Volume 33, Issue 2

Article

The Inquest and the Virtues of Soft Adjudication

Paul MacMahon

An inquest is a quasi-judicial proceeding resulting in a verdict as to the cause and manner of a suspicious or unusual death. Inquests are an important feature of most common-law legal systems, but have been ignored by American legal scholars for decades. In fact, inquests continue to be held in some American localities. Inquests are intriguing partly because they are inquisitorial proceedings in stereotypically adversarial common law systems. Their determinations do not directly affect anyone’s legal rights or duties, but may be highly consequential. This Article uncovers the American inquest, and explores the case for revamping and reviving the institution. Precisely because their verdicts do not carry coercive consequences, the Article contends, inquests can aim more squarely than other legal proceedings at establishing the truth about a contested event. Accordingly, they have significant advantages in the furtherance of important societal goals, including accountability for wrongful deaths, the collection and dissemination of information about risky activities, and helping the deceased’s family come to terms with a traumatic death. The Article focuses on one particular area where suitably designed inquests could be particularly effective: deaths at the hands of police and prison officers. More broadly, the inquest is an example of legal institutions providing non-binding-yet-formal-pronouncements about past events, a phenomenon I call “soft adjudication.”

Article

Decisions, Disasters, and Deference: Rethinking Agency Expertise After Fukushima

Katherine A. Trisolini

This Article examines regulatory failures at the U.S. Nuclear Regulatory Commission (NRC) that were identified after the Fukushima nuclear accident. Post-Fukushima analysis uncovered multiple areas of inadequate reactor oversight—earthquake and flooding hazards, emergency preparedness, and risks from potential power loss and spent fuel pool fires. Top level managers within the agency further found the NRC’s regulation of severe accidents to be a “patchwork” that employed inconsistent standards and failed to require operating reactors to address updated risk analysis.

Numerous parties—states, localities, nonprofits, individuals and licensing boards—had tried to raise these issues over many years. But the NRC’s rules and procedures impeded effective public participation that could have required much earlier recognition of these hazards. Contrary to administrative law scholarship urging less stringent judicial review to prevent ossification and to allow agency experts room for improving standards, this study shows extreme deference to have undermined expert judgment. Rather, the courts’ hands off approach allowed the NRC to create procedures and regulations that blocked information and constrained decision-makers.

This Article draws upon numerous sources: NRC policy statements and individual Commissioners’ voting comments; the Fukushima Task Force Report, staff responses, Commission decisions reviewing staff proposals for responding to the Task Force Report, regulatory updates from staff to the Commission; NRC requests for information and licensee responses; licensing boards, appeal boards, and Commission rulings; draft and final NEPA regulations, draft and final environmental impact statements; General Accountability Office Reports; NRC review of prior regulations and publications by the NRC’s history department.

My hope is that this paper can contribute to a process—proposed by Jerry Mashaw—of interrogating agencies internal workings with the aim of ultimately improving the “invisible” aspects of administrative law.

Policy Essay

The Voting Rights Umbrella

William Jefferson Clinton

“The right to vote is both fundamental to individual liberty and to the proper functioning of representative democracy. When voting rights are denied, diluted, or restricted, the ability of government to respond to our challenges and increase our opportunities is impaired, and its legitimacy in doing so is diminished.” 

Policy Essay

“Only Yes Means Yes”: An Essay on University Policies Regarding Sexual Violence and Sexual Assault

Janet Napolitano

“The critical issues of sexual violence and sexual assault have right-fully gained greater attention at universities and colleges in our country.  Though these issues are not confined to university campuses, a few key reasons help explain the emphasis on sexual violence and sexual assault, as well as sexual harassment, within the higher education world. First, at many institutions of higher education, vast numbers of young adults live independently and in close proximity to one another for the first time. Second, federal law imposes reporting, response, and prevention requirements on colleges and universities that are not present in other contexts. And third, students, parents, faculty, staff, alumni, members of governing boards, members of the community, and members of the state and federal governments all appropriately expect that colleges and universities will provide a safe and secure learning and working environment.”

Policy Essay

EPA’s Proposed Clean Power Plan: Protecting Climate and Public Health by Reducing Carbon Pollution from the U.S. Power Sector

Tomás Carbonell

“Since January 2009, the U.S. Environmental Protection Agency has been engaged in a comprehensive effort to apply existing Clean Air Act authorities to reduce greenhouse gas emissions from the nation’s largest sources. This Article focuses on EPA’s most recent, and significant, undertaking: an initiative to reduce emissions of carbon diox-ide from existing fossil fuel-fired power plants under § 111(d) of the Clean Air Act, known popularly as the ‘Clean Power Plan.’”

Note

The Government’s Fire Dispatcher: The Solicitor General in Patent Law

Ben Picozzi

This Note challenges the assumption that the Solicitor General’s (SG’s) litigating authority is ineffective in controlling agency policymaking. When other political control mechanisms are weak, the SG’s litigating authority may provide the most effective means of ensuring that an agency’s policies agree with the Administration’s preferences. Patent law exemplifies this dynamic. The Patent and Trademark Office’s (PTO’s) specialization limits the effectiveness of policy and budgetary review and the appointment and removal powers. However, the SG’s litigating authority compensates for this weakness in direct oversight by facilitating indirect review of the PTO’s policies. Applying the fire-alarm model of political control, I argue that the SG acts as the Administration’s fire dispatcher. The SG raises the alarm when the PTO diverges from the Administration’s preferences, allowing the Administration and other government interests to intervene. In doing so, the SG decides which alarms are genuine, which fires can be extinguished, and when and where fire fighters should be allocated. Nevertheless, the SG’s increasing influence threatens to swallow the PTO’s expertise. This Note concludes by evaluating practices for improving the SG’s functioning in its role as fire dispatcher. Specifically, it recommends that the SG should, in some cases, allow the PTO to self-represent, but that the Supreme Court should not follow the Federal Circuit’s innovative  practice of issuing calls for agency views.  

Comment

Confronting the Forensic Confirmation Bias

John Rafael Peña Perez

“The Sixth Amendment Confrontation Clause provides that, ‘[i]n all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.’  At the core of the Confrontation Clause is the need to ensure the accuracy and trustworthiness of witness testimony by requiring witnesses to take the stand and face cross-examination in the course of criminal trials.  The Supreme Court endorsed this policy of ensuring testimonial accuracy by expanding the conventional meaning of ‘witness’ to encompass analysts who conduct forensic tests for criminal prosecutions.  The consequence of this expansion was that courts generally declined to admit forensic test results as evidence when the analyst who performed the test was not available for cross-examination, an outcome reached by the Supreme Court in two landmark cases: Melendez-Diaz v. Massachusetts  and Bullcoming v. New Mexico.  Only a year after Bullcoming, however, the Supreme Court delivered a fractured opinion in Williams v. Illinois that contravened the general principles of the Confrontation Clause doctrine at the time.  Specifically, the Court allowed the admission of a DNA report into evidence even when only a surrogate witness was available to testify to the results of the DNA test.”

“In Williams, the dissent vehemently argued that the ruling would erode criminal defendants’ constitutional rights to ensure the accuracy of forensic test results.  This Comment argues the counterintuitive proposition that the Williams decision was actually the first step towards eliminating the true threat to both the accuracy of forensic evidence and the spirit of the Confrontation Clause—an implicit bias known as the forensic confirmation bias.”