: Evidence from a 137 (2016); George Van Houtven OLICIES P Dread and Latency Impacts on a VSL for NCERTAINTY ECURITY NCERTAINTY S & U However, this approach, which I will 15 ISK & U J. R ISK Heterogeneity of the Value of Statistical Life and Policy Con- J. R , 36 NALYSES FOR A , 52 OST 16 Part III.C. , notes 72–74 and accompanying text. -C and an initial estimated differential should be imple- , Anna Alberini & Milan Scasny, Labels and Perceptions in Mortality Risk Reduction Valuations 17 W. Kip Viscusi, For example, there may be differences in how individuals how in differences be may there example, For ENEFIT 14 See, e.g. See infra See infra See B Cancer Premiums and Latency Effects: A Risk Tradeoff Approach for Valuing Reduc- There is significant literature that justifies instituting a cancer 17. 14. 16. 15. critique in Part III.C, is predicated on questionable pinnings moral and would not under- be feasible to implement. Further, individ- uation diminishes the need for a cancer differential in analyses regulatory because its focus is much broader and systemic; cancerous death is merely another sub-category of risk in a set of many sub-categories. such a refined estimate in the long term. The benefits of even a low-end interim estimate of a cancer differential outweigh the justifications for delay. A differential would lead to more stringent regulations, thus saving lives in the intervening period by allowing regulators to popula- healthier a for exchange in industry on costs higher impose tion. Employing such an interim ratio is not only normatively desir- able and empirically justified but also consistent with American differential, mented as soon as practicable. The immediate imposition of such a measure will prevent the marked adopt to EPA the for option the preserve and term short the in risks undervaluation of fatal cancer Stated Preference Study in Italy and the Czech Republic 511 (2011); Rebecca L. McDonald et al., Cancer Risk Reductions (say, in a rulemaking affecting air travel, generally the province of a richer segment of society). 320teristics. NYU value ANNUAL risk SURVEY reductions based OF on who etc.) AMERICAN they or are what LAW risks (race, they age, face gender, (environmental airplane crashes, etc.). pollution, Individuation seeks to terrorism, map these discrepan- [Vol. 72:315 cies as specifically as possible to allow regulation to reflect ences prefer- at lower levels entire of affected population). Under this view, quantification of mor- aggregation (sub-groups instead tality of risk occurs under the a more normatively ambiguous rubric that would, for example, require a higher VSL for wealthier populations \\jciprod01\productn\N\NYS\72-2\NYS203.txt unknown Seq: 6 15-JAN-18 9:54 et al., tions in Fatal Cancer Risks Milan Scasny, 2010), http://www.webmeets.com/WCERE/2010/Prog/viewpaper.asp?pid=228 [https://perma.cc/TL4T-9E3H]. V. Kerry Smith, eds. 2015). cerns, in 39707-nys_72-2 Sheet No. 71 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 71 39707-nys_72-2 39707-nys_72-2 Sheet No. 72 Side A 01/15/2018 10:23:44 R 19 in HITE 18 EPA W EDUCTIONS FOR R ISK R note 7, at 2. Consistent with ORTALITY supra M , 20 EVIEW ALUING I. V , 2 (Feb. 2016) [hereinafter 2016 , Part I.B. GENCY BACKGROUND infra SAB 2017 R . A PPROACH A ROT . P NALYTIC NVTL -A ETA U.S. E : A M ]. Part I locates this Note within the framework of the regulatory Part I of this Note provides background on the role of VSL 18. Note that the EPA has concerns about the use of the term “value of a 19. This Note focuses on the EPA because it has entertained employing a 20. For further explanation of why the methodology behind VSL is incapable OLICY APER cost-benefit cost-benefit analysis in the American administrative state, explain- ing the uniqueness and difficulty of quantifying the latent purpose harms for of regulatory analysis. which the EPA Part previously considered valuing II fatal cancer risks, analyzes in- instances cluding its flawed in rejection of a proposed temporary differential. statistical life,” noting that perhaps “value of risk reduction for mortality” may be a preferable term “for communication with non-economists” to facilitate “better un- derstanding of the concept.” expediency. The EPA’s new though it 2016 mentions the intent White to change the Paper VSL moniker upon the also updating that of value. uses such nomenclature, P P Next, it explores the current process for compiling VSL ments, which does not account measure- for demographic or risk characteris- tics but simply calibrates one catchall figure. This methodology incapable is of accounting for the should be attributed additional to latent harms. monetary value that most of the literature in the field and broader agency practice in the administra- tive state, this Note will continue to use “value of a statistical life” or “VSL” for support in foreign nations’ effective treatments of cancerous fatali- ties and the U.S. adoption of sophisticated techniques for fying quanti- regulatory benefits. Part III concludes tailoring by of VSL rejecting as supporters broader of individuation advocate. state. First, it provides background on the role of cost-benefit analy- sis in administrative lawmaking, elucidating the hind methodology valuing reductions in be- mortality risk as a benefit of regulation. 2018] administrative practice and norms, as discussed in international Part III.B. VALUING FATAL CANCER administrative AT THE EPA policy 321 Part III advocates for the adoption of a cancer differential, finding \\jciprod01\productn\N\NYS\72-2\NYS203.txt unknown Seq: 7 15-JAN-18 9:54 cancer differential, it is among the most sophisticated health and safety agencies, and its rulemakings have massive impacts. of capturing latent harms, see 39707-nys_72-2 Sheet No. 72 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 72 39707-nys_72-2 39707-nys_72-2 Sheet No. 72 Side B 01/15/2018 10:23:44 123 In , THER 25 O ENEFIT AND Robert W. Hahn & -B See OST C 1 (2014). 1489, 1498–99 (2002). Similarly, . ., 7-5700, ROCESS EV P ERV S . L. R ENN ESEARCH ULEMAKING Dignity as a Value in Agency Cost-Benefit Analysis . R U. P R ONG C , 150 , The primary utility of such analysis is helping 21 The Office of Management and Budget (OMB) AREY 22 A New Executive Order for Improving Federal Regulation? Deeper and , Commodity Exchange Act, 7 U.S.C. § 19(a) (2012) (providing P. C 24 EQUIREMENTS IN THE . AEVE 1732 (2014) (discussing various cost-benefit paradigms). However, this M Id See, e.g. R A. Cost-Benefit Analysis and VSL in the Regulatory State This mandate requires agencies to submit a quantified cost- 23 In the modern administrative state, a large swath of law is made is law of swath large a state, administrative modern the In Beyond the OMB’s requirements, agencies within and outside 21. Of course, such discussion of cost-benefit analysis is less meaningful with- 22. 23. Exec. Order No. 12866 §§ 3(f)(1), 6(a)(3)(C); 3 24. C.F.R. 638 (1994). 25. L. J. NALYSIS ALE Y not in the chambers of Congress but in the halls of administrative effort lawmaking branch executive the in tool central One agencies. is cost-benefit analysis, which whether provides to a adopt means a policy of monetized proposal determining form. by aggregating its effects in requires executive branch agencies, like the EPA, to perform cost- benefit analyses when such agencies promulgate rules that will re- sult in an economic impact of at “adversely least affect $100 in million or a otherwise material way economy, productivity, the competition, jobs, the economy, environment, public a sector of health or the safety, or State, local or tribal governments or communi- ties.” originating from other sources. ments For to example, conduct cost-benefit statutory analyses require- bind many agencies. of the executive branch face requirements of cost-benefit analysis out precisely identifying the cost-benefit paradigm in use, and there exist several applicable frameworks. For example, some theories of cost-benefit analysis impli- cate the use of the tool both quantitatively and qualitatively. Cass R. Sunstein, Wider Cost-Benefit Analysis A 322 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:315 \\jciprod01\productn\N\NYS\72-2\NYS203.txt unknown Seq: 8 15-JAN-18 9:54 Note should be understood as braced by the American regulatory applicable state, a system that skews toward monetization. within the current architecture em- imize burden.” benefit analysis, which includes providing a rule’s projected mone- tized costs and benefits as alternatives. well as an examination of regulatory “[t]o improve the quality and effectiveness of federal rules and min- and rules federal of effectiveness and quality the improve “[t]o some advocate for a cost-benefit approach that “disavows the ambition of moneti- zation.” Rachel Bayefsky, Note, the Commodity Futures Trading Commission “shall consider the costs and benefits and costs the consider “shall Commission Trading Futures Commodity the of the action of the Commission”); Safe Drinking Water Act, Pub. L. No. 104-182 (1996) (adding a cost-benefit analysis requirement Act). to the Safe Water Drinking 39707-nys_72-2 Sheet No. 72 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 72 39707-nys_72-2 39707-nys_72-2 Sheet No. 73 Side A 01/15/2018 10:23:44 R . . N- .S. EV A . L. , NVTL , U ]; (3) Valuing OLO RINKING Medical . L. R Patience Is D U.S. E U.S. U. C ALIF C see , 84 note 9, at 626–29. RSENIC IN see generally , 102 A at 1436–39; (2) the , id. supra ATER W at 1444–47; Moreover, as agencies have Livermore, 28 RINKING supra See EPA Fact Sheet: Social Cost of Carbon & D see EPA Fact Sheet: Social Cost of Carbon 26 at 1442–44 (citing Shuang Liu et al., , EPA 815-R-00-026 (2000), http://yosemite1.epa Quantifying Regulatory Benefits at 1447–50 (citing Michael A. Livermore, 977 (2004) (discussing the Food and Drug Adminis- (Dec. 2015), http://www3.epa.gov/climatechange/ . 2017 and Later Model Year Light-Duty Vehicle Green- ROUNDWATER at 1439–42; supra EV NALYSIS G see supra id. A GENCY L. R (Feb. 2010), at 54); (4) the limiting of psychological harms . A Fear Assessment: Cost-Benefit Analysis and the Pricing of Fear and CI along with innovation of scientific techniques for ENT FFICE OF , Michigan v. EPA, 135 S. Ct. 2699 (2015); Entergy Corp. v. 27 . S O .-K CONOMIC , HI E Richard L. Revesz, CAD C ROTECTION ULE See, e.g. See GENCY , 79 R . P As agencies’ analyses of proposed regulations have grown more grown have regulations proposed of analyses agencies’ As . A 26. 28. 27. This is especially true at the EPA. N.Y. A 581, 586 n.13 (2013)). These measures have in turn been used to conduct the . ATER EV NVTL ROT Devices; Patient Examination and Surgeons’ Gloves; Test Procedures and Accept- ance Criteria, 68 Fed. Reg. 15,404 (Mar. 31, 2003) (codified at 21 C.F.R. pt. 800); Matthew D. Adler, Anxiety R E P NALS an Economic Virtue: Real Options, Natural Resources, and Offshore Oil enhanced their ability to quantify costs and benefits, courts have sophisticated, sophisticated, cost-benefit calculations quantify regulatory are benefits and costs that previously increasingly could not be able measured. Enhanced to economic analysis capacities, driven hiring of economists and by their increased importance in the the regula- tory process, regulatory analysis that underlies agency economy requirements, regulations ranging from setting fuel W tration’s approach to valuing anxiety pertaining to a proposed rule for heighten- ing quality specifications for medical examination gloves); and (5) delay the decisions that ability might to negatively affect the environment, such as offshore oil leasing licenses, Revesz, 2018] other instances, courts have found statutes allow to for cost-benefit require analyses. or at VALUING FATAL CANCER least AT THE EPA 323 \\jciprod01\productn\N\NYS\72-2\NYS203.txt unknown Seq: 9 15-JAN-18 9:54 ties/social-cost-carbon.pdf] [hereinafter the preservation of ecosystems, including “provisioning services,” “regulating ser- vices,” “supporting services,” and “cultural services” with various human and envi- ronmental ends, Revesz, Downloads/EPAactivities/social-cost-carbon.pdf Downloads/EPAactivities/social-cost-carbon.pdf [https://web.archive.org/web/ 20170121004634/http://www3.epa.gov/climatechange/Downloads/EPAactivi such as “fear, anxiety, and stress,” Revesz, better translate outcomes into figures. quantifying regulatory costs and benefits, have enabled agencies to .gov/ee/epa/ria.nsf/vwAN/W200012A.pdf/$file/W200012A.pdf [https://perma .cc/U58G-AZEB]. house Gas Emissions and Corporate Average water, drinking in arsenic regulating to 2012), 15, (Oct. 62,623 Fuel Reg. Economy Standards, 77 Fed. Ecosystem Services: Theory, Practice, and the Need for a Transdisciplinary Synthesis 1423, 1436–50 (2014). For example, agencies can regulatory benefits now that calculate they were many once complex unable to, including (1) the generic lessening of mortality risk, as captured through a VSL figure, reduction by one ton of carbon dioxide emissions, as measured through the Social Cost of Carbon (SCC), Riverkeeper, Inc., 556 U.S. 208, 223 (2009). 39707-nys_72-2 Sheet No. 73 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 73 39707-nys_72-2 39707-nys_72-2 Sheet No. 73 Side B 01/15/2018 10:23:44 R R OL- P (Jan. 1589, . EV ODAY ]. “with Teeth”: T CONOMIC APER E P notes 129–30 and HITE 89 N.Y.U. L. R SYCHOLOGY , P , see infra EPA W EDUCTIONS FOR 30 R Collectively these changes ISK 29 R note 31, at 8; This matters because individuals For example, reducing risk from ALUING 31 32 V , supra , GENCY APER note 29, at 1632–34. 10 Ways We Get the Odds Wrong . A P ROT HITE supra . P W 7 (2010) at 7 [hereinafter 2010 Another prevalent challenge in environmental reg- 33 , Business Roundtable v. SEC, 647 F.3d 1144, 1148–49 (D.C. Cir. APER NVTL P Sharkey, Maia Szalavitz, at 8. U.S. E See, e.g. Id. See See HITE Carcinogens that the EPA regulates produce latent harms Despite advancements in the quantification of costs and bene- Determining mortality risk is vital to the EPA’s calculations of 34 31. 29. 32. 30. 34. 2010 EPA 33. : A W public sphere. might value the reduction of risk from ‘controlla- in differences to “due perhaps choices, private their than public policies differently bility,’ ‘dread’ or other tangible or intangible factors,” thus compli- cating quantification efforts. toxic air or water may be more highly reduction in risk from individual valued behavior, such as tobacco use, than be- an equivalent the of part are controls individual one no that risks large-scale cause ICY ulatory math is the intertwined nature of morbidity and risk. mortality fits, valuing mortality risk has always been particularly challenging in the environmental context. One reason for this difficulty is that EPA regulations create risk reductions that “are inherently public in nature,” as opposed to “private purchase decisions,” because the EPA’s mandate includes protecting the resources that are common to us all, like air and water. have catalyzed a boom in quality regulatory analysis ened agencies and in their embold- analytical efforts. 2011) (vacating SEC rule because the agency based on sufficient economic data); Catherine M. Sharkey, State failed Farm to assess costs and benefits Heightened Judicial Review in the Absence of Executive Oversight accompanying text. 324 begun to more heavily scrutinize agency rulemaking. This is partic- NYU ularly ANNUAL true in SURVEY the OF Court of where AMERICAN the Appeals bulk of the for federal administrative LAWand regulatory the docket District of Columbia im- and adaptation spurred has review judicial stringent Such lands. [Vol. 72:315 provement of cost-benefit analysis as agencies scramble to prevent the invalidation of vital rulemakings. \\jciprod01\productn\N\NYS\72-2\NYS203.txt unknown Seq: 10 15-JAN-18 9:54 that include a period of morbidity these effects—separating preceding the toll death. and impact Delineating of cancer illness with that of a death from the disease—can be difficult. VSL. After all, preventing fatalities is the “primary benefit” of many 1632–34 (2014). 1, 2008), https://www.psychologytoday.com/articles/200801/10-ways-we-get-the- odds-wrong [https://perma.cc/5N3M-5ND2] (“We prefer that which (we think) we can control.”). 39707-nys_72-2 Sheet No. 73 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 73 39707-nys_72-2 39707-nys_72-2 Sheet No. 74 Side A 01/15/2018 10:23:44 R R R R R R 41 see , at EPA 537, . EV NALYSES , 42 U.S.C. note 38, at A . L. R HI Calculating a see, e.g. supra Environmental Regu- Environmental , 35 U. C CONOMIC Simply stated, re- E , 72 39 note 28, at 1437. NALYSES note 28, at 1436–37; A note 28, at 1437. This method supra , supra REPARING . ] , P many agencies did not even 941, 943 (1999); The wage-risk methodology, . supra , 36 Monetizing the Benefits of Risk and Envi- 40 CONOMIC EV 1003, 1018 (2006)). The need to create regulatory E Dollars and Death 37 at 1439 (citing Revesz, (citing 1439 at NALYSES note 35, at 955 & n.60 (referring to efforts . L.J. A . L. R Id. RB VSL is calculated through the use of U UIDELINES FOR OLUM supra REPARING 38 , C P , G CONOMIC Environmental Regulation, Cost-Benefit Analysis, and the OR E , 99 ORDHAM F F GENCY . A Quantifying Regulatory Benefits , 33 REPARING ROT Quantifying Regulatory Benefits P UIDELINES , Quantifying Regulatory Benefits . P G OR note 35, at 955; W. Kip Viscusi, F NVTL E Environmental Regulation supra Willingness to pay is measured through two types of studies: The VSL figure represents not the worth of a specific life or , 35. Richard L. Revesz, 38. 41. EPA 40. Revesz, 36. Exec. Order 12291; 46 Fed. Reg. 13,193 (Feb. 37.17, 1981). Eric Posner & Cass R. Sunstein, 39. Revesz UIDELINES Revesz, G wage-risk and contingent valuation. searchers ask, either explicitly or nomic implicitly choices, how much by individuals are willing reference to pay to to forgo a eco- small mortality risk. Say a group is willing to pay, on thousand average, dollars one to forgo a mortality risk of one in ten The VSL thousand. for this group would be ten million dollars (the these individuals amount are willing to pay multiplied by the mortality risk). VSL VSL was among the earliest cost-benefit challenges tory facing officials. regula- Prior to President Reagan’s Executive Order which required executive branch agencies to create and submit reg- 12291, ulatory impact analyses to the OMB, attempt to quantify risks to life. even of the certainty of death, but rather “a summary measure for the dollar value of small changes in mortality risk experienced by a large number of people.” impact analyses under that Executive Order spurred agencies to be- gin developing rigorous techniques for quantifying the their regulations. effects of “willingness-to-pay studies,” meaning the aggregation of expressions of aggregation the meaning studies,” “willingness-to-pay of individual valuations of different outcomes. also called “hedonic wage,” values mortality risk through examining “the income-risk trade-offs made by workers for on-the-job risks.” is “standard federal agency practice.” agency federal “standard is ronmental Regulation to value life through willingness to pay as early as 1968). 7–10. 2018]of the key statutes that authorize EPA rulemaking. VALUING FATAL CANCER AT THE EPA 325 \\jciprod01\productn\N\NYS\72-2\NYS203.txt unknown Seq: 11 15-JAN-18 9:54 § 7401 (2013) “promot[ing] (identifying the public health and the welfare”). purpose of the Clean Air Act as including Discounting of Human Lives lation 549 (2005); Revesz, xv (Dec. 17, 2010), http://yosemite.epa.gov/ee/epa/eerm.nsf/vwAN/EE-0568-50 .pdf/$file/EE-0568-50.pdf [https://perma.cc/4A2P-9HWK] [hereinafter 39707-nys_72-2 Sheet No. 74 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 74 39707-nys_72-2 39707-nys_72-2 Sheet No. 74 Side B 01/15/2018 10:23:44 R R R E- EDUC- Id. R SAB R N ISK note 35, at A R Risk Heterogene- note 38, at B-1. at 38, note supra , , at 2 n.1 (2011), ANCER supra C , Further, the esti- 44 ATAL F NALYSES note 28, at 1437. Stated pref- A supra ]. However, the timing discrepancy , ., EPA-SAB-EEAC-00-013, ENEFITS OF B CONOMIC Environmental Regulation falling asleep at the wheel on a CON EVIEW as latent harms occur long after E R 46 47 . E 42 NVTL Revesz, REPARING E ALUING THE P V OR F APER P See generally ENTER FOR C HITE is a truck driver L The figure is an average of labor-market, hedonic- Quantifying Regulatory Benefits ’ UIDELINES 45 W 43 B. Latent Harms Versus Instantaneous Harms S AT G N See Id. EPA’ Current EPA guidance provides for a VSL estimate of $7.4 mil- Instantaneous harms are different from latent harms in that 5 (2000) [hereinafter SAB 2000 46. Many hedonic wage studies target truck drivers. 47. 42. Revesz, 44. 45. Roughly 85% of workplace deaths occur the same day as the precipitating 43. EPA TION PORT ON mate is generic in that it does not account for specific risk charac- teristics, such as latency. the latter develop and manifest over time. A paradigmatic instanta- neous harm has largely been solved by the adoption of discounting in cost-benefit advocated by Revesz. analysis as kills her, manifesting dozens of years after exposure to a toxin she did not know was present in the water supply. In this situation, the individual would likely experience morbidity, fear, and cause dread she knows she be- has a fatal disease. From this comparison, one fun- most harms latent from differ harms instantaneous that see can damentally in terms of timing, long-haul journey and crashing into a barrier causing immediate death. The driver at would ostensibly not have suf- highway speeds, fered or experienced the fear of impending death. There is no de- lay before death and thus no opportunity for her already to present feel fear when not she signed up for the latent harm would job. be an individual developing A a cancer that representative slowly lion (in 2006 dollars, closer to $9 million today) to be used during rulemaking. wage studies, and contingent-valuation studies. ity and the Value of a Statistical Life: Further http://economics.appstate.edu/sites/economics.appstate.edu/files/kochi_taylor_ Market-Based Evidence asu.pdf [https://perma.cc/W4PA-6Y33] accident. Forty percent relate to while 45% accidents stem from transportation. Ikuho Kochi involving & Laura Taylor, falls or heavy equipment, 984 (“Discounting is . . . necessary to provide an accurate value of the utility that erence studies are becoming more prevalent in gauging willingness to pay. 326By comparing wages for jobs that entail different fatality risks, econ- NYU omists ANNUAL can implicitly SURVEY place a OF value contingent on AMERICAN valuation mortality risk. LAW methodology, In also contrast, known as ence,” directly “stated asks participants prefer- what [Vol. they 72:315 would pay to lessen probability the of a risk of death. \\jciprod01\productn\N\NYS\72-2\NYS203.txt unknown Seq: 12 15-JAN-18 9:54 39707-nys_72-2 Sheet No. 74 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 74 39707-nys_72-2 39707-nys_72-2 Sheet No. 75 Side A 01/15/2018 10:23:44 R R R R As 259, 51 Leebron, Cf. note 38, at B-2 NCERTAINTY These studies He maintains As such, these 53 50 supra 49 & U , ISK at 962–68, but this distinc- NALYSES 14 J. R A see id. , note 35, at 941. The changes in an 54 CONOMIC supra , E Bad Deaths Of that collection, twenty-one stud- note 47, at 5. 52 REPARING supra , P OR F EVIEW R Morbidity, fear, and dread are derivative of tim- 48 Environmental Regulation UIDELINES SAB 2000 at 941. . EPA G Id. Id See note 1, at 285 (“One could argue that extremely brief periods of contempla- The differences between latent and instantaneous harms has The undervaluation of cancerous harms is in part a function of 50. Revesz, 51. 53. 48. However, while the dread and fear engendered by time between injury 49. 52. 