Conventional wisdom tells us that, after the United States was founded, we replaced our system of common law crimes with criminal statutes and that this shift from common law to codification vindicated important rule-of-law values. But this origin story is false on both counts. The common law continues to play an important role in modern American criminal law, and to the extent that it has been displaced by statutes, our justice system has not improved. Criminal statutes regularly delegate questions about the scope of criminal law to prosecutors, and judges have failed to serve as a check on that power. As a consequence, the current system provides less notice, less accountability, less separation of powers, and more potential for abuse than the common law system. Thus, to the extent the statute has displaced common law, the shift is not a story of the triumph of the rule of law; it is instead a story of legislative excess, prosecutorial supremacy, and judicial abdication. The conventional wisdom of criminal common law is not only false, but it also conceals the failings of our current criminal justice system.
Article
Confining Cases to Their Facts
Stare decisis is the mainstay of doctrinal stability. But through the little-known expedient of “confining a case to its facts,” courts can evade the pull of stare decisis by overruling everything a decision stands for except its precise result. This doctrinal workaround has enabled courts to sidestep the formal requirements that attend overruling and quietly undermine precedent without stirring public interest. But confining’s conveniences are offset by its considerable dangers: it cuts courts loose from the constraints of stare decisis; it requires judges to engage in unprincipled, fact-bound adjudication; it dilutes the integrity of the law by enshrining contradictory legal principles; and it conflicts with modern retroactivity doctrine. Remarkably, the law of precedent has failed to account for this unusual practice. Confining and overruling have been deployed interchangeably, with little regard for their distinctive attributes. In this first in-depth treatment of confining, we offer guidelines for its responsible use—ones designed to place the practice on sounder theoretical footing and to end its indiscriminate use across the federal and state court systems.
Combating Silence in the Profession
Members of the legal profession have recently taken a public stance against a wave of oppressive policies and practices. From helping immigrants stranded in airports to protesting in the face of white nationalists, lawyers are advocating for equality within and throughout American society each and every day. Yet as these lawyers go out into the world on behalf of others, they do so while their very profession continues to struggle with its own discriminatory past.
For decades, the legal profession purposefully excluded women, religious minorities, and people of color from its ranks, while instilling a select group of individuals with the privilege of power and prestige. And while the profession often attempts to take concrete steps to address its history of exclusionary conduct—most recently through the passage of Model Rule 8.4(g)—the vestiges of its discriminatory past continue to affect all corners of the profession, particularly for communities of color. When one looks at the partnership ranks of large law firms, the clerks who work for Supreme Court Justices, the faculties that educate law students, and even the members of law review editorial boards, the continued challenge of creating an inclusive and diverse profession remains apparent. These challenges, at least in part, are related to the covert discrimination that confronts women and people of color each and every day both within and outside the legal profession.
And yet, there are steps that the profession can take to address the most insidious forms of discrimination that remain within its ranks today. Drawing on scholarship from the fields of professional responsibility, employment discrimination, and organizational behavior and management, this Article argues that members of the legal profession should adopt policies and practices that (i) address covert discrimination throughout the profession and (ii) encourage individual attorneys to stop remaining silent and instead give voice to their experiences of discrimination, harassment, and bias. Research suggests that traditionally unrepresented groups within the profession often exist within a shroud of silence. They are often forced to silence themselves, their opinions, their views, and their experiences for fear of being labeled angry, troublesome, sensitive, or unwilling to be a “team player.” That silence, it turns out, is quite damaging. As such, the profession should adopt policies targeted at “Combating Silence in the Profession” that will encourage underrepresented groups to voice their concerns and experiences, so that a more inclusive profession finally comes into being.