Harry Frankfurt drew a distinction that the law has never formally used: a liar knows the truth and asserts its opposite, while a bullshitter is indifferent to the truth altogether, producing assertion calibrated to what will work rather than to what is so. The distinction matters because the two are almost impossible to tell apart from their output alone, and because the law's machinery for detecting deception - intent, knowledge, scienter - is built entirely for the first category and has essentially nothing to say about the second. A professional who files a claim their own evidence already contradicts may have lied. They may equally have never checked, because checking was not necessary to produce a filing that does its job. The document looks the same either way. This paper argues that civil litigation, professional liability, and the institutions that sit above both have organised themselves around exactly this blind spot, and names the structural reason it persists: the Self-Reporting Fallacy. The fallacy is this: every actor positioned to read a legal file has a stake in the answer it gives. A client depends on trusting their own lawyer's account - a client who does not trust it has already, in effect, dismissed their counsel. A lawyer who filed a document is committed to its coherence regardless of who created the gap inside it. An insurer receives a summary of the file, not the file. A court sees what each side chooses to argue, not what either side has chosen not to mention. None of this requires bad faith to operate; it requires only that each actor behave exactly as their position already rewards them for behaving. The result is a system that can prosecute the rare, provable lie but has no mechanism at all for the far more common case - the assertion nobody checked, made by someone with every reason not to check it, sitting undetected in a record that would have shown the gap to anyone reading without a stake in the outcome. This paper specifies what a reading position with no stake in the outcome would need to do differently, building on this author's prior work on the distance between an assigned professional's competence and a matter's actual demands, and on the economics of strategic silence under current legal defaults. It adds a third element, specified here for the first time: a test for whether a filing's own positive factual claims survive contact with its own attachments -- and with what the record conspicuously fails to address -- independent of whether the gap originated in incompetence or in design. Demonstrated against one recurring event -- the moment a professional's own filed evidence contradicts their own asserted position, converting a routine dispute into an independent professional-liability exposure that frequently dwarfs the underlying claim -- the combination shows what becomes visible only once Frankfurt's distinction is taken as seriously in litigation as it has been taken in moral philosophy for forty years: not who is lying, but who has stopped checking, and what that costs everyone still relying on them to have checked. This paper also situates the resulting method against the existing landscape of advocacy ethics, litigation analytics, and legal-AI document review, and argues that none of these literatures, individually mature as each is, was ever positioned to ask the question this paper asks. It closes by naming the category of instrument such a method makes possible, locating the professional-indemnity insurance industry as its natural first market, and offering, as existence proof rather than as its subject, a prototype instrument built by this author that demonstrates the method is achievable with present techniques.
On June 22, 2026, the White House issued Executive Order 14413, directing the federal government to accelerate the deployment of quantum computing and to assess "the implications for the migration to post-quantum cryptography." The order is the latest and loudest signal of a fact the legal system has not yet absorbed: the cryptographic assumptions behind nearly all digital proof carry an expiration date. Every electronic signature, every encrypted database, and every blockchain transaction rests on math that a sufficiently powerful quantum computer can break. When that computer arrives, adversaries will be able to forge the signatures and decrypt the records on which courts, regulators, and markets now rely. Data stolen today is already being warehoused for decryption tomorrow. Signatures trusted today may be forgeable tomorrow. This Article argues that the quantum transition forces the law to confront a distinction it has long been able to ignore: the difference between probabilistic verification (an intermediary's opinion, an AI confidence score, an auditor's judgment) and deterministic verification (a mathematical result that anyone can independently reproduce). Across digital identity, financial services, insurance, defense, supply chains, and digital assets, organizations prove claims through intermediaries whose honesty cannot be checked and whose methods cannot be reproduced. A small set of well-understood cryptographic tools can replace that fragmented apparatus: hardware-secured signing keys, Merkle tree timestamping, post-quantum signature standards, and zero-knowledge proofs. Together they produce verification that is reproducible, tamper-evident, and quantum-resistant from the outset. The Article makes three contributions. First, it reframes the “verification gap” as a legal problem rather than a technical one, showing how the Federal Rules of Evidence, the Daubert reliability standard, data breach liability doctrine, and fiduciary oversight duties each already point toward deterministic proof. Second, it shows that quantum risk is collapsing the legal defenses built on classical cryptography, most visibly the “it was encrypted” defense in breach litigation, while creating new disclosure and diligence obligations for boards. Third, it maps deterministic verification onto concrete applications in six sectors and proposes a regulatory framework, including a “deterministic assurance level” for evidentiary purposes and a public governance process for the rule schemas that translate law into machine-checkable criteria.
Probate stands as a bastion of legal formalism, seemingly resistant to the transformative currents of digital innovation that have swept through other domains of American law. While financial transactions, real property conveyances, and contract execution have increasingly begun exploring the use of Web3 technologies such as blockchain and smart contracts, estate and probate law remain tethered to paper-based procedures and rigid execution requirements. Nevada was the first state to provide legal support for Web3 technology, amending its Uniform Electronic Transactions Act statutes in 2017 to recognize blockchain-based transactions as valid and judicially enforceable. Yet despite this progressive legislative framework, the state’s estate and probate laws remain unchanged. What reforms are required to extend this legal recognition of blockchain to testamentary instruments and probate administration? To explore this, I begin in Part I by examining Nevada’s existing statutory framework for traditional paper wills, electronic wills, and probate administration, identifying where these laws diverge from the state’s more progressive legislation governing blockchain-based transactions. In Part II, I introduce the concept of a blockchain will, explain its technical functionality, and discuss how such instruments can be amended, revoked, or rendered obsolete. I then propose specific legislative reforms that could allow blockchain wills to serve as legally recognized alternatives to traditional paper wills, including the creation of a state-managed blockchain will registry that would provide the procedural infrastructure for securely filing, validating, and preserving blockchain wills. To illustrate how these proposals might operate in practice, hypothetical examples modeling blockchain-based testamentary execution and probate are included. Finally, I analyze the policy considerations both for and against reform, examining the legal barriers that must be addressed and the potential benefits this technology could bring to probate courts.