54.fact this acknowledged economists environmental advisory own EPA’s The characteristics characteristics do not factor into instantaneous harms. led Professor Richard Revesz to argue that latent harms are under- valued. Revesz advocates for adjusting VSL for such harms through certain “[u]pward adjustments . . . to involuntary account nature of for environmental the carcinogens.” dread and implicitly through examining wage data—and thus do not capture the unique aspects of latent harms. that such adjustments would prevent the undervaluation of life, par- life, of undervaluation the prevent would adjustments such that ticularly in the context of harms with longer latency periods. his focus on carcinogens implies, cancer is a paradigmatic example of a latent harm. how agencies value mortality risk. The methodology for calculating VSL, which has remained largely consistent in its essential form for decades, insufficiently values deaths from latent the harms. EPA’s Consider VSL figure whose estimate stems weighing of twenty-six studies. from the vetting and implicate instantaneous risks—either explicitly, as gent with valuation study a of immediate contin- death from a road accident, or ies are labor market studies that use wage-risk data. ing in the sense that one may only experience these things if there is time between a precipitating event and fatality. tions may also lead to undervaluing mortality risk, tion falls outside the scope of this Note and regarding is individuation of part VSL. of the broader conversation tbl. B.1. the individual loses in the present as occur in a the future.”). result of a premature death that might and death often cuts in favor of increasing valuation, out some that commentators such point time preceding death may be a benefit in some supra ways. tion . . . produce nothing but terror, whereas longer periods of contemplation are a relative benefit.”); Cass R. Sunstein, individual’s income over her lifetime and differences in income among occupa- 2018]the initial cause. VALUING FATAL CANCER AT THE EPA 327 \\jciprod01\productn\N\NYS\72-2\NYS203.txt unknown Seq: 13 15-JAN-18 9:54 269 (1997) (suggesting that opportunity to plan for death can be beneficial). more broadly in 2000: “[U]nder some tained from studies of circumstances, risks of instantaneous deaths in workplace accidents will not the valuations of life ob- 39707-nys_72-2 Sheet No. 75 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 75 39707-nys_72-2 39707-nys_72-2 Sheet No. 75 Side B 01/15/2018 10:23:44 R R R INI- , 31 , , M More specifi- ROGRAM P Id. at 18–19. It can be diffi- 58 Id. EALTH In contrast, regula- H 57 note 28, at 1437. In response Because the only harm ENTER 56 , (May 1, 2013), http://www.cdc C note 35, at 955–56. supra , The Value of Risks to Life and Health and Life to Risks of Value The ANCER RADE supra C T , Id. ORLD W , W. Kip Viscusi, Kip W. ATEGORIES OF See C OWARD H 1912, 1917 (1993). Overall, as John Stuart Mill observed, the note 47, at 17. However, the Committee also notes “[t]his is OHN YPES OR J Environmental Regulation Quantifying Regulatory Benefits , supra & T , , at 956. ITERATURE See, e.g. Id. Therefore, due to the focus of such studies on the work- . L EVIEW ATENCY 55 R Second, even if wage-risk studies were able to account for la- Though Though wage-risk studies are preferred for computing generic 57. 56. Revesz, 55. Revesz, 58. Different types of cancers are associated with latency periods of different L CON MUM tors could easily tally the number of employees killed instantly electrocution by or heavy machinery mishaps, as the relationship be- tween risk and result is immediate and observable. contemplated is immediate death, the implicit valuation wage-risk interactions take no account of any characteristics of latent harms. wisdom the on doubt casts harms latent for account to inability This of using traditional VSL calculation methods to determine for a cancer. VSL tent harms, there is a relative lack of industrial statistics on deaths resulting from latent harms, which prevents regulators from accu- rately counting the numbers of such harms. VSL VSL figures, four obstacles stand in the way of wage-risk studies ac- counting for latent harms. First, wage-risk studies are, by their very nature, incapable of capturing the full value of latent harms. Such riskier for compensation wage from pay to willingness derive studies jobs by cross-referencing occupational mortality statistics with wage data. provide meaningful measures of the benefits of environmental 2000 regulation.” SAB likewise true of some non-carcinogenic environmental harms.” to concern that certain “safer” jobs (lawyer, banker, etc.) may than less be safe jobs more (firefighter, miner, lucrative etc.), these studies control to isolate margi- risk. for compensation nal J. E 328 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:315 \\jciprod01\productn\N\NYS\72-2\NYS203.txt unknown Seq: 14 15-JAN-18 9:54 place, they examine “almost exclusively . . which . do industrial not accidents,” account for latent harms. tangle the wage-risk tradeoff that is present. Use of cludes individual measures level of data worker that education, in- experience, and other productivity-related variables isolates the additional compensation workers of a given productivity will receive for jobs posing greater risk. best jobs in society will tend to be the highest paid. However, this does not imply that there are no compensating differentials for any particular position, only that there is a broader societal wealth effect at work that will make it difficult to disen- .gov/wtc/pdfs/wtchpminlatcancer2013-05-01.pdf [https://perma.cc/SY5L-TPTY] lengths. cally, they found that VSLs calculated using “wage-risk tradeoff studies should not be taken as accurate estimates of the value because of of reducing the differences risk in of both fatal the cancers nature socio-economic characteristics of of the the affected populations.” risks being valued and in the 39707-nys_72-2 Sheet No. 75 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 75 39707-nys_72-2 39707-nys_72-2 Sheet No. 76 Side A 01/15/2018 10:23:44 R R R R . & TATIS- CON S . E Christine R. ABOR There are L NVTL 62 see Indeed, the 60 J. E , 19 UREAU OF B note 35, at 957; note 35, at 957 (citing Maureen L. 8 (2015), http://www.bls.gov/iif/ 48 (2006); supra supra Generally, “some commentators , , supra note 35, at 957. , 2013 59 AKING M Valuing Future Risks to Life NJURIES IN ECISION note 33. I & D This problem is endemic not only to wage-risk supra 61 Environmental Regulation Environmental Regulation Environmental Regulation CCUPATIONAL Gender Differences in Risk Assessment: Why Do Women Take Fewer Risks UDGMENT Szalavitz, O 1 J , See ATAL 160, 166 n.8 (1990) (noting that it is difficult for individuals “to distinguish . The fourth inherent limitation of wage-risk studies for measur- A third issue is the difficulty individuals face in valuing harms 62. Revesz, 61. 59. Revesz, 60. Revesz, , F GMT M TICS doubt that our cognitive capacities are sufficiently developed to per- to developed sufficiently are capacities cognitive our that doubt form such valuations in the case of future harms.” practical issues of tracking exposed causality between individuals a and carcinogenic establishing exposure and a particular can- human brain is notoriously bad at with assessing low-probability events risk, or contemplating be risks that it evoke emo- grappling tional responses. ing cancerous mortality risk is that they are not able to determine whether exposure to a toxin or some other variable caused the can- cer. Studying the development highly of individualized cancer potential entails for tween workplace risks of latent harms and outside risks. accepting “synergistic the interactions” be- studies, but also to contingent valuation studies. Unfortunately, no speedy fix is forthcoming, as the human brain. problem is hardwired into the than Men? Cropper & Frances G. Sussman, between risks occurring 10 versus 30 years into the future.”)). (announcing minimum latency periods for use in the World Trade Center Health can- hematopoietic and “[l]ymphoproliferative for years 0.4 from ranging Program cers” to 11 years for mesothelioma). Harris, et al., that they could potentially experience in the future. There are cog- nitive barriers to accurately gauging and weighing harm, risks and these of barriers hinder future subjects from meaningfully deter- mining their willingness to pay. 2018]cult if not impossible to discern when an cancer should employee’s be death attributed from to VALUING a FATAL CANCER AT workplace THE EPA exposure diseases chronic other to or job her of outside carcinogens to posed if she is ex- present during the period of morbidity. Finally, latent are harder conditions to tally because they occur well after the event of expo- sure. In the intervening time, workers scatter through retirement, job or industry 329 switching, termination, or other mechanism events. Thus, follows no the conditions. workers long enough to capture their \\jciprod01\productn\N\NYS\72-2\NYS203.txt unknown Seq: 15 15-JAN-18 9:54 oshwc/cfoi/cfch0012.pdf [https://perma.cc/ND8V-T4ZV] (“A disproportionate share of fatal work injuries involve men relative to their hours worked in 2013.”). 39707-nys_72-2 Sheet No. 76 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 76 39707-nys_72-2 39707-nys_72-2 Sheet No. 76 Side B 01/15/2018 10:23:44 , ALU- APER V P OCIETY S HITE EVIEW OF ANCER R : A W C OLICY P MERICAN A , EPA-SAB-11-011, ., D which the EPA’s Science Advi- B 65 NVIRONMENTAL II. E DVISORY . A CI INTERIM VALUE S This uncertainty undermines thevalue of wage- rejected on questionable grounds. A 2016 EPA EDUCTIONS FOR GENCY 64 66 R . A ISK ROT R . P . NVTL Id Known and Probable Human Carcinogens E THE EPA’S INACTION AND THE PROMISE OF AN In short, if an employee is exposed to a carcinogen while ORTALITY If wage-risk studies are the foundation of a VSL calculation but Part II begins by examining the history of the concept of a 63. 65. This estimate is a routine part of the process of ultimately producing a 66. The SAB is a public advisory committee within the EPA that provides sci- 64. 63 M U.S. ING sory Board (SAB) cannot adequately account for such latent harms, the EPA should embrace alternative means of accounting for cancerous risk. Con- tingent valuation studies can and must pick up the slack. disfavored Though compared to wage-risk studies are studies, reputable and contingent offer a valuation preferences around latent harm risk next-best reduction. This compromise is solution for assessing necessary because of the shortcomings of wage-risk studies pertain- ing to latent harms. These studies allow for the creation and adop- tion of a cancer differential without relying on a methodology that has proven a poor fit for this purpose. Unfortunately, the EPA has yet to embrace a cancer differential. Part II will Agency, illustrate why despite the having entertained the multiplier, idea has yet to of do so. adopting such a risk studies and makes them ill-suited to assessing risk preferences for latent harms. http://www.cancer.org/cancer/cancercauses/othercarcinogens/generalinforma- tionaboutcarcinogens/known-and-probable-human-carcinogens [https://perma .cc/UK73-X6NA]. final figure. entific and technical advice during the production of EPA reports or regulations. See 330cer. NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:315 \\jciprod01\productn\N\NYS\72-2\NYS203.txt unknown Seq: 16 15-JAN-18 9:54 working working as a rubber manufacturer and develops cancer some years later, it is anybody’s guess if that cancer is the ployment, product of or his em- of the individual’s drinking alcohol, or eating processed meats (or perhaps some com- penchant for smoking tobacco, thereof). bination “cancer differential,” a multiplier that could change VSL to account to VSL change could that multiplier a differential,” “cancer for the difference between generic and cancerous mortality risk. It continues by tracing the trajectory of the from the moment it differential first considered adopting one at to its announce- the EPA ment of a specific interim estimate, 39707-nys_72-2 Sheet No. 76 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 76 39707-nys_72-2 39707-nys_72-2 Sheet No. 77 Side A 01/15/2018 10:23:44 R R R R R , , Id. See NCER- L.J. 385 & U Similarly, UKE ISK 71 J. R 54 D However, it is , 72 , 6 74 note 35, at 948 (“A central goal of note 35, at 947. note 31, at 21. supra supra An Empirical Investigation into the Effect of , , . SAB is also designed “to provide balanced, ] supra Sunstein’s contention is intertwined , 73 note 7, at 49–52. 67 EVIEW APER For example, writing in 1999, Revesz ad- The Value of Safety: Results of a National Sample Survey P 69 supra Valuing Life: A Plea for Disaggregation A. The EPA’s First Attempt HITE note 72, at 389–90. W SAB 2011 R supra , supra note 66, at 6. He suspected that the lack of such corrections for Environmental Regulation 49 (1985); Ian Savage, Environmental Regulation 70 . J. 2010 EPA EVIEW . R CON Subsequent to this early literature, legal scholars began ad- Id See 68 E 75 (1993). However, the SAB criticized the methodology of both efforts. In the administrative domain, the EPA has previously enter- Evidence Evidence showing that cancerous deaths should be valued dis- HE 70. Revesz, 71. 68. M.W. Jones-Lee et al., 74. Sunstein, 69. 67. SAB 2017 Review, 73. Revesz, 72. Cass R. Sunstein, T 393 (2004). writing in 2004, Professor Cass Sunstein argued that ment’s current “the valuation of govern- cancer risks is probably too low, result- ing in widespread underprotection of the public.” with a much broader thesis that “question[s] the consensus in favor of a uniform VSL” and argues for the individuation of VSL different across types of risks and individuals. TAINTY the environmental context), important to note that these claims stem from different theoretical outlooks. Whereas Revesz wrote to specifically advance the debate around valuing latent harms in the regulatory state (particularly in vocated for increasing the VSL for risks caused carcinogens. by environmental Psychological Perceptions on the Willingness-to-Pay to Reduce Risk SAB 2011 tained the proposition that cancer should be valued differently. In latent harms might have led to the lives and significant thus undervaluation suboptimal of protection of public health. this Article is to move the regulatory process towards a more thoughtful valuation of human lives threatened by environmental carcinogens . . . .”). (2011) [hereinafter 2018] White Paper and its review by the SAB provided a renewed occasion for the adoption of VALUING FATAL CANCER a AT THE EPA cancer again rejected differential, the reform. but the SAB has once 331 tinctly from other harms has existed for decades. Scientific studies supporting this proposition emerged in the 1990s. mid-1980s and early \\jciprod01\productn\N\NYS\72-2\NYS203.txt unknown Seq: 17 15-JAN-18 9:54 vocating for an approach to quantifying the benefit analysis that value specifically accounted for latent of harms, includ- life in cost- ing cancer differentials. expert assessment of scientific matters related to problems facing the agency.” 95 39707-nys_72-2 Sheet No. 77 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 77 39707-nys_72-2 39707-nys_72-2 Sheet No. 77 Side B 01/15/2018 10:23:44 R R R R . . 80 EGU- ROT ROT R . P . P Then, 75 ATER NVTL NVTL W , E 77 ATER U.S. E RINKING note 9. , W D , http://yosemite.epa.gov/ supra FFICE OF ADON IN O GENCY : R : These proposals came at a . A See 76 ROT Livermore, . P ONGRESS See C note 47. The specific committee that drafted NVTL E note 47, at 3–4. note 47, at 4. It is intuitive that the EPA would be , supra , EPORT TO supra supra , , EVIEW R EVIEW EVIEW R R Environmental Economics Advisory Committee See Valuing Mortality Risk Reductions for Policy: Proposed Updates to Valua- SAB 2000 at 5. Id. See Id. Hence, the EEAC refused to support a cancer differential. (2012). , EPA 815-R-12-002, R 815-R-12-002, EPA , , http://yosemite.epa.gov/sab/sabpeople.nsf/WebCommitteesSubcommit- After examining certain “risk characteristics” pertinent to 79 The EEAC was charged with assessing the question of whether 78 78. SAB 2000 79. 75. National Primary Drinking Water Regulations; Radon-222; Proposed Rule 76. 77. SAB 2000 80. GENCY GENCY A A in a 2000 White Paper, the EPA again broached implementing the possibility a of cancer differential. LATIONS time when no other agency had yet considered one. a statistical value should be adopted specifically ties. for cancer fatali- 64 Fed. Reg. 59,246, 59,326 (proposed Nov. 2, 1999). The rule though was not the adopted, EPA later returned to the topic. a thought leader on this issue due to the EPA’s preeminence in economic analysis among the health and safety agencies. the White Paper was the Environmental Economics Advisory Committee (EEAC). The EEAC is sub-committee of experts within the SAB, which focuses on the use of “science and research to assess public benefits and costs of the EPA’s environmen- tal programs.” While the Committee noted that greater morbidity, “cancer fear, or victims dread than typically the victims of suffer the causes of 332a 1999 proposed rule regarding radon isotopes NYUin drinking water, the EPA had ANNUAL asked the SAB to review how to value the avoidance of SURVEY OFcancer fatalities, AMERICAN including whether the Agency should adopt a can- LAWcer differential. The EPA defined the differential as “the additional [Vol. 72:315 value or sum that people may be willing to pay to avoid the exper- iences of dread, pain and suffering, and diminished quality of life associated with cancer-related illness and ultimate fatality.” \\jciprod01\productn\N\NYS\72-2\NYS203.txt unknown Seq: 18 15-JAN-18 9:54 tory analysis. tion and Income Elasticity Estimates tees/Environmental%20Economics%20Advisory%20Committee tees/Environmental%20Economics%20Advisory%20Committee [https://perma .cc/YL3R-654D]. The EEAC provides the EPA with feedback on its mortality quan- tification methodologies, which the Agency includes Guidelines for in Preparing Economic updated Analysis, the versions EPA’s definitive of text for regula- its cancer fatalities—“(1) timing, (2) morbidity, fear voluntariness and and dread, controllability, and (3) (4) the public nature of the risk reduction”—almost all of the committee members agreed that “on the basis of the current literature, the only for which risk adjustments to the characteristic VSL can be made is the timing of the risk.” sab/SABPRODUCT.NSF/81e39f4c09954fcb85256ead006be86e/0ca9e925c9a702f2 85257f380050c842!OpenDocument [https://perma.cc/U2TV-8ZBZ]. 39707-nys_72-2 Sheet No. 77 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 77 39707-nys_72-2 39707-nys_72-2 Sheet No. 78 Side A 01/15/2018 10:23:44 R R R J. 88 ISK Dis- , 61 J. R Demand 82 83 , 28 (2008); Anna (2005); George 179 A Choice Experiment 73 (working paper 2010)). (2013); James K. Hammitt K. James (2013); Context and the VSL: Evidence NCERTAINTY 87 85 NCERTAINTY A Reference Lottery Metric for Valu- 57 (2010); James K. Hammitt & GMT & U & U note 31, at 25 n.14 (citing Wiktor ISK The EPA concluded that it ISK 86 . & M J. R note 31, at 25. note 31, at 9. it concluded that there was insuffi- supra CON NCERTAINTY , 36 81 , 31 J. R . E , & U supra supra APER , , VNTL ISK (1996); Takahiro Tsuge et al., P J. E APER APER J. R (2010); Trudy Ann Cameron & J.R. DeShazo, In the paper, the NCEE defined a “cancer HITE P P Labels and Perceptions in Mortality Risk Reduction Valuations . 1118 84 , 65 CI . 213 , 410 HITE HITE . S and came to a figure of 52%, a first-cut premium Cancer Premiums and Latency Effects: A Risk Tradeoff Approach for Valuing Fatal Risks to Children and Adults: Effects of Disease, La- W W GMT EPA W (2004); Wesley A. Magat et al., 87 Valuation of Cancer and Microbial Disease Risk Reductions in Munici- GMT 73 M . & M 2010 Effects of Disease Type and Latency on the Value of Mortality Risk at 5–6. at 20–21. at 5, 21. , 42 CON Id. Id. Id. Id. Id. See . E In the 2010 White Paper, the EPA performed a literature re- Ten years after this tentative statement on cancerous harms, 81. 84. 88. 2010 EPA 82. 83. 2010 EPA 85. 86. 87. NCERTAINTY VNTL E tilled to a phrase, the EEAC’s verdict on a cancer that it differential was was “theoretically valid but empirically ambiguous.” cient cient reliable data to assess the value of a cancer premium. differential” as “capturing elements of dread and fear of cancer, as well as the pain and suffering from the period of illness preceding produc- household and “income entailing perhaps, also, and death” tivity losses over this period of morbidity.” ing Health Approach to the Valuation of Mortality by which the VSL would be increased for risks of cancerous death. cancerous of risks for increased be would VSL the which by for Health Risk Reductions mendation for a cancer differential that could be used to produce a more accurate VSL. view to develop more concrete guidance, noting that the literature the since considerably” “developed had premiums cancer regarding 2000 White Paper was published. the EPA’s National Center for Environmental Economics (NCEE), which assists the Agency in determining the proposed regulations, economic published impact a 2010 of White Paper, that, for the first time in the EPA’s history, made a specific quantified recom- should synthesize the results of the literature surveyed into a single number. In that vein, the NCEE averaged the differentials dictated by nine studies & U Adamowiz et al., pal Drinking Water: An Analysis of Risk Context Using Multiple Valuation Methods 2018]studies,” VSL in involved death VALUING FATAL CANCER AT THE EPA 333 \\jciprod01\productn\N\NYS\72-2\NYS203.txt unknown Seq: 19 15-JAN-18 9:54 & Kevin Haninger, tency, and Risk Aversion Jin-Tan Liu, Van Houtven et al., Valuing Reductions in Fatal Cancer Risks Alberini & Milan Scasny, (working paper 2010); Anna Alberini & Milan Scasny, from a Stated Preference Study in Italy and the Czech Republic 39707-nys_72-2 Sheet No. 78 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 78 39707-nys_72-2 39707-nys_72-2 Sheet No. 78 Side B 01/15/2018 10:23:44 R R R R the Committee 93 note 66, at 1. supra Letter from Lisa P. Jackson, , ; EVIEW R First, the SAB pointed out a 94 Id. 92 note 66, at 1 note 66, at 1; Science Advisory Board Staff The Committee held a conference note 66. 90 supra supra , , supra , EVIEW EVIEW R EVIEW Ultimately, the EEAC’s members endorsed the ad- R 91 89 SAB 2011 R SAB 2011 at 26. The White Paper does not explain the shift from 52% to 50% at 12. Summary Minutes of the U.S. Environmental Protection Agency Sci- at 2. Next, the SAB objected to the lack of control provided for Id. Id. See See See Id. 95 While the EEAC agreed that “values for risk reductions are not As was the case in 2000, the 2010 EPA White Paper went to the 93. SAB 2011 94. 89. 92. 91. 90. 95. found there was not adoption enough of evidence a to cancer differential. support the Agency’s should be adopted but debated whether a 50% premium was exces- sive and if that differential conflated and the mortality. valuations of morbidity where they agreed evidence indicated that a cancer differential vice that the EPA should sharpen its estimate before putting it into place. However, no refined estimate has been forthcoming or im- plemented in subsequent years. ‘one size fits all’” and backed the EPA’s approach of applying tinct dis- values depending on risk characteristics, SAB’s EEAC, which recruited outside experts to review ment the docu- in December 2010. transcription error the EPA committed mate. in calculating their esti- (Dec. 21, 2010). Administrator, U.S. Swackhamer, Chair, Science Advisory Board, and Catherine L. Environmental Kling, Chair, Envi- ronmental Economics Advisory Committee, Protection (Oct. 14, 2011), https://yosemite.epa Agency, .gov/sab/sabproduct.nsf/c91996cd39a82f648525742400690127/298E1F50F844BC to 23852578DC0059A616/$File/EPA-SAB-11-011_Response_10-14-2011.pdf [https:// Deborah perma.cc/9RLH-WAF2]. L. Office, Notification of a Public Meeting of the Environmental Economics Advisory Committee Augmented for Valuing Mortality Risk Reductions, 75 Fed. Reg. 80,048 334 Acknowledging the calculation NYU was should ANNUAL “a be refined preliminary or SURVEYreplaced with estimate a OF more and systematic the synthesis AMERICANof literature,” the LAW EPA advocated for a temporary 50% for differential regulatory analyses of until a more refined estimate could be [Vol. 72:315 produced. \\jciprod01\productn\N\NYS\72-2\NYS203.txt unknown Seq: 20 15-JAN-18 9:54 the variation in the types of cancer and nature of risks in the studies the in risks of nature and cancer of types the in variation the except noting that the latter “might be a reasonable placeholder value for use in upcoming [regulatory impact analyses].” ence Advisory Board (EEAC) Augmented for (SAB) Valuing Mortality Risk Reduction Public Environmental Teleconference (Mar. Economics Advisory 14, Committee 613CFA8C1465C1B5852578340068AC59/$File/3-14-11+EEAC-VMR+Minutes.pdf 2011), [https://perma.cc/GE6F-XV6U]; https://yosemite.epa.gov/sab/sabproduct.nsf/MeetingCal/ SAB 2011 39707-nys_72-2 Sheet No. 78 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 78 39707-nys_72-2 39707-nys_72-2 Sheet No. 79 Side A 01/15/2018 10:23:44 R 102 note note 90. supra 97 Finally, the , supra 96 In order to calcu- 100 Essentially, the EEAC Van Houtven et al., 98 see note 31, at 25 & n.14, 74–77 tbl.1. supra note 66, at 12; note 66, at 12. For the nine studies averaged, see , APER supra supra , , P HITE EVIEW EVIEW W R R As the EEAC pointed out, the EPA calculation mis- 101 Letter from Lisa P. Jackson to Deborah L. Swackhamer . Id Id. Id. See 99 note 87. The EEAC’s simplest objection is an arithmetic error that oc- Forging a path for a viable cancer differential requires an anal- Although Although rejecting the implementation of a cancer differen- B. The SAB’s Concerns in Detail and Criticism of Its Decision 102. SAB 2011 96. 97. 98. 99. 101. 