Procedure Doctrine Research Articles

Over the Threshold of Constitutional Adjudicative Retroactivity

After a period of experimentation, the Supreme Court decreed that its constitutional decisions overruling prior precedents or applying new legal rules to the parties govern all pending and future adjudicative proceedings on direct review, even if the underlying operative events occurred under a different legal framework. But this understanding of the temporal boundaries of legal change is potentially unsettling in some circumstances after the Supreme Court’s holding in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), that laws excluding same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples are invalid. The application of Obergefell to retroactively backdate same-sex relationships into ceremonial or common law marriages in certain contexts has the potential to disrupt settled understandings and expectations, such as in property transactions with third parties or in divorce actions predicated on the parties’ cohabitation beginning and ending before legal recognition was afforded to their union.Building on the insights of prior scholars, this Article constructs a more comprehensive typology of the institutional, remedial, and procedural doctrines that serve to protect reliance, fairness, and efficiency interests in a regime of retroactive application of judicial decisions. Strategic employment of these doctrines can safeguard settled reliance interests while optimizing utilitarian benefits during a period of legal transition. The Article proceeds to evaluate potential retro-activity issues facing same-sex marriages in light of the proposals, demonstrating that remedial and procedural doctrines such as judgment scope, declaratory breadth, limitations periods, and judgment finality, in conjunction with the Court’s prior institutional incrementalism on same-sex marriage, can secure settled expectations while fulfilling the promise of marriage equality.

El proceso de revisión civil en Cuba: despejando la penumbra en torno a su tramitación y tres causales

Propósito: ofrecer algunas reflxiones acerca de la necesidad de perfeccionar la concepción y tramitación de la revisión civil en Cuba, especialmente en lo relativo a la regulación de tres de sus causales que, a la vez, son de dependencia funcional penal, debido a las difiultades de la práctica jurídica a la hora de lograr su admisión, tramitación y solución. Descripción: se ofrecerán criterios de la doctrina procesal sobre la construcción jurídica de la revisión, en relación con si se trata de un recurso, un procedimiento o un verdadero proceso, con lo que se aprecia falta de unanimidad, situación que ha trascendido al orden legislativo mundial. Se realiza un análisis comparativo de la revisión en los ámbitos procesales cubanos, relativo a las resoluciones judiciales contra las que procede, tras lo cual se evidencia falta de uniformidad de criterios por la práctica judicial del máximo foro. Punto de vista: se dan a conocer propuestas concretas de modifiación de ley para su perfeccionamiento, que contribuyen al mejor ejercicio de la praxis jurídica. Conclusión: la revisión es un proceso que guarda indudable relación con el proceso anterior del cual proviene la resolución firme objeto de ella, encaminado a salvaguardar derechos, sirviendo como ultima ratio de realización de la justicia como valor y fin del Derecho.

The Institute of Specialized Investigating Judges: On the Discussion of Vectors of the Legislative Will

The author gives the analysis of objective reasons that create the need for the criminal procedure doctrine, the legislator and the state authority to organize the institute of specialized investigating judges in criminal court proceedings of Russia, designed to perform the complex of jurisdictional and, partly, investigative functions.

A House Divided: When State and Lower Federal Courts Disagree on Federal Constitutional Rights

Despite their many differences, Americans have long been bound by a shared sense of federal constitutional commonality. As this article demonstrates, however, federal constitutional rights do in fact often differ — even within individual states — as a result of state and lower federal court concurrent authority to interpret the Constitution and the lack of any requirement that they defer to one another’s positions. The article provides the first in-depth examination of intra-state, state-federal court conflicts on federal constitutional law and the problems that they create. Focusing on criminal procedure doctrine in particular, with its unique impact on individual liberty and privacy, the article highlights multiple instances in which state and lower federal courts disagree. As the article makes clear, creation of a “crazy quilt” of conflicting federal rights, which Justice Scalia has inveighed against more generally, generates an array of distinct and quite significant difficulties when localized. To date, however, the conflicts and their consequences have largely evaded the attention of commentators and, more importantly, often go unaddressed by the Supreme Court, which appears content to maintain its historically small plenary docket. In response, the article urges that Congress amend the federal certification provision, which since 1802 has allowed federal but not state courts to certify disputed questions to the Court for resolution. Allocating certification authority to state and federal courts alike will not only help ensure that the Court fulfills its role as arbiter of federal constitutional disputes. It will also help elevate state courts to their rightful place in the nation's constitutional order and allow for greater engagement with the nation’s “one supreme Court,” charged with overseeing the work of state and lower federal courts and ensuring federal constitutional consistency.