Multiculturalism has been a substantial part of the U.S. experience and a continued source of tension throughout the country’s existence. From a legal point of view, however, the Anglo-American common law is everywhere the driving force, seemingly leaving limited room for the legal systems of the native populations,1 and even less for the forcefully transported African population, though history proves that these populations had at all times legal awareness and agency.2 While it might seem difficult to describe the U.S. legal system as mixed, its day-to-day, decentralized, bottom-up dynamic interacts with, and draws on, a diversity of endogenous and exogenous cultures. If legal and normative phenomena are considered from the perspective of critical3 or radical pluralism,4 there may be more diversity in the United States than one might expect. The present Report, however, focuses on the State of Louisiana and the Commonwealth of Puerto Rico, both of which qualify as mixed jurisdictions according to mainstream definitions.5 Louisiana is a state in the continental United States. It constitutes the southern portion of a large territory purchased from France in 1803, which, after a short territorial period, became in 1812 the eighteenth state of the Union. The State of Louisiana shares much of its history and culture with other southern states, and its 4.5 million people speak the English language. A Spanish colony for over 400 years, Puerto Rico is a Caribbean island acquired by the United States in 1898. It has a Spanish speaking population of 3.2 million people. Today, the Estado Libre Asociado de Puerto Rico (Associated Free State of Puerto Rico, or the Commonwealth of Puerto Rico) is in a decades long debate as to whether it should become a state of the United States, remain an autonomous territory or become an independent nation. What Louisiana and Puerto Rico have in common is that both have their private law anchored in the civil law tradition, each having a civil code. Louisiana codified its civil law after the Purchase of 1803 (Digest of 1808, Civil Code of 1825, and revised Civil Code of 1870) and engaged in a piecemeal civil-code revision starting in the 1970s. Puerto Rico received the Spanish Civil Code of 1889, which it revised in 1902 and again in 1930, replacing it with a new code in 2020. Regarding their multicultural populations and mixed legal systems, these two jurisdictions have many singularities that justifies that they be discussed in different sections. Louisiana is better known for its Creole culture than for its law.6 As the cradle of jazz, blues, and zydeco music, it is a land of linguistic and cultural diversity resisting the steamroller of a North American model that tends towards uniformity. In this respect, gumbo is an emblematic metaphor of multiculturalism and legal pluralism in Louisiana. It is a beloved local dish that combines a mixture of African, North American, Caribbean, Spanish, and French flavors, where ingredients contribute a unique flavor, while most of them keep their physical identity. A roux is prepared by heating canola oil and flour over medium heat and mixing it well until it reaches a chocolate color. Onions, peppers, and celery are added during the heating process, without burning the roux. Slices of sausage, called “andouille” in Louisiana, find their way into the pot. Chicken broth is then slowly poured in, while the pot is brought to a boil. The mix is seasoned with salt, garlic, and cayenne pepper. Pieces of chicken previously sautéed in olive oil are added, alongside okra, a plant found in West Africa, where it is known as (ki)ngombo in the Bantu language, hence the name “gumbo.”7 The mixture must simmer for a good hour. Duck is a common ingredient, though gumbo can also be cooked with seafood, especially shrimp, abundant in Louisiana, without removing the head. There is no need for a mixer or a blender. Gumbo is served over white rice. The solid ingredients remain perceptible to both the eye and the palate, while the mixture has a unique flavor that varies according to the ingredients, with chunks swimming in the dark soup, which remains quite liquid. Gumbo thus comes from West Africa, which, against its will, provided Louisiana with a large portion of its population, who were beaten with a whip that is not used in the kitchen and brutally enslaved by unscrupulous masters eager to enrich themselves from the production of sugar and cotton. Whether cooked by descendants of settlers from Canada, France, or Spain, of African slaves or Acadian deportees, of sauvages créoles,8 or Yankees, or by boat people from Vietnam, the recipe is a symbol of diversity and It the for in and the of until the Louisiana law is to gumbo in the that it combines chunks of the civil law codified in a civil with a and law which are of common law the of this of the to the ingredients of the legal gumbo a of that the civil law a flavor in a common law the culture the civil law of code while the code remains a It be and to that the process, of common law a blender. It the civil law and its a unique Louisiana, state law is of to and legal different legal civil law from and which the and on the one and the common law from which the by the in a on the each other and then to a mixed, or at the of the of and or whether the of for in Acadian The the of French law by the of name to of the a in the of the colony to and the of as It is that the Civil Code of Louisiana, in after the of the colony by the United States, more or less a of the the of French law more than French in North on the were the where the French culture one has the civil while the of the French the has the the civil and one has to keep both the civil law and the French language. The one is the of the territory of Louisiana purchased by the United States from France in 1803, which became the State of Louisiana in Civil Code and have been in English the Civil comes and then to in and French settlers were by the English in The who to became the of for French is the common law has been it can be both in English and in and is in the French at the de Canada, which became the of by in to remain and has had a Civil Code Code of in Code of tends to the Louisiana Civil Code as a of the of France the it may be as an of a gumbo while its with the that the French from of by de by the to of the of Louisiana to by the of The territory from the of to the by the to the and the to the It should be however, that the in the on in the State of by in The French until the of in in and in and in As a to the and in the system Civil and by a as a of the of of the of The Spanish with the of of the not become until the of in in The and by the and the of by the de the of also the of Louisiana to be by the as the other Spanish The Spanish were more and than the of and the French the the that the legal less than the were during the Spanish period, which a good of Spanish by the population as the colony French the of on Louisiana to France, its The had to remain of that of the Louisiana, which the of the Spanish until the of the of Louisiana by France to the United States in who on 1803, to a system the one that in the other French to or to French on 1803, to the population of the to the United States to to a on 1803, of Louisiana in the name of the United States, received from France a territory Spanish the of Louisiana, the United States the of the and need not be were the of and the hence the of a of with a a and a by the with the to a The of Louisiana the territory of the United a of Louisiana, which to be and and into that become In 1803, the population of the at of which in the of them people of In there were and slaves in Louisiana. The population in of which were in The of the for the territory to for to the as a thus The of and new from and brought and the of the law became the of