2010 EPA 100. SAB 2011 EEAC EEAC expressed concern about differences between observed can- cer differentials among studies with diverse risk characteristics, in- cluding variations carcinogen in exposure and the development of symptoms. morbidity or latency periods between such, it is important presented for to rejecting scrutinize the the before implementation. EPA’s The justifications EEAC’s objections proposed are the surmountable cancer EEAC and so differential should not have prohibited an interim ratio. studies. multiple of averaging an during curred late the initial cancer differential estimate, the EPA compared the average VSL for cancerous deaths derived from nine stated prefer- ence studies to the VSL for non-cancerous deaths, yielding a single differential. ysis of why the EPA has yet to adopt one in its regulatory analysis. As analysis. regulatory its in one adopt to yet has EPA the why of ysis proposed to lump a potential cancer differential in with the behe- moth set of questions about how VSL should change across popula- tions and risks, to be addressed at some future date. This process is a mechanism to achieve the conceptual end of individuation of III.C Part in critiqued and explained is which advocates, Sunstein that this Note. As for EEAC’s the recommendations cancer and differential, has the since figure. EPA failed followed to the adopt such a tial, the EEAC argued in favor of a future “integrated process used to estimate the value of mortality risk reduction and how with it varies risk and individual characteristics.” stated the differential drawn from one study: Van Houtven et al. Whereas the study found a differential of two, the EPA had calcu- 2018]the EPA relied upon to create a cancer differential. VALUING FATAL CANCER AT THE EPA 335 \\jciprod01\productn\N\NYS\72-2\NYS203.txt unknown Seq: 21 15-JAN-18 9:54 supra 87. 39707-nys_72-2 Sheet No. 79 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 79 39707-nys_72-2 39707-nys_72-2 Sheet No. 79 Side B 01/15/2018 10:23:44 & ISK ); -0.15 R Fixing Labels and OF Context and note 66, at 103 J. , 4 supra , Ultimately, fix- 104 107 EVIEW R Compensating Wage Differen- ); .85 (Alberini & Scansy, 973 (2003) (performing a meta-anal- a (performing (2003) 973 note 87, with summary point estimates note 31, at 25 n.14, with the Van Hout- note 31, at 74–77 tbl.1. The nine studies covered generic supra note 87; SAB 2011 supra 105 note 31, at 25 n.14. , supra REVENTION The Value of Statistical Life in Road Safety: A Meta- , APER supra & P supra APER P , P HITE APER NALYSIS HITE P A W Surely the EPA’s sophisticated internal economics Thomas J. Knieser & John D. Leeth EPA W HITE 108 They also compared risk of cancer to other fatality W CCIDENT A.T. de Blaeij et al., 75 (1991) (examining valuation of fatality risk in the manufacturing 106 A Id. Compare Id. with , 35 , However, there is no reason these variations should justify The EEAC’s second objection is that the studies were not con- 104. Values attributed to studies, 107. 108. 103. Van Houtven et al., 105. 106. 2010 EPA NCERTAINTY U the Van Houtven differential yields rather than 52% an as the EPA originally calculated. interim estimate of 41% taken from 2010 fatal cancer, which does not specify the afflicted area or identify organ specific or cancers such as those of the lung, and stomach, brain. liver, tials for Fatal Injury Risk in Australia, Japan, and the United States trolled for evaluating different types of cancer and for comparing the risks of developing those cancers to various covered types by of the risks other not studies. ing the arithmetic would yield a difference future on depending less perhaps estimate, rounded 50% proffered of only 9% from the studies. While 9% of VSL represents a significant amount of money per death avoided, that figure is minor compared to that of a can- cer differential of four or five times that. turning down a cancer differential. After all, the studies that form the very basis for the EPA’s generic central VSL calculate different types of risks. interim value could be instituted: (1) without regard to tion the among different varia- cancers; (2) with a rudimentary weighting of the value of the different cancers as dictated general population, by such that incidence preferences tied in to a specific the type of cancer will only be included to the extent that the cancer propor- capacity will engineer a long-term solution. In the meantime, an risks, including respiratory ailments, auto accidents, microbial nesses, ill- heart attacks, and strokes, among others. 336three. of differential Houtven Van a using average its lated NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:315 \\jciprod01\productn\N\NYS\72-2\NYS203.txt unknown Seq: 22 15-JAN-18 9:54 sector), Analysis ysis of studies of fatality risk in road safety). Liu); 2 (Van Houtven et al.); 0 (Magat et al.). the VSL: Evidence from a Stated Preference Study in Italy (Adamowiz and et the al.); Czech 0 Republic (Cameron & Deshazo); 0.2 (Tsuge et al.); 0.3 (Hammitt & ven error corrected: 0 (Hammit & Haninger); 0.5 (Alberini & Scansy, Perceptions in Mortality Risk Reduction Valuations 12.; 2010 EPA 39707-nys_72-2 Sheet No. 79 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 79 39707-nys_72-2 39707-nys_72-2 Sheet No. 80 Side A 01/15/2018 10:23:44 R 111 This 109 , Alberini & see, e.g. note 31, at 74–77 tbl.1; While attention to this inconsistency note 66, at 12. supra 110 note 66, at 12. This is more akin to the Sunstein , note 87 (using a latency period of 20 years). upra APER supra , s , P supra HITE EVIEW EVIEW R W R note 17 (using latency periods of 0, 2, 5, and 10 years); James K. supra For the above reasons, the EEAC offered an alternative to the The EEAC’s final concern is that a cancer differential cannot 111. SAB 2011 110. 2010 EPA 109. SAB 2011 that is, the temporal gap between exposure to a risk and death—as Scasny, fatal. Such concerns are evident in the studies, which draw conclu- sions based on various latency periods, thus introducing timing— characteristic. risk variable a objection is related to the lack of control for various types cancers different comparing If distinction. subtle a is there but cers, of can- to different risks is a matter of comparing apples and oranges, the worry with disparate illness profiles is tantamount to examining ap- ples of different shapes, sizes, and types. Perhaps cancer of one or- gan has a brief latency often more is and develop to decades takes organ another of cancer period but favorable prognosis, whereas approach discussed and critiqued in Part III.C as it reflects more granular, cross- sectioned preferences. is certainly warranted because in the long term some standardiza- tion is necessary, it should not have been prohibitive, since for an immediate value that process can be skipped or performed in a ru- dimentary fashion. cancer differential—an “integrated process” to account for various demographic and risk characteristics in one holistic inquiry. once in the service of more accurately reflecting the public’s prefer- public’s the reflecting accurately more of service the in once Hammitt & Jin-Tan Liu, Rather than single out cancer fatalities, their seeks proposed to approach map preferences across a wider range of variables all at adjust accordingly. Regardless, the existence types of evidence with different magnitudes of is no reason to sidestep slightly different such evidence, particularly when it points in the same direction. accurately account for the variations in each person’s “illness pro- file,” such as latency in developing the disease or morbidity. 2018] tionally appears in the population; or (3) with weighting as dictated by the carcinogenic VALUING risk FATAL CANCER AT THE profile EPAstance of at issue, the which would particular take regulated into account sub- and other outcomes associated with different cancer types. The first the various health solution is different from the latter two options in that it sidesteps the issue of variations among types of cancer. The second solution would adjust the value of a differential to 337 reflect how prevalent dif- ferent cancers are in society, and the third solution would consider the types of cancers that a proposed regulation might prevent and \\jciprod01\productn\N\NYS\72-2\NYS203.txt unknown Seq: 23 15-JAN-18 9:54 39707-nys_72-2 Sheet No. 80 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 80 39707-nys_72-2 39707-nys_72-2 Sheet No. 80 Side B 01/15/2018 10:23:44 note 66, Of the sev- supra The draft is 118 116 117 The report catalogs the SAB 2011 Review, 115 See note 18. , supra note 76. note 76. supra GENCY , supra 114 ” (Feb. 2016), http://yosemite.epa.gov/sab/SAB , . A APER ROT P GENCY . P . A HITE C. A Second Chance Squandered W NVTL ROT . P U.S. E at 1, 5. at 34, 36 (proposing a new “central estimate of the average VSL” for NVTL Four members of the resulting group, including the The Committee also includes certain individuals, like Van See Id. Id. Charge Questions for SAB-EEAC Review of an EPA White Paper: “Valuing Mor- 112 113 On April 27, 2015, the EPA announced that it was seeking Along with the publication of the new White Paper, the EPA In February 2016, the EPA’s Office of Policy published a White U.S. E 114. 116. 117. 112. Request for Nominations of Candidates to the EPA’s Science Advisory 113. Those returning members are Dr. F. Reed Johnson, Dr. Madhu Khanna 118. 115. 2016 EPA nominations for experts to EEAC. serve on the next iteration of the EPA’s “application and implementation of recent SAB recommen- dations” around updating VSL figures and practices, including trac- ing previous EPA positions regarding latent harms. focused on renewing the generic VSL estimate to account for new studies and introducing that literature into the EPA’s meta-analysis database for discerning a primary VSL figure. provided the EEAC with questions to focus its review. Paper focused on valuing mortality risk. Board (SAB), 80 Fed. Reg. 23,270 (Apr. 27, 2015). (chair), Dr. JunJie Wu, and Dr. Jinhua Zhao. at ii; 338 ences. This misguided approach, discussed in NYU Part III.C, no ANNUAL presents barrier SURVEY to a OF cancer differential, complicated AMERICAN but alternative. rather LAW a Though more some extensive, EPA’s first issues estimate of do [Vol. a 72:315 50% exist differential, these have with issues precluded the should use not the of an estimate in the intervening six years since that figure was suggested. \\jciprod01\productn\N\NYS\72-2\NYS203.txt unknown Seq: 24 15-JAN-18 9:54 the adult American population of $10.3 million in 2013 dollars). tality Risk for Environmental Policy: A Meta-Analytical Approach” and randum: Technical “Income Memo- Elasticity of VSL PRODUCT.NSF/81e39f4c09954fcb85256ead006be86e/0CA9E925C9A702F28525 7F380050C842/$File/Charge_EEAC_March+7_8_final.pdf [https://perma.cc/U7 LV-A2XL]. chair, overlap with the scholars who reviewed the EPA’s 2010 White Paper. Houtven, who authored some of the studies have referenced the and EPA used and for support NCEE in White Papers research and and publications. other 39707-nys_72-2 Sheet No. 80 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 80 39707-nys_72-2 39707-nys_72-2 Sheet No. 81 Side A 01/15/2018 10:23:44 See 120 HEN W 121 PPROVAL A UIDANCE FOR ONSIDER ., G C (Sept. 25, 2015), REMARKET FDA’s Patient Preference ET AL P The Committee’s OICE . 123 ACTORS TO EVICE DMIN : F : FDA V D A With the cancer differen- , TAFF 122 RUG S EDICAL & D M OOD . F DMINISTRATION (2016), http://www.fda.gov/ucm/groups/fdagov- ERVS A S RUG ETERMINATIONS IN D UMAN The EPA mentions the three cancer risk D 119 ISK & H LASSIFICATIONS -R OOD AND C F at 3. at 2. (“Please comment on whether, and if so how, selection criteria EALTH OVO ENEFIT Id. Id. Id. H B N E The EPA’s charge with respect to a cancer differential was a T OF 119. 120. 121. 122. Notification of a Public Meeting of the Science Advisory Board Environ- 123. I attended the EEAC meeting in Arlington, Virginia. Meeting notes and ’ D AKING EP NDUSTRY AND D discussion also displayed concerns that adopting a cancer differen- tial could open the floodgates to more individuated tailoring of AND reduction reduction studies it included in its recalculation gests of that the VSL EPA “could and augment the sug- literature by modifying the selection criteria to include studies from other countries the or from grey literature sources], and/or [i.e., using other methods studies (e.g., risk-risk produced studies).” by certain outside tial receiving relatively little attention during the two-day meeting, the EEAC preliminarily agreed to recommend forgoing a differen- tial yet again for lack of sufficient evidence. tremendous opportunity to finally implement a measure, EEAC but the again chose to reject 7–8,March Virginia. Arlington, in 2016 that path. The renewed EEAC met tient-centered perspective” through a “structured benefit-risk framework.” for identifying studies for estimating a cancer differential should differ from those used in the differential?”). White Paper. Does the literature support a non-zero cancer mental Economics Advisory Committee, 81 Fed. Reg. 4,296 (Jan. 26, 2016). other pertinent materials https://yosemite.epa.gov/sab/SABPRODUCT.NSF/81e39f4c09954fcb85256ead00 are available through 6be86e/0ca9e925c9a702f285257f380050c842!OpenDocument [https://perma.cc/ the Committee’s website 7PSJ-QPEX]. Despite at the adoption of a differential, one innovative proach potential was ap- mentioned in passing—borrowing from the FDA’s embrace of a “pa- I M identifying studies for estimating a cancer differential should differ whether is second the Paper?”; White [2016] the in used those from the literature supports the adoption of a cancer differential. 2018] enteen charges the EPA put forth, one specifically addresses a can- cer differential. VALUING FATAL CANCER AT THE EPA 339 Most importantly, the EPA asks two specific questions of the EEAC reviewers: the first is “whether, and if so how, selection criteria for \\jciprod01\productn\N\NYS\72-2\NYS203.txt unknown Seq: 25 15-JAN-18 9:54 public/@fdagov-meddev-gen/documents/document/ucm517504.pdf [https:// perma.cc/BE3E-JQW7]; Nina L. Hunter & Robert M. Califf, Initiative: The Need for Evolving Tools and Policies http://blogs.fda.gov/fdavoice/index.php/2015/09/fdas-patient-preference-initia- tive-the-need-for-evolving-tools-and-policies/ [https://perma.cc/5QYU-LM77]. 39707-nys_72-2 Sheet No. 81 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 81 39707-nys_72-2 39707-nys_72-2 Sheet No. 81 Side B 01/15/2018 10:23:44 R Further, 127 126 Beyond the lack of evi- 128 124 note 7, at 50. supra , EVIEW R 125 at 50 n.7. at 8. Id. Id. Id. Further, they also note that because “people associate a higher Despite confirming the conceptual basis for a differential, the The The Committee’s written report does offer some affirming in- 124. As discussed in Part III.C, this option presents a different proposition 125. SAB 2017 126. 127. 128. These studies show that people value both mortality risks and associated morbidity risks, suggesting that a cancer could premium exist. sudden death is not. According to death this can be motivation, thought of a as cancer two events, a period followed of by morbidity an early death. Logically, a a than worse as viewed be would morbidity of period significant death preceded by a to benefit some be may there (though death accidental sudden being given a period of time to put one’s affairs in order). In- deed, Gentry and Viscusi (2016), wage data, find using that wage premiums for occupational mortality revealed preference risks that tend to be preceded by longer periods of morbidity are higher than premiums for occupational mortality risks that tend to be preceded by shorter periods of morbidity, and that the value of a statistical life can be decomposed into a value of the fatality risk plus a value of the associated morbidity risk. The motivation behind a potential cancer differential is that a death from cancer is preceded by a significant period of mor- bidity. Cancer treatment typically is accompanied by chemotherapy, surgery, and radiation that can have serious debilitating side effects. The experience of death is also traumatic for fam- ily and friends as well as the affected individual in ways that dence, the Committee also voiced concern about the variation in “[u]ntil new evidence becomes available to allow identification of a specific cancer differential, the SAB recommends that the EPA con- tinue its current practice of using the mortality same and VSL other to mortality value causes.” cancer level of dread with cancer risks than with other health risks” there may be an additional motivation for a differential. Committee ultimately found that “there is not sufficient evidence at this time to justify a non-zero cancer differential.” sight into the conceptual grounding behind a cancer differential: entirely and could allow for disturbing normative outcomes such as severe stratifi- cation of regulatory policy by class, race, gender, or age. 340 VSL measures in other EPA matters. NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:315 \\jciprod01\productn\N\NYS\72-2\NYS203.txt unknown Seq: 26 15-JAN-18 9:54 39707-nys_72-2 Sheet No. 81 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 81 39707-nys_72-2 39707-nys_72-2 Sheet No. 82 Side A 01/15/2018 10:23:44 R R R R note 17; supra , Cancer Premiums and Latency Context and the VSL Finally, the Committee took 129 note 31, at 9. III. Labels and Perceptions in Mortality Risk Reduction Risk Mortality in Perceptions and Labels ABROAD supra note 7, at 9. , APER supra , The implication is that while non-cancerous P Highly technical quibbles should not be a bar note 17; Van Houtven et al., 132 While this may be true, surely the explicit inclu- HITE EVIEW 134 130 W R supra note 17; Alberini & Scasny, , Alberini & Scasny, & Alberini , 133 at 51. note 17. While the Agency uses the same VSL for cancer mortal- supra , Id. Id. Id. e.g. See, 131 SUPPORT FOR A DIFFERENTIAL AT HOME AND supra , Part III advocates for the use of an interim differential by the In declining to recommend a cancer differential (though not- 132. 133. 2010 EPA 129. 130. 131. SAB 2017 134. EPA in future rulemakings. Instituting a cancer easily implemented differential reform that is is supported an by evidence and nor- matively intuitive. issue with the fact that studies that yield VSL estimates for cancer- ous deaths do not explicitly include morbidity really and ‘pure’” thus reflections of “are how not individuals value avoiding risks of death. cancerous nal suggestion of such a differential, this delay is continu- the foreshadowed 2010 from refrain same that unacceptable. seem would It ing fate of ambiguous.” a differential: “theoretically valid but empirically fatalities and cancerous non-fatalities worth, cancerous are fatalities are both undervalued. A given would cancer remedy this inconsistency, but the details of where to set that differential their full differential continue to get in the way of instituting place. Given it that so many in years have the elapsed since first the EPA’s origi- avoid the chance of a period of death than protracted a suffering chance of followed death alone. by ing that one may indeed exist), the Committee highlighted a cen- tral paradox in the analysis. way the EPA treats cancer for cost-benefit sion of morbidity in such a study would yield higher willingness to pay to avoid the event, assuming that people would pay more to Valuations McDonald et al., Effects 2018] morbidity periods across different types of cancers and the sion exclu- of other latent harms such VALUING FATAL as CANCER AT chronic THE EPA obstructive disease pulmonary (COPD) or heart disease. 341 \\jciprod01\productn\N\NYS\72-2\NYS203.txt unknown Seq: 27 15-JAN-18 9:54 ity risks as all other risks, the Agency only values morbidity in cases of non-fatal cancer. 39707-nys_72-2 Sheet No. 82 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 82 39707-nys_72-2 39707-nys_72-2 Sheet No. 82 Side B 01/15/2018 10:23:44 135 note 66, at 12. supra , A. Toward a Temporary Differential EVIEW R potential pool of studies of cancer mortality valuation by 136 The EPA is stuck in a paradox regarding establishing a cancer Fatal cancer risks have been needlessly undervalued for years 135. This Note declines to put forth a specific differential, instead deferring 136. The empirical literature on cancer is only outmatched by that on fatality. 2011 SAB large differential: the EPA claims to have insufficient data that would sup- would that data insufficient have to claims EPA the differential: port the adoption of a differential while simultaneously tightening standards for studies which produce such and data. the Indeed, the EEAC EPA in its advisory capacity have constricted the once to those with expertise in environmental economics. However, updating the 50% estimate to account for more recent studies could quickly yield an estimate. See literature supports a cancer differential. The EEAC again chose to not recommend one. Despite these missed opportunities, the EPA should institute a positive cancer differential; today this differential can take the form of a temporary, rough estimate to be refined at some future date based on somewhat additional imprecise data differential would and ensure analysis. that the Even EPA completely a stops undervaluing cancerous fatalities, save which lives through the in aversion of untimely turn deaths. will viduation of VSL. Finally, this Note concludes with discussion of the importance of continued and targeted government-driven research of how individuals value reductions in mortality risk. despite the existence of compelling empirical data and arguments from scholars which demonstrate that people place on greater avoiding value risks of cancerous death than when the other EPA’s NCEE fatal explicitly proposed rectifying risks. this omission, Even the EEAC of the SAB declined 50% to estimate implement for the a recommended cancer differential. the whether of inquiry an to respond to more once asked was EEAC Some five years later the 342to progress, especially as regulatory techniques NYU abound which count ANNUALfor ac- evolving methodologies that SURVEYrequire further refinement. OF Supporting the AMERICAN immediate implementation of a differential are the LAW examples of the European [Vol. 72:315 Commission and United addition, Kingdom. In the domestic example of EPA’s Cost of adoption Carbon (SCC) of provides a the strong precedent for Social the institu- tion of imperfect measures that later necessitate improvement. Part III.C describes the normative shortcomings, logical inconsistencies, and practical impediments associated with the drive towards indi- \\jciprod01\productn\N\NYS\72-2\NYS203.txt unknown Seq: 28 15-JAN-18 9:54 requiring, for example, that all studies used in creating EPA figures be conducted in the United States, published in English, and 39707-nys_72-2 Sheet No. 82 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 82 39707-nys_72-2 39707-nys_72-2 Sheet No. 83 Side A 01/15/2018 10:23:44 R R 141 Any 140 139 Research Synthesis At the same time, the EEAC note 18, at 6–7. This tightening is the 137 supra , note 66, at 10–12. APER note 2, at 13. P 6 (Harvard Kennedy School, Regulatory Policy Pro- supra , HITE Lisa A. Robinson & James K. Hammitt, supra W See EVIEW Part I.B. A-4, SAB R note 7, at 51–52. However, there may be concern that simple addi- 2016 EPA IRCULAR Because the EPA and EEAC now rely on a narrower range now rely on the EPA and EEAC Because See supra C See supra 138 , A temporary cancer differential should be adopted as soon as 139. 140. Even an alternative would be preferable to inaction. The EPA currently 137. 141. 138. 2011 EVIEW dictate—a set that would necessarily have maximum based a on the fixed lowest and minimum highest values and in the range. such differential would by no means be perfect. It may even be the in form of a range to cancers specific different of literature the in presence the account regarding for the EEAC’s earlier criticisms and unstandardized risk characteristics like individual latency peri- ods. However, even a broad or uncertain differential would still al- low the heightened value of cancer mortality risk reduction to play a role in EPA rulemaking. In fact, the executive branch’s guidance to agencies regarding regulatory when analysis precise quantification is not provides possible. The Office for of Manage- situations ment and Budget advocates “breakeven analysis,” which would ap- ply equally well to the outcomes that a range of differentials would quantifies the prevention of fatal cancers the same as other fatalities and separately and fatalities other as same the cancers fatal of prevention the quantifies quantifies the aversion of non-fatal cancers for rulemakings. However, there is no reason why the EEAC could not recommend that the EPA temporarily, in lieu of a differential, add the statistical value of a normal fatality averted to the non-fatal value cancer of to a come up with a measure for fatal the cancer that death considers both and morbidity period. Such EEAC’s a March measure 2016 was meeting briefly but mentioned is at ultimately the rejected in its Report. SAB 2017 has pushed back against a cancer differential, citing insufficient evi- dence. possible, despite the EEAC’s recent rejection of this path. R tion may overvalue (or perhaps undervalue) cancerous fatalities all the same. Breakeven analysis requires an agency to ask how large a benefit 2018] placed in peer-reviewed journals. VALUING FATAL CANCER AT THE EPA 343 \\jciprod01\productn\N\NYS\72-2\NYS203.txt unknown Seq: 29 15-JAN-18 9:54 of studies, they have lost sight of a consistent, decades-long stream cancerous reduce to more pay to willing are people that evidence of fatality risk than generic risk. Compounding this the problem structural is that shortcomings of the methodology—wage-riskies—that the stud- EPA typically uses to value mortality Agency risk incapable render of accurately the gauging latent harms. result of stringent design requirements for studies that provide the basis mating for a esti- differential. and the Value Per Statistical Life gram, Working Paper RPP-2014-14, 2014) (noting there exist “relatively few studies that are likely to meet the https://www.hks.harvard.edu/index.php/content/download/70873/1256302/ selection criteria developed by the EPA version/1/file/RPP_2014_14_Ro and [https://perma.cc/MXS9-AY3D]. SAB”), 39707-nys_72-2 Sheet No. 83 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 83 39707-nys_72-2 39707-nys_72-2 Sheet No. 83 Side B 01/15/2018 10:23:44 ISK ALUE R V (2000), NALYSIS EDUCING THE A R ALUES FOR THE ENEFIT V B ALUE OF V OST NTERIM C I The conference was undertaken to ORKSHOP ON THE ECOMMENDED NVIRONMENTAL (2000), http://ec.europa.eu/environment/en- 144 , R , W DG E Under breakeven analysis, the EPA should LLNESS I 1. The European Example 142 OMMISSION OMMISSION ATAL C C F B. Examples from Regulatory Practice ATALITY IN F (casting breakeven analysis as “answer[ing] the question, ‘How 143 The paper recognized the importance of differentiating UROPEAN UROPEAN E E Id. See id. Id. 146 EALTH OR A 145 -H The adoption of a temporary cancer differential is supported After the conference the Commission released a supplemental In 2000, the Environment Directorate-General of the Euro- 144. 