Article - Virginia Law Review

Interrogation Stories

The article poses questions about police interrogations that go beyond the furor over Miranda v. Arizona and even beyond the controversy over the a voluntariness standard for judging the admissibility of confessions in criminal cases. According to these debates, police interrogations have the potential to provide true answers to the historical questions of who-done-it, how, when, where, and why. The paper argues that the police confessional is a space where the truth is produced by the interrogator’s strategic use of narratives that exploit popular ways of thinking about the gap between legal liability and moral culpability for criminal misconduct. The project was motivated by the rhetorical strategies promoted by police interrogation experts for use in rape cases.

The agenda is positive and normative. As for the positive, my plan is to describe what interrogation stories teach us about the character of police investigations as a device for recovering historical truth. Is the cop a species of archeologist, one who digs through layers of accumulated dirt to uncover a hidden crime? Interrogation stories suggest not. The interrogator is master author or improvisational playwright, one who is comfortable batting around potential plot lines with his leading actors before getting them to sign off on the final script. If author or playwright is the apt analogy, police interrogators do not merely find facts that are buried out there somewhere, just waiting for the alert detective to come along and excavate them. Rather, by using narrative scripts, cops actively shape the meaning of facts by helping suspects embed them in a coherent narrative that coincides with our ethical judgments about which acts are blameworthy and which are not.

As for the normative, the essay will offer speculations about the value-laden connections between police investigatory practices and the substantive mandates they ostensibly serve. Rape interrogations are a poignant context in which to explore these connections, as we see the police persuading perpetrators to confess by using the very same victim-blaming stories that the rape reform movement has aimed to expunge from substantive prohibitions, courtrooms, popular culture, and, ultimately, from the heads and hearts of human beings.

Intent to Contract

There is a remarkable difference between black-letter contract laws of the United States and England. In England, the existence of a contract is supposedly conditioned on the parties’ intent to be legally bound, while section 21 of the Second Restatement of Contracts states that “[n]either real nor apparent intention that a promise be legally binding is essential to the formation of a contract.” There are also differences within U.S. law on the issue. While section 21 describes courts’ approach to most contracts, the parties’ intent to contact can be a condition of validity of preliminary agreements, domestic agreements and social arrangements, reporters’ promises of confidentiality to sources, and gratuitous promises.

This Article develops an analytic framework for evaluating these rules and examines their relationship to the broader principles that animate contract law. Rules that condition contractual liability on proof of contractual intent must include rules for interpreting that intent. Those interpretive rules will include both interpretive defaults and rules for what it takes to opt-out of the default. By adjusting these default and opt-out rules, the law can achieve different balances between the duty-imposing and power-conferring functions of contract law, or among the various reasons for enforcement. This is demonstrated by an analysis of the rules for gratuitous promises, preliminary agreements, spousal agreements and reporters’ confidentiality promises. The results of that analysis include a new argument for the Model Written Obligations Act; a critique of Alan Schwartz and Robert Scott’s proposal preliminary agreements and a recommended alternative to it; and recommended changes to the rules for agreements between spouses. Attention to intent to contract requirements also indicates an overlooked aspect of how the enforcement of contracts affects extralegal norms and relationships of trust. Interpretive rules that require parties who want, or who do not want, legal liability expressly to say so are particularly likely to interfere with or erode extralegal forms trust that otherwise create value in transactions.

National Security Fact Deference

The executive branch often urges judges to defer to it regarding disputed questions of fact in cases involving national security. Judges frequently comply, but they do not frequently offer a coherent justification for doing so. This bespeaks uncertainty and disagreement regarding the nature of such claims and the considerations that ought to inform resolution of them. My aim in this article is to alleviate this uncertainty, in hopes of shifting the practice of national security fact deference onto more defensible grounds.

I begin in Part I by illustrating how litigants and judges have approached national security fact deference claims in actual practice. The case studies provided in this section suggest not only that such claims can have a significant impact on the merits of a case, but also that judges and litigants are not entirely certain what to do with them. Fact deference claims in the national security setting more often are resolved with clichés than with detailed justifications as to why deference makes sense (or not) in a particular instance. This may be true for fact deference claims generally, of course, but it seems particularly pernicious that it should be so in the national security setting.

The remainder of the paper responds to this concern. Part II begins by offering an account of the nature of a fact deference claim. I contend that such claims are best understood as a species of “decision rule.” This account, derived from the literature of constitutional theory, is useful in that it draws our attention to a series of arguments and considerations that judges might consider in determining whether to defer in a particular instance. I collect these under the headings of core accuracy, weighted accuracy, prudence, and legitimacy. Part III follows with a discussion of potential objections to this project.

Part IV is the heart of my analysis. In it, I explore how the arguments identified in Part II might (or might not) apply in the setting of national security litigation. Because these considerations for the most part are sensitive to the circumstances of particular cases, we cannot and should not pursue a single model for resolving fact deference claims. We can, however, develop a number of insights that collectively point the way toward a more coherent approach to resolving national security fact deference claims. Among other things, for example, the analysis suggests that: (i) fact deference claims primarily turn on comparative institutional accuracy concerns, along with concerns about democratic accountability and institutional self-preservation; (ii) judges conducting comparative accuracy inquiries must account separately for the possibility that the executive has superior access to information and to expertise, and should require a showing that the executive actually and reliably exploited such advantages; (iii) arguments regarding the relative strength of the governmental, private, and social interests at stake in national security litigation frequently will be indeterminate, thus undermining the case for weighting the comparative accuracy inquiry so as to encourage false positives or false negatives; (iv) efficiency and secrecy concerns are better addressed through doctrinal mechanisms other than fact deference; and (v) arguments involving comparative institutional legitimacy, though quite common, do little or no separate work once one accounts for comparative accuracy, democratic accountability, and institutional self-preservation.

These insights of course will not eliminate disagreement in connection with national security fact deference claims. By providing a coherent theoretical justification for supporting such claims in limited circumstances, however, they will help to identify and curb unwarranted claims. The project thus contributes in a modest yet important way to the larger task of specifying the boundaries of the judicial role in national security affairs.

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