culture and The Creole in for the of the civil law and the of which in its While the from French to Spanish law in both systems their from and an to Anglo-American common law not be without In to the at it is to point that the the two are not the of the The civil law is a of law in the from the of the of the of the of the which the civil of the and is as a of in in the is to be by the of on the other is a of not on a in the that the The is on the of than on the It is difficult to the their is to the of the of the civil law is in the common law is to a that be without to the of the In the civil law tradition, the is more not the in the of the the who has to the its by the and in with the common law A in the civil law in to in a common law for that a radical in Louisiana not have been or by the legal this is in Louisiana, as an system in after the by the also the of the While both systems the on the civil law the of a by the of the this at common a a The civil law the of of from law with law in after the which the to become the by of the on the of the The common on the other the the of the and the from of the on which It is that in the United States, and the system of of which to a the of the common law other While Louisiana, France and Spain, from law a of the common law on the with from American law in a that on the of In Louisiana the common law the of the civil law that are by the common and a that is limited by a can the of or two after their the by the against In the of common law had the of to the way were and which the of the people that the in at the of the Louisiana Purchase should be to or by the territorial In however, this a The of Louisiana into the United States not without The of the linguistic and legal the other were and of common a that and from the a in of the common law the by to on a to the common a which in a to as the most a of the the of civil law in the The A by the of the the in the two an of the to the of a legal of the civil law is by all and this law is the one which of the population of Louisiana and are to from of which they not themselves without into The to the of the common had no to in to an for legal diversity in a where each state its of to with the U.S. The not a it that it become one in the The of a civil code for the new territory to two both in of an from of French and had received legal in from had to after the their in less than two has it that they the French Civil which had been on the of the of the are that the Code in in Louisiana even while it in at the of the The is that not Louisiana after the also that the Louisiana is not a of the The is not the of to from the Code The Louisiana Code is and and to French law of Spanish as the which a to one of the in Whether the Louisiana Civil Code is French or Spanish remains a in legal It is that the Code its and from many from the French as has it is also that French law and Spanish law were in of the common of and that the Louisiana code on Spanish from the French Code the two were and Spanish that were the Louisiana Civil Code as Spanish in French has the with that on the French to the Spanish which proves that the of the that they in and law the who became an the of the until the of the the French Civil from the as as the of a which by the Louisiana as more to the local of the Louisiana are the of the Louisiana which many more than its French Louisiana at the not and the civil law had to be to and in the common who were of the of the civil law that one of the of were from French legal during the as a part of the population an English hence the The Code into English and in both and its both linguistic on an to the the Louisiana the of the French as the source in the of a the English and the French which to the law by the law that in the of France and the law that in the the of the not to the law of Louisiana to the of the civil law and the of the the of a the law in all by the as the French of the Civil Code had The of the Louisiana Code the law where the new not with the this it at the of to the name than the though the by the French Civil as a radical of and a of civil in to this its to become an of of the without with the The of the of a than a code were the new a to the Spanish for a more and the had to whether or not this by the In the of the had the law as they in the where it that an a not in the a that had not in of the of the of the of law the of to in France, in the of in the civil one to it by for the in Louisiana, and the their and their with the which a source of debate in the less than it had been to The found no better than to in became known as the Civil Code of Louisiana, that of The law for a in the were to that two had to be which were with The Code revised after the Civil in to to and other It in English who were and not to the of the The that one is with a than a code remains an of The Civil Code is a of the legal with other from the common law and other is by from the common The mix or both the Code and the While to the of the common in the to a system to that of the other The a common law also by France during the it into a system with is used in both civil and A by in the and the Spanish Civil codified in of an of civil and common law The in 1812 from the common law flavor, and the civil law by the of the common law system by In Louisiana, the Civil Code to the common law with legal in the Code of Civil The of the Civil Code are and in common law are in in the Louisiana to is found in other Civil which a the civil law and common law the of the with French and Spanish in the of the other endogenous and exogenous should not be even they are to of radical who not at the law from the perspective of the of from the point of of each to a of whether legal or not in the There must be of African the gumbo without themselves The of in or in not their may the way their and their of There is also of the and the who have their and The history of Louisiana law as and by the is to be more of the of the as the and The boat people from who as the of Louisiana contribute to the of while legal It may seem to for legal pluralism in the Civil Code as this is the of the civil law of the Code is to that of law are law and the two of the law in the civil law should be limited to of it not the of Louisiana not seem to a it is that the of the Civil Code room to law by the their their and in that the of and may multiculturalism to the of the legal The of are and the of on by radical though this is in a The Louisiana Code draws from The of the by known as the the of the from Spanish as well as from the French and who much of the French Civil It has been that the of the Code in to the of and the the of and from a mixture of Spanish, and English on the of in and were on as a source everywhere in the United and also in Louisiana. In the Louisiana the Louisiana State with a to the Civil it prepared a piecemeal revision of the by The revision of each is prepared by a of and While most of them the people and their local a have brought to the mix ingredients from the In to the to French and Spanish from the of and or from law can be found in the revision of the law of the of the from and can be in the revision of the law of the of the common law ingredients have also been into the Louisiana common law though of portion and in of remain in the The added on the of or is a more common law its common law the it is of a of the law of the common law are from the of states, in of is in and with which is the of of the French Civil the the of the in the of is in a Civil as the of it that the of a The added are of common law and Louisiana law in with the law of the Civil Code in and in much to the of who to keep the Louisiana for a civil law system in the English language, a civil law than the of the common The Louisiana of the civil code in though the of of the French Civil