Evolution of notion «admissibility of evidence» in the criminal procedural doctrine and legislation of Ukraine

The legal model of an admissibility of evidence and scientific approaches to the comprehension of notion «admissibility of evidence» during the evolution of the legislation and criminal procedural doctrine of Ukraine are analyzed . An author examines the criterions of an admissibility of evidence by using the method of analysis and synthesis of scientific attitudes related to this issue and grounds a conclusion, concerning the necessity of assessment of admissibility of the court evidence only.

Bayesian Manipulation of Litigation Outcomes

In our previous work (Guerra-Pujol, 2011), we presented a general Bayesian model of the litigation process and concluded that "regardless of the operative rules of procedure and substantive legal doctrine, litigation outcomes [are] a highly reliable indicator of a defendant's [actual] guilt." By contrast, economists Eric Kamenica and Matthew Gentzkow recently presented a hypothetical example of Bayesian manipulation of litigation outcomes in their 2011 paper titled "Bayesian Persuasion." The remainder of our paper is thus organized as follows: In part one, we restate Kamenica and Gentzkow's example of Bayesian manipulation in litigation outcomes. Next, in part two, we evaluate their hypothetical example through a Bayesian lens and identify a crucial defect in their analysis: although the Sender in their model is required to tell the truth, he is not required to send an accurate or reliable signal. Thus, because the Sender can choose the level of accuracy or reliability of his signal, we would expect a rational judge to take this possibility into account by updating two separate probabilities -- not only the prior probability of the defendant’s guilt -- but also the prior probability that the prosecutor's signal is accurate or reliable. In part three, to illustrate our Bayesian analysis of the litigation process, we restate a thought-experiment that appears in Thomas Bayes' 1763 essay on inverse probability and draw an analogy between Bayes' 1763 thought-experiment and Kamenica and Gentzkow’s model. Part four concludes.

Avoiding Constitutional Cases

Why does the Supreme Court avoid deciding cases it accepts for review? In this article, I contend that the Court uses procedural access doctrines such as standing, ripeness, and mootness to sidestep constitutional cases when confronted with certain internal and external pressures. Using data from 1946 to 2001, the results suggest that the Court utilizes procedural tools to dismiss constitutional cases when preference heterogeneity on the Court increases and when the justices are confronted with issues about which groups feel strongly and are deeply divided. Although the Court does not appear to be influenced by the threat of political opposition, it is more reluctant to resolve disputes when members of Congress file an amicus brief. The results offer a first glimpse into how often the Court invokes the “passive virtues.” They also have implications for our understanding of agenda setting, decision-making in access cases, and normative constitutional theory.

The Supreme Court on trial: how the American justice system sacrifices innocent defendants

Has the American criminal justice system abandoned its duty to protect the innocent?The Supreme Court on Trial calls upon an impressive range of historical, empirical, and documentary evidence to conclude that our criminal justice system has done just that. Criminal justice expert George Thomas argues that the courts' efforts to protect privacy and autonomy result in thousands of wrongful convictions every year. His concluding chapters suggest a radically revised criminal procedure doctrine (based on the French inquisitorial model) that he feels will protect the presumption of innocence upon which any just society depends.

Rights Translation and Remedial Disequilibration in Constitutional Criminal Procedure

Criminal procedure rights are widely understood both as individual constitutional guarantees and as conduct-regulating norms, enforcement of which guides the behavior of criminal justice actors. This regulatory dynamic of constitutional criminal procedure flows from both criminal and civil litigation, and as a consequence criminal procedure rights are shaped and adjudicated in recursive remedial regimes. Little notice has been paid, however, to the fact that the contours of criminal procedure rights are not consonant across the criminal and civil remedial regimes. Instead, courts in civil actions reshape criminal procedure doctrine in a manner that erects new, conflicting, and often more lenient conduct norms for law enforcement. This Article contends that this reformulation of recursively litigated rights is not accidental but rather flows from the role of remedial context in shaping constitutional doctrine - a role that is brought into complicated relief when adjudication of a right spans remedial realms. Drawing from emerging schools of thought in constitutional implementation scholarship, the Article provides a thick description of the problems of cross-remedial adjudication in criminal procedure, focusing in particular on how unprincipled or incoherent approaches undermine the regulatory force of constitutional criminal procedure. The Article then proposes and applies a framework of 'rights translation' to ameliorate these deficiencies. While rights translation in criminal procedure involves certain unique remedial and systemic dynamics, the model of adjudication developed in the Article promises to illuminate other cross-remedial arenas of constitutional adjudication.

