Todd E. Pettys

The Analytic Classroom

Todd E. Pettys — Wed, 12 Sep 2012 08:38:40 PDT

This article proposes a dramatic shift in law schools’ approach to teaching doctrinal courses. The proposal flows in large part from three separate developments: (1) the rise of strong economic headwinds in the market for legal education; (2) the emergence of empirical evidence that law schools are falling short of their goal of equipping students with powerful analytic abilities that transcend the particular doctrinal frameworks law schools teach; and (3) the incipient revolution in higher education, with prestigious universities now aggressively pursuing the opportunity to provide the public with free or low-cost access to many of their courses through the Internet. Ever since the Langdellian revolution of the late nineteenth century, subject-matter coverage and cognitive development have battled for primacy in law school classrooms. We have purported to achieve both objectives simultaneously through the pedagogical techniques we employ, particularly through our practice of questioning students about appellate rulings. The historical and empirical records suggest, however, that those objectives often sit in strong tension with one another, and that faculty and students alike commonly make choices that prioritize doctrinal coverage over analytic development. The key to changing that stubborn dynamic lies in loosening the Langdellian link between teaching students doctrine and developing students’ minds. By using Web-based technologies—technologies that are likely to become pervasive in mainstream higher education regardless of our initial eagerness to embrace them—faculty can introduce students to doctrinal frameworks before they enter the classroom. Confronted then with the need to rethink the chief purposes of live classroom sessions, faculty can focus their energies on developing activities that build on those doctrinal frameworks in ways aimed squarely at strengthening students’ analytic capacities.

Judicial Retention Elections, the Rule of Law, and the Rhetorical Weaknesses of Consequentialism

Todd E. Pettys — Wed, 10 Aug 2011 04:15:12 PDT

From Alaska to Florida, the 2010 election season brought the nation an unprecedented number of organized campaigns aimed at denying retention to judges who had ruled in ways that some voters found objectionable. Judges in those and other retention-election states can no longer rest comfortably on the assumption that voters will routinely exempt them from meaningful scrutiny. Anxious judges, state bar officials, and others have responded with a set of deontological and consequentialist arguments aimed at persuading voters not to use retention elections as an opportunity to oust judges who have issued controversial rulings. The deontological arguments posit that ousting judges because one disagrees with some of their decisions is intrinsically inconsistent with the rule of law, while the consequentialist arguments contend that anti-retention campaigns threaten to degrade the integrity, fairness, and impartiality of the states’ judicial systems. In this Article, I push back against the common wisdom in legal circles by arguing that the leading rhetorical strategies of those who seek to defend judges against anti-retention campaigns are fundamentally misguided. I contend that the deontological arguments are usually false and the consequentialist arguments lack the rhetorical power necessary to persuade morally outraged voters to set their anger aside on Election Day. I conclude that either we should abandon judicial retention elections altogether and limit appointed state judges to single terms, or those judges and their defenders should set aside their historic reluctance to engage citizens in civil discourse about controversial rulings and their legal and moral underpinnings.

Judicial Discretion in Constitutional Cases

Todd E. Pettys — Fri, 06 May 2011 07:35:31 PDT

A damaging dichotomy is hindering the nation’s ability to talk intelligently and constructively about the constitutional work of the courts. The “legitimacy dichotomy” holds that, when adjudicating constitutional disputes, judges either obey the sovereign people’s determinate constitutional instructions or illegitimately trump the sovereign people’s value judgments with their own. The legitimacy dichotomy leaves little or no room for the possibility that an array of conflicting interpretations of the Constitution might be reasonably available to a judge; it leaves little or no room, in other words, for judicial discretion. This article begins by examining the legitimacy dichotomy from three different vantage points: evidence which suggests that rhetorical invocations of the legitimacy dichotomy mask more complex beliefs about the role of judicial discretion in constitutional adjudication, Justice Kagan’s critique of the now-famous umpire analogy during her confirmation hearing in June 2010, and the debate between Justice Stevens and Justice Scalia in McDonald v. City of Chicago about the extent to which judges may properly exercise their discretion when adjudicating questions of substantive due process. The article then suggests that law schools are inadvertently and regrettably encouraging at least some of their students to believe that judges’ discretion is almost entirely unconstrained and that judges often thus behave as democratically illegitimate actors. Finally, in an effort to provide law students and others with an understanding of constitutional adjudication and of constitutional change that is both descriptively accurate and democratically legitimate, the article draws connections between democratic constitutionalism and judicial discretion, and then offers metaphors for explaining that relationship.