Code were by the of common law as were the of American in the United States in the alongside other mixed as Africa, and Louisiana has a to the civil law tradition, from the of the common law and its legal this Louisiana also English of of French legal as civil law by and and of and of the French legal in the Louisiana also a in the Louisiana Civil and the Civil Code Louisiana has been the of the French civil law in for two The French to that the American codified their civil law by the model of the As as the French one should not that the Louisiana Civil Code of has been more than a of The Louisiana Civil Code is the of the Spanish civil long in much of and it much in in the not its civil code until 1889, also with an of the Louisiana Civil The of the Louisiana Civil Code as well as the French Civil Code in the in French by and in Spanish by these that other of the as the of the and the Civil Code of The of the Louisiana civil even one in the and even It even the of the civil law tradition, the Code the by of a civil code for the state of civil by the in served as a model for the Civil Louisiana, the United States also received a civil law by way of in the and of the which of the United on of with legal while to In and to be The Civil Code of Louisiana, in English the is again in and in in its The Louisiana not though French remains by over of the state population and is in of While from to a of the cultural and linguistic The French of the Civil Code is on a of the and of the civil law of Louisiana, the to be are of French the the code on two A also and the of Civil is a Spanish which may the Louisiana in as or are and the they the of this legal the of its multicultural Whether it is to the of this Report, though it and in mixed and not mixed The Puerto legal system is a mixed, mixed system with other mixed legal systems the The mixture is to one in and as private Anglo-American as and law and legal and as the of the legal The for the mixture and in history and which to a short of Spanish and U.S. in the Puerto Rico as a Spanish colony in during to the It by and mixture is one and to Puerto Rico as part of the in the of Louisiana and the southern United States, these slaves were and brought to not from a from African were not from their native they were also from their The and especially the and legal from which they not transported to their and in the Caribbean, the or even the of legal as can in the with with and with a long history of legal they were over by As as the local population there are of the native or population, this though and The to local and by as de were and they have an it more in where the population more than in the The legal mixture one in of and is the of the or of and cultural In the Caribbean, until the of and North American and the to a land where they there a The two at times they to local the new were an and not into The into of legal and cultural that in more local not in the Puerto Rico, a a Spanish colony after the of the of its and North American in the decades of the than African which Spanish until the the Puerto Rico, and were the of had a Civil in 1889, to the in and had in a a a land and continental and the of the Puerto Rico a Spanish for a American and in the to a in the United States and in and Puerto the times called in became a U.S. for years, the to in local the to the more over local the United States over has become the U.S. in the of the where are Puerto Rico to the United States by the of of The where a of continued to be a and after from the United States. American in the Caribbean the of the of the which two decades from at the of its A in by the United States, its from and to of as of to become a and its land that continued until the The a debate in the United States the legal of the In the many of the Spanish were into in the United States had to to with Puerto Rico, a speaking territory with legal and The to that not with and of the new A of called the Puerto Rico an one that to had in the of the United States, not have to become a state the nation. The which in the to keep the private in at the of the Spanish U.S. of it in and in to the U.S. the of the new that of and which and the American not have to the legal long in on the a system had and with during as a private in The Spanish Civil and the the and other of private from the Spanish were with to with of from the Louisiana for to the 1902 and American the of and a U.S. which a with then and the as U.S. and and law were from from and and on U.S. Puerto Rico a of and that had been in the American law became that in the United States and in the all two of the American Code had been with English the and law were also as were American were in law which by the had the American model of legal with in the of the American and the American of however, after the Spanish Civil as is by the of Spanish and French and American in were in the a new Civil Code into law in 2020. new code a more from and the new Civil and than from the American one the and of and both on the or of the are by the new code a by the that the of Puerto Rico into the United States as a state in the which the of codified private to the legal were for by the who on called Puerto than tradition, and who American over local which called the As has been it is to the than to describe the be that as it it that as long as Puerto Rico Spanish as its common and American private law in other than with an American and especially as most also and The have been a source of for the of American States, which has a model for and for two have not American have found a source of in that for a more of to be and to keep on they have to for Puerto have to with the legal mixture they have and at in both the Spanish, and the American legal and much as they at is other of the debate are cultural and Spanish language, legal and American to the United States and its on to in and there in which in and land the system and people and and and the in not in a mixed with a mixed even at times it its cultural and legal an and who that should not of the from the that were not The and for their with to and The that and slaves were of the most of law and a in legal on to and their to their and were not of that their or had they were of of by and of them to their and legal awareness to the of and to the of are descendants of the at the of the of the are of or or descendants of the of of or physical are of of their or their at the of the of the is the a A may be by a or should have known that the the other to on it to and the other in may be limited to the or the as a of the on the on a without is not of that to by it to may of and and be by the of who have had a of for of an not for or of or are to a physical or or by the on the or of the
Cindy King Man v. Himself The story is being disassembled for you and for me. Any flower of at least three petals will be reverse engineered. The tragedy still happens even if you tear out the last page. Even if you step into the lobby, the violence still occurs, even if you look away. Sometimes it happens off-stage. Just ask Antigone, Agave, Iphigenia— The plot has been drafted and erased so many times there's a hole where words are supposed to be. No one's surprised that it was all a dream (in fact, they're angry and tired). The promise of an ending, an optimistic illusion: cyptocurrency, non-fungible token, a skin your digital self can wear. Rain washes the wisteria. Eurydice, don't even think about looking back. The stone has already sealed the entrance. The only way is forward. The rain washing your car yesterday is selling flood insurance today. The best treatment for hubris is to be looked at through the wrong end of binoculars. There's a lesson here, a takeaway, if only the rain would stop, if only we could find a story and character fool enough to deliver it. King 8 ...