142. 143. 145. 146. REVENTING A LL I P OF OF by the use of such a measure among cies. Domestically, the trajectory of foreign other quantification techniques, governmental agen- such as the SCC, provide analogical support for the institution of a temporary estimate to later be refined. to ensure the Directorate-General used the “best current estimates of the monetary value of preventing the risk of . . when . a fatal illness” formulating policy needs. and also sought to identify research develop guidance for analysts with the hope of improving cost-ben- efit analyses in the EU and its member states. The organizers aimed paper that provided guidance on the treatment of carcinogenic pol- carcinogenic of treatment the on guidance provided that paper lutants. pean Commission, the European vened a workshop in Union’s Brussels on “the value of executive reducing the risk of body, ill-health con- or a fatal illness.” value of the non-quantified costs need to be) before the rule would yield zero net benefits?’”). small could the value of the non-quantified benefits be (or how large would the 344 would have to be for the proposed regulation NYU to break even cost-benefit in ANNUALits analysis. SURVEY OF AMERICAN LAW [Vol. 72:315 \\jciprod01\productn\N\NYS\72-2\NYS203.txt unknown Seq: 30 15-JAN-18 9:54 adopt a cancer differential, since the benefits of avoiding untimely deaths would at least equal the (even if it may remain costs unknown to what extent of the measure would enacting the regulation break even). veco/others/pdf/proceedings.pdf [https://perma.cc/LFW2-67GC]. cancerous mortality from generic mortality because the former in- cludes morbidity: http://ec.europa.eu/environment/enveco/others/pdf/recommended_interim_ values.pdf [https://perma.cc/NMC3-WHRV]. 39707-nys_72-2 Sheet No. 83 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 83 39707-nys_72-2 39707-nys_72-2 Sheet No. 84 Side A 01/15/2018 10:23:44 149 While 151 This value is designed to cap- 148 150 2. The British Example The British cancer differential was first refer- 147 152 Id. Id. Id. See id. See id. The United Kingdom has also instituted a cancer differential, Despite the “minimal” evidence, the European Commission ul- The Commission went through many of the same steps and 147. 148. 149. 150. 151. 152. Though the United Kingdom and European Commission both recom- ity is minimal. People People may be willing to pay more to reduce their risk of dying from cancer than to reduce their risk of because death a from cancer fatal may be heart preceded by a attack, long period of serious illness. The value attributed to the risk of mortality from cancer should be treated the same as for other illnesses (i.e. the same Value [of a Statistical Life]). However, it portant that is the ‘cancer im- premium’ relating to the period of ill health prior to death is also captured. However, the evidence on the size of this ‘cancer premium’ for the period of morbid- the EEAC has allowed the better part of two decades to pass without pass to decades two of part better the allowed has EEAC the meaning- and early taken has EU the differential, cancer a adopting ful action (with the premium they adopted equaling the one the that EEAC rejected in 2010). ture both the actual fatality and the morbidity that precedes it. thought processes in ultimately adopting a cancer differential as the as differential cancer a adopting ultimately in processes thought EPA and its experts have gone through before. It relied upon dence evi- that suggested the Commission should adopt a cancer mium pre- without specifying what that differential should be. valued at 100%. timately settled on a 50% cancer differential to be applied to carci- nogenic pollutants, a reflection of the assumption that the value of preventing a cancerous death is one and a half times the value as- signed to non-cancerous mortality. mend a cancer differential, the Organisation for Economic Co-operation and De- velopment, whose member states include the United States, United Kingdom, and meta- and review “literature their that concluded countries, Union European many The Directorate-General recognized, despite the lack of overwhelm- of lack the despite recognized, Directorate-General The ing evidence pointing to one specific value, that it was important to institute a temporary differential to respect the willingness population of the to pay more for reductions compared to generic in fatality risk. cancerous fatality risk 2018] VALUING FATAL CANCER AT THE EPA 345 \\jciprod01\productn\N\NYS\72-2\NYS203.txt unknown Seq: 31 15-JAN-18 9:54 39707-nys_72-2 Sheet No. 84 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 84 39707-nys_72-2 39707-nys_72-2 Sheet No. 84 Side B 01/15/2018 10:23:44 ISK R RGANI- O VALUATION ROTECTING The HSE E , P ORTALITY 153 ISKS R 132 (2012), http:// PPRAISAL AND Moreover, the HSE [OECD], M [OECD], OLICIES EDUCING 156 : A 154 P In the section that dis- ., R 157 OOK notes the differential was XEC B To illustrate the operation of E provides an example of doub- EVELOPMENT RANSPORT 158 REEN D T (2001), http://www.hse.gov.uk/risk/the- (2001), AFETY G HE & S , T ROCESS P EALTH AND EALTH recommended to adjust VSL for cancer risks, but to , H H The Green Book REASURY AKING The Green Book v, 1 (2011), https://www.gov.uk/government/uploads/ OOPERATION AND not T -M S (which was updated in 2011), a production of ’ C INGDOM K AJESTY ECISION The Agency observed that willingness to pay may vary NVIRONMENT D M OVERNMENT E CONOMIC S 155 at 62. at 65. ER NITED G E However, H Id. Id. U Id. Id. Id. 159 : HSE’ : Two years later, in 2003, the cancer differential was confirmed 158. 159. 153. 154. 155. 156. 157. ENTRAL The Green Book C ALUATION IN EOPLE costs.” the cancer premium, ling VSL for asbestos “to allow for individual aversion to dying from cancer, and the additional associated personal and medical reached without relying on literature and indicates a longer-term account for the costs of morbidity prior to cancer deaths separately.” The Organi- sation also notes that, “a cancer premium was screened found in analyses dataset, of the full, but un- suggesting the importance not of the inputs and underlying in study standards. the SATION FOR analyses of the quality-screened models,” noted that “people are prepared to pay a premium for the benefit of preventing a [cancerous] fatality” and, as such, “adopted a [VSL] twice that of the . . . benchmark figure.” IN noted that research will be forthcoming “to assess the validity of this of validity the assess “to forthcoming be will research that noted approach.” in Britain’s Treasury department that offers guidance to government institutions on the valuation of “policies, programmes and projects, whether revenue, capital or regulatory.” cusses valuing mortality-risk reductions, dence exists the “that individuals are Treasury not indifferent to states the cause circumstances of and evi- injury or fatality.” system/uploads/attachment_data/file/220541/green_book_complete.pdf [https://perma.cc/BJ86-SQX7]. regressions do not support adjusting VSL upwards cancer if risks. the Thus, regulation it is is targeting V P sub-categories; rather, the only risk that the HSE ines currently is exam- a generic one for dying from cancer. 346 enced in a 2001 NYU guidance of Safety ANNUAL the Executive United (HSE), SURVEY Kingdom’s an Health organization OF responsible and for and AMERICAN regulating studying workplace LAW and other risks in the UK. [Vol. 72:315 across different types of risk but largely avoids delving into such \\jciprod01\productn\N\NYS\72-2\NYS203.txt unknown Seq: 32 15-JAN-18 9:54 dx.doi.org/10.1787/9789264130807-en [https://perma.cc/H8T2-QZXC]. ory/r2p2.pdf [https://perma.cc/PB4J-7BYK]. 39707-nys_72-2 Sheet No. 84 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 84 39707-nys_72-2 39707-nys_72-2 Sheet No. 85 Side A 01/15/2018 10:23:44 , T ’ 168 OV MPACT The I 165 , U.S. G EGULATORY ARBON R C ’s guidance and princi- OST OF note 28. C ARBON FOR In 2009 and 2010, the C 166 supra OCIAL , S (2010), https://www.whitehouse.gov/ OST OF Still, UK government departments government UK Still, C 160 The Green Book 12866 ROUP ON OCIAL G 163 : S set up by the President’s Council of Eco- RDER It is difficult to overstate the impact (or 164 O 162 which it eventually published along with a ORKING 167 3. The Trajectory of the SCC W OCUMENT D Exec. Order No. 13783, 82 Fed Reg. 16,093, 16,095 § 5(b) XECUTIVE See E (for example, calculating SCC entails understanding the intertwin- the understanding entails SCC calculating example, (for (the agencies involved include: “Council on Environmental Quality, at 62 n.19 at 1–2. UPPORT NDER reduction).” S NTERAGENCY 2 See id. See Id. I Id. Id. EPA Fact Sheet: Social Cost of Carbon Id. Id. Id. Like the European Commission, British regulators wasted U SCC came into being through the labor of an “interagency As demonstrated by the introduction into U.S. executive 161 163. 164. 160. 161. 162. 165. 166. 167. 168. ECHNICAL NALYSIS T ing dynamics between “climate processes, economic growth, and interactions be- tween the two in a single modeling framework.”). National Economic Council, Office of Energy and Climate Change, and Office of Science and Technology Police, EPA, and the Departments of Agriculture, Com- merce, Energy, Transportation, and Treasury.”). As of President publication Trump of has disbanded this the Note, IWG and withdrawn many ments of it the key issued. docu- and agencies must adhere to ples. Group developed a set of SCC estimates based on different models and discount rates, complexity) of this figure. nomic Advisors and Office of Group agreed Management on a number and of baseline Budget. assumptions that the EPA used in order to come up with an initial three estimate for integrated SCC “using assessment models.” very transparent methodology in a technical support document. their perfection, including the SCC, the EPA should create a liminary, pre- rough cancer differential. The SCC “represents the value of damages avoided for a small emission reduction (i.e. the benefit of a CO working group” (IWG) agency cost-benefit analyses of many quantitative methods prior to A 2018]commissioned. been has study VALUING FATAL CANCER AT THE EPA 347 \\jciprod01\productn\N\NYS\72-2\NYS203.txt unknown Seq: 33 15-JAN-18 9:54 little time and adopted an even more generous differential (despite the need to further refine that premium). (Mar. 28, 2017). sites/default/files/omb/inforeg/for-agencies/Social-Cost-of-Carbon-for-RIA.pdf [https://web.archive.org/web/20170118134053/https://www.whitehouse.gov/ sites/default/files/omb/inforeg/for-agencies/Social-Cost-of-Carbon-for-RIA.pdf]. 39707-nys_72-2 Sheet No. 85 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 85 39707-nys_72-2 39707-nys_72-2 Sheet No. 85 Side B 01/15/2018 10:23:44 , , T T ’ ’ AR- OV OV C (2013), ]. OST OF , U.S. G , U.S. G C 12866 OMMENTS ARBON ARBON OCIAL RDER C C C S O OST OF OST OF , at 4 n.11 (Nov. 12, 2013), note 28. C C XECUTIVE ESPONSE TO E note 168, at 4; Environmental De- R PDATE OF THE supra OCIAL OCIAL , the IWG responded in 2015 in U an updated estimate in 2013 as S S NDER supra 172 ARBON 169 , U C ROUP ON ROUP ON ROUP ECHNICAL NALYSIS G G G : T OST OF note 9, at 661–66 (explaining how OIRA review fa- A C After an opportunity for public comment ORKING ORKING ORKING 170 supra MPACT OCUMENT W W W I ROUP ON D which garnered over 140 unique responses and G Beyond stakeholders in development, a cancer dif- ., Comment Letter on Proposed Rule on Energy Conservation Standards 171 174 175 As of July 2015, multiple agencies seeking more accu- Livermore, UPPORT EGULATORY ORKING 173 S NTERAGENCY NTERAGENCY NTERAGENCY I I I See id. Id. See EPA Fact Sheet: Social Cost of Carbon R A cancer differential would differ from the SCC in that it is a 171. 169. 172. 170. 173. 174. 175. 2015 W ECHNICAL Response to comments: Social Cost of Carbon for Regulatory Impact Analysis T BON FOR dictated by “the latest versions of the models . . . as used in the peer- the in used as . . . models the of versions latest “the by dictated reviewed literature.” a detailed document and articulated next steps for improving the measure. fense Fund, et al for Walk-in Coolers and Commercial Refrigeration http://policyintegrity.org/documents/Comments_on_use_of_SCC_in_Walk-in_ Rules Coolers_and_Commercial_Refrigeration_Rules.pdf [https://perma.cc/526F-LTA Z]. less collaborative effort. Whereas developing the SCC involved the participation of a litany of agencies, so far only the EPA has demon- strated interest in a cancer differential. Still, should the Agency im- plement such a figure, appropriate. other regulators may soon adopt it as ferential could in many ways mirror the SCC. Like the SCC, a differ- a SCC, the Like SCC. the mirror ways many in could ferential ential would be subject to public comment by virtue of the and notice comment rulemaking process. Further, tinue to update the the specifics of a differential with new EPA information, could con- just as the SCC has incorporated feedback into a new iteration of its 39,000 “form letters submissions,” 348 Next, the working group released NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:315 \\jciprod01\productn\N\NYS\72-2\NYS203.txt unknown Seq: 34 15-JAN-18 9:54 Under Executive Order 12866, at 4 (2015), https://www.whitehouse.gov/sites/de- fault/files/omb/inforeg/scc-response-to-comments-final-july-2015.pdf [https:// web.archive.org/web/20170108143328/https://www.whitehouse.gov/sites/de- fault/files/omb/inforeg/scc-response-to-comments-final-july-2015.pdf] [hereinaf- ter on the SCC, agency thirty-four in SCC the employed had analyses regulatory rate rulemakings. https://obamawhitehouse.archives.gov/sites/default/files/omb/inforeg/scc-tsd- final-july-2015.pdf [https://web.archive.org/web/20170124055423/https:// obamawhitehouse.archives.gov/sites/default/files/omb/inforeg/scc-tsd-final-july- 2015.pdf]. cilitates information sharing branch agencies). and approach harmonization among executive 39707-nys_72-2 Sheet No. 85 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 85 39707-nys_72-2 39707-nys_72-2 Sheet No. 86 Side A 01/15/2018 10:23:44 R , 179 OMMENTS C If a measure of 181 ESPONSE TO R note 28. 178 ARBON C supra , OST OF C ROUP ON G In the course of updates and public comments, C. The Discontents of Individuation 177 ORKING This assistance is designed to bolster the methodologi- Additionally, “[t]he unique comment letters offered a at 4–5. at 5. 176 180 EPA Fact Sheet: Social Cost of Carbon See id. Id. 2015 W Id. Id. note 172, at 2–4. As noted in Part I.B, quantifying VSL relies on determinations The SCC provides an example of regulators implementing a Looking Looking ahead, SCC will benefit from the OMB’s “plans to ob- 176. 177. 178. 179. 180. 181. dread, fear, and other characteristics of cancerous death. Some of individuals’ willingness to pay to avoid certain risks. The notion of a cancer differential proceeds from the premise that individuals are willing to pay more to avoid cancerous fatalities than non-can- cerous fatalities due to the value they place on avoiding morbidity, such importance can be adapted from an imperfect and contested starting point as more information becomes available, so too can a cancer differential. And such a differential would be the stronger exposure to for comments, feedback, and new data as it evolved. SCC estimates for “regulatory impact analysis until further updates can be incorporated into the estimates.” measure as they perfect and develop it. Any impression that adopt- ing the SCC was easy or without controversy—even outside of political the sphere and purely from a scientific standpoint—is quickly dispelled by a glance at the comments many garnered highly technical during and the rigorous OMB’s call for public input. the IWG and its constituent agencies agreed to continue using the Such comments, including those submitted as part of an organized form-letter campaign, “covered a wide range of topics including the technical details of the modeling, the aggregation and presentation of the results, and the process derived.” by which the SCC estimates were 2018]provide and way the pave can that story success a is SCC The model. a model for implementing a cancer differential. VALUING FATAL CANCER AT THE EPAtain expert, independent advice from the National Sciences, Academies Engineering, of and Medicine on how to updates.” approach future 349 \\jciprod01\productn\N\NYS\72-2\NYS203.txt unknown Seq: 35 15-JAN-18 9:54 wide range of perspectives on the process, sults, methodology, including and both support re- and opposition.” cal and technical basis of the SCC measure, which are already quite well grounded. supra 39707-nys_72-2 Sheet No. 86 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 86 39707-nys_72-2 39707-nys_72-2 Sheet No. 86 Side B 01/15/2018 10:23:44 E- 85 : B . TATE id S ISTRIBUTION D EGULATORY AIR R F For the purposes of this EING AND 184 -B As such, the conceptualization UMANIZING THE ELL 183 : H , W 85. IFE Though perhaps theoretically sound, DLER L 182 A (2012) (arguing for the use of social welfare func- However, Sunstein believes that agencies ALUING note 182 at , V ATTHEW 185 M NALYSIS supra A , UNSTEIN S ENEFIT ASS -B UNSTEIN S C See generally OST The quest to adapt VSL figures across different types of Sunstein observes that agencies currently do not tailor or indi- C 182. 184. For a leading example that provides a comprehensive review of issues 185. 183. fundamental normative concerns at play. Beyond the ques offered here, there exists an extensive literature that questions initial criti- the idea of individuation (particularly across demographics) on re- source-allocation and moral grounds. of a cancer differential as a limited and distinct regulatory change is change regulatory distinct and limited a as differential cancer a of philosophically quite distinct from the full individuation of VSL. demographics and risks has muddled the discussion of a cancer dif- ferential. The EEAC paints the that can and should wait until the EPA develops a program for cancer indi- differential as something Con- variables. risk and demographic nuanced across VSL viduating flating the cancer framework such as full individuation differential is a mistake that belittles with the a more general analytic YOND Note, suffice it to say that full individuation is not a desirable goal and discussion of its pursuit should not undercut progress toward a discrete and achievable cancer differential. viduate their VSLs. should do so; since as “[e]ach person in society is willing to pay a the pursuit of extensive individuation is ethically fraught and may lead to deeply inequitable results. ences of those benefitting from regulation refers to as “individuation.” is what Cass Sunstein 350 scholars believe that characteristics besides cancer, such NYUas age wealth, or should also be ANNUAL used in developing VSLs. They maintain that SURVEY OF including AMERICAN such variables will more precisely reflect LAWthe preferences of populations who feel [Vol. the 72:315 impacts of a generic VSL, which in turn better respects the agency of individuals given regulation than a to allocate their resources. In reliance on the as figure that tailor to seek scholars these pay, to willingness flecting premise of VSL re- closely as possible to the actual willingness to pay of regulated indi- viduals. The push to tailor VSL as closely as possible to the prefer- \\jciprod01\productn\N\NYS\72-2\NYS203.txt unknown Seq: 36 15-JAN-18 9:54 tions rather than a VSL paradigm that engenders sensitivity to wealth disparities in policy). Sunstein raises and those that might be marshaled against his view, see agency values the lives of poor people less (or more) than the lives of rich people. No agency distinguishes between whites and African Americans or between and men women.”). (2014) (“No agency treats young people as worth more than old people. No 39707-nys_72-2 Sheet No. 86 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 86 39707-nys_72-2 39707-nys_72-2 Sheet No. 87 Side A 01/15/2018 10:23:44 R Would 188 193 However, he is 192 but instead amounts to a poor Sunstein takes pains to point Part I.A. 190 191 In addition, the same forced ex- Consider the example of an indi- 189 187 see supra note 182, at 90. note 72; supra supra , To him, it is not only a matter of “conceptual clarity,” at 87. at 88. at 113–14. at 115. at 87. 186 UNSTEIN Id. Id. Id. Id. Id. S Id. Id. This is an expansive and hugely complex endeavor with 194 Tailoring VSL to every imaginable subgroup and risk matches 186. 187. 188. 189. 190. 191. 192. 193. 194. Sunstein, method of redistributing wealth. tions above their willingness to do so undercuts welfare by requir- ing the individual to purchase a risk like welfare marginal more provide might that something of instead reduction they do not seek food, medicine, or education. he necessarily choose to pay the same amount as those with average or high wealth for, say, a reduction in mortality risk from a certain pollutant? Sunstein contends that forcing one to “pay” for regula- change disrespects autonomy because it does not allow individuals to make those choices themselves, vidual with little wealth contemplating how to allocate resources for risk reduction (naturally, individuals with less wealth have less will- ingness to pay due to the scarcity of financial resources). also quick to protect himself against larly inevitable regarding individuation criticism, across particu- demographics. Specifically, he argues that any individuation that results in disparate VSLs for dif- ferent races, for example, would “not be a product of any group-level kind of discrimination on the government’s “the part” result of but disaggregating VSLs for rather individuals.” out that his notion of individuation is not radical but in fact mimics decisions that individuals make daily. After all, differences preferences are in apparent in “ordinary consumer markets, risk which es- tablish prices for the reduction of the statistical risks associated with smoke alarms, unusually safe cars, and much more,” simply as a re- sult of “different values, tastes, and situations.” Sunstein’s notion of individuating regulatory analysis at an optimal level. 2018] distinctive amount to avoid each risk,” those preferences should be honored. VALUING FATAL CANCER AT THE EPA 351 \\jciprod01\productn\N\NYS\72-2\NYS203.txt unknown Seq: 37 15-JAN-18 9:54 but also the right thing to do. wide scope. However, the normative thrust behind a cancer differ- ential is much more tailored, its scenarios: scope cancerous fatalities. limited As to Professor Richard a Revesz has single ar- set ticulated, of a differential focuses on the undervaluing of exclusively 39707-nys_72-2 Sheet No. 87 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 87 39707-nys_72-2 39707-nys_72-2 Sheet No. 87 Side B 01/15/2018 10:23:44 R NCER- Any 199 & U Another NCERTAINTY In other ISK 198 196 Other stud- Other Part I.A. & U J. R 197 ISK 82, 83 (2014). . , 27 Compensating Wage Dif- J. R The Value of a Statistical see supra CON , 27 E EALTH note 35; J. H note 182, at 105 (citing W. Kip Viscusi, supra , , 35 supra , The Social Value of Mortality Risk Reduction: VSL 5, 44 (2003)). UNSTEIN S Sunstein’s and Revesz’s approaches to adjusting NCERTAINTY Environmental Regulation 195 & U at 93–94 (citing John D. Leeth & John Ruser, at 93 (citing W. Kip Viscusi & Joseph E. Aldy, ISK Id. Id. J. R 257, 270 (2003)). This Note has advocated for the imposition of a cancer differ- 196. Matthew D. Adler et al., 199. 195. Revesz, 198. 