Volume 29, Issue 4
Volume 29, Number 4 Summer 2004
ARTICLES
FROM THE COURTROOM TO THE STREET: COURT ORDERS AND SECTION 1983
By Sheldon Nahmod
Using a seriously questionable Eighth Circuit decision as a foil but going well beyond it, Professor Nahmod argues that absolute quasi-judicial immunity from section 1983 damages liability should only protect law enforcement officers and others whose challenged conduct is prescribed by presumptively valid court orders. In contrast, neither absolute nor qualified immunity should protect law enforcement officers and others who follow presumptively invalid judicial orders (a "Nuremberg following-orders" defense issue). Furthermore, quasi-judicial immunity should not protect law enforcement officers and others whose allegedly unconstitutional conduct is not prescribed by presumptively valid court orders; qualified immunity is more than adequate to protect the community's interest in avoiding over-deterrence. To conclude otherwise (as the Eighth Circuit did) is inconsistent with corrective justice, growth-of-law considerations and the educational functions of § 1983 liability.
INCONGRUENT DISPROPORTIONALITY
By K. G. Jan Pillai
Since 1997, a sharply divided Supreme Court has decreed that all laws enacted by Congress in exercise of its enforcement powers under the Fourteenth Amendment must pass a newly-minted test of "congruence and proportionality." The Court insisted that the test is necessary to restrain Congress from enacting "substantive" legislation that transgresses its "remedial" powers and unconstitutionally intrudes upon the domain of state sovereignty. Every enforcement legislation that subsequently came up for the Court’s scrutiny was held unconstitutional for failure to satisfy the proportionality test. The most heart-wrenching casualty of the test is the American with Disabilities Act, which the Court ruled unenforceable against the States.
In this Article, Professor Pillai demonstrates that "proportionality" is an amorphous and indeterminate standard long discarded by its judicial adherents as unobjective and unworkable in multiple contexts under the Eighth and Fifth Amendments. He compares the Court’s merciless acquiescence to State discrimination against the disabled with its uncompromising enforcement with little or no regard for state sovereignty of strict anti-discrimination rules against interstate commercial discrimination. The Court has, in effect, fashioned two sets of anti-discrimination rules - one somewhat insensitive to human values and the other overly protective of commercial interests. Professor Pillai argues that there is no warrant in the Constitution or in relevant judicial precedents for imposing the inherently undefinable and inarticulate standard of proportionality on Congress and that it should be expunged from the Fourteenth Amendment jurisprudence.
THE METES AND BOUNDS OF STATE SOVEREIGN IMMUNITY
By Scott Dodson
The morass of recent Supreme Court state sovereign immunity jurisprudence is closely examined. Rather than attack or defend the Court, the Article attempts to distill the Court’s understanding of this complicated doctrine to an applicable rule. Where does state sovereign immunity end and abrogation begin? Immunity, after all, is mentioned nowhere in the Constitution. The Court’s understanding of state sovereign immunity jurisprudence is discussed in depth and the Article demonstrates that state sovereign immunity remains inviolate throughout Article I of the Constitution and that state sovereign immunity cannot be overridden by the original Constitution. Professor Dodson argues instead that certain Amendments to the Constitution, even those ratified before the Eleventh Amendment, may provide the government with some abrogation authority, albeit through the Fourteenth Amendment. Professor Dodson thus concludes that state sovereign immunity is not a clause-bound inquiry; rather, it is an Amendment-driven inquiry.
NOTES
VINDICATING CIVIL RIGHTS UNDER 42 U.S.C. § 14141: GUIDANCE FROM PROCEDURES IN COMPLEX LITIGATION
By Eugene Kim
In order to provide remedy for institutional violations of civil rights, Congress enacted 42 U.S.C. § 14141, which authorizes the U.S. Attorney General to seek injunctive relief from unconstitutional patterns and practices by law enforcement officers. Investigations and lawsuits thus far have resulted in consent decrees and agreements between the U.S. Department of Justice and local governmental authorities. This Note proposes that, in order to achieve the most effective and meaningful reform, courts look for guidance to procedures in complex litigation. In particular, the Note discusses potential benefits of employing special masters in § 14141 cases, provision of notice and opportunity for affected communities to be heard, as well as approval of, and release of jurisdiction over, consent decrees.
THE SPECTRE OF STAR CHAMBER: The Role of an Ancient English Tribunal in the Supreme Court’s Self-Incrimination Jurisprudence
By Frank Riebli
The author investigates the Supreme Court's allusions to the ancient English Court of Star Chamber. Throughout its history, the Supreme Court has used the spectre of Star Chamber to develop at least three themes in its Self-Incrimination Clause jurisprudence. Star Chamber appears as a symbol of brutality, the end of a slippery slope towards which our criminal justice system would drift but for the Self-Incrimination Clause's protections. Star Chamber is frequently used to describe the boundaries of the "testimonial evidence" doctrine, and thereby the scope and policies underlying the Self-Incrimination Clause. Finally, Star Chamber has appeared as a symbol of political and religious persecution, against which the Self-Incrimination Clause protects. The author concludes that the Supreme Court frequently misuses Star Chamber's image. As a symbol of brutality, Star Chamber is unremarkable in comparison to other courts of its day. Star Chamber's appearance in "testimonial evidence" doctrine cases shows the Supreme Court's misunderstanding of Star Chamber and the legal context in which it existed. However, the Supreme Court uses Star Chamber correctly as an enduring symbol of the dangers of institutionalizing ideology.