Bitcoin recently turned twelve-years-old. While opinions vary as to its current and future role in the global financial market, it remains the most well-known cryptocurrency and has ushered in a new era of currency. This new era has produced new legal questions and challenges, and government agencies continue to struggle with incorporating cryptocurrency into existing legal and regulatory paradigms. At the same time, blockchain technology, Bitcoin’s foundational technology, continues to find new applications and pose its own challenges beyond cryptocurrency. The military, logistics, and healthcare are only a few examples of the industries that have begun incorporating blockchain technology. Legal practitioners must begin paying more attention to this quickly evolving technology. This article should serve as a cryptocurrency primer for lawyers practicing in the Federal government. It will provide a basic overview of the history of Bitcoin and blockchain technology then discuss blockchain use cases for military interests and criminal law hurdles created by cryptocurrency. It will conclude by outlining important cryptocurrency issues Federal personnel should be aware of.
Part I briefly considers the taxation of bitcoin transactions to give the reader some sense of the constitutional Pandora’s box that was opened by South Dakota v. Wayfair. Part II then delves into one aspect of the Wayfair decision that has broad implications for the future. Specifically, when does technological change justify a departure from the Court's previous Commerce Clause decisions? Part III sketches a possible solution to the problem of horizontal precedent: the application of voting to questions of horizontal precedent, or Bayesian Stare Decisis. Part IV summarizes this proposal and concludes.
In February 2015, in what appears to be the first of its kind, a judge in Buenos Aires awarded a transgender woman a public pension in recompense for harms wrought upon her “as a result of the discrimination and the institutional violence—of a general, constant, and direct nature—permitted by an absent state and promoted by police officers” (G.N.B. v. GCBA). The judge, Victor Trionfetti, ordered the City of Buenos Aires to pay the woman, identified as Ms. G. (Sra. G.), a monthly allowance equivalent to the minimum living wage, which in 2015 was $4,716 pesos. Ms. G., who was sixty-one at the time of this ruling, had expressed a female gender identity from an early age and left home at nine. She had been raped and tortured by police and prison guards on numerous occasions, had been denied care in hospitals, and, because of discrimination due to her gender identity, had been unable to find formal employment. In her brief, Ms. G. stated that, as a result of her transgender status, she had spent about half her life in prison and the other half living on the street as a sex worker. She eventually left sex work to labor as a seamstress. As a result, she has no pension or financial resources of any kind. Ms. G. sued the government of the City of Buenos Aires for damages.Although the pension was awarded only to Ms. G. and not to all trans people, and the judge's decision sets no precedent and is currently under appeal, the case is among the first of its kind anywhere to provide reparations to a trans person for the damage caused by state-sponsored violence and the abrogation of a government's duty to protect. The argument of Ms. G. mirrors the rationale for proposed legislation in the City of Buenos Ares and the Argentinian National Congress, which would award pensions “to those who have been deprived of their liberty for reasons related to their gender identity as a consequence” of actions taken by officials in the criminal justice system (G.N.B. v. GGBA).In 2012, Argentina passed the Gender Identity Law (Global Action for Trans* Equality 2013), which Judge Trionfetti describes as “a turning point” in the recognition of trans people. In his decision, the judge relied on the reports of advocacy groups documenting violence and discrimination and the testimonies of witnesses at the trial to find that discrimination and violence directed at trans people is a generally accepted fact. By doing so, he shifted the burden of proof from Ms. G. to the city government. The city responded by simply—and lazily, according to the judge—denying these facts and provided no evidence to counter Ms. G.'s claim. Trionfetti acknowledges that the nature of Ms. G's claim exceeds the traditional standards of tort law. While the law as a tool is insufficient, the language of the decision expands the realm of what might be possible in the process of reparation. The judge characterizes the harms suffered by Ms. G. as part of the “structural nature of her stay in the world.” The damage “is not the result of a particular event, but rather part of a continuum. . . . It is a damage that is endured by the ‘sheer boldness’ of establishing oneself as an autonomous Self in front of others.”Translator's note: In the translated excerpts below, Ms. G. is identified as the applicant, and the Government of the City of Buenos Aires is referred to as GCBA or as the respondent. All the notes are those of the judge, and they appeared as footnotes in the original text. Citations of case law and legislation have been omitted. The numbers for section headings have also been omitted.. . . .As with most judicial cases, the conflict that I must resolve here focuses on the legal situation of the parties. However, I would be guilty of cynical shortsightedness if I were to consider the situation posed by Ms. G. as a legal drama that only concerns her as an individual. The particular facts of the case, the evidence provided by the witnesses, and the other evidentiary elements introduced in this suit demonstrate that the applicant belongs to a group that has been systematically and viciously discriminated against.To my mind, the nature of this claim exceeds the standards of “tort law” as understood by the civil or administrative legal doctrine, and are to to the of the of groups as the the applicant belongs has been in to this group and has a in the or people its or of groups to and to to an that not to to in which of the of of and the and of be at the of the that from to public and from they be understood and this case only from the proposed of legal would to an result of . . is that Ms. G. is and to be a trans The has not this and the witnesses this It is to this because the of the claim in the of the to gender identity, an of the of the and is an that the of on or or gender identity a and of to the . . of in to of and gender identity, the case of the applicant, are and and of of and and discrimination in to the of other to the . . of of groups is that to the of Law as the Identity . . the of to as the trans is not possible to the about which with on and to which has been no of a in of the which have to a to claim on the and for the of of the individual. . . . It be that people to the that the not only discrimination but have been in and As a result of and discrimination that of are to in by the that to the most of the with for their of life and that all of which is in decision suffered by the is that are to this in the of the and the other under the of the of the City of Buenos with to the of this In the case of the National Congress, the to a pension to those who have been deprived of their liberty for reasons related to their gender identity as a of actions of judicial or actions by the public or In the of the city of Buenos Aires a Law for has been It to the and of the and of trans people by a monthly for transgender people the age of The reasons for are proof of the and of by or the of trans people and the of and on a result in an of that trans of life and from any of any kind of life It be that the of the Gender Identity Law is a turning and the of an of the to be to is also to any kind of these I among the provided by the