197. White males have a VSL of $18.8 million, while African American males , 27 Versus the Social Welfare Function Approach TAINTY philosophical framework that would dispose of human dignity giving weight by to such counterintuitive and deeply troubling results surely does not deserve the embrace of the regulatory state. Addi- tionally, calculating VSL for very limited threatens cross-sections to of reinforce disparities society that currently exist ders, ages, among ethnicities, and gen- other traits through legitimizing them. study found a negative VSL studied for earn nonunionized less workers, when as they those face increased mortality risk. words, individuation could lead to wildly morally questionable re- sults: valuing white lives, male lives, more than young those of other lives, sub-groups. For or example, one study wealthy that lives analyzed VSL across demographics found that “VSL is highest white males for and lowest for African American males, with white and African American females falling between the poles.” based on wage data. For instance, one study of workers nonsensically African pegged American the group’s VSL at zero. ential in EPA regulatory analysis, but not for full VSL. Individuation individuation raises troubling moral of issues, such as the poten- tial for VSL to “yield what are often viewed tions as inequitable evalua- of reductions in policy mortality risk among population subsets. change” through the unequal valuation of ies have found yet more demographic disturbing sub-groups results, that including yield studies a of zero or even negative VSL VSL VSL to account for specific varieties of risk are radically Imagine different. a sprinkler system is not working as expected one because of errant spigot. The difference in that these between approaches adjusting is the akin water pressure to for the tioning spigot single (implementing a cancer malfunc- differential) and neglecting the problem because one day you plan to dig the entire up sprinkler and system (Sunstein’s reengineer optimal individuation). have a VSL of $5.9 million. Life Racial Differences in Labor Market Values of a Statistical Life 239, 252 (2003)). ferentials for Fatal and Nonfatal Injury Risk by Gender and Race 352 latent harms. NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:315 \\jciprod01\productn\N\NYS\72-2\NYS203.txt unknown Seq: 38 15-JAN-18 9:54 39707-nys_72-2 Sheet No. 87 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 87 39707-nys_72-2 39707-nys_72-2 Sheet No. 88 Side A 01/15/2018 10:23:44 R R 201 note 31, supra , APER P HITE W 200 Second, the EPA should engage 202 Permanent Solution note 182, at 87–88. supra , at 106–07. D. The Road Forward and Toward a Home-Grown, UNSTEIN S See id. Furthermore, Furthermore, agencies cannot feasibly implement individua- The inability of the EPA to adopt a cancer differential to date The EPA should adopt a temporary cancer differential for use 200. 201. 202. The EPA itself acknowledges the need to update estimates from time to in and sponsor research to improve and sharpen the cancer differ- that accounts for the risk of developing cancer in general has yet to yield an application. Now imagine a similar effort targeting an array of variables and sub-classes rather than just one larger class of peo- ple. Crafting demographics would require accurate a massive investment of time and estimates re- sources that for dwarfs those intersecting grained already exploration. Moreover, a fully individuated VSL invested may never in risks a truly much be knowable short of some and sort of brain less implant that can pro- fine- vide precise risk-aversion valuations for specific individuals because, after all, that is the standing the exact preferences of individuals who regulation affects ultimate end-game of individuation: and under- calibrating such regulation to match their preferences. tion. tion. Sunstein even readily admits that “a fully individuated VSL is not feasible,” noting that insufficient data would force regulators to generalize their efforts model), and that through the collective nature of many regulated goods aggregation re- (like quires “a single the VSL, not a range current of VSLs.” underscores the impossibility of producing an VSL a produce to required rigor and energy, time, tremendous The individuated VSL. time and survey the most recent literature. 2010 EPA differential based on new data. at 25. EPA should, with the EEAC’s blessing, adopt a cancer differential immediately. in regulatory analysis consistent with the most However, while up-to-date such a studies. solution is called for, it would certainly not be permanent. Two things would be required to make the prelim- a of establishment the after success continuing a cancer differential inary figure. First, the EPA must under follow which through it would on regularly an reevaluate the schedule VSL and attendant Rather than remain in this purgatory of competing theories, the 2018] VALUING FATAL CANCER AT THE EPA 353 \\jciprod01\productn\N\NYS\72-2\NYS203.txt unknown Seq: 39 15-JAN-18 9:54 39707-nys_72-2 Sheet No. 88 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 88 39707-nys_72-2 39707-nys_72-2 Sheet No. 88 Side B 01/15/2018 10:23:44 R R R R 207 note Fur- 204 supra , EVIEW R Quantifying Regulatory The SAB has im- note 28, at 1454–56 (dis- 205 note 28, at 1450 (arguing supra supra , , note 47, at 19; Revesz, In that case, the Workgroup “com- note 7, at 51. note 66, at 12. 209 supra , supra supra Take the EPA’s own efforts to centralize and , , EVIEW 208 R EVIEW EVIEW Quantifying Regulatory Benefits Quantifying Regulatory Benefits R These resources should be focused on studies that note 28, at 1450 (calling for government support for quantification at 1455. Revesz, SAB 2000 Revesz, 206 Though such research may very well occur outside the See SAB 2011 R See Id. Id. See It is plain to see just how far the legitimacy and use of that supra 203 , 210 Finally, the EPA must take charge and apply its internal re- 208. 207. 203. 206. SAB 2017 209. 210. 204. Funding alone is not sufficient. The SAB has consistently agreed, calling 205. plicitly endorsed this step by more studies that calling examine how VSL may differ for different mortal- for the EPA to ity “encourage risks.” thermore, thermore, the EPA must regarding quantification, as continue it has in to the past. fund private innovations niques, and the advice of the EPA Science Advisory Board,” which led to the issuance of VSL. “guidelines” and a proposed agency-wide piled insights from a number other of agencies’ sources, existing including guidelines, contemporary its modeling own tech- and most promising for creating a lasting, meaningful differential. “compare values for cancer and other risk reductions,” which are standardize the VSL calculation through an Economic Consistency Workgroup as an example. efforts). cussing government innovations around the Social Cost of Carbon and Statistical Life but lamenting the lack of government action in other areas Value of bene- of fit quantification). research more generally). for additional research both by the EPA and by the “broader research community” to fill any “gaps” that exist with respect to valuation. SAB 2000 for government funding of quantification studies and criticizing past “haphazard” Such literature will fill a gap and resolve the barrier EEAC the EPA have and created by so studies narrowly they deem restricting acceptable for use the in setting parameters regulatory values. of sources to improving methods for quantifying cancer differentials. Focused governmental intervention in research can have and had has a tremendously beneficial impact on the growth of quantifica- tion methodologies. 354ential. NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:315 \\jciprod01\productn\N\NYS\72-2\NYS203.txt unknown Seq: 40 15-JAN-18 9:54 governmental governmental sphere, public involvement in refining a cancer pre- mium is imperative to ensure the cultivation of usable data. Benefits 47, at 19. 39707-nys_72-2 Sheet No. 88 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 88 39707-nys_72-2 39707-nys_72-2 Sheet No. 89 Side A 01/15/2018 10:23:44 R R , https:// Still, an op- GENCY 213 . A ROT . P a similar success story NVTL 211 U.S. E , note 47, at 5. note 2, at 29–31 (describing best practices for supra CONCLUSION , supra EVIEW R A-4, In 2010 the EPA sought to improve its regulatory 212 IRCULAR C SAB 2000 See EPA Science Advisory Board (SAB) See For over sixteen years, the EPA has recognized that people Within the administrative state and adjacent academic circles, The institution of a positive cancer differential would bring 211. 213. 212. fatalities. These issues, though related, should not be confused, and the complexity and normative perils of one should not undermine the progress of the other. The EPA should adopt a cancer differen- tial to stop its systematic undervaluation of cancerous cost-benefit fatalities analysis. in value decreasing cancerous mortality risk more than non-cancerous mortality risks. awaits awaits the cancer differential. there is a demographics movement and toward risk tailoring characteristics. context VSL is Encapsulated a much narrower calculations within debate regarding this whether across preventing cancerous fatalities should be valued like preventing instantaneous portunity remains for the EPA to boldly embrace a differential. U.S. regulatory practice in line with that of Europe and would also be consistent with prior practice of implementing a quantification technique based on a temporary estimate, as the case demonstrates. of Embracing the a SCC temporary, imperfect measure now preferable is to ignoring a well-documented oversight in our regula- tory analytical architecture. Doing what can be done when it can be done and learning from that experience is a path that follows most the laudable traditions of the U.S. regulatory state. tantly, Most a cancer impor- differential will save lives while respecting the prin- ciples of administrative governance. decisionmaking is clearly significant, if not decisive. analysis practices to reflect this important distinction, but the EEAC criticized the differential and declined to support it. Now, over five years after the first proposal of a differential, the find- EEAC EEAC’s the Though before. as conclusions same the embraced has again ings are technically only recommendations, their impact on EPA quantifying fatality risks). 2018] now foundational measure has come; VALUING FATAL CANCER AT THE EPA 355 \\jciprod01\productn\N\NYS\72-2\NYS203.txt unknown Seq: 41 15-JAN-18 9:54 yosemite.epa.gov/sab/sabpeople.nsf/WebCommittees/BOARD [https://perma .cc/92BT-XQ64]. 39707-nys_72-2 Sheet No. 89 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 89 39707-nys_72-2 39707-nys_72-2 Sheet No. 89 Side B 01/15/2018 10:23:44 356 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:315 \\jciprod01\productn\N\NYS\72-2\NYS203.txt unknown Seq: 42 15-JAN-18 9:54 39707-nys_72-2 Sheet No. 89 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 89 39707-nys_72-2 39707-nys_72-2 Sheet No. 90 Side A 01/15/2018 10:23:44 in 3 393, 411 . ROBS . P . From 2013–2014 I OC A Definition of Regular . J.L. & S ). This Note was awarded the Annual Survey , 2017; Note Editor, 2016–2017, OLUM C , 46 357 cum laude —Theo Galanakis, Sarah Hsu, Eliana Pfeffer, Annual Survey ( for their contributions. My colleagues in the Notes INTRODUCTION HARRY I. BLACK* Amending § 1415 of the IDEA: Extending Procedural Safe- (June 14, 2017), https://www.thoughtco.com/regular-ed- . The amendments permit local education agen- FOR RTI STUDENTS 4 O Annual Survey Congress amended the Individuals with Disabili- C 2 But in the process federal legislators overlooked the 1 Annual Survey HOUGHT T , SEPARATE SEPARATE FEDERAL LEGISLATION In 2015, Congress passed a significant overhaul to our national 1. Every Student Succeeds Act, Pub. L. No. 114-95 (codified as amended at 20 2. “Regular education is the term often used to describe the educational ex- * N.Y.U. School of Law, J.D., 3. A specific learning disability (SLD) is “a disorder in 1 or more of the basic 4. Genna Steinberg, A NEW IDEA RATHER THAN A NEW I.D.E.A.: education law. education special education. Seymour A. Levy Memorial Award, which is awarded to the graduating student who student graduating the to awarded is which Award, Memorial Levy A. Seymour has written the most outstanding Note for the Writing Program at Kelsey Powderly, Emma Trotter, and Max Yoeli—alsoand suggestions. provided helpful support U.S.C.A § 6301 (2015)). perience of typically developing children.” Jerry Webster, Education cies (LEA), which oversee public-school districts, to allocate up to 15 percent of their federal special-education funds each year to the development and implementation of “scientific, research-based in- need to provide procedural protections for struggling general-edu- cation students. ties Education Act (IDEA) in 2004 to address the overinclusion of students diagnosed with “specific learning disabilities” (SLD) served as a Response to Intervention Coordinator for Dolores T. Aaron Elementary Aaron T. Dolores for Coordinator Intervention to Response a as served School in New Orleans, LA. I would like to thank Professor Martin for Guggenheim his invaluable advice on this paper. members of the Additionally, I’d like to thank the staff Annual Survey of American Law \\jciprod01\productn\N\NYS\72-2\NYS204.txt unknown Seq: 1 15-JAN-18 9:55 education” is a less-preferred term for “general education”). psychological processes involved in understanding or in using language, spoken or written, which disorder may manifest itself in the imperfect ability to listen, think, speak, read, write, spell, or do mathematic calculations.” 20 U.S.C. § 1401(30)(A) mini- injury, brain disabilities, perceptual as conditions “such include SLDs (2006). mal brain dysfunction, dyslexia, and developmental aphasia.” § 1401(30)(B). guards to Response-to-Intervention Students ucation-definition-3110873 [https://perma.cc/KC8J-2JY6] (noting that “regular (2013). 39707-nys_72-2 Sheet No. 90 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 90 39707-nys_72-2 39707-nys_72-2 Sheet No. 90 Side B 01/15/2018 10:23:44 R R CEIS AND XCEPTIONAL But with E 11 III, ITLE The Legal Meaning of EACHING I, T T ITLE , 42 T SING 9 Perry A. Zirkel, Race and Response-to-Intervention in Special RTI U see 18 (2009). Lisa, a first-grade general-education 10 MAKERS The most widely utilized intervention - 7 8 MPLEMENTING Such methods are designed to enhance gen- enhance to designed are methods Such I 6 , . ECISION note 4, at 395; 303, 317 (2011). D DUC E . L.J. supra notes 131–133 and accompanying text. The IDEA guarantees chil- OW T OF methods. ’ H 5 SSUES FOR EP I , 54 EY See infra Id. 62, 62 (2010). : K . To understand how procedural protections (or their absence) RTI students are struggling, general-education children who U.S. D 11. One might argue that, in such a situation, Lisa’s parents should just trans- 9. 5. 6. § 1413(f)(1). 7. Angela A. Ciolfi & James E. Ryan, 8. Steinberg, 10. This example is based on the U.S. Department of Education’s presenta- HILD UNDS F such safeguards Lisa’s parents could challenge the school’s refusal method to emerge since the 2004 IDEA amendments is “response to intervention” (RTI). school’s refusal to provide her with targeted support to improve her improve to support targeted with her provide to refusal school’s parents Lisa’s little is there safeguards, procedural Without reading. can do to compel their daughter’s school to help her. student, has a hard time decoding words and understanding what she is reading. She attends Public School A, which does not address her decoding and comprehension difficulties. Concerned that Lisa will fall behind grade level, her parents would like to challenge the fer their daughter to another school. But perhaps rounding the other area schools similarly in the feature sur- lackluster provides a quality support, education outside of the or first grade and maybe so there are Public good sons rea- for Lisa School to just stay A put. and often receive the same form of targeted academic and behav- ioral supports. Yet only IDEA students and their parents tled are enti- to procedural learning needs are met, through section 1415 of the IDEA. safeguards, No pro- which cedural guarantee safeguards exist for the non-IDEA students to students’ challenge sions deci- regarding their learning needs. impact learning outcomes of consider students a simple with example. learning difficulties, present many of the same learning difficulties as their IDEA peers Education eral-education eral-education services and reduce referrals to thereby decreasing the SLD population, by improving the academic special education, and behavioral performance of non-disabled students who risk are of at academic failure. (FAPE), §(FAPE), procedu- of set unified a through right that protects and 1412(a)(1)(A), ral protections, § 1415. tion, Specific Learning Disability for Special Education Eligibility C dren with learning disabilities the right to a “free appropriate public education” 358tervention” NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:357 \\jciprod01\productn\N\NYS\72-2\NYS204.txt unknown Seq: 2 15-JAN-18 9:55 39707-nys_72-2 Sheet No. 90 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 90 39707-nys_72-2 39707-nys_72-2 Sheet No. 91 Side A 01/15/2018 10:23:44 R This proposal 15 or at least the section discussing disci- 12 note 7, at 334–35. to RTI students. While this Note agrees there note 4, at 396. 13 supra 16 supra Part III. Part IV. See infra See infra Id. Given the growing number of RTI students, I will propose 14 Part I will begin with a description of the IDEA’s section 1415 Part II will demonstrate why RTI students deserve due-process To remedy an inconsistency in federal law, which denies at- 12. Steinberg, 13. Ciolfi & Ryan, 14. 15. 16. will include procedural safeguards that help guarantee those learn- ing needs are met. plinary protections, gress amended the IDEA to address the overinclusion of diagnosed students with SLDs—may be explained by school districts across of referral decreased a in resulting RTI, adopted having country the procedural safeguards afforded to students who qualify for special- are which hearings, due-process why explain also will and education utilized to enforce procedural protections such as section 1415, re- main a valid means to ensure the needs of students difficulties with are learning satisfied. I will also address recent criticisms IDEA’s of due-process hearing system the levied by the American Associa- tion of School Administrators, an influential and by several professional academic commentators. group, rights similar to those afforded to their special-education will peers. begin this Part I by discussing how the national reduction in the number of special-education students since 2004—the year Con- of the IDEA in its entirety, is a need to cure the gap in coverage disabled between struggling students disabled by and providing non- parallel procedural safe- guards, it differs from available scholarship as to the solution. As I will demonstrate, Congress did not intend for the IDEA to provide due-process rights to RTI students likely in an effort to prevent di- popula- student non-disabled the to disabled the from funds verting tion. 2018]to address Lisa’s needs, could sue the district overseeing the school A NEW IDEA RATHER THAN A to NEW force it I.D.E.A. to act, or could enroll Lisa in private school and sue the schooling. such for pay to needed money the for state the or district These would be the options available having if a disability. Lisa were categorized 359 as risk, general-education students procedural protections vides them to but children with learning pro- disabilities, the limited schol- arship in this area argues that Congress should extend section 1415 \\jciprod01\productn\N\NYS\72-2\NYS204.txt unknown Seq: 3 15-JAN-18 9:55 separate legislation modeled off of the IDEA that solely addresses the learning needs of non-disabled, at-risk youths. 39707-nys_72-2 Sheet No. 91 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 91 39707-nys_72-2 39707-nys_72-2 Sheet No. 91 Side B 01/15/2018 10:23:44 pro- 19 20 argument that Con- 17 and James Ryan’s 18 PART I Before discussing why RTI students deserve procedural protec- Part IV will outline the contours of this legislation using sec- Part III will examine Genna Steinberg’s 18. Angela Cilofi is currently the Director of Litigation and Advocacy at the 19. James Ryan is currently the dean of the 20. Harvard Graduate The School reader may of be wondering why I have chosen to discuss the IDEA’s 17. Genna Steinberg is currently an associate at Kelly Drye & Warren. tions already afforded to their special-education first understand what those are. Part peers I seeks to develop such an one un- must derstanding while addressing critiques and the reviewing current IDEA due-process benefits hearing system. of tion 1415 of the IDEA as a point of reference. posal to extend only the disciplinary protections of section 1415(k) to RTI students. Given congressional intent that the IDEA’s proce- dural safeguards not apply to RTI students, a separate piece of fed- eral law—rather than an extension of the IDEA—provides a better solution to the inconsistent provision of procedural protections for special-education versus struggling, This general-education conclusion is students. underscored would accrue from by freestanding RTI legislation, namely increasing the additional the benefits effectiveness that of RTI funding dards for implementing and RTI services. establishing national stan- gress should expand all of section 1415 of the IDEA students. to I will also cover explore Angela Ciolfi RTI Legal Aid Justice Center. Education. procedural protections and its due-process hearing regime given the focus of this paper is on RTI, not special education. Since and the due-process hearing system IDEA’s will serve as procedural a model for safeguards the proposed RTI proce- dural protections discussed in Part IV, viewed the here apply critiques within the RTI addressed context as and well. benefits re- 360 students to special education. NYU Although number of special-education students today, there is a growing pop- ANNUAL there may SURVEY be OF a smaller ulation AMERICANof RTI students LAWtaking its place. And although avoid RTI many might at-risk students from [Vol. 72:357 receiving needless special-educa- tion designations, it does not remove stem their from their vulnerabilities, need for which specialized instruction. As special-educa- tion students receive procedural safeguards to protect against the risks of receiving inadequate or those students undergoing inappropriate RTI. services, so must \\jciprod01\productn\N\NYS\72-2\NYS204.txt unknown Seq: 4 15-JAN-18 9:55 39707-nys_72-2 Sheet No. 91 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 91 39707-nys_72-2 39707-nys_72-2 Sheet No. 92 Side A 01/15/2018 10:23:44 26 and receive, as ap- 27 28 But school personnel cannot sus- Section 1415 also allows a child to 25 23 parents of those children may “examine all records 21 24 Additionally, parents must be given written notice in their Id. 22 If the parents of a child are not known to the school, the When determining whether to order a change in placement Section Section 1415 of the IDEA provides several procedural safe- 21. 20 U.S.C. § 1415(b)(1) (2006). 22. 23. § 1415(b)(3). 24. § 1415(j). 25. § 1415(k)(1)(A). 26. § 1415(k)(1)(B). 27. This is a written statement of the educational program designed to meet a 28. § 1415(k)(1)(D). educational setting for more than ten days if the behavior that gave rise to the violation is a manifestation of the student’s disability. remain in his or her then-current educational placement (or, if ap- plying for admission to a public school, to be placed at that school) been have 1415 section to pursuant conducted proceedings all until completed. pend such a child nor remove him or her to an interim alternative propriate, a functional behavioral assessment, behavioral interven- tion services and modifications, that are designed behavior violation to so that it address does not the recur.” agency cannot locate them, or the child is a state ward, the state for a child with a disability who violates a code of student conduct, school personnel may, on a case-by-case basis, consider any circum- stances unique to that student. guards guards to guarantee special-education First, when students’ a school evaluates the learning needs needs of “children with are met. disabilities,” relating to such child[,] participate in meetings with respect to the identification, evaluation, and educational placement of the child, and the provision of a free appropriate public child, and education to obtain to an independent such educational evaluation of the child.” child’s individual learning needs. And if a child with a disability who violates a code of duct student con- is removed to an interim alternative educational student setting, must the “continue to receive educational services so as to en- able the child to continue to participate in the general curriculum and education to progress toward meeting the goals set out in the child’s Individualized Education Plan (IEP); native language whenever a LEA “proposes to initiate or change; or educa- or evaluation, identification, the change or initiate to refuses tional placement of the child, or the provision of a free appropriate public education to the child.” 