Constitutional Enforcement by Proxy

Americans love their Constitution. But love, as we all know, is blind. This might explain why we often look to constitutional law to vindicate our civil rights while ignoring the potential of sub-constitutional law. Federal courts have not ignored this possibility, however, and have increasingly forced civil rights plaintiffs to seek relief from sub-constitutional law where it is available. A victim of discrimination, for example, might be denied the chance to invoke the Equal Protection Clause and told instead to rely on a federal antidiscrimination statute. In this and other cases, courts seem to believe that constitutional rights can be enforced through the application of sub-constitutional law, a practice this Article refers to as “constitutional enforcement by proxy.” 

This Article is the first to analyze the emerging practice of proxy enforcement. This issue is important because it lies at the confluence of several important discourses in the federal courts field—such as the judicial duty to issue a remedy for every constitutional wrong, the role of non-Article III actors in setting constitutional norms, and the degree to which sub-constitutional law can, like the Constitution itself, be “constitutive” of the national order. This Article’s central claim is that proxy enforcement, properly administered, is permissible and even advisable in a large number of cases. It is permissible because federal courts’ duty to supervise the behavior of non-Article III actors does not require courts to invoke the Constitution directly (unless Congress has ordered otherwise). If courts can maintain constitutional norms using sub-constitutional law, they are entirely free to do so.

The practice is normatively attractive because it promises a partial truce in the everlasting debate over interpretive supremacy. By relying on sub-constitutional law to enforce the Constitution, federal courts allow non-Article III actors a significant role in the articulation of constitutional norms, a role normally denied them when courts enforce the Constitution directly. Thus, sub-constitutional adjudication of civil rights claims does not spurn our love of the Constitution; it preserves individual rights while honoring a principle that lies at the Constitution’s very heart: popular sovereignty. 

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.