Volume 2018, No. 3

Table of Contents

Articles

The Jurisprudence of Uncertainty: Knowledge, Science, and Abortion
Mary Ziegler

While the outcome of abortion cases seems to depend exclusively on the undue-burden standard, we have mostly missed the linchpin of recent decisions: conclusions about who has the authority to resolve uncertain scientific or moral questions. Using original archival research, this Article traces the history and present-day impact of the law and politics of uncertainty doctrine in abortion law.

The Article makes sense of the inconsistency running through the Court’s abortion jurisprudence: that the Court has not applied a single, coherent definition of uncertainty. Specifically, the Court has confused objective uncertainty, involving gaps in knowledge that can theoretically be closed through research, and subjective uncertainty, involving moral, ethical, or philosophical questions. Conflating these two kinds of uncertainty has led the Court to inject moral disapproval and disgust into what theoretically are questions of fact. The Article proposes that the Court should formally distinguish between objective and subjective uncertainty. In cases of subjective uncertainty, the Court should generally defer to legislatures’ views on matters like the value of fetal life or equality for women, balancing them against the constitutional liberty recognized in Casey and Roe. When dealing with objective uncertainty, the Court should look for evidence on the purpose and effect of a law as the Court recently explained in Whole Woman’s Health v. Hellerstedt. Disentangling the two forms of uncertainty will make abortion jurisprudence more coherent, consistent, and faithful to the balance of competing constitutional values that Casey and Whole Woman’s Health command.

Racial Character Evidence in Police Killing Cases
Jasmine B. Gonzales Rose

The United States is facing a twofold crisis: police killings of people of color and unaccountability for these killings in the criminal justice system. In many instances, the officers’ use of deadly force is captured on video and often appears clearly unjustified, but grand and petit juries still fail to indict and convict, leaving many baffled. This Article provides an explanation for these failures: juror reliance on “racial character evidence.” Too often, jurors consider race as evidence in criminal trials, particularly in police killing cases where the victim was a person of color. Instead of focusing on admissible evidence, jurors rely on race to determine the defendant’s innocence, the victim’s propensity for violence, and the witnesses’ credibility. This Article delineates the ways in which juror racial bias is utilized to take on evidentiary value at trial and constructs evidence law solutions to increase racial equality in the courtroom.

Law and Social Movements: Reimagining the Progressive Canon
Scott L. Cummings

This Article examines the “progressive legal canon”—iconic legal campaigns to advance progressive causes—and explores the implications of canon construction and critique for the study of lawyers and social movements. Looking backward, it reflects on why specific cases, like Brown v. Board of Education and Roe v. Wade, have become fundamental to progressive understandings of the role that lawyers play in social movements and how those cases have come to stand for a set of warnings about lawyer and court overreach. It then explores what might be gained from constructing a contemporary progressive legal canon and under what criteria one would select cases for inclusion. A core contribution of the Article is to synthesize examples of significant contemporary campaigns that respond to original canon concerns and complicate notions of lawyering in current movements of social import around labor, the War on Terror, LGBT rights, immigrant rights, and racial justice.

The LGBT Disconnect: Politics and Perils of Legal Movement Formation
Marie-Amélie George

The LGBT movement is facing a crucial dilemma. Although the movement presents itself as a coalition of gays, lesbians, and transgender individuals, many Americans accept and approve of the former (LG), but not the latter (T). Opponents of LGBT rights have capitalized on this social and political disconnect in local ballot measure campaigns, convincing voters to repeal sexual orientation anti-discrimination laws by highlighting that the statutes also contain gender identity protections. There is thus a sufficiently large gap between the identity categories that lesbian and gay legal victories have not built support for transgender rights, and yet they are integrated enough that one can be deployed against the other.

Drawing on extensive original primary source research—including archival materials, newspaper articles, television advertisements, legislative histories, and court filings—this Article uncovers the debates, conflicts, and decisions that shaped the place of transgender rights within the coalition, and argues that national LGBT rights organizations’ legal strategies unintentionally contributed to this contemporary disconnect. This Article demonstrates why it is so important for LGBT rights groups to address this problem by chronicling anti-transgender rhetoric in local ballot measures, where citizens are increasingly voting to repeal LGBT rights. It concludes by identifying several options for how LGBT rights groups can eliminate the gap between lesbian/gay and transgender, which it uses to develop a taxonomy of social movement mobilization.

Comments

The Explosive Recall: Proposing Solutions to Handle the Void Left by the Takata Bankruptcy
Justin Top

Since 2004, Takata Corporation knowingly manufactured defective airbags capable of causing death. In 2008, Honda recalled the first 4,000 cars with Takata airbags. Since then the Takata recall has grown to the largest automobile recall in history. However, in June of 2017, Takata declared bankruptcy which has limited the recovery of injured owners and passengers. The recent bankruptcy has renewed the focus on notifying consumers of the harm these airbags present and ensuring recovery in the event of injury.

This Comment provides multiple solutions to attempt to curb the harm that owners and passengers of these defective vehicles face. One such solution involves the affixture of warning labels to all affected airbags in order to provide information to occupants about the risks of the vehicle. After noting the limitation of recovery available for injured occupants, this Comment instead argues that an insurance rider specific to the recall is necessary to both provide recovery and incentivize action. While focusing mainly on the occupants of these vehicles, this Comment also analyzes the impact on other market participants.

The Use of Wisconsin’s Bail Jumping Statute: A Legal and Quantitative Analysis
Amy Johnson

Wisconsin passed its bail jumping statute in 1969 as part of a larger overhaul of the State’s criminal procedure. Enacted to coincide with other changes which adopted flexible bail provisions, the statute created the crime of bail jumping. This allows for defendants who violate the conditions of bond to also be prosecuted criminally, regardless of whether the violation is a standalone crime or not. However, the statute does not specifically call out the unit of prosecution; that has been left to the Wisconsin courts to decide. The holdings in the cases that have interpreted the statute have created ambiguity regarding the unit of prosecution and raise concerns about double jeopardy. Wisconsin courts’ interpretations of the bail jumping statute defy the plain meaning of the statute and do not pass the two-prong multiplicity test for double jeopardy. 

The ambiguity created by these interpretations has led to an increase in bail jumping charges, absurd consequences, and potential sentences that are disproportionate to the charged crimes. The result is that defendants are at marked disadvantage when negotiating plea deals. Analysis of the data from the Wisconsin Consolidated Court Automation Programs reveals that bail jumping charges have increased significantly over time. The data also suggests that an underlying purpose for filing bail jumping charges may be to create leverage against defendants to induce them to plead to their original charge rather than to punish them for violating their bond conditions. While not conclusive as to causation, the correlation between bail jumping charge dismissals and pleas to other charges cannot be ignored. The data also reveals that the treatment of bail jumping varies greatly county to county suggesting that a defendant’s geographic location within the state can result in significantly different outcomes. This Comment argues that Wisconsin courts should look to clarify the ambiguity created by its holdings and define a common-sense unit of prosecution that prevents extreme numbers of bail jumping charges. Doing so would reduce the leverage effect that prosecutors have without eliminating it entirely. Wisconsin would also benefit from implementing a more uniform approach to setting bail conditions that continues to meet the goals of public safety and protection while also increasing the likelihood of fair and uniform application statewide.