2018] A NEW IDEA RATHER THAN A NEW I.D.E.A. 361 \\jciprod01\productn\N\NYS\72-2\NYS204.txt unknown Seq: 5 15-JAN-18 9:55 39707-nys_72-2 Sheet No. 92 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 92 39707-nys_72-2 39707-nys_72-2 Sheet No. 92 Side B 01/15/2018 10:23:44 R . ISP 32 D ON . J. T 31 S 36 HIO O Second, they frus- 34 , 29 and to provide parents with a copy of 30 In Defense of IDEA Due Process note 4, at 418–19. The AASA contends that due-process hearings 33 supra Third, due-process hearings impose unnecessary stress 35 . . . Id Id Id The IDEA requires each state to establish and maintain 495, 501 (2014). . 29 Critiques of the IDEA due-process hearing system have come Despite the critical role that due-process hearings play in effec- When disputes arise regarding the provision of appropriate 34. 29. § 1415(b)(2)(A). 30. § 1415(a). 31. § 1415(d)(1)(A). 32. Steinberg, 33. Mark C. Weber, 35. 36. 1415 requires an impartial due-process hearing, with review in judicial either state or federal court . . . Where a resolution is reached through mediation, the parties must record that reso- lution in a written agreement, which is enforceable in court. Section 1415 requires the funded state or opportunity LEA for to the through provide mediation. Where a parties mediation is state- unsuccessful, to section resolve the dispute ESOL R trate public-school staff by frequently causing parental them requests they to deem unreasonable in accede order to to avoid costly litigation. them each year or whenever the parents request one. are ineffective for three reasons. First, they are difficult for low- and middle-income parents to utilize because dures of parents must follow to request a hearing. the complex proce- process that has little, if any, real connection to improving educa- tion outcomes.” not only from those on the receiving end of hearing requests but tuating other procedural protections by allowing parents to petition to parents allowing by protections procedural other tuating a hearing officer (or if the case is then appealed, a judge) to enjoin a LEA or state to take action on behalf of their regime child, the for current IDEA students has come under Association of attack. School Administrators (AASA), a professional organ- The American ization for educational leaders across the United States, has called for an end to due-process hearings noting that “significant dollars, time, and emotional capitol [sic] will continue to be expended on a special-education special-education services: on personnel and legal expenses on school districts. 362 must appoint an individual to act as a surrogate for the absent par- NYUents. ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:357 \\jciprod01\productn\N\NYS\72-2\NYS204.txt unknown Seq: 6 15-JAN-18 9:55 these procedural safeguards 39707-nys_72-2 Sheet No. 92 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 92 39707-nys_72-2 39707-nys_72-2 Sheet No. 93 Side A 01/15/2018 10:23:44 R R . 40 43 OC S 501 (2013); NCYCLOPEDIA OF E L ’ J.L. & EDUC. NT I , 42 in 4–5, 153–60, 169–72, 184–87 , 41 in contrast to other scholars who DUCATION She prefers a greater role for pub- Like the AASA, Professor Eloise 39 E 38 Bidding (Fair)well to Due Process: The Need for a 37 Due Process in Law ISABLED , D to ascertain how much process is due (includ- 42 note 33, at 502. note 33, at 502. OLKER C , 424 U.S. at 335. supra supra 3894, 3896–97 (N.J. Smelser & P.B. Baltes eds., 2001). . UTH note 33, at 502. CI R at 501–02. at 502. Cali Cope-Kasten, Note, Samuel Issacharoff, . S held: 44 See See Id. Mathews Id. See supra EHAV These critiques do not account for the constitutional necessity 41. 42. Mathews v. Eldridge, 424 U.S. 319 (1976). 43. 37. 44. 38. 40. 39. Weber, B the official action; second the risk of an erroneous deprivation of such interest through the procedures used, and the proba- ble value, if any, of additional guards; or and substitute finally, procedural the safe- Government’s interest, including function the involved and the fiscal would requirement procedural substitute or additional the that and administrative burdens entail. [D]ue process generally requires consideration of tinct factors: three First, the dis- private interest that will be affected by parts, as unable to successfully exercise their due-process rights. view private enforcement as the best education law available scholar, solution. Another Professor Ruth Colker, parents depicts of IDEA students, in juxtaposition low-income to their wealthy counter- lic enforcement of section 1415 Pasachoff Pasachoff argues that due-process hearings, as ment a mechanism, private disadvantage enforce- low-income parents because distortions resource-allocation and disparities enforcement in result they between the rich and the poor. ing the right to a hearing) according to the U.S. Constitution. of providing due-process hearings American courts apply a to three-factor balancing test first outlined in IDEA students. Currently, Mathews v. Eldridge AND And a Note published in the Journal of Law and Education charac- terizes the current due-process hearing regime as “unfair” toward parents of IDEA students and, without specifying what a new system would entail, calls for its replacement. Mathews 2018]also from several A NEW IDEA academics. RATHER THAN A NEW I.D.E.A. 363 \\jciprod01\productn\N\NYS\72-2\NYS204.txt unknown Seq: 7 15-JAN-18 9:55 Fairer Final Stage in Special Education Dispute Resolution (2013); Weber, Weber, 39707-nys_72-2 Sheet No. 93 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 93 39707-nys_72-2 39707-nys_72-2 Sheet No. 93 Side B 01/15/2018 10:23:44 R R R The 45 test, due- note 33, at , the District supra note 33, at 515. Matthews Brown v. Board of PARC supra Weber, see Weber, See This statement is no less true 47 49 Moreover, since that report was issued, 51 The law seems to have had its intended effect: note 33, at 508. 52 supra notes 62–67 and accompanying text. onward have recognized the importance of this right. In right. this of importance the recognized have onward 50 Pennsylvania Ass’n for Retarded Children v. Pennsylvania Weber, 46 at 493. Id. See See infra ), the District Court for the Eastern District of Pennsylvania And one month after the adjudication of , the Supreme Court declared: “[Education] is the very foun- 48 Finally, while the government has an interest in conserving re- The risk of erroneous deprivation of parents’ interest in the Applying Applying these elements to the provision of IDEA due-process 46. Brown v. Bd. of Educ., 347 U.S. 47. 483 (1954). 51. 45. Mark C. Weber has also found that, according to the 52. 20 U.S.C. § 1415(i)(3)(B)(i)(II)–(III) (2006); 48. Pa. Ass’n for Retarded Children v. 49. Pennsylvania, 334 Mills v. Bd. F. of Educ., 348 Supp. F. 50. Supp. 866, 1257, 874 (D.D.C. 1972). PARC ( process hearings are constitutionally required. private interest at stake in this situation education of their is disabled children. Courts that from of parents in the Education the law changed to dissuade parents from requesting holding hearings by them liable for the school district’s request is frivolous. attorneys’ fees if the vate enforcement through due-process hearings) would not provide not would hearings) due-process through enforcement vate much value since this drawbacks. substitute procedure contains significant sources needed for education, the government’s interest here is ac- tually slight. In 2003, the Government Accountability Office (GAO) reported that about five due-process hearings were held per 10,000 students with disabilities. education of their children hearings would since, be as high mentioned, parents without would tively due-process hold be schools unable accountable for to providing adequate effec- services to their kids. And, moreover, as noted below, alternative safeguards procedural (i.e., public enforcement of the IDEA rather than pri- hearings hearings illustrates that they are constitutionally required. today. In 508. 364 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:357 \\jciprod01\productn\N\NYS\72-2\NYS204.txt unknown Seq: 8 15-JAN-18 9:55 Court for the District of Columbia concluded that the Board of Ed- ucation of Washington, D.C. must provide an equal education for students with learning disabilities. Brown dation of good citizenship . . . . In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education.” recognized handicapped childrens’ legal right to a tion. public educa- 1259–60 (E.D. Pa. 1971). 39707-nys_72-2 Sheet No. 93 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 93 39707-nys_72-2 39707-nys_72-2 Sheet No. 94 Side A 01/15/2018 10:23:44 R R R . . EV pro DMIN A . L. R N A ’ SS Although 53 A U. P 55 L . ’ AT , 163 pro se pro J. N , 34 —the other 25.20 percent (129) Getting Their Due (Process): Parents and pro se parents won only 16.28 percent of the Are the Outcomes of Hearing (and Review) pro se that hardly means Americans would 57 Perry A. Zirkel, note 33, at 508–09. succeeded only 16.8 percent of the time. Hoagland-Han- note 33, at 510. (2014). Hoagland-Hanson discusses two studies that reveal While inequality of resources is an unavoidable at 1820. supra pro se see also 56 Id. supra Weber, 264, 281 at 1827 (noting that, in 2012, 37.9 percent of Philadelphia public- note 54, at 1819. A similar study of 512 IDEA due-process hearings in See id. See Id. In sum, a significant risk of erroneous deprivation of a child’s All of this said, there is a significant income disparity in IDEA supra For the most part, only poor parents proceed parents poor only part, most the For 57. 54. Kevin Hoagland-Hanson, Comment, 53. 55. 56. Weber, UDICIARY 54 . Officer Decisions Different for Pro Se and Represented Parents? the critique that wealthier parents fare better on average than their lower-income counterparts is legitimate, the proposed solution of eliminating hearings for everyone is not. Proponents of tion might equally this reason that society should do away solu- with privately afforded shelter, foodstuffs, clothing, medical care, and even legal representation. L. J this disparity. In a study of 343 IDEA due-process hearings in year Illinois over a period, five- parents prevailed in 44 only in parents the represented sample that in Attorneys districts. school against only 38.3 percent of the percent of cases hearings. Critical they to success was brought attorney representation since while time, the of percent 50.4 relief obtaining in succeeded represented parents were who parents proceeding be better off if no one had access to lawyers. More should be done feature of American society, due-process hearing outcomes counsel are because markedly more successful than parents who appear parents represented se by right to an appropriate education without hearings and weak gov- ernment interest in containing costs to school districts of providing due-process hearings demonstrates that these hearings are constitu- tionally required. Given this requirement, the claim that due-pro- cess hearings should be abolished is untenable. Lawyers in Special Education Due Process Hearings in Pennsylvania hearings. When parents were represented by counsel they prevailed 58.75 percent of the time. Hearings in which parents went of hearings studied—had a much lower rate of success, prevailing only 16.28 per- cent of the time. 1805, 1809 (2015); Pennsylvania over a five-year period revealed parents represented by counsel pre- vailed 58.75 percent of the time, while time. In this study, attorneys represented parents in roughly three-quarters of all 2018] data reveal a 10 percent decline in hearing A requests NEW and IDEA a RATHER THAN 58 A per- cent NEW decline I.D.E.A.in hearings held since the law was enacted. 365 \\jciprod01\productn\N\NYS\72-2\NYS204.txt unknown Seq: 9 15-JAN-18 9:55 son, school students hailed from families that lived below the federal poverty line and that the parents of these students generally could not afford to pay a retainer for private counsel). 39707-nys_72-2 Sheet No. 94 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 94 39707-nys_72-2 39707-nys_72-2 Sheet No. 94 Side B 01/15/2018 10:23:44 R R R R R R . OC S ENDER to expect 62 59 . U. J. G M A Assuming a federal , 20 Furthermore, parents But we should reject a reject should we But 63 66 58 According to Kevin Hoagland-Han- 60 note 54, at 1834. note 54, at 1834. 1492–93 (2011). . How IDEA Fails Families Without Means: Causes and EV Moreover, public enforcement in other But the problems associated with public Special Education, Poverty, and the Limits of Private En- 64 supra supra 61 note 33, at 525. L. R note 60, at 1463. note 60, at 1482 (estimating costs of increased monitor- note 33, at 511. AME supra D supra supra supra OTRE N 67 Weber, at 1834-35. Eloise Pasachoff, Elisa Hyman et al., at 1834 n.204, 1835. 107, 158–59 (2011). As Professor Pasachoff has observed, “even though the fed- See Id. See See Id. , 86 65 Although public enforcement of the IDEA may not be a satis- Those like Professor Pasachoff suggest that public enforcement public that suggest Pasachoff Professor like Those For one, such enforcement would be too expensive & L. 59. Weber, 60. 62. Pasachoff, 64. 67. 58. Y 61. Hoagland-Hanson, 63. Hoagland-Hanson, 65. 66. Pasachoff, ’ OL P agency were tasked with enforcing the IDEA then, because of scope the of national enforcement, even a relatively small complaints number could of overburden the enforcing agency since it would have limited resources. combination of both.” son, who has argued in favor of maintaining the current IDEA due- process regime, public enforcement “would involve either increas- ing regulation and oversight of school districts by an administrative agency or attaching performance targets to federal funds, or some enforcement of the IDEA render this alternative unworkable. areas of special education and other areas of civil rights is already weak. would lack any control over public tially creating enforcement, a thereby situation in poten- which the enforcing represent agency the does not parents’ concerns (which would entirely defeat purpose the of hearings). having public enforcement replace due-process federal or state governments to pay for it. solution solution that calls for eliminating the benefit entirely. factory solution to equalizing the enforcement disparity between of the IDEA wealthy and indigent parents. could equalize enforcement disparities between ing and comparison studies to be $2.8 billion per year). 366represented. well is everyone that ensure to NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:357 \\jciprod01\productn\N\NYS\72-2\NYS204.txt unknown Seq: 10 15-JAN-18 9:55 and acceptance of minimal improvements.” eral agency charged with states in violation of the IDEA, it has almost never taken any formal IDEA enforcement repeatedly action to found withdraw funds, limiting its involvement to negotiation Corrections from the Frontlines of Special Education Lawyering forcement 39707-nys_72-2 Sheet No. 94 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 94 39707-nys_72-2 39707-nys_72-2 Sheet No. 95 Side A 01/15/2018 10:23:44 R R R R R R IEGO Yet D 68 AN S 71 , 45 Moreover, as Moreover, 72 note 54, at 1835. As many note 33, at 520. note 33, at 520 n.140 (quoting supra supra supra note 54, at 1840 n.228. note 54, at 1828. If Congress amended the IDEA’s fee- supra 69 supra Is A Free Appropriate Public Education Really Free? How the then attorneys might be incentivized to front the 70 Hoagland-Hanson, Id. See 251, 299 (2008)). . note 54, at 1840. Congress can overturn this decision via legislation that en- Existing criticism of the IDEA due-process hearing regime 70. For parents represented by counsel, IDEA allows the recovery of attor- 71. 72. During the five-year period studied in his Comment, Hoagland-Hanson 69. “While some parents will not be dissuaded from pursuing an IDEA lawsuit 68. Hoagland-Hanson, EV Hoagland-Hanson notes, “[H]earing officer decisions, despite be- ing redacted prior to dissemination, constitute an important body shifting provision to cover the expenses for conducting an indepen- dent evaluation, many low-income families are unable ducting to such afford evaluations. the cost of con- neys’ fees at the court’s discretion from the U.S.C. local § or state 1415(i)(3)(B)(i)(I) education (2006). agency. But 20 after Arlington the Central Supreme School Court’s District decision Board in of expert Education, witness plaintiffs fees through cannot the recover IDEA’s fee-shifting provision. Hoagland-Hanson, supra expenditures required to complete these evaluations—and there- fore more willing to take IDEA cases on could contingency—since be reimbursed they for those expenses should they demonstrate that the school district failed to comply with the statute. lacks discussion of the positive aspects of the system. For example, parents. for results significant achieve often hearings observes that Pennsylvania parents won some relief in nearly half of all due-process awards significant in resulted which of many decision, final a reached that hearings to children and their parents. Hoagland-Hanson, by the inability to recover expert fees, many parents of children with [autism spec- trum disorder] will not have such an opportunity because they will financial backing to not fund an have expert.” Weber, the amendment restoring expert fees under the Civil Rights Attorneys Title VII Fees of Act the Civil and Rights Act of 1964. Weber, as four or five times the number of those victorious parents settled before a process due- hearing commenced, achieving substantive relief for families. students and their Leslie Reed, Comment, Denial of Expert Witness Fees Will Adversely Impact Children with Autism L. R ables parents and their attorneys to recover the costs conduct of hiring an a independent professional to educational evaluation. Congress has passed a similar 2018]the rich and the poor, incentivizing lawyers to A take NEW IDEA IDEA cases RATHER on THAN A contingency NEW would help since I.D.E.A. attorneys’ fees are paid from a settle- ment rather than out of pocket. that Hoagland-Hanson practicing has disability-law observed attorneys are more contingency likely cases in to which parents take have sought 367 independent on edu- cational evaluations of their child’s suspected or known disability, as these evaluations help lawyers assess the merits of cases. \\jciprod01\productn\N\NYS\72-2\NYS204.txt unknown Seq: 11 15-JAN-18 9:55 39707-nys_72-2 Sheet No. 95 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 95 39707-nys_72-2 39707-nys_72-2 Sheet No. 95 Side B 01/15/2018 10:23:44 R , ., ISA- TAT EARS D Y . S These 73 DUC E The first 30 ELECTED FOR 77 : S . TR NDIVIDUALS WITH C I L ’ ISABILITY AT The goal is to distin- note 4, at 403. Congress was NDER D N 79 U See supra YPE OF ERVED T Y S LD Crediting this growth to methods B, B O 78 Steinberg, PART II ART EARS see also 21 Y , https://nces.ed.gov/programs/digest/d16/tables/ And costly compensatory education awards 75 TO 3 (IDEA), P 76 CT A 2014–15 HILDREN at 1837. at 1838. This resource would be lost if due-process hearings were THROUGH DUCATION Id. Id. Id. Id. Id. 74 E 204.30: C 77 Having described the IDEA’s procedural protections and ad- In 1970, Congress enacted what has become known as the – 73. 79. 20 U.S.C. § 1414(b)(6)(B) (2006) (“In determining whether a child has a 74. 75. 76. 77. The Education of the Handicapped Act, Pub. L. No. 91-230, 84 Stat. 175 78. The special-education population grew from 3.694 million to 6.720 mil- ABLE 1976 T dressed criticism of due-process hearings, I will why Congress now should also provide those safeguards to RTI students. demonstrate IDEA to provide support to children with disabilities. years of IDEA coverage, however, witnessed a significant expansion in the population of special-education students, especially among students diagnosed with SLDs. decisions decisions also inform settlement negotiations between parents who and districts that are looking to resolve a dispute over a child’s edu- cation. BILITIES that unreliably diagnosed children with a disability when they might they when disability a with children diagnosed unreliably that have lacked one, Congress amended the IDEA in 2004 to allow the use of “scientific, research-based interventions” in place of or in ad- dition to previously approved approaches. in a due-process hearing may motivate districts special-education to staff guarantee are that adequately trained and provide the propriate ap- services. that arise when a parent successfully challenges a school’s decision concerned by the unnecessary diagnosis of students with SLD because of “the level 368of precedent and a resource for both parents and advocates to un- NYU derstand ANNUAL the available SURVEY rights and remedies OF under IDEA.” AMERICAN LAW [Vol. 72:357 abolished and parents could therefore only resolve their under disputes the IDEA through mediation, ments are kept secret. where the resulting agree- \\jciprod01\productn\N\NYS\72-2\NYS204.txt unknown Seq: 12 15-JAN-18 9:55 dt16_204.30.asp?current=yes [https://perma.cc/XXV6-D6WA]. During that same period, the SLD population grew from 796,000 increase. to 2.798 million, a 252 percent specific learning disability, a local educational agency may use a process that deter- mines if the child responds to scientific, research-based intervention as the a evaluation procedures.”); part of (1970). lion from 1975 to 2005, an 82 percent increase. 39707-nys_72-2 Sheet No. 95 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 95 39707-nys_72-2 39707-nys_72-2 Sheet No. 96 Side A 01/15/2018 10:23:44 R R R R R R R N- 87 RTI , J. I Under- L .’ All chil- All NT But “stu- But I 86 89 , 16 Children who succeed with 88 The most widely implemented 82 83 Tier II contains around 15 percent of all gen- . note 7, at 313. note 7, at 317. note 7, at 313. As a pedagogical tool, research-based inter- note 84. supra note 84 note 4, at 404. note 4, at 395. 81 supra supra supra supra By focusing on such instruction, Tier I helps supra supra 85 , http://www.rtinetwork.org/essential/tieredinstruction/tiered- Yet unlike these previous techniques, which predi- . 80 . 863, 872 (2012). Ciolfi & Ryan, Shapiro, Tiered Instruction and Intervention in a Response-to-Intervention Model Shapiro, at 405. Edward S. Shapiro observes, “[S]ome models discuss an addi- ETWORK DUC See See Id. Id. See id See Tier I calls for effective, evidence-based instruction in gen- E N 84 When used to remediate deficient skills, RTI requires children 86. 87. 81. 82. Ciolfi & Ryan, 83. Steinberg, 84. 88. 89. Ciolfi & Ryan, 80. Steinberg, 85. CTION CLUSIVE A mental intervention receive additional instruction at Tier II or III. dren receive core instruction, but those students in need of supple- ucation, thereby decreasing the SLD population, by improving the academic and behavioral performance who are at risk of academic failure. of non-disabled students ventions are designed to reduce unnecessary referrals to special ed- evaluators to determine underachievement. student’s a causing is disability, a whether than low-quality instruction, rather Tier II assistance remain in Tier I with all other students. to undergo three graduated levels monitoring of at each intervention tier before with they are progress referred to special tion. educa- cated SLD diagnosis on the unexpected disparity between aptitude and achievement levels, research-based only as a diagnostic tool to identify students with SLDs, but also as a interventions serve “not pedagogical tool for students in general education who are at risk of academic failure.” intervention method to emerge since the 2004 amendments is “re- sponse to intervention” (RTI). eral-education students, while Tier III contains between 2 percent and 7 percent of percent 7 and percent 2 between contains III Tier while students, eral-education those students. In Tier II, educators provide students with instruction targeted to their academic and behavioral needs. of stigma typically associated with special education labels.” Beth A. mining Ferri, Inclusion? A Critical Reading of Response to Intervention (RTI) 2018] guish students with A NEW learning IDEA RATHER THAN disabilities A suffer NEW from I.D.E.A. deficiencies from that can those be remediated who through intensive merely instruction. 369 \\jciprod01\productn\N\NYS\72-2\NYS204.txt unknown Seq: 13 15-JAN-18 9:55 eral education. instruction-and-intervention-rti-model [https://perma.cc/6B28-M3BG]. S. Shapiro, tional fourth tier and other models subdivide the tiers into smaller units.” Edward 39707-nys_72-2 Sheet No. 96 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 96 39707-nys_72-2 39707-nys_72-2 Sheet No. 96 Side B 01/15/2018 10:23:44 R R R E- 91 EEK : S CHOOL . W EARNING EWSWIRE S 35 per- L DUC 95 E CHOOLS PN N , FOR UBLIC S , . P TR C L note 8, at 62. All fifty 101, 108 (2013) (ob- ’ AT ECONDARY UMBER OF N supra S z, HILDREN note 4, at 408. C 34 (3rd ed. 2014), https://www 214.10: N OROWIT supra Specific Learning Disability and Response Eight in ten districts tracking , http://nces.ed.gov/programs/digest/ ABLE 94 90 H. H T LEMENTARY AND ISABILITIES XCEPTIONAL ., E D E TAT Steinberg, 2012-13 , 80 . S HELDON See RIVATE Study: RTI Practice Falls Short of Promise DUC EARNING & S P E L note 4, at 406. HROUGH FOR . According to a 2011 survey of 1,390 school dis- TR ORTIELLA supra 92 TATE OF C C UBLIC AND S L ’ P HE AT , 1869-70 T Sarah D. Sparks, Laura Boynton Hauerwas et al., N , T ANDACE 66 percent of schools reported using RTI as part of the EARS C See See See 2011 Response to Intervention Report by GlobalScholar, NASDSE, CASE and 93 Y As of 2015, more than 70 percent of school districts across the 93. 