Evidentiary Relevance, Morally Reasonable Verdicts, and Jury Nullification

Todd E. Pettys — Tue, 19 Apr 2011 09:03:38 PDT

In Old Chief v. United States, the Supreme Court stated that evidence offered by the Government in a criminal case has “fair and legitimate weight” if it tends to show that a guilty verdict would be morally reasonable. This Article focuses on that proposition. First, it discusses the ways in which Old Chief’s analysis rests upon a broadened understanding of evidentiary relevance. Second, it argues that significant theoretical difficulties impede any effort to determine whether evidence tends to show that a guilty verdict would be morally reasonable. Third, it argues that adopting Old Chief’s conception of relevance would necessitate significant changes in the rules relating to jury nullification. Specifically, if a prosecutor were permitted to present evidence in part for the purpose of demonstrating that a guilty verdict would be morally reasonable, the defendant might be entitled to present evidence in part for the purpose of demonstrating that a guilty verdict would be morally unreasonable; the defendant would have a Fifth and Sixth Amendment right to argue, during his or her closing argument, that the Government’s evidence fails to show that it would be morally reasonable to convict; and the defendant would be entitled to a jury instruction that informs the jurors, at a minimum, that the Government’s evidence has been admitted in part for the purpose of persuading them that a guilty verdict would be morally reasonable.

Federal Habeas Relief and the New Tolerance for "Reasonably Erroneous" Applications of Federal Law

Todd E. Pettys — Tue, 19 Apr 2011 09:00:12 PDT

In Williams v. Taylor and Ramdass v. Angelone, the United States Supreme Court confronted one of the core provisions of the Antiterrorism and Effective Death Penalty Act of 1996 and confirmed what some had hoped and others had feared: A federal court may no longer grant habeas relief merely because it concludes that a state court erroneously applied federal law when it rejected a state prisoner’s federal constitutional claim. Instead, a federal court must deny habeas relief to a state prisoner whose federal constitutional rights have been violated and whose requests for relief have been erroneously denied by a state court, so long as the state court’s erroneous application of law to fact was objectively reasonable. It is not clear, however, how courts should distinguish between reasonably and unreasonably erroneous applications of federal law. After briefly describing the evolution of the federal habeas standard of review for mixed questions of law and fact, this article points out the ways in which several well-known standards of review fail to illuminate the manner in which courts are to apply the new “unreasonably erroneous” standard. The article then discusses the standard’s implicit rejection of two theories of adjudication—deterministic formalism and indeterministic skepticism; examines the contributions of conventionalism; and illustrates the difficulties one faces when trying to frame a theory of adjudication that will enable federal courts to apply the “unreasonably erroneous” standard in a persuasively principled manner in all cases. Finally, the article proposes three analytic touchstones that, in the absence of an overarching theory of adjudication, can help federal courts determine the likelihood that state courts’ rulings should be deemed objectively unreasonable.

Competing for the People's Affection: Federalism's Forgotten Marketplace

Todd E. Pettys — Tue, 19 Apr 2011 08:56:15 PDT

Returning to forgotten themes in the Federalist Papers, the article argues that the state and federal governments compete with one another for the “affection” of their citizens and for the regulatory power that often accompanies that affection. The article further contends that citizens and politicians are able fully to participate in this affection-driven marketplace only if three prerequisites are met: each sovereign must be assured of an opportunity to demonstrate its competence; each sovereign must enjoy a significant measure of autonomy from the other; and the two sovereigns’ dealings with one another must be sufficiently transparent to enable citizens to allocate praise and blame in an accurate fashion. The article then argues that, although the Court has not characterized its federalism rulings in this way, and although one may question whether the judiciary is ultimately competent to play an ongoing, prominent role in preserving the marketplace’s vitality, the Court appears determined to ensure that these three market requirements are satisfied. The article concludes by urging courts and scholars to consider the ways in which the marketplace’s health may best be preserved and the ways in which a broad range of legal doctrines and law-making practices frustrate or advance federalism’s forgotten objective of competition between the two sovereigns.

