Volume 13 / Number 2 / Summer 2009



For Whom Is the Heller Decision Important and Why?

Sanford Levinson

While the Heller decision has already been deemed of great significance by the legal community, it is too soon to tell what its long term effects may be. Cases filed in the immediate aftermath of the Supreme Court’s decision suggest that Heller will not produce significant change to the American legal landscape. Further, the importance of Heller  will almost certainly be affected by the election of Barack Obama and the federal judges he appoints to the bench during his administration. Although predictions on such matters are perilous, it is the author’s inclination that Heller will be relatively insignificant to the practicing bar in the long run. However, even if Heller is unimportant to the practice of law, it may have significance to other groups. It is possible, though unlikely, that Heller may be important from a “cultural literacy” perspective. Additionally, the decision may hold importance for prospective legal academics. Finally, though also unlikely, it is possible that Heller may find long term impact on prospective constitutional designers.

Heller and Second Amendment Precedent

Nelson Lund

District of Columbia v. Heller is the first Supreme Court decision in history to strike down a gun control statute under the Second Amendment. In this case, the Justices were confronted with only one significant Supreme Court precedent, the eight page opinion in United States v. Miller. Surprisingly, Heller contains a patently erroneous statement of the procedural posture of the Miller case. Perhaps in part because of this error, the Heller Court also distorts the Miller holding beyond all recognition.

This brief Essay analyzes Heller’s treatment of Miller. The interpretations of the Second Amendment in the two cases are irreconcilable. There was no legal need for the Heller Court to adopt Miller’s interpretation of the Second Amendment, and no legal excuse for pretending that Miller’s holding was consistent with the interpretation of the Constitution that Heller rightly adopted. The treatment of Miller appears to be part of a larger political strategy in which the Court displayed a calculated half- heartedness toward the original meaning of the Second Amendment. Those who think that the judiciary should adhere to the Constitution should hope that future Courts will not treat Heller as Heller treated Miller.

The District of Columbia v. Heller and Antonin Scalia’s
Perverse Sense of Originalism

William G. Merkel

This Essay weighs Justice Scalia’s Heller opinion in the balance, and finds it wanting. Rather than being a garden variety case of originalism manqué, i.e. an effort to pin point a single original understanding when in fact meaning was hotly contested at the time constitutional text was created, Heller emerges as an act of (self?)-deception or conscious fraud. Few of the historical assumptions that underlie Justice Scalia’s analysis withstand scrutiny. The majority holding—that the Second Amendment was originally understood to protect the right to possess any commonly held weapon for purposes unrelated to militia service such as self-defense and hunting— requires misreading, misunderstanding, or ignoring the bulk of relevant evidence such as the debates on the pending Amendment in the House of Representatives and the common meaning accorded bearing arms in newspapers and pamphlets of the day. Rather than using historical source material to inform his analysis, Justice Scalia operates with the faith-based assumption that the framers must have intended to protect a private right to gun possession, and then manipulates outlying evidence to dress up his claim in ill-fitting pseudo academic garb. In the process he demonstrates conclusively that the originalist methodology he trumpeted in A Matter of Interpretation as the surest remedy against judicial injection of subjective values into constitutional adjudication is in fact nothing more than a hollow sham.

Protecting Gun Rights and Improving Gun
Control After District of Columbia v. Heller

Allen Rostron

The Supreme Court’s decision in District of Columbia v. Heller, rejecting the narrow interpretation of the Second Amendment that most courts previously embraced, might seem to be a significant setback for gun control supporters and a major victory for gun rights advocates. Challenging that conventional wisdom, the author contends that Heller ultimately will help rather than hinder the push toward strong, sensible gun control laws. Justice Scalia’s opinion for the majority in Heller ultimately backs away from the most drastic implications of its reasoning and instead steers toward a more moderate approach under which virtually all existing gun laws should be upheld. Developments since Heller, including the continuing controversy over gun laws in the District of Columbia and the lower courts’ reactions to a wave of post-Heller challenges to the constitutionality of various federal and state gun laws, suggest that the ultimate effects of the Supreme Court’s decision in Heller will be far less dramatic than many initially expected. In the long run, the Heller decision’s most important effect may be to reduce the intensity and bitterness of the nation’s political and cultural debate over guns. By confirming that reasonable gun regulations will not lead to extreme measures like prohibition of all guns, Heller may turn out to be an important victory for both gun control and gun rights.

Heller and the Perils of Compromise

Mark Tushnet

Heller’s compromise was to invalidate one quite restrictive gun regulation while asserting that others are presumptively constitutional. The Court’s opinion does not clearly explicate the methods courts are to use in analyzing gun regulations, and the analogies it draws between the First and the Second Amendments leave the methodological question open. By sketching how First Amendment methods might be applied to Second Amendment problems, this Essay suggests that the revolution in Second Amendment jurisprudence Heller wrought may be less substantial than gun-rights proponents hope.