90. Steinberg, 91. 92. 95. 94. ISABILITIES ISTRICTS AND LECTED RTI results noted reduced referrals to special education. cent of those districts decreased special-education referrals by at country use RTI to improve the academic and behavioral perform- ance of non-disabled students who are at risk of academic failure. D (Aug. 18, 2011), http://www.prnewswire.com/news-releases/2011-response-to-in- tervention-report-by-globalscholar-nasdse-case-and-aasa-uncovers-latest-trends-in- rti-adoption-among-us-school-districts-128001008.html [https://perma.cc/8CKB- GMR4]. ma.cc/4XYC-BM2H]. states allow the use of RTI in helping to determine whether implemen- RTI actual of a evidence shown have states forty and SLD, with diagnosed student should be tation in one or more schools. D assist in determining whether a student should be referred for an SLD evaluation. process for determining eligibility for special education (up 41 from percent in the previous year). (Nov. 6, 2015), tice-falls-short-of-promise.html?r=543079971&cmp=eml-eb-wnbk1.3 http://www.edweek.org/ew/articles/2015/11/11/study-rti-prac- [https://per 370 dents who continue to experience academic or behavioral difficul- NYUties ANNUAL receive more intensive and specialized intervention SURVEYin Tier III. OFFor AMERICAN students who are LAW unsuccessful with Tier III assistance, schools conduct individual special-education placement [Vol. 72:357 evaluations in ac- cordance with IDEA procedures.” And as of 2013, seventeen states require their LEAs to utilize RTI to \\jciprod01\productn\N\NYS\72-2\NYS204.txt unknown Seq: 14 15-JAN-18 9:55 tricts, which is about 10 percent of all school districts in the United States, .ncld.org/wp-content/uploads/2014/11/2014-State-of-LD.pdf .ncld.org/wp-content/uploads/2014/11/2014-State-of-LD.pdf [https://perma.cc/ CFE7-LRGM]. AASA Uncovers Latest Trends in RTI Adoption Among US School Districts to Intervention: State Level-Guidance serving that not all states allow RTI data alone to be sufficient to identify SLD). In 2010, just twelve states required whether a student their should be evaluated for SLD. Zirkel, LEAs to use RTI to aid in determining d14/tables/dt14_214.10.asp?current=yes d14/tables/dt14_214.10.asp?current=yes [https://perma.cc/VL5N-SC4K] cating (indi- that in 2010–2011—the year were in 13,588 school which districts in the the United States). survey was conducted—there 39707-nys_72-2 Sheet No. 96 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 96 39707-nys_72-2 39707-nys_72-2 Sheet No. 97 Side A 01/15/2018 10:23:44 R R R R . 99 ON- DUC TATE C E S , , 20 HE ,T ISABILITIES D EARNING Fewer referrals should have L 100 FOR . Evaluating the Use of RTI to Identify SLD: A TR Since this reclassification occurred, C L ’ 101 note 7, at 317–18. Professors Tina Hudson and AT N , note 7, at 318. supra 12 (2011), http://illinoiscte.org/PDF/research_and_re 98 96 supra note 78. note 78. After peaking at 2.860 million students (45.4 ORTIELLA Survey of School, District Workers Shows Wider Use of RTI 31, 43 (2016). . 97 C supra supra , ISABILITIES , SYCHOL D Ciolfi & Ryan, ANDACE ABLE ABLE . P T C T See CH It is also possible that the addition of the IDEA categories “at- It is possible that school districts manipulated referral rates for It appears undeniable that the implementation of RTI has con- (Aug. 19, 2011), http://blogs.edweek.org/edweek/speced/2011/08/yet_an . S EARNING 98. 99. Ciolfi & Ryan, 100. 101. 96. Nirvi Shah, 97. L EEK W TEMP students identified with SLD. reduced, not increased, special-education enrollments. tention deficit disorder” (ADD) and “attention-deficit/hyperactivity disorder” (ADHD) to the list of conditions that qualify health for impairment” (OHI) explains “other the decrease in the number of OF percent of all IDEA disability diagnoses) in 2000–2001, SLD have rates shrunk to 2.278 million children (34.8 disability percent classifications) of through all 2015 IDEA (the most which we have recent data). year for special education by directing teachers to make fewer referrals. tributed tributed to a substantial decrease in the number of children identi- fied with SLD. Tina M. Hudson & Robert G. McKenzie, Survey of State Policy, Procedures, Data Collection, and Administrator Perceptions Robert McKenzie observe researchers have had difficulty demonstrating that RTI apparent “[t]he of because placement SLD or referrals special-education decreases related Agencies Education Local and states many among assurance quality in gaps to the procedures used and among data administrative personnel collected such as contribute state directors to of special education, differing and hence, exacerbate the difficulty in substantiating the perceptions impact of RTI. For stakehold- ers that use RTI to identify SLD, a major piece of unfinished business is to contem- plate how they may move toward unanimity in processes and eligibility criteria.” This is unlikely, however, since overall numbers of nosed with a learning disability students under the IDEA increased until diag- the 2004–2005 school year (two years after began to the decline) and then rate again from 2012 of to 2015 (as SLD SLD rates students continued to decrease from there was actually a 2004–2005slight increase). until 2014–2015, when 2018] least 10 percent and A NEW IDEA some RATHER THAN districts A much NEW as I.D.E.A. decreased 50 percent. the number by as 371 \\jciprod01\productn\N\NYS\72-2\NYS204.txt unknown Seq: 15 15-JAN-18 9:55 other_study_shows_the.html?_ga=1.208245141.661921897.1458076482 other_study_shows_the.html?_ga=1.208245141.661921897.1458076482 [https:// perma.cc/ST4M-95QW]. ports/state_of_learning_disabilities.pdf?lbisphpreq=1 [https://perma.cc/L95D- ZV2M]. 39707-nys_72-2 Sheet No. 97 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 97 39707-nys_72-2 39707-nys_72-2 Sheet No. 97 Side B 01/15/2018 10:23:44 R R R R R R R J. Yet , 45 107 Prior to decline in 104 Second, ac- 106 109 110 Thus, given a 10.6 percent Yet the possibility of autism accounting 105 The Trend in SLD Enrollments and the Role of RTI 112 note 101, at 12. note 101, at 12. note 78. note 78. note 78. note 107, at 477. 473, 477 (2013) supra supra which is quite broad; thus, there may be other , , while the proportion of all IDEA disability diagno- like within OHI, may also account for declining 108 supra supra supra supra Much of this growth is attributable to the addition of (declining rates of SLD coupled with a corresponding increase in , , , 102 111 103 Perry A. Zirkel, ISABILITIES ORTIELLA ORTIELLA ABLE ABLE ABLE T See id. T Id. C Id. T See C D note 107, at 477. Increasing enrollments in the “autism” classification (which 110. Zirkel, 111. 112. 102. 103. 104. 105. 106. 107. 108. 109. OHI means “having limited strength, vitality, or alertness, including a EARNING might explain why fewer students were diagnosed with SLD. the proportion of all SLD disability designations from 2000–2001 to 2014–2015, the classification of students as OHI instead of SLD L the strength of this assertion is limited by two facts. First, students with ADD or ADHD do not represent the entire population of the OHI category, 1999, many of the ADD or ADHD nosed instead with SLD. students may have been diag- cording to Professor Perry Zirkel, the absolute numbers ADD before rising started OHI by characterized children of portion and pro- and ADHD were added to the list of conditions that qualify as OHI in part because of a U.S. Department of Education randum policy regarding ADHD memo- and OHI. 2014–2015), disabilities accounting for the growth of the OHI classification that one could not have alternatively diagnosed as SLD. has grown approximately 476 percent between 2000–2001 and ity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leu- kemia, nephritis, rheumatic fever, sickle cell anemia, and Tourette syndrome; and (ii) adversely affects a child’s educational performance.” 34 C.F.R. (2007). § 300.8(c)(9) enrollments with the “autism” category suggests students who would have formerly been diagnosed with SLD are now diagnosed with some form supra of autism); Zirkel, rates of SLD diagnoses. with alertness limited in results that stimuli, environmental to alertness heightened health acute or that—(i)chronic environment, to educational due the is to respect problems such as asthma, attention deficit disorder or attention deficit hyperactiv- ses characterized by OHI rose by 8.4 2014–2015. percent from 2000–2001 to 372the number of students identified as OHI NYUhas increased 184 ANNUALby percent, about SURVEY OF AMERICAN LAW [Vol. 72:357 ADD and ADHD to the panoply of IDEA disabilities. \\jciprod01\productn\N\NYS\72-2\NYS204.txt unknown Seq: 16 15-JAN-18 9:55 39707-nys_72-2 Sheet No. 97 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 97 39707-nys_72-2 39707-nys_72-2 Sheet No. 98 Side A 01/15/2018 10:23:44 R R R Because eco- 118 note 78. supra , ABLE T See Learning-Disabled Enrollment Dips After Long Furthermore, these factors are signifi- 117 which obligated schools to disclose the per- The risk of being penalized for penalized being of risk The 114 116 note 107, at 477. note 107, at 477. Autism means “a developmental disability note 107, at 477. (Sept. 8, 2010), http://www.edweek.org/ew/articles/2010/09/ supra supra Given that enrollments in some non-SLD special-edu- supra EEK Christina A. Samuels, 119 . W 113 Id. Id. See DUC E The SLD population decline could also be a product of pres- Under NCLB, schools and districts are permitted to forego , 116. 117. 118. Zirkel, 119. As discussed in more detail above, some IDEA designations have wit- 113. Zirkel, 114. No Child Left Behind Act of 2001, Pub. L. No. 107-110, 115 Stat. 1425 115. 115 happened. cant only to the extent that they differentially affect enrollments of SLD as compared with other IDEA classifications. nomic downturn and the NCLB reporting requirements affect special-education all diagnoses, one would expect these two factors to exert downward pressure on all IDEA designations. But this has not tion groups) for accountability purposes, had something to do with it. formance of their special-education students (among other popula- 08/03speced_ep.h30.html [https://perma.cc/PME4-AJMV]. sures to keep SLD enrollments down to save money when the econ- omy weakened. Or perhaps the enactment Behind of Act (NCLB), the No Child Left Climb nessed a rise in enrollment since the passage of NCLB in 2001, including autism, developmental delay, and other health impairment, while others have relatively level, such as remained hearing impairment, speech or language impairment, trau- matic brain injury, and visual impairment. significantly affecting verbal and nonverbal communication and social interaction, generally evident before age three, that adversely affects a child’s educational per- formance. Other characteristics often associated with autism are repetitive engagement in activities and change stereotyped or change movements, in resistance daily iences.” § routines, to 300.8(c)(1)(i). and environmental unusual responses to sensory exper- (2002); Zirkel, cation classifications have remained the same while others have in- creased, the decreasing number of SLD students is unlikely to have underperforming underperforming students may have encouraged some schools to keep their enrollments of SLD students low so as to avoid NCLB’s disclosure requirements. 2018]for students who previously would have been diagnosed with SLD is A NEW IDEA RATHER THAN A remote NEW I.D.E.A. because autism’s definition rather restrictive and so unlikely in to encompass behavior exemplify- the IDEA ing SLD. regulations is 373 \\jciprod01\productn\N\NYS\72-2\NYS204.txt unknown Seq: 17 15-JAN-18 9:55 reporting the performance of subgroups of special-education dents, stu- such as SLD, only if they are “so small that cally they are statisti- unreliable.” 39707-nys_72-2 Sheet No. 98 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 98 39707-nys_72-2 39707-nys_72-2 Sheet No. 98 Side B 01/15/2018 10:23:44 R R , , 120 331, 339–40 note 107, at supra Dr. Amanda Dr. 319, 326 (Shane R. 123 note 101, at 12. Professor NTERVENTION Wayne Callender ob- I 122 125 supra , NTERVENTION I Kerry Bollman investigated the ESPONSE TO A Multi-Year Evaluation of the Effects of a R 121 ORTIELLA 532, 536 (2005). Tiers of Intervention in Kindergarten Through C ESPONSE TO The St. Croix River Education District Model: Incorpo- Reading Intervention and Special Education Referrals The Idaho Results-Based Model: Implementing Response R ISABILITIES note 115; ANDBOOK OF D H 156, 163 (2014). in supra , EARNING 225, 250–51 (2007). . ANDBOOK OF ORUM H J. L . F in Samuels, And Professor Rollanda O’Connor reported that after SYCHOL , , 38 See . P 124 SYCHOL CH . P This discussion suggests that RTI is the most plausible explana- 120. 121. Dawn M. Polcyn et al., 122. Kerry A. Bollman et al., 125. Rollanda E. O’Connor et al., 123. Wayne A. Callender, 124. Amanda VanDerHeyden et al., J. S CH S VanDerHeyden found a 2.5 percent decrease in the proportion of elementary-school children classified as SLD in an Arizona school district. River Education District and reported that over a SLD ten-year period rates decreased by over 40 percent. effects of RTI on the incidence of SLDs in Minnesota’s St. Croix served that, from 2002 until 2004, Idaho school districts with at least at with districts school Idaho 2004, until 2002 from that, served one school implementing a RTI program had a 3 percent decline in special-education placements, while statewide the special-educa- tion population increased by 1 percent. Zirkel has hypothesized that one possible contributor to the decline in SLD enroll- ments is that parents and school districts, in response mately to 115 hearing/review 80 officer percent and court of decisions approxi- from 1983–2013 that have resulted in favor of district determinations of non-eligibility for SLD, are no longer pushing for as many 477–78. referrals Even assuming these statistics are accurate (Zirkel does not specify how he to special-education. Zirkel, located this information), more research is needed to determine whether parents and school districts are aware of these them. decisions and have acted in response to 8 374 been caused by a shrinking national economy and NCLB disclosure NYUobligations. ANNUAL SURVEY OF AMERICAN LAWSLD. as classified children of number the in decrease the for tion [Vol. 72:357 Professor Dawn Polcyn, for example, demonstrated significant reduction a in the statistically number of referrals for special-educa- tion evaluations once students received a daily reading intervention (i.e., RTI over a two-year period). \\jciprod01\productn\N\NYS\72-2\NYS204.txt unknown Seq: 18 15-JAN-18 9:55 four years of implementing RTI, the rate of education placement dropped by in nearly special 50 percent. rating Systems-Level Organization and a Multi-Tiered Problem-Solving Process for Interven- tion Delivery Third Grade to Intervention Statewide Jimerson et al. eds., 2007). (Shane R. Jimerson et al. eds., 2007) (noting that results-based model schools ac- counted for the majority of the 3 percent decrease). Response to Intervention (RTI) Model on Identification of Children for Special Education 45 39707-nys_72-2 Sheet No. 98 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 98 39707-nys_72-2 39707-nys_72-2 Sheet No. 99 Side A 01/15/2018 10:23:44 R R R : , See ETWORK N NTERVENTION I CTION Only a longi- That children 128 131 RTI A , ESPONSE TO Second, with the ex- The Use of RTI to Identify Stu- , R 127 159 (1st ed. 2005). TEEGE RACTICE Although the amendments have Indeed, without the 2004 IDEA W. S P 130 132 ARK 129 & M FFECTIVE 133 E note 4, at 422–23. note 91. RTI students not only share a need for spe- HIDSEY -C supra supra ROWN B TRATEGIES FOR at 422 n. 157 (discussing how discriminatory treatment and inade- Sparks, S note 78. Charles Hughes & Douglas D. Dexter, Steinberg, See they are not conclusive. For one, the research designs of . ACHEL R See See id. See Id Id. 126 supra , Despite the limitations in these studies, RTI remains the likely Although Although these results demonstrate that “RTI procedures are 133. Professor Douglas Fuchs has observed, “Over time, in many places what’s 126. 131. 132. 127. 128. 129. 130. This statistic was calculated by subtracting the total SLD population in ABLE RINCIPLES AND T P adjusted these individuals’ classifications, they have not eliminated the risks of receiving inadequate or inappropriate specialized vices ser- to address RTI students’ learning difficulties. amendments, these nearly 600,000 RTI students would probably be special-education students themselves and so entitled to procedural protections under the law. ception of the Bollman study, the studies do not prove whether RTI is actually decreasing the number of students diagnosed with SLD or merely delaying a special-education evaluation. with learning disabilities receive procedural safeguards to prevent these same risks from materializing demonstrates that RTI partici- pants should also receive them. tudinal study could show that. explanation for why nearly 600,000 fewer elementary and secondary and elementary fewer 600,000 nearly why for explanation school students are eligible for IDEA amendments were passed. special-education since the 2004 associated associated with a decrease in the number of students identified as [SLD],” happened is RTI has been deliberately used as a kind of general education substi- kids more and more time, over that is sense strong My education. special for tution with greater and greater severity of learning problems are being served in an RTI framework.” quate programming can result from disability classifications). cialized services and face risks of receiving inadequate or but inappropriate also often services, have learning difficulties identical to those of their IDEA peers and receive the same form of academic and behavioral supports (interventionists—ed- ucators responsible for implementing Tier II and III RTI instruction—sometimes teach Tier II or III RTI students and individuals with SLD as a collective unit). 2018] A NEW IDEA RATHER THAN A NEW I.D.E.A. 375 \\jciprod01\productn\N\NYS\72-2\NYS204.txt unknown Seq: 19 15-JAN-18 9:55 these investigations were not sufficiently rigorous to tion prove (i.e., causa- RTI reduces SLD enrollments). dents with Learning Disabilities: A Review of the Research http://www.rtinetwork.org/learn/research/use-rti-identify-students-learning-disa- bilities-review-research [https://perma.cc/QQJ5-MM5L]. 2013 (2.277 million) from the total such population in 2001 (2.860 million). 39707-nys_72-2 Sheet No. 99 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 99 39707-nys_72-2 39707-nys_72-2 Sheet No. 99 Side B 01/15/2018 10:23:44 R R 134 135 because racial minorities are dis- 136 PART PART III note 7, at 341. note 4, at 422–23. supra supra 137 at 423. Id. Steinberg provides two reasons Congress should expand the Genna Steinberg, along with Professors Angela Ciolfi and Ciolfi and Ryan have jointly proposed extending only section Despite their arguments, Steinberg, Ciolfi, and Ryan have 135. 136. As Steinberg observes, although Ciolfi and Ryan do not explicitly say so, 137. Ciolfi & Ryan, 134. Steinberg, at 426 n.176. proportionately subjected to disciplinary sanctions. Congress, they argue, should widen the coverage of the IDEA’s guards disciplinary to prevent safe- unwarranted discipline and removal of minority RTI participants. serve. Part IV will discuss the contours of this legislation. coverage of section 1415 to RTI students. First, she claims that de- nying the IDEA’s procedural protections to RTI participants, while simultaneously granting them to special-education duces students, an pro- inconsistent result since “§ 1415’s dents goal is requiring to specialized protect stu- services” and children both with RTI learning students disabilities and require targeted instruction. James Ryan, agree that RTI students deserve procedural safeguards already afforded to their 1415 special-education of the peers IDEA, and under argue that section same Congress should protections extend to those children shows, undergoing Congress RTI. did not Yet, intend for as section students. 1415 this Because to of Part this, apply a to separate RTI federal law is vide needed children receiving to RTI services pro- the due-process rights they de- 1415(k), which provides disciplinary protections to special-educa- tion students, to RTI students failed to account for evidence in section 1413 of the IDEA, establishes which criteria for LEAs to receive funds illustrates Congress does not under intend for the IDEA’s procedural pro- the Act, that they address only procedural disciplinary protections set forth in section 1415(k). Id. These observations are based on the author’s experience serving as a Response to Intervention Coordinator for Dolores T. Aaron Elementary School in New ans, LA. Orle- education into one unified system. Second, withholding due-process rights from students undergoing RTI strengthens, rather than loosens, the boundary between gen- eral and special education, undermining the objective of the educa- tion-policy reform movement to blend general and special 376 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:357 \\jciprod01\productn\N\NYS\72-2\NYS204.txt unknown Seq: 20 15-JAN-18 9:55 39707-nys_72-2 Sheet No. 99 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 99 39707-nys_72-2 39707-nys_72-2 Sheet No. 100 Side A 01/15/2018 10:23:44 R N- see I ARLY DUCATION E ISABILITIES NTERVENING E D I 142 ARLY Within section E ISABILITIES 138 OORDINATED D NDIVIDUALS WITH I OORDINATED Because one could plausibly OF THE 143 ., OSEP 08-09, C NDIVIDUALS WITH B DUC I ART E In other words, section 1413(f) per- P 140 ., OSEP 08-09, C T OF 8, 22 (2006). Section 1413(f) was added to the OF THE ’ . NDER EP EV Id. DUC B E Reflections on the New Individuals with Disabilities Education ART (2008), http://www2.ed.gov/policy/speced/guid/idea/ P . L. R U.S. D T OF Section 1413(f)(3) observes: “Nothing in this ’ note 7, at 304, which would in turn decrease the costs of LA see F EP (CEIS) U 141 NDER supra (2008), http://www2.ed.gov/policy/speced/guid/idea/ceis-gui- (IDEA) 2 , 58 U.S. D CT ERVICES A LEAs to utilize as much as 15 percent of IDEA funds to S See (CEIS) U 139 The IDEA defines “free appropriate public education” as “spe- 142. 20 U.S.C. §143. 1413(f)(3). § 1401(9). 140. Mark C. Weber, 138. The one exception is section 1415(k), which allows general-education 139. 20 U.S.C. § 1418(d)(2) (2006). “In the case of a determination of signifi- 141. (IDEA) 6 CT DUCATION ERVICES Ciolfi & Ryan, TERVENING interpret “related services” to include RTI (since RTI, like education, special is used to address students’ learning difficulties), Con- mits or requires LEAs to use some of their federal special-education money on RTI. 1413 lies subsection (f), which allows (and in certain instances man- instances certain in (and allows which (f), subsection lies 1413 dates) appropriate public education under this subchapter.” cial education and related services.” subsection shall be construed to limit or create a right to a free dance.pdf [https://perma.cc/QL9P-WM8A]. Note this is tool, not RTI a diagnostic as method. a pedagogical or the Secretary of the Interior must . paragraph (1) . to reserve the maximum . amount of funds [r]equire under section 1413(f) of any [LEA] identified under this title to provide comprehensive coordinated early intervening services to serve children in the [LEA] . . . .” Improvement Act students (including children undergoing RTI) to receive disciplinary protection if their parents or teachers have expressed concern about their need for special edu- cation. 20 U.S.C. § 1415(k)(5)(B) (2006). Hence, one may conclude that and Ciolfi’s Ryan’s proposed amendment is somewhat superfluous. cant disproportionality [based on race or ethnicity] with respect to the identifica- tion of children as educational settings of these children, in accordance with paragraph children (1), the State with disabilities, or the placement in particular S A educating students, E 2018] tections to cover children receiving RTI services. A NEW IDEA RATHER THAN A NEW I.D.E.A. 377 \\jciprod01\productn\N\NYS\72-2\NYS204.txt unknown Seq: 21 15-JAN-18 9:55 the child’s problems will be ameliorated or decreased in severity. Conversely, the longer a child goes without assistance, the longer the more remediation intense time and costly and services the might be.”). ceis-guidance.pdf [https://perma.cc/QL9P-WM8A] (“The IDEA funds for CEIS is rationale based on research showing that the earlier a child’s for learn- using ing problems or difficulties are identified, the problems and more difficulties quickly can be and addressed effectively and the the greater are the chances that provide academic or behavioral interventions designed to prevent the unnecessary identification of struggling general-education stu- dents for special education. IDEA in 2004 to stymie the growing population of students diagnosed with SLD, with diagnosed students of population growing the stymie to 2004 in IDEA 39707-nys_72-2 Sheet No. 100 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 100 39707-nys_72-2 39707-nys_72-2 Sheet No. 100 Side B 01/15/2018 10:23:44 R R , 39 (10th ed. 2014). the legislative his- 144 ICTIONARY Section 1414 describes D 146 AW L S ’ 550, 554 (2006). Y ’ LACK There is a finite amount of fund- The “children served under this OL B , 148 145 When money allotted for students with Canon L. & P Examining the 2004 Amendments to the Individuals with Individuals the to Amendments 2004 the Examining 149 OVERTY note 140, at 22. . J. P note 141 and accompanying text. EV supra R the policy concern underlying section 1413 may provide See supra 147 While the legislative history of section 1413 fails to explain why 147. Nor any other section of the IDEA or its corresponding legislative his- 148. Weber, 149.Boundy, B. Kathleen 144. A “rule of construction” or “canon of construction” helps “interpreters 146. 