Article

Proportionality and Federalization

The literature treats the “federalization” of crime as a quantitative problem. Congress, on this view, has simply enacted too many federal crimes. This Article challenges this way of conceptualizing the federalization problem. The real problem with federalization is qualitative, not quantitative: federal crimes are poorly defined, and courts all too often expansively construe poorly defined crimes. Courts thus are not passive victims in the vicious cycle of federalization. Rather, by repeatedly interpreting criminal statutes broadly, courts have taken the features of federal criminal law that critics of federalization find objectionable – its enormous scope and its severity – and made them considerably worse.

One of the most significant adverse effects of federalization, which is overlooked in the case law and all but ignored in the literature, lies at the heart of this Article: the danger of disproportionately severe penalties. Poor legislative crime definition, coupled with the judicial practice of expansively construing criminal statutes, allows prosecutors to drive up the punishment federal defendants would otherwise face. Sometimes, courts construe ambiguous statutes to move into federal court defendants who would otherwise face lower penalties in state court. More often, courts expand serious crimes to encompass behavior for which Congress prescribed lower penalties elsewhere. This Article shows how courts can adjust their interpretive strategies to counteract the severity and scope of the federal criminal code so that federalization need not be the disaster that its critics fear.

Contextual Evidence of Gender Discrimination: The Ascendance of “Social Frameworks”

In Dukes v. Wal-Mart, the Ninth Circuit recently upheld the certification of the largest employment discrimination class in history, with more than 1.5 million women employees seeking over $1.5 billion in damages. A crucial piece of evidence supporting class certification came from a sociologist who testified that he performed a “social framework analysis” to evaluate Wal-Mart “against what social science research shows to be factors that create and sustain bias” and found the company wanting. As authority for introducing this analysis, the expert—and the Ninth Circuit—relied on our prior work introducing the concept of social framework to refer to the use of general social science research to provide a context for the determination of specific factual issues in litigation. In this article, we review and recast the procedures originally proposed for apprising juries of general research results to assist in resolving the case before them. We then apply these updated procedures to the expert testimony in Dukes v. Wal-Mart, which promises to be a template for future employment discrimination litigation.

Experience over the past 20 years has shown that that courts will typically allow general contextual information from social science research to be conveyed to the jury by expert witnesses rather than via instructions, as originally envisioned. Where this occurs, we believe it essential that courts limit expert testimony to a description of the findings of relevant and reliable research and of the methodologies that produced those findings, and preclude the witness from linking the general research findings to alleged policies and practices of a specific firm. The landmark class action of Dukes v. Wal-Mart illustrates the centrality of social framework evidence to modern employment litigation, as well as the need for courts to clarify and circumscribe the role of the experts who introduce them.

Doctrinal Feedback and (Un)Reasonable Care

The law frequently derives its content from the practices of the community it regulates. Examples are legion: Tort’s reasonable care standard demands that we all exercise the prudence of an “ordinary” person. Ambiguous contracts find meaning in the custom and usage of trade. The Fourth Amendment examines our collective expectations of privacy. And so on. This recourse to real-world circumstance has intuitive appeal, in that it helps courts resolve fact-dependent disputes and lends legitimacy to their judgments.

Yet real-world practice can depart from that which the law expects. For example, suppose a physician provides more-than-reasonable care—extra tests, unneeded procedures, etc.—so as to steer clear of tort liability’s considerable gray area. If other physicians follow suit, their precautions slowly but surely become the new legal norm, as the reasonable care standard dutifully absorbs the conduct of those it governs. Instead of discouraging wasteful practices, the law feeds them back into doctrine, making overcompliance into mere compliance and ratcheting up the standard of care. Overcautious physicians then have to do even more to steer clear of liability, and the cycle begins anew.

This Article provides a general model of this “doctrinal feedback” phenomenon and then applies it to medical malpractice, where tort’s reasonable care standard has caused an unhealthy and unappreciated feedback effect and has led the law to require an unreasonable level of care. In doing so, it reveals feedback’s surprisingly common formative factors and demonstrates its potential to skew legal norms in a variety of otherwise dissimilar fields.

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