Les cours militaires russes : juridictions de droit commun, juridictions spécialisées ou juridictions d’exception ? [Russian Courts-Martial: Courts of General Jurisdiction, Specialised Courts or Extraordinary Courts?

According to the classical concept accepted in procedural doctrine of civil law countries, courts-martial, when they exist, are considered specialised or extraordinary courts, but never courts of general jurisdiction, even the criteria that distinguish specialised and extraordinary courts needs theoretical clarification. Beginning in 1992 the Russian military jurisdiction system, created in Soviet era and evolved from extraordinary to specialised justice, underwent several reforms, which reduced and even eliminated certain aspects of their specialisation. Thus the new law on courts-martial passed in 1999 was the culmination of this process: according to its surprising first Article, courts-martial are no longer considered specialised courts, but courts of general jurisdiction. However, the question arises that if courts-martial are considered courts of general jurisdiction, which is paradoxical enough, why does Russia need to preserve the system of courts-martial, if the latter have lost almost all their particularities? In other words, is there an internal rationale for the reforms of military justice in today’s Russia?

Sixth-Amendment Originalism's Collision Course with the Right to Counsel: What's Titanic, What's Iceberg?

The Supreme Court's recent landmark decisions interpreting the Sixth Amendment confrontation clause have taken an originalist turn, by treating common-law procedure contemporaneous with the founding as illustrations of the constitutional text. The Crawford trilogy holds that trial courts should classify prosecution hearsay as either testimonial or nontestimonial. Testimonial statements may be admitted over confrontation clause objection only when the declarant is unavailable at trial and the defendant had an opportunity to cross-examine the declarant before the trial. By contrast, nontestimonial statements are subjected to no confrontation clause scrutiny. In majority opinions authored by Justice Scalia, the Court based this new confrontation clause framework on founding era practice and understanding. My thesis holds that Crawford's version of originalism charts a collision course with long-standing precedents interpreting the Sixth Amendment's right-to-counsel clause. What the Crawford trilogy means by cross examination is cross-examination by counsel, an understanding foreign to the founders. Indeed, consistent application of the Crawford trilogy's interpretative method would deny a Sixth Amendment right to publicly-paid defense counsel even at trial. The recent cases making new law have arisen under the Sixth Amendment, yet the originalist methodology in these cases calls into question Gideon v. Wainwright, one of the few criminal procedure landmarks to enjoy practically unanimous judicial and academic approval. Sixth Amendment jurisprudence therefore has become a house divided against itself. This article asks how that house can stand. The Court might now (1) honestly apply Crawford's methodlogy and overrule Gideon (but this would endanger the innocent and mock the ideal of equal justice); (2) announce an originalist justification for Gideon (but compelling historical evidence points the other way); (3) simply ignore the inconvenient conflict between the felt legitimacy of originalism and the felt desirability of Gideon's result (the most likely outcome, but an illegitimate and hypocritical one); or (4) retain Gideon's holding on due process, not Sixth Amendment grounds, an alternative that would legitimately ground the right-to-counsel cases and enable the rationalization of criminal procedure doctrine more generally. Even a robust reading of due process cannot undo the damage Crawford has done to the public interest in domestic-violence and organized-crime cases. The article therefore concludes with some statutory and administrative responses to the Crawford trilogy, responses that might ameliorate the serious costs those decisions have exacted from the public interest.

The Accursed Share: Genealogy, Temporality, and the Problem of Value in Black Reparations Discourse

ABSTRACT In this article the author discusses the procedural hurdles erected by courts to limit litigation of Black reparations claims based on slavery. By examining the policy justifications that underlie the procedural doctrines, the author challenges the view that the current impasse in Black reparations litigation is a matter of doctrinal limits rather than a matter of social devaluation of the litigants. Basing his argument on a review of nineteenth-century restitution cases involving wrongful enslavement, the author posits that the continued refusal by courts to hear Black reparations claims on the merits reflects a millenarian process of subordination and social devaluation of people of African descent.

The Crying of Rule 49

This article crosses back and forth across the border between law and literature. Its goal is to mirror the dizzying array of procedural doctrines under discussion with an equally dizzying set of comparisons. Contemporary international litigation is compared to a 1960s work of fiction – Thomas Pynchon’s The Crying of Lot 49 – Canadian civil procedure is compared to American social movements, civil liability for polluting the environment on one side of the border is juxtaposed with the pollution of the civil liability environment on the other side, and so on. The hope is to demonstrate both the exhaustion of meaning and the replenishment of forms taken by international law and the legal procedures used to create it.