Gender Identity Law and to for in Argentina in with trans The possible to the situation of these and the of the Gender Identity Law and that and of trans people of their and that the trans is in a because of and the of the Gender Identity Law a on their and of In the that these are that of the trans people the and at of their but no to is in of the that the of and other as and in the of trans due to the of sex work in this It also the for public to this that for these people to public care is that trans people at the process of their a case in is in to The that of the trans the to their due to the of to public the notes is a among trans in Argentina to to the of the according to this had of a of those they have or guilty to the testimonies and at in their However, the notes that the of is among trans and the situation of this particular group as of trans have to and from and because of their gender identity, these have the of Law are by the of living of and discrimination of and for the and discrimination suffered in the is from the trans people that from administrative and other as of also in the in the for to in the and by the is also It by the of of these groups and with the of Law in which the of the in trans people and of these were the of and . . to the provided by the the to in the and and public discrimination the of and in the The were and government actions in public hospitals, and discrimination of not to labor an of or direct by on or in the and of is in by the people because of their or gender on the of the of the in of by their of the of as to people the of a discriminated because of his on are are by in of at by of the to be at the of their among other the only the on the and of people. people Ms. G., for life was a As a result, the with the state and its was with and of their an of the be understood that the by Ms. G. is as the state that the to the of the applicant are and the applicant, who is and have the burden of that her and life were by the of the not have to they are the not have to their violence not have to they are in to the burden of proof to the applicant would only result in of the people not their I that trans people, as of an not have the burden to that they to that group judicial to their to be . . the other is not for the in its as of at to simply—and the facts that the has It must be that of to justice are the evidentiary standards and that to their situation to the are in which of is not in of the but in a The process with the to in labor cases, law or criminal a from the of in of the consider the evidentiary of the respondent. . . . In the was stated that is not understood the GCBA is to any of the by the It be that the gender identity of the applicant was not by the but the I have as a generally are as It from the of the that the applicant a The facts and the demonstrate to the testimonies of the witnesses at the on . . is a woman and she the She stated that the applicant was deprived of her liberty on and to the at the time the police She that were of that their were in the and She that was for to or with people of the was for in which the person to the as by their prison was The by police the of in and not would the that by a street they would be a police and to a that as as she the applicant had no formal she stated that they other by and not public because they would the of not with their because they be to be had to with the person to of the stated that they in was to have any kind of as they not stated that the of the applicant was sex She that the applicant a formal “as they all had at She stated that was to find a formal to all the the the on any in to be a The she to and to that were of a person as a She to the in public but that, currently they her identity, are in which an to their expressed that she was Ms. G. any pension or financial or if she her She that on they she that the applicant not or She stated that the applicant not have because she to public hospitals, and that in public She that or in to the what government violence on Ms. G., and the that was the the time of the to the time of the of She that the of the Gender Identity they to have to that were law to and She stated that trans to but sex because they find She to be a but was not a of her situation and that of the trans the was about her . . . she the that I a in language and a in and due to the of all by a woman in the and not any identity I not any my is . . . and with that I and The are in the stated that the applicant was deprived of her which they all were at . . . She also referred to the and the situation of of the All of her or the applicant, who had been in the to and in The police that the most were the numbers and were the most they would be for to She stated that was because to be what to be and what were to . . . by the was the she stated that under she was in or She was the City of Buenos that she has in this city in her the would to to and a because I not in living this the endured in police she in the to which they were would and that were and the of the police She stated that she was in the police for and was not she had to in was to sex and She that G. was deprived of her liberty on in the prison of and she this was because of her the applicant had any formal the that this was that of She that she has a and was a for the of of her with the who to her because of her gender The of any to because that would result in their . . . In my case, I was was the would and for work and they would this to for a or I would be discriminated by my or or that the was if she what was the of the applicant, she and she that in a the that and I this with my to be raped in of or and at the a by an absent by the of that the applicant no state allowance or financial but she for because she a monthly of pesos. She about her and that was by The referred to the that the applicant had no She the for an allowance or of state because of her of were that of a and the judicial she was her my I in these she to have suffered discrimination in public and had to because of would to on the to the of the her to the endured and the a a in and of a that would not have in the first had the its other of is to the state provide to a person who has suffered of violence and discrimination to or what actions or were by the state the of G. the harms and by are in the nature of her stay in the and as a she had to in a and with an state that and her gender It is not about the in the of the of in that the of the they they the of a from the to the and suffered by the applicant are not or is damage to the that is all and It is not the result of a particular is part of a continuum. damage has no or because is a damage that is endured by the of establishing oneself as an autonomous in front of damage not from in the first rather what is is be state that the the the and and that are due to the of and actions to and the of Ms. G. in a of of the state is on the of of Ms. her is and that the state of the that are this judicial the in to the of the applicant and to the and that the of the applicant, find of The of life of transgender is and the with in a that and gender However, the damage that of the people, of their the applicant discrimination for the applicant an to the she life with of life the life of Ms. G. with of and of her of and of the was the of the applicant by the violence by and of the damage by Ms. G. her life as she was with in the process of her her of in her to her applicant has a that those who not and is to consider The of the applicant has been a this not be damage is to a or an by law is is the the or with of the and which in of this and as an of the of is by the as as the of the witnesses, that a situation of and discrimination the applicant because of her gender her as a trans I to that the discrimination endured has been of a nature and from and institutional The proposed witnesses as as the reports by also this which the of the damage by Ms. of legal system is by the and the the of their of the National and and of the on the Law of state is by its in to the of the applicant in a of to this is from the of with that gender identity, and of the an because in all or that is to that gender identity to and of which or not with the sex at the of the if of or by or other and other of and identity, is related to the and of the The to is of and in the to to to and due to the and of all on the due to the and of the legislation and the standards were and among of the of the and of of the of the of a of in the and of the of and of the on and of the and and of the as as and of the National the duty on all judicial of the of the on and in particular the duty to to the standards of and of the of I must the case of in which the has that of the is a of a to all the of the and the of the state to and the and of the and any is to the or any that be the of any of the in the is with . . . the of the law and the has stated that of from the of the and is to the of the individual. be with the that a group has the to because of its It is with that to a group as and with or to discrimination in the of which are to not The case law has also that at the of of the of and has the realm of The of and public on this and the legal the has that must from any that, in any or is at of or The are “to to or that in their to the of a group of the to that the state must with to and of with its or or and in that case, the of discrimination because of was to of the the by of which discrimination is not an or but the of the with the of the for the of other that have not been the the other of of the in the of the most for the and in of the of in law. In this in the the of the of the has in its to the of on their the of for an to the of as a of the of has stated that is in of the on that in the of v. the that is “a by of the It also that the of in has and is not in the of v. the that as of the that be under is of those on which are as in the that they are or to the and on and that be under the other in of the the of the Gender Identity Law are by the of in of the of the City of Buenos Aires is also because or the and by or by to to have been no public in at the of of the trans group the of or resources of the of the City of Buenos trans people have not been to has been promoted to public the that their are the of trans people in public is not by the of and at trans people to to in a and are by this has this any or to trans people, and the applicant in the and of the system are no public to the of the city on the that the Gender Identity Law be any kind of in the system that the gender those to the people are not in the that the City of Buenos Aires to and the of The state has not provided any evidence to this are no in for in public hospitals, and on for the of identity and The law is in this sets the of public but the trans is not trans groups are by and this is because they the of In this Law not the of trans a to identity in people are they not have to their or gender in the a of the law for the of the trans is no evidence in the case that that are and for the and all public officials who are in a to or trans people from to or or the have any standards for this for the Action by the of as a for those who justice in or gender identity, and concerns about these of to because the and are no from or but these of are by and are for the and I consider a the state identified and the of of Ms. G's and other is in the I have no that the to the damage that Ms. has City of Buenos Aires is in for the to in its to the of the However, the with as by of the was to and the situation of transgender people, the group to which the applicant the and were the and that to the of the applicant be only as a of of as was their to to the and in the the and the of the of the City of Buenos on in this case, I to the by the to the of the state as a in these I stated that the to the of the and is in the of an decision, to its and that are at is by of by the of . . to my of the in of the and by the expressed by the of the in particular and the be by the City of Buenos was due to its of that the applicant suffered the the government's is only these I that the GCBA be sued and be for the that have been in the must be that the of of in the of the of to an and direct and is not to the of of the the or of state or officials be to the the state must be as a and in a direct a to their in a state of a of by the The for the of the state is to people, their and their if is due to or the state has to its of has stated that direct on the of is as a or to the of the the nature of the the to provide the the the and the and the of of damage the situation of Ms. G., a trans person in the City of Buenos the by the state and the to provide an that to the of transgender people, to the that the state is the damage was in of the of the trans is that the has legal and has also to the by the for the of the of transgender of was insufficient, as has been that to an of and by and the of the City of Buenos Aires the and of public time to those of a is provided by Law which the of or to their according to their gender However, is an that the to or other of of the trans The of the law is by its to the by the applicant in the case at a that of the and of discrimination on of However, an with of the which the and of sex on the As as are no for the of trans and discrimination to the only left to those the of in is for a state with the duty to the of the I consider that the in of the of the City of Buenos Aires has not been to the of and of that the applicant from her of in the and in of the National would be of all if the that Ms. G. was deprived as the to a would not have a state of the sets as a that the damage must be the that from the of a and public law state to its and by to the to a gender identity, and other It is in the of in the to gender identity of the applicant that must also be The the of by the state to to the in the and is the and that the its legal in of the be to an for the recognition of the by is an of the to as the I that by to the of the applicant the would an I with the of Ms. legal in this legal or with which the applicant is a of law that that damage must be is not a legal The the that is by a is on the of judicial In as the a judicial decision that to not the of those in state to the to and and and to the of its with a to the of the in the by all the of of this in that in an and the of the of the The to of not the of the other as the that is by . . . that part of a this is to the by in the case v. Government of the City of Buenos Aires the of public of the GCBA to to In the of stated the that a of the the of the government to its the of in the and in and that the of the by the is and that is part of an the of its law as for its to a on the Law of the argument of the of and to a and of of that and that the of legal but not if the of the would would also be proposed of the in the of an claim for the of and a that would be in the but has been the is The has an in the of these but its is not absent in this the of a is not the by the state but the of any legal to the to claim for of the duty It is only possible to consider a an or to is to by a or the of a judicial decision with the duty from the of their this decision is only for the that for Ms. G. and judicial decision not have the of a of an of the other administrative to a on the to that a judicial decision the to an that and by the of in the of the and the that the National and the of the City of Buenos in are not but of the that the discrimination suffered by Ms. G. was not only to the work and an of The applicant suffered and to The and endured have been numerous and and have her of to and the to the of her life with be in of the by the . these the in of the claim by the applicant, G., and the to pay a monthly allowance to the applicant, equivalent to the minimum living . . .
Previous articleNext article FreeThe Structural Function of the Sixth Amendment Right to Counsel of ChoiceJohn RappaportJohn Rappaport Search for more articles by this author PDFPDF PLUSFull Text Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinked InRedditEmailQR Code SectionsMoreThe Sixth Amendment guarantees “the accused,” “[i]n all criminal prosecutions,” “the Assistance of Counsel for his defence.”1 The right to court-appointed, publicly funded counsel this language calls to mind today is a recent invention.2 The “root meaning” of the Sixth Amendment’s Counsel Clause, the Supreme Court has stressed—the one with ties to the founding tradition—is the right to retain counsel of one’s choice.3 Yet until just last Term, no criminal defendant had ever persuaded the Court to reverse a conviction solely on counsel-of-choice grounds; many had tried in vain. I consider in this article whether there is any satisfying, functional account that can explain the disjuncture between what the Court says about the right to counsel of choice and what it does when presented with an asserted violation of that right.The leading academic and judicial theories justify the right to counsel of choice either as securing the effective assistance of counsel, and thus a fair trial, or as a facet of the defendant’s prerogative to control his own defense. These theories, however—grounded in majestic-sounding notions of fairness and autonomy, respectively—struggle to explain counsel-of-choice doctrine. For one thing, indigent defendants—who number more than four out of every five—simply have no right to choose their counsel at all. And while criminal procedure rights are seldom absolute, balancing the defendant’s fairness and autonomy interests against the government’s countervailing needs cannot explain the pattern of Court decisions in anything but the most ad hoc manner. Seemingly unremarkable governmental interests prevail while a stronger one faltered this past Term.My claim is that something very different makes sense of the Supreme Court’s counsel-of-choice decisions. The failure of the leading theories, therefore, does not condemn the doctrine to incoherence. The right to counsel of choice, I argue, functions not as a powerful individual entitlement, as much of the judicial and scholarly writing suggests, but rather as a weak, system-level safeguard against socialization of the criminal defense bar. I use “socialization” here to refer to “the action or process of bringing” an institution “under state ownership or public control”—that is, not in the sense of social psychology but rather the political theory of socialism.4 Only when the government advances a theory for restraining defendant choice that, if accepted, would allow it to strangle the private defense bar and socialize criminal defense does this antisocialization principle require that the right to counsel of choice prevail. This means that even a weak governmental interest—like a judge’s desire to push a case to trial quickly—can overcome the right as long as that interest is meaningfully bounded in its reach across the criminal docket. But it also means that a law requiring all defendants to use court-appointed counsel—mandating a socialized defense bar—would violate the Sixth Amendment despite its equality-promoting effects.An antisocialization principle explains, in particular—far better than a theory grounded in individual fairness or autonomy—last Term’s counsel-of-choice decision, Luis v United States,5 in which the Court for the first time found a stand-alone counsel-of-choice violation. The defendant in Luis was charged with health care fraud of around $45 million, almost all of which she had already spent. Seeking to preserve the $2 million remaining in the defendant’s possession, which would be necessary to pay restitution and criminal penalties if the defendant were convicted, the government obtained a pretrial order prohibiting the defendant from dissipating her assets. This included the defendant’s “untainted” assets—assets not traceable to her alleged crimes—which the defendant wished to spend to mount her criminal defense.6Reversing the Eleventh Circuit Court of Appeals, a fractured Supreme Court held that the trial court’s order violated the defendant’s Sixth Amendment right to counsel of choice. Justice Breyer announced the Court’s judgment in a four-Justice plurality opinion, joined by Chief Justice Roberts and Justices Ginsburg and Sotomayor. Justice Thomas concurred in the judgment, resting on a textual and historical analysis. Justice Kennedy, joined by Justice Alito, dissented, finding the case indistinguishable from precedent that had rebuffed similar counsel-of-choice claims. Justice Kagan also dissented, questioning whether that same precedent had been correctly decided.An antisocialization theory—but neither fairness nor autonomy—cogently distinguishes Luis from all of the cases in which the