The Growing Challenge of Pro Se Litigation

Stephan Landsman

This Article addresses the already substantial and rapidly growing docket of pro se cases in both state and federal courts. Despite the long-standing recognition of the right to self-representation in the Anglo-American legal tradition, its effects on the legal system are still poorly understood. Pro se cases pose inherent problems: they can cause delays, increase administrative costs, undermine the judges’ ability to maintain impartiality and can leave the often unsuccessful litigant feeling as though she has been treated unfairly. These problems are likely to worsen since pro se cases already account for approximately forty-three percent of all appeals in the federal courts of appeal each year. Around fifty-four percent of these filings involve petitions brought by prisoners, but more than 10,000 are non-prisoner appeals.

Two broad factors may be responsible for the large volume and growth of pro se litigation. First, multiple trends have made legal services increasingly unavailable at an affordable price. The legal profession has tilted away from representing individuals and towards representing businesses. Federal support for legal services for the poor has declined by a third over the last twenty years. Tort reform has set caps on damages awards thereby reducing available contingent fees, and the power of the courts to require the provision of counsel has been narrowed. Second, American culture has long celebrated the notion of the “noble amateur.” Do-it-yourself legal guides are a thriving industry, providing self-help manuals for everything from wills to divorces. Many laypeople believe that with the right guidebook they can master whatever legal challenge they face. At the same time the legal community’s investment in the adversarial method has delayed reform. The organized bar has a long history of protecting its monopoly on the practice of law and has resisted measures that could broaden competition to provide legal services.

The Author advocates the adoption of a set of initiatives guided by the goal of giving pro se litigants a genuine opportunity to voice their views to a responsive decision maker. Courts should adopt practices that are transparent and acknowledge both sides. In many cases, however, there is no substitute for legal representation. Policy-makers should consider more robust use of the appointment authority along with the creation and maintenance of a pool of lawyers willing to accept appointment.

Federal Criminal Litigation in 20/20 Vision

Susan N. Herman

In this Article, the author examines three snapshots of the history of criminal litigation in the federal courts, from the years 1968, 1988, and 2008, with a view to predicting the future course of federal criminal adjudication. The author examines three different aspects of federal criminal litigation at these different points in time: 1) the volume and nature of federal criminal cases, 2) constitutional criminal procedure rules, and 3) federal sentencing, highlighting trends and substantial changes in each of those areas. Throughout the Article, the author notes the ways in which the future of federal criminal litigation greatly depends upon the politics of the future, including potential nominations to the federal judiciary by President Barack Obama.

Striking a Devil’s Bargain: The Federal Courts and Expanding Caseloads in the Twenty-First Century

Diarmuid F. O’Scannlain

Over the past four decades, caseloads in the federal courts have grown by leaps and bounds. During the twelve months ending in September 2008, more than sixty-one thousand cases reached the twelve regional United States courts of appeals, which have only 167 active judgeships. Such impossibly inflated dockets have forced the federal appellate courts to create an administrative system that sacrifices justice for efficiency. Today, motions and staff attorneys play a critical role in sifting through thousands of appeals. To cope with the caseload volume crisis, this Article suggests a different path: a limited system of discretionary review, reserved for cases that have already been reviewed multiple times, administered by courts of appeals judges.



Incidence and Accidents:
Regulation of Executive Compensation Through the Tax Code

Joy Sabino Mullane

Congress has enacted a number of tax provisions that aim to penalize companies and their executives when the executive is paid more than Congress thinks is desirable. Congress was motivated to enact these provisions by intense public sentiments regarding executive compensation levels during times of economic turmoil. This Article demonstrates, however, that not only are these provisions ineffective at reducing executive compensation levels, but they penalize the wrong people. This Article reveals that the penalties do not significantly fall on the executives that Congress was targeting with enactment of the penalties. Instead, these penalties impose costs on a variety of constituencies who are, generally speaking, ordinary Americans. Thus, the actual effect of the tax penalties is to harm the people who were the catalyst for enactment of the tax penalties in the first place.

Who bears the financial burden and is penalized by tax penalties on executive compensation has received almost no attention in the legal literature. Consideration of this issue, however, is of contemporary relevance as Congress has been considering expanding the use of tax penalties in an effort to not only curtail executive compensation but also to raise federal revenue. The Article concludes with suggestions for dealing with the underlying problems regarding executive compensation levels in place of enacting tax penalties aimed at the symptoms of these problems.