Article

Lyons v. Oklahoma, the NAACP, and Coerced Confessions Under the Hughes, Stone, and Vinson Courts, 1936-1949

The Supreme Court’s 1944 decision in Lyons v. Oklahoma, affirming the murder conviction of W.D. Lyons, a poor, young, black man from rural Oklahoma, failed to garner mention in any major newspaper. Now almost seventy years old, Lyons has received little attention among legal scholars and historians. But the story of W.D. Lyons offers the modern reader a window into the world of criminal justice during the Jim Crow era.

Rather than being an obscure footnote in the history of constitutional criminal procedure, or just another example of racial discrimination in the pre-civil rights era, Lyons is an important case that deserves to be revisited. Lyons presents an intriguing constitutional puzzle that provides insight into the confused evolution of coerced confessions and the Due Process Clause of the Fourteenth Amendment under the Hughes, Stone, and Vinson Courts. Interestingly, this period marks the beginning of both the doctrine and the debates that ultimately culminated in Miranda v. Arizona, a case that continues to be a source of controversy.

This Note examines the early evolution of the doctrine surrounding coerced confessions and the Due Process Clause, using Lyons as a point of departure. Lyons provides an excellent case study in that it shares many characteristics with the early Southern cases that inspired the coerced confession doctrine, yet it also marks the boundary that divides one stage of cases from the other. Finally, Lyons also casts light upon the larger jurisprudential battles that divided the Supreme Court in the 1940s and beyond.

The Empty Promise of Compassionate Conservatism: A Reply to Judge Wilkinson

In his recent essay, Why Conservative Jurisprudence Is Compassionate, Judge J. Harvie Wilkinson defends conservative jurisprudence against a claim that he believes unfairly derogates the normative attractiveness of conservative jurisprudence—specifically that conservative jurisprudence lacks compassion. To Judge Wilkinson, conservative jurisprudence, properly understood, can “more than hold [its] own” against its liberal counterpart in the compassion debate. 

This essay responds to Judge Wilkinson’s thesis. It first articulates the arguments advanced by Judge Wilkinson in support of his thesis but then suggests that, even if his contentions hold some resonance, they still fall short of the goal of defending contemporary conservative jurisprudence as compassionate. 

To begin with, Judge Wilkinson’s arguments are essentially only negative points about the purported overuse of compassion in liberal jurisprudence; they are not positive propositions suggesting that conservatism has its own unique vision or understanding of compassion. Moreover, Judge Wilkinson’s attempt to defend conservative jurisprudence is misplaced because the conservatism he describes is not contemporary conservative jurisprudence. Rather contemporary conservative jurisprudence, in order to achieve its desired results, is marked with the exact same jurisprudential deficiencies that Judge Wilkinson condemns in liberal jurisprudence. Finally, Judge Wilkinson’s attempt to defend contemporary conservative thought against liberal attack is misdirected because the liberal/conservative dichotomy he describes is not the primary line that currently divides the conservative and liberal camps. The division is not between a jurisprudence that inappropriately responds to individual poignancies and one that relies on sharp lines and collective concerns. Rather the essential division is between a liberal jurisprudence geared to protecting the marginalized groups in society versus a conservative jurisprudence that tends to reinforce the existing powers of dominant groups. As this essay demonstrates, conservatives have taken their role in protecting entrenched interests quite seriously. They have expanded the constitutional rights of already powerful interests. They have opposed liberal attempts to increase the constitutional protections accorded marginalized groups. They have invalidated legislative attempts that would reduce the disparities between the powerful and the marginalized in the political marketplace. They have consistently resisted both constitutional and legislative attempts to increase the access of disadvantaged litigants to courts of justice. Accordingly, the essay contends that the claim that such a jurisprudence is “compassionate” is difficult to sustain.

Political Cycles of Rulemaking: An Empirical Portrait of the Modern Administrative State

Despite the administrative state’s extensive scope, we know little about how it operates as an empirical matter. This Article provides the first comprehensive empirical examination of agency rulemaking, with and without prior public comment, from President Ronald Reagan to President George W. Bush. Using a large new dataset constructed from twenty years’ (1983–2003) worth of federal agencies’ semi-annual reports in the Unified Agenda of Federal Regulatory and Deregulatory Actions, this Article analyzes variation in agency rulemaking activities with an emphasis on rulemaking at the beginning and end of presidential administrations and around shifts in party control of Congress—midnight and crack-of-dawn regulatory activity—while also assessing some patterns outside those periods. 

The empirical results offer new insights into the rulemaking process and the interplay of politics and regulation. Some of these insights are surprising. For example, certain agencies withdrew more proposed rules after political transitions in Congress than after a new President took office. Rather than capitalizing quickly on their electoral mandates, Presidents generally started fewer, not more, rules in the first year of their terms than in later years. Agencies generally did complete more rules in the final quarter of each presidential administration, but cabinet departments (as a group), finished slightly more actions after the 1994 election changed control of Congress than in President Clinton’s last quarter. And although the press highlighted President Clinton’s spate of midnight regulatory activity, President George H.W. Bush began nearly 50 percent more notice-and-comment rulemakings in the final quarter of his term than did President Clinton and nearly 40 percent more than President Reagan. 

The results have potentially far-reaching normative and doctrinal implications for the functioning and oversight of the administrative state. Politics aside, many agencies have engaged in considerable notice-and-comment rulemaking, suggesting that the traditional regulatory process may not be significantly ossified. Nevertheless, binding rulemaking without prior comment has increased across a wide range of agencies. Focusing on politics, these patterns of regulatory activity during political transitions undermine theories of judicial deference based entirely on agency expertise. But, at the same time, they do not support a political accountability theory based solely on the President. Rather, the regulatory trends call attention to the importance of Congress, in addition to the President, for bureaucratic oversight. In sum, the timing of rulemaking raises interesting questions about the effectiveness and legitimacy of the administrative state.

©Virginia Law Review Association. All rights reserved.