The Mobility Paradox

Todd E. Pettys — Tue, 19 Apr 2011 08:51:43 PDT

Nearly half a century ago, in an article spanning a mere nine pages, Charles Tiebout revolutionized the way many think about American federalism. Using the analytic tools Tiebout gave them, numerous scholars now contend that, in our mobile society, citizens’ interests would best be served by dramatically shrinking the federal government and permitting state and local governments to regulate a far greater number of important matters. In this article, I argue that citizens’ interests and the dynamics of federalism are far more complicated than the devolutionary proposals of Tiebout’s adherents suggest. I identify three reasons why a mobile—and rational—public might demand federal legislation that reflects their strongly held regulatory preferences. First, citizens who might one day want or need to move across state lines have an interest in securing federal legislation aimed at maximizing the number of jurisdictions in which they would be happy to live. Second, regardless of the likelihood of their own future mobility, citizens in a mobile society have an interest in favorably shaping the norms and regulatory preferences of their future neighbors, no matter where in the country those future neighbors currently reside. Third, citizens in a mobile society have an interest in minimizing the occasions on which they feel alienated from the national community. I argue that, as a result of these interests, citizens suffer negative externalities when jurisdictions other than their own adopt regulations that those citizens find significantly objectionable. By favoring centralization on issues they regard as important, therefore, citizens manifest an intuitive understanding of a truth long recognized by political economists: one of the best remedies for interstate externalities is federal legislation. Scholars and ordinary citizens alike thus face an exceptionally difficult task—namely, determining when states and localities should regulate in an effort to maximize the number of regulatory alternatives from which mobile citizens may choose and when the federal government should regulate in an effort to minimize the negative externalities many citizens suffer when jurisdictions other than their own adopt regulations those citizens find unacceptable.

Our Anticompetitive Patriotism

Todd E. Pettys — Tue, 19 Apr 2011 08:45:07 PDT

In this article, I contend that the nation’s seemingly exclusive claim to citizens’ patriotism significantly shields the federal government from the competitive forces that the Framers believed would restrain Congress’s and the President’s ability to govern in objectionable ways. I argue that, because America is a nation-state built upon certain core convictions about public life, there are strong connections in this country between the entity about which people feel patriotic and the sovereign that people would like to govern many—perhaps even most—of their important public affairs. I argue that American patriotism was constructed in a manner that led nineteenth- and twentieth-century Americans to shift a vast amount of their regulatory business to the federal government and that now leads many Americans to be averse to shifting significant power back to the states, even when they believe the nation’s leaders are governing irresponsibly. With respect to the intended competition between the states and the federal government, therefore, our patriotism has become strikingly anti-competitive.

The Vitality of the American Sovereign

Todd E. Pettys — Tue, 19 Apr 2011 08:35:28 PDT

In this book review, I examine Christian Fritz's "American Sovereigns: The People and America's Constitutional Tradition Before the Civil War." I dispute Fritz's claim that Americans today have essentially ceded their sovereign prerogatives to government officials. Contrary to Fritz's suggestion, ordinary Americans do still sometimes intervene directly in day-to-day governmental affairs in ways that are unauthorized by their elected leaders, and they do alter their constitutional landscape by means other than those formally authorized by Article V. Americans have determined that their long-term interests are often best served by manifesting their sovereign desires through extended interactions with government officials and institutions--interactions that permit the sovereign people to retain ultimate control over their government and their Constitution, but that permit government institutions to retain the credibility and power that they need in order to do the people's work.

Sodom's Shadow: The Uncertain Line Between Public and Private Morality

Todd E. Pettys — Tue, 19 Apr 2011 08:26:02 PDT

In citizens’ debates about issues of public policy, we frequently encounter what this Article calls the divine accountability thesis—the controversial claim that the divine realm will punish a city, state, or nation unless it performs or proscribes certain forms of conduct. Many of us reject that claim, but its persistent usage in numerous societies over the past five thousand years teaches us a great deal about citizens’ political self-conceptions. This Article begins by arguing that the divine accountability thesis illustrates human beings’ deeply ingrained tendency to regard their political communities as discrete moral entities, individually deserving of punishment or reward. Drawing from the work of Ronald Dworkin and others, the Article then argues that the divine accountability thesis has an influential secular counterpart, consisting of two widely shared perceptions that, taken together, compose what this Article calls the integration thesis. The integration thesis holds that our individual identities are integrated with, and partially constructed by, the political communities to which we belong, and that each of our political communities is akin to a personified moral agent whose conduct reverberates in the individual lives of its integrated members. The integration thesis and the divine accountability thesis often push in precisely the same direction—namely, toward using the law as a means of stripping individuals of their freedom to make certain moral decisions for themselves. Hoping to draw advocates of these and other political viewpoints onto common ground, the Article proposes seven questions that all scholars and citizens ought to ask when assessing whether a given moral issue should be resolved collectively by a political community or should be left for each individual to resolve on his or her own.

Instrumentalizing Jurors: An Argument Against the Fourth Amendment Exclusionary Rule

Todd E. Pettys — Tue, 19 Apr 2011 08:10:04 PDT

In this symposium contribution, I argue that (1) courts infringe on jurors' deliberative autonomy in a morally problematic way whenever they refuse to admit evidence that is both relevant and reasonably available; (2) this infringement is especially problematic in the Fourth Amendment setting; and (3) although there are several ways in which these moral problems could be at least partially mitigated, the best approach might be to abandon the Fourth Amendment exclusionary rule entirely.

Choosing a Chief Justice: Presidential Prerogative or a Job for the Court?

Todd E. Pettys — Mon, 04 Jan 2010 12:18:38 PST

After identifying the original rationales for our longstanding tradition of permitting the President and Senate to decide which of the Court’s nine members will serve as Chief Justice, I argue that those rationales are anachronistic, that the tradition creates unnecessary conflicts of interest and separation-of-powers concerns, and that the Court’s members should be permitted to decide for themselves which of them will serve as Chief Justice.

Killing Roger Coleman: Habeas, Finality, and the Innocence Gap

Todd E. Pettys — Mon, 04 Jan 2010 12:15:51 PST

For the past fifteen years, the execution of Roger Coleman has served as perhaps the most infamous illustration of the U.S. Supreme Court’s determination to help the states achieve finality in their criminal cases. Convicted of rape and murder in 1982, Coleman steadfastly maintained his innocence and drew many supporters to his cause. In its 1991 ruling in Coleman v. Thompson, however, the Court refused to consider the constitutional claims raised in Coleman’s habeas petition. The Court ruled that Coleman had forfeited his right to seek habeas relief when, in prior state proceedings, his attorneys mistakenly filed their notice of appeal one day late. Amidst international media attention, Virginia authorities executed Coleman the following year. Faced with continuing controversy about the case, the governor of Virginia ordered new DNA tests in January 2006—tests that confirmed Coleman’s guilt and finally brought an end to a story that began with a young woman’s death twenty-five years earlier. In this Article, Professor Pettys argues that there are important lessons to be learned from the fact that finality was not achieved in Coleman’s case until long after the Supreme Court declared the case closed. Although finality is a worthy goal, the Court has failed to account for the fact that finality is exceptionally elusive when the public fears that a person facing severe punishment was convicted of a crime he or she did not commit. Although the Court has said it will adjudicate the merits of a procedurally flawed habeas petition when a prisoner makes a persuasive showing of innocence, Professor Pettys 2314 KILLING ROGER COLEMAN [Vol. 48:2313 argues that the Court’s habeas jurisprudence suffers from an “innocence gap”—a gap between the amount of exculpatory evidence sufficient to thwart finality and the amount of exculpatory evidence sufficient to persuade a federal court to forgive a prisoner’s procedural mistakes and adjudicate the merits of his or her constitutional claims. Professor Pettys concludes by arguing that Congress is harmfully widening that gap even further.

The Emotional Juror

Todd E. Pettys — Mon, 04 Jan 2010 12:08:55 PST

Addressing the dichotomy often drawn between emotions and rationality, I argue that, while emotions sometimes exert undesirable influences in the courtroom, there are a variety of ways in which emotions aid rational decision-making by jurors.

State Habeas Relief for Federal Extrajudicial Detainees

Todd E. Pettys — Mon, 04 Jan 2010 12:04:51 PST

I argue that the Court’s nineteenth-century rulings in Ableman v. Booth and Tarble’s Case marked a little-known but sharp break with state courts’ decades-long practice of granting habeas relief to federal extrajudicial detainees. I contend that the Court’s reasoning in those cases is unpersuasive, and that modern efforts to rationalize those cases’ outcomes fare no better. I also argue that the Suspension Clause bars Congress from stripping state courts of their power to grant habeas relief to persons being extrajudicially detained by federal authorities.

Popular Constitutionalism and Relaxing the Dead Hand: Can the People Be Trusted?

Todd E. Pettys — Mon, 04 Jan 2010 12:00:21 PST

A growing number of constitutional scholars are urging the nation to rethink its commitment to judicial supremacy. Popular constitutionalists argue that the American people, not the courts, hold the ultimate authority to interpret the Constitution’s many open-ended provisions whose meanings are reasonably contestable. This Article defends popular constitutionalism on two important fronts. First, using originalism as a paradigmatic example of the ways in which courts frequently draw constitutional meaning from sources rooted deep in the past, the Article contends that defenders of judicial supremacy still have not persuasively responded to the familiar dead-hand query: Why should constitutional meanings that prevailed in the past be privileged over the constitutional meanings that a majority of Americans would assign to the text today? The Article considers five of the leading efforts to respond to that query, and argues that each of them falls short of its objective. Second, the Article responds to the most fundamental criticism that has been leveled against popular constitutionalism—namely, that the American people cannot be trusted to preserve constitutionalism’s essential distinction between ordinary and fundamental law, and that citizens thus need to rely upon politically insulated judges to preserve that distinction for them. The Article identifies five reasons to believe that, if the ultimate power to interpret the Constitution’s open-ended provisions were shifted from the courts to the political domain, the American people would prove themselves able and willing to distinguish between their long-term fundamental commitments and their short-term political desires in the kinds of ways that constitutionalism demands.

The Myth of the Written Constitution

Todd E. Pettys — Mon, 04 Jan 2010 11:48:51 PST

Many Americans have long subscribed to what this Article calls the myth of the written constitution—the claim that the nation’s Constitution consists entirely of those texts that the sovereign American people have formally ratified, and the claim that the will of the American people, as expressed in those ratified texts, determines the way in which properly behaving judges resolve constitutional disputes. Drawing on two different meanings of the term myth, this Article contends that neither of those claims is literally true, but that Americans’ attachment to those claims serves at least three crucial functions. Subscribing to the myth helps to ease the tension created by the American people’s paradoxical beliefs that they are morally entitled to govern themselves and that human beings often cannot be trusted to behave in morally praiseworthy ways; it helps to ease the tension between Americans’ commitment to self-rule and their attraction to judicial supremacy; and it helps to secure the strong sense of nationhood that so many Americans deeply desire. The Article suggests that embracing the myth of the written constitution for its functional value need not be seen as a shameful act of self-delusion, despite the fictive qualities of the myth’s claims. So long as courts and scholars maintain the necessary conditions, the American people can responsibly embrace the myth as an act of “poetic faith.”

Counsel and Confrontation

Todd E. Pettys — Mon, 04 Jan 2010 10:15:30 PST

Responding to the Court’s recent reworking of its confrontation jurisprudence, I argue that, under the Anglo-American common-law principles that the Confrontation Clause now incorporates, defendants are not entitled to an attorney’s assistance when interrogating witnesses prior to trial. Although the Assistance of Counsel Clause and the Due Process Clauses will pick up the slack in many cases, I contend that there are other instances in which the Constitution now leaves unrepresented defendants responsible for cross-examining witnesses on their own. I suggest that legislative reform may be necessary to ameliorate the new constitutional landscape’s deficiencies.

The Immoral Application of Exclusionary Rules

Todd E. Pettys — Thu, 06 Sep 2007 08:51:03 PDT

In both civil and criminal cases today, judges routinely withhold relevant evidence from jurors, fearing that jurors would use it in an irrational or legally impermissible manner. Forcing jurors to take responsibility for a verdict based upon a government-screened pool of evidence stands in sharp contrast to the way we ordinarily think about government efforts to withhold potentially useful information from citizens faced with important decisions. The First Amendment’s guarantee of the freedom of speech, for example, reflects a moral judgment that the government offends its citizens’ deliberative autonomy when it restricts speech based upon fears about what that speech might cause citizens to believe or about how that speech might cause citizens to behave. Drawing upon the work of Immanuel Kant, First Amendment theorists, medical ethicists, and others, this Article contends that a court infringes upon jurors’ autonomy in a morally problematic way when it refuses to admit relevant, readily available evidence. The Article argues that this infringement is especially troubling because jury service is a vital component of the American system of self-government, a domain in which citizens’ autonomy interests are particularly strong. The Article focuses on three commonly applied exclusionary rules: the rule barring the admission of relevant evidence believed to pose a risk of unfair prejudice, the rule barring the admission of relevant hearsay, and the rule barring the admission of relevant character evidence when offered to prove how a person behaved on a particular occasion. The Article contends that, while there are occasions when applying these rules is morally permissible, the existing rules sweep far too broadly, infringing upon jurors’ autonomy in ways that cannot be morally justified.