145. H.R. Rep. No. 108-77, at 104 (2003). While the Senate committee report LEARINGHOUSE ing for special-education. section” refers to RTI students, as noted. learning disabilities is spent instead on non-learning disabled chil- dren there are fewer resources left for special-education students. tory states: “The bill is under this also section do explicitly not have the clear same rights that and protections students children as that are identified as served eligible for services under the Act in sections [1414] and [1415].” cedural safeguards. Hence, the research- of use the for account to IDEA the amending in Congress, legislative history indicates based that interventions like RTI, purposefully drew tween a students distinction receiving special-education be- services and those dergoing RTI, un- affording the former with due-process rights denying while them to the 1413(f)(3), acted latter. to preclude That an interpretation Congress, of would the allow IDEA by for RTI that students to adding claim the IDEA’s section procedural pro- tections underscores its intent that section 1415 should not be ex- tended to cover children receiving RTI services. RTI students are not entitled guards, to section 1415’s procedural safe- procedures LEAs should follow to evaluate a child for special-educa- for child a evaluate to follow should LEAs procedures tion services, while section 1415, as previously discussed, covers pro- tory, for that matter. Disabilities Education Act: What Advocates for Students and Parents Need to Know discern likely legislative intent.” C 378 gress likely added section 1413(f)(3) to prevent such a reading. In NYU clarifying ANNUAL this rule SURVEY of statutory OF construction, AMERICAN LAW [Vol. 72:357 \\jciprod01\productn\N\NYS\72-2\NYS204.txt unknown Seq: 22 15-JAN-18 9:55 an explanation. Section 1413 was written with that the there understanding is a tendency for general education funds, education which in to turn absorb frustrates the special- goal of assisting dents with learning stu- disabilities. contrary language. Moreover, the House committee report should weight than the Senate carry report in determining greater legislative intent since Congress en- acted the House version of the 2004 amendments, H.R. 1350, 108th Cong. (2003). Therefore, an analysis of section 1413(f)(3) Congress intended for will the IDEA assist to provide due-process in rights to determining RTI students. whether to the 2004 amendments does not contain the same language, it does not contain 39707-nys_72-2 Sheet No. 100 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 100 39707-nys_72-2 39707-nys_72-2 Sheet No. 101 Side A 01/15/2018 10:23:44 R R R R In 156 § 1413(a)(2)(A)(ii). 20 U.S.C. § 1413(a)(2)(A)(i) see also note 149, at 554. see also supra Congress consequently may have 34 C.F.R. §§ 300.205(d), 300.226(a) (2015). Boundy, 155 See note 4, at 427. When parents are represented by 152 See note 140, at 22 n. 84; assigning surrogate parents when the school supra note 140, at 22 n. 84; 153 Section 1413 requires that IDEA “money be used supra 150 supra Steinberg, Weber, As more special-education money flows toward general- and mandates that IDEA funds supplement, rather than See See 154 151 Even though Congress did not intend for section 1415 to cover These fiscal concerns apply in the context of extending section 153. An “intervention plan” is the RTI equivalent 154. of an IEP. 156. One might argue that Congress should just allocate funding through the 150. The U.S. Department of Education, through its regulations implement- 151. Weber, 152. 155. This problem would be compounded by the fact that special-education spired had section 1415 encompassed RTI students as well. RTI students, those children still deserve procedural safeguards to guarantee their learning needs are met. To provide with RTI due-process students rights, while avoiding the issue of schools having to spend special-education funds on general-education students in the process of doing so, Congress should from the IDEA that does not pass rely on special-education money. legislation distinct wanted to avoid this problematic result, which might have tran- cannot locate a child’s guardians, holding due-process mediation sessions hearings, or or (should paying the court-awarded parents school). attorneys’ prevail fees in a dispute with their child’s 1415 to RTI students. Providing section 1415’s procedural protec- tions to children participating in RTI would further deplete IDEA funds as LEAs or their state counterparts face additional expendi- tures for notifying and meeting with parents regarding their child’s intervention plan, only for the excess costs of special education over tion,” general educa- IDEA to cover the costs of extending § 1415 to RTI students. Doing so, however, ing the IDEA, has also limited the amount of funds state (whether and local) that they may be be diverted away from federal special-education students or to chil- dren within general education. (2006). counsel, IDEA allows the recovery of attorneys’ fees, at the court’s discretion, from the local or state education agency. § 1415(i)(3)(B)(i)(I). funding is often inadequate. 2018] Thus, Congress placed restrictions on the eligibility of IDEA grants A NEW IDEA RATHER THAN A gen- to funds special-education redistributing from states prevent to NEW I.D.E.A.eral education. 379 \\jciprod01\productn\N\NYS\72-2\NYS204.txt unknown Seq: 23 15-JAN-18 9:55 education, there are fewer teachers or programs to assist students with learning disabilities. supplant, state, local, or other federal funds allocated to address the address to allocated funds federal other or local, state, supplant, needs of children with learning disabilities (since supplanting the local effort effectively diverts the federal into general education). special-education funds 39707-nys_72-2 Sheet No. 101 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 101 39707-nys_72-2 39707-nys_72-2 Sheet No. 101 Side B 01/15/2018 10:23:44 R Congress produced separate 159 In 1970 Congress repealed Title VI Title repealed Congress 1970 In note 148 and accompanying text. Hence, RTI Hence, text. accompanying and 148 note 158 Congress initially legislated on behalf of behalf on legislated initially Congress A Historical Preface to the Americans with Disabilities Therefore, to increase the efficiency of 157 160 See supra See 96, 102 (1994). . IST H Y ’ OL J. P First, using the creation of the IDEA as a historical guide, Con- 158. The Elementary and Secondary Education Amendments of 1966, Pub. L. 159. Pub. L. No. 91-230, 84 Stat. 175 (1970). This statute, which was originally 160. Edward D. Berkowitz, 157. 20 U.S.C.A. § 6301 (1965). The relevant sections of Title I, which pro- , 6 and created a statute disconnected from previously enacted educa- tion law to serve students with learning disabilities. By 1990 this stat- ute became known as the IDEA. children with learning disabilities through amending the ESEA in 1966 to include a new section, Title VI, that would provide special- states. the to grants education funding RTI programs, which will in turn enhance the delivery of RTI interventions, Congress should centralize such funding pro- legislation for special-education students in order number of to previously separate combine federal grant “a authorities relating to handicapped children.” occasions, most recently on December 10, 2015 with the passage of the Every Stu- dent Succeeds Act, Pub. L. No. 114-95. The Every Student Succeeds Act replaced the No Child Left Behind Act (Pub. L. No. 107-110). No. 89-750, 80 Stat. 1191, 1204 (1966). titled the Education of the Handicapped Handicapped Act, Children Act was of 1975. called Pub. L. the No. 94-142, Education 89 Stat. 773 for (1975). All Act could divert money from special-education to dents RTI since (i.e., there is general-education) a stu- tendency for fewer funds to students be when spent money on for special-education those students is placed in the students. general-education same pot as money for students could absorb funds beyond those allotted to provide them with procedu- ral safeguards and that are meant for special-education students. Such absorption would unfairly deprive special-education students of a free appropriate public edu- cation. Therefore, I have avoided this concern by recommending Congress sepa- rate funding for RTI students and their special-education peers. vides financial assistance to LEAs and schools with large numbers of children from low-income families, and Title III, which helps ensure that limited English cient profi- students master English achievement and standards that meet all children are the expected to meet, same are §§6821, challenging 6314–6315, 6825(c). state Congress academic has reauthorized and amended the ESEA on multiple tion Act of 1965 (ESEA). 1965 of Act tion 380 addition to affording RTI students procedural protections without NYU affecting ANNUAL funding for SURVEY children with learning OF disabilities, there two are AMERICANadditional reasons Congress should produce LAWa separate statute regarding RTI participants. [Vol. 72:357 gress could improve the delivery of RTI their services sources by of consolidating funding into an independent piece of legislation. In addition to section 1413(f) of the IDEA, LEAs may finance RTI through Titles I and III of the Elementary and Secondary Educa- \\jciprod01\productn\N\NYS\72-2\NYS204.txt unknown Seq: 24 15-JAN-18 9:55 39707-nys_72-2 Sheet No. 101 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 101 39707-nys_72-2 39707-nys_72-2 Sheet No. 102 Side A 01/15/2018 10:23:44 R R R R R R R R See notes notes Stein- 164 See RTI ser- note 3 and 167 See supra See supra supra in separate legislation. 163 note 97, at 43. note 97, at 32. supra PART IV supra This variability has in turn presented school and tailor those procedural protections to RTI 161 165 notes 21–32 and accompanying text. at 32–34. For more information on SLDs, see The statute would allow parents to inspect all records 20 U.S.C. § 1415(b)(1) (2006). Hudson & McKenzie, note 8, at 424–26. The similar nature of the services that RTI and spe- 166 See See id. See See supra Parents would receive written notice in their native lan- Consequently, Congress should mandate that states imple- 168 notes 86–87 and accompanying text. supra Having shown the value of a separate statute that addresses RTI addresses that statute separate a of value the shown Having This law should incorporate the safeguards outlined in section Second, Congress could also establish national standards re- 167. All students automatically receive Tier I instruction so there is no need 168. 161. Hudson & McKenzie, 162. 164. 165. 166. These proposed due-process rights are modeled off Genna Steinberg’s 163. As noted these are the two ways in which RTI is utilized. 162 vices. students, this Part will legislation. articulate the contents of the proposed 1415 of the IDEA rately identify students with SLDs, and complicated research efforts attempting to demonstrate that RTI reduces rates of SLD ses. diagno- psychologists with legal and ethical challenges while assisting at-risk, assisting while challenges ethical and legal with psychologists general-education students, reduced the ability for schools to accu- students. berg, for an evaluation to determine if a child requires interventions within this Tier. supra proposed extension of section 1415 of the IDEA to cover RTI students. cial-education students receive to address their learning IDEA’s procedural difficulties protections renders a the good model for guards for RTI students because my these safeguards are designed to prevent students proposed procedural safe- from being subjected to inadequate or inappropriate instruction. 131–133 and accompanying text. accompanying text. 81–82 and accompanying text. 2018] vided by the IDEA and ESEA under a freestanding statute as A it did NEW IDEA RATHER THAN A for NEW special I.D.E.A.education. garding the implementation of RTI, thereby improving outcomes “sub- leaving exist standards federal such no Currently, students. for 381 stantial variability in the structure of RTI between and within states as well as districts.” \\jciprod01\productn\N\NYS\72-2\NYS204.txt unknown Seq: 25 15-JAN-18 9:55 pertaining to their child, participate placement of the in student within meetings RTI, and regarding obtain an the assessment independent of whether the child requires Tier II or III ment similar RTI structures ameliorating in learning deficiencies regard to diagnosing SLDs and 39707-nys_72-2 Sheet No. 102 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 102 39707-nys_72-2 39707-nys_72-2 Sheet No. 102 Side B 01/15/2018 10:23:44 R R note 4, note 7, at supra supra they would not 171 The student would also re- and those kids would be able 173 169 170 In addition, if an RTI student who violates his 172 § 1415(b)(3). As suggested by Steinberg, “As with special-education § 1415(k)(1)(D)(i). § 1415(k)(1)(D)(ii). § 1415(j). § 1415(k)(1)(A). 174 See See See See See If a disagreement were to arise between parents and their While school personnel may, on a case-by-case basis, consider 169. 173. 174. 170. 171. 172. “For example, a disruptive outburst while working on a fractions work- ceive, as needed, a functional behavioral assessment and support targeted designed to address the behavioral violation so that it does not recur. to remain in their then-current educational placements proceedings until any conducted pursuant to these procedural have protections been completed. terim alternative education setting for more than ten days) behavior if that the gave rise to the child’s violation academic is or behavioral a deficiency manifestation identified of in the intervention his plan. or her be able to suspend that student (or remove him or her to an in- or her school’s code of conduct is removed to an interim tive alterna- setting then the child should continue to receive services so as goals the meeting towards progressing keep to her or him enable to of that student’s intervention plan. child’s school regarding the provision of appropriate RTI services, any circumstances unique to a child when determining whether to order a change in placement for an RTI student, students, this notice would include a description of the action proposed or refused by the school or LEA and an explanation for the proposal or refusal. It would also include a description of other options that were considered by the school or LEA and an explanation for their rejection. Finally, this notice would inform parents of their protection under § 1415 and would provide them with sources for obtaining assistance in understanding the provisions of that section.” Steinberg, do the assignment or from the school’s failure to faithfully intervention, implement the child the should be math returned to the classroom to continue receiving RTI. In situations where the student is participating in Tier 2 or 3 intervention for behavioral reasons, one could targeted for intervention and whether the child’s behavior ask is a direct result of fail- whether the ure to implement the intervention. If so, the child should continue receiving those type of behavior interventions is until properly the behavior is 335–36. addressed.” This recommendation Ciolfi is based on & § Ryan, 1415(k)(1)(B). at 425. sheet from a student undergoing RTI for math may be treated differently from an act of defiance on the playground by that same student. If the child’s outburst was directly and substantially related to the child’s frustration with not knowing how to 382 guage whenever a LEA proposes or refuses to NYU initiate a change their in ANNUAL children’s intervention tiers, SURVEY OF AMERICAN LAW [Vol. 72:357 \\jciprod01\productn\N\NYS\72-2\NYS204.txt unknown Seq: 26 15-JAN-18 9:55 39707-nys_72-2 Sheet No. 102 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 102 39707-nys_72-2 39707-nys_72-2 Sheet No. 103 Side A 01/15/2018 10:23:44 R R R R R R 183 179 Al- 180 182 Should they and the costs 176 177 note 87 and accompanying Should mediation fail, the See supra 175 Thus, these proposed due-process rights note 4, at 423–24. 181 178 supra notes 70–71 and accompanying text for a discussion of the note 86–87 and accompanying text. notes 157–60 and accompanying text. notes 131–33 and accompanying text. For a district that utilizes supra §§ 1415(b)(5), (e)(1), (e)(2)(D). §§ 1415(b)(6)(A)–(B). §1415(i)(3)(B)(i)(I). § 1415(b)(2)(A). See supra See See See See See supra See supra The proposed statute should also consolidate all sources of fed- of sources all consolidate also should statute proposed The Similar to the case of children with learning disabilities, if the As mentioned, all students undergo RTI in some capacity since 181. Steinberg, 182. 175. 176. 177. 178. See 179. 180. 183. though each RTI student, including those without learning difficul- safeguards, procedural from way some in benefit possibly could ties, “it is neither necessary nor practical to extend these safeguards to students who lack the unique risks associated with the need for spe- cialized instruction.” law would allow parents to their submit concerns and a request formal a due-process complaint hearing. detailing prevail in a legal dispute with the school or the state, parents of RTI students, at the court’s discretion, would be able the to local recover or state from education agency attorneys’ fees process hearings. of hiring an expert to conduct independent evaluations for due- eral funding for RTI to improve the delivery of RTI services. parents of an RTI student are not known to the school or cannot be cannot or school the to known not are student RTI an of parents located, or if the child is a ward of appoint an individual to act as a surrogate for the absent parents. the state, then the state must Tier I covers core instruction, which each student receives. Those benefits apply within the RTI context as well since and both RTI special-education rely on evaluations of a child’s suspected or known learning difficulty. RTI, these procedural protections would therefore cover between 17 percent and 22 percent of all general-education students. text. Once these funding streams are combined, the only costs of this context. special-education the in fees expert recover to parents allowing of benefits 2018] such as whether the student needs targeted support to develop A his NEW IDEA RATHER THAN A or NEW her I.D.E.A. phonemic awareness, the statute would allow those parents to enter state-sponsored mediation. 383 \\jciprod01\productn\N\NYS\72-2\NYS204.txt unknown Seq: 27 15-JAN-18 9:55 interventions since at those tiers students need their rights to a free appropriate public education to be protected because they require targeted instruction to address their learning difficulties and risks face of receiving inadequate or inappropriate support. should be granted only to children receiving Tier II and Tier III 39707-nys_72-2 Sheet No. 103 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 103 39707-nys_72-2 39707-nys_72-2 Sheet No. 103 Side B 01/15/2018 10:23:44 R R R See supra (May 5, . for the DUCATION 185 NTERVENING E 186 I DUC E ARLY E T OF ’ ISABILITIES EP D And in terms of utiliz- U.S. D 188 , OORDINATED Steinberg observes that “many NDIVIDUALS WITH 184 I note 92, at 102 (establishing that there is no ., OSEP 08-09, C OF THE supra DUC B E note 4, at 427 n.179 (“The cost per student for special ART P T OF ’ supra EP NDER (2008), http://www2.ed.gov/policy/speced/guid/idea/ceis-gui- For example, in regard to the use of RTI to determine U.S. D Hauerwas et al., 187 189 See Cf. (CEIS) U Finally, the proposed legislation should address the variability 188. 184. Section 1413(f) of the IDEA allows LEAs to use as much as 15 percent of 187. As mentioned these are the two ways in which RTI is utilized. 189. 186. Technically, Congress should authorize the U.S. Department of Educa- 185. Steinberg, (IDEA) 6 CT ERVICES notes 81–82 and accompanying text. vices so that they do not unnecessarily end up requiring special ed- ucation, which is more expensive than general education. of these costs, particularly those associated with dispute resolution, are merely potential, incident-driven costs, and do necessary not expenditures. constitute Furthermore, when these do potential arise, they will be unlikely costs to exceed the long-term costs of plac- ing a student in special education” would since help procedural guarantee protections that students receive appropriate RTI ser- utilization of RTI to accurately diagnose SLDs and remediate miss- ing skills. the presence of SLD, Congress should establish the specific vention inter- data a local multidisciplinary team must have properly in diagnose SLDs order and create to a single process through which such data may be collected and analyzed. dance.pdf [https://perma.cc/QL9P-WM8A]. criteria that a another. student must meet to move from one tier to that currently plagues the implementation of RTI across the coun- try, as discussed in Part III, by setting unified standards ing RTI to remedy learning deficiencies, Congress could define the requirements for membership in each tier of RTI along with the their IDEA funds to implement RTI. $11,912,848,000 was allocated in Fiscal Year 2016 to fund the IDEA (the same Funding amount Status was - requested Special for Education—Grants Fiscal Year to 2017). States tion to create the standards since it Congress. likely has more expertise in this area than national standard for using RTI data in SLD determinations). S A education is nearly twice that for general education . . . .”). 384funds of allocations pre-existing by covered currently not legislation NYUto rights due-process providing of expenditures added the be would ANNUAL SURVEY OFTier AMERICANII and Tier III RTI students. LAW [Vol. 72:357 \\jciprod01\productn\N\NYS\72-2\NYS204.txt unknown Seq: 28 15-JAN-18 9:55 2016), http://www2.ed.gov/programs/osepgts/funding.html [https://perma.cc/ 95WZ-D8MQ]. This left $1,786,927,200 for RTI expenditures in 2016 fore and represents the there- minimum that already exists to fund my proposed legislation. There are no data publically available that shows how much of Title I and Title III ESEA funds (the other sources of federal funding for RTI) were spent on RTI. 39707-nys_72-2 Sheet No. 103 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 103 39707-nys_72-2 39707-nys_72-2 Sheet No. 104 Side A 01/15/2018 10:23:44 R and to secure a better educa- better a secure to and 190 CONCLUSION note 185 and accompanying text. See supra Research Research suggests that there are no fewer than a half-million 190. tion for children. Congress to provide such safeguards funding while and setting national consolidating standards for implementing federal RTI. En- acting this law will allow schools to take cost-saving benefits further of RTI by reducing the advantage unnecessary placements of the education special within students of elementary elementary and secondary students receiving RTI services who are avoiding needless special education services. Yet while RTI children to allows remain in general education, it does not remove their vulnerabilities. Thus, students undergoing RTI face risks of receiv- ing inadequate or inappropriate specialized instruction and there- fore deserve procedural protections to materializing. prevent This those Note risks has from proposed legislation that will allow 2018] A NEW IDEA RATHER THAN A NEW I.D.E.A. 385 \\jciprod01\productn\N\NYS\72-2\NYS204.txt unknown Seq: 29 15-JAN-18 9:55 39707-nys_72-2 Sheet No. 104 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 104 39707-nys_72-2 39707-nys_72-2 Sheet No. 104 Side B 01/15/2018 10:23:44 386 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:357 \\jciprod01\productn\N\NYS\72-2\NYS204.txt unknown Seq: 30 15-JAN-18 9:55 39707-nys_72-2 Sheet No. 104 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 104 39707-nys_72-2 39707-nys_72-2 Sheet No. 105 Side A 01/15/2018 10:23:44 VALUE QUALITY SERVICE

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Your Service Specialists 39707-nys_72-2 Sheet No. 105 Side B 01/15/2018 10:23:44 39707-nys_72-2 Sheet No. 105 Side B 01/15/2018 10:23:44 39707-nys_72-2 Sheet No. 106 Side A 01/15/2018 10:23:44 39707-nys_72-2 Sheet No. 106 Side A 01/15/2018 10:23:44 Side A 01/15/2018 Sheet No. 106 39707-nys_72-2 39707-nys_72-2 Sheet No. 106 Side B 01/15/2018 10:23:44 39707-nys_72-2 Sheet No. 106 Side B 01/15/2018 10:23:44 Side B 01/15/2018 Sheet No. 106 39707-nys_72-2