Patterns of Injustice: Police Brutality in the Courts

This article is concerned, most generally, with the judicial tendency to anecdotalize governmental misconduct - to view instances of misconduct as isolated rather than systemic. More specifically, it is concerned with the impact of this phenomenon in the context of systemic police brutality. It argues that police brutality is permitted to flourish by a series of interlocking institutions that characterize brutal acts as isolated and anecdotal, and it focuses particularly on the courts' role in this acquiescence. The courts permit and even implicitly condone police brutality through a number of substantive and procedural doctrines that fragment patterns of misconduct. The article argues that although it is important to study each of these doctrines individually, the tendency to anecdotalize police misconduct has more basic explanations that transcend particular doctrinal devices. Part I examines the phenomenon of police brutality, with particular attention to the ways in which patterns are masked. Section A takes a detailed look at one pocket in which police brutality and even torture have long thrived: Chicago's Area Two Violent Crimes Unit. Section B asks whether the story told about Area Two is itself anecdotal, or is representative of a larger pattern, and describes more generally the attributes of police brutality as practiced in the United States, with attention to, among others, the Louima and Diallo cases in New York. Part II seeks to understand the pattern of fragmentation that characterizes the judicial reaction to police brutality. Section A suggests that the literary notion of anecdote, with its concerns about irrelevant detail, the linkages among seemingly disparate acts, and the problem of judging representativeness, can help us think about the patterns of governmental misconduct and why they are so often ancedotalized. It suggests that judicial decisions about what details are connected, relevant or representative are not merely mechanical, but are informed by cultural, social and political assumptions. Section B posits several such assumptions that may lead judges to view patterns of governmental misconduct as a series of disconnected events. These include: the assumption that the status quo is coherent and just; the use of selective empathy; the fear of destabilization and chaos; the need for individual stories of motive, fault and blame; reliance on the common law paradigm; and the preference for judicial insulation. The article illustrates the effect of these assumptions in the police brutality context.

The Models of Criminal Procedure

Contemporary criminal procedure doctrine is palatable to most members of American society. Government officials can’t burst into a home without a warrant or some compelling exigency. The police can’t beat a confession out of a suspect under any condition. And a defendant can’t be imprisoned unless he was afforded the right to counsel. These and other judicial principles have substantial normative appeal and coincide with basic notions of justice. The rules of the legal playing field seem fair enough, doctrinalists might contend, so let’s not screw it up with theory. Pragmatic common law development can avoid the evils of inflexible application of criminal procedure theory, and at the edges, in those odd-ball cases, only the malleability of doctrine can prevent injustice. But there are grave and often unnoticed dangers in ad hoc doctrinal development. Precedents without theoretical justification suffer from backbones only as sturdy as the relevant judicial majority. Once upon a time, government sacked homes without warrants, tortured suspects into bogus confessions, and forced defendants to face judgement without legal assistance. Although reversion to the “good ol’ days” of law enforcement may seem unlikely, mere reliance on case precedents cannot foreclose this possibility. Criminal procedure doctrine is neither immutable nor necessarily a one-way street to justice. Doctrine is particularly vulnerable to slow accretions

Is there an essence of medicine?

Medical practice has to move from a one-on-one relationship to consensual organization of the overall management of patients. Issues at stakes and potential consequences following such changes are discussed. The evolution of medical practice is introduced as a necessity resulting from both improvements in medical technology and economical pressure. Utilitarian and procedural doctrines are promoted, taking the place of ethical bases. The one-on-one relationship evidences two essential aspects: there is often more in the request made to the practitioner than just the expression of an immediate need, and the patient is not only an organism. Both aspects reflect the specificity of human beings. There is a danger that they will disappear, as they are not included in the definition of "useful", which in fact controls current choices. Medical practice is radically modifying its own basis. Practitioners who acknowledge these changes should be aware of their cost.

Laying bare the failure of criminal procedure doctrine

Laying bare the failure of criminal procedure doctrine

Foreword: Criminal Procedure Doctrine: Some Versions of the Skeptical

Foreword: Criminal Procedure Doctrine: Some Versions of the Skeptical

Legislative Reform of Child Custody Adjudication: An Effort to Rely on Social Science Data in Formulating Legal Policies

A survey of child custody cases and commentary yields the following, most depressing conclusions: everyone agrees that awarding custody is one of the trial judge's most delicate responsibilities; almost everyone is unhappy with prevailing substantive and procedural doctrines; yet no one seems to believe that the situation can be improved substantially. Too many appellate opinions begin, or end, with a plaintive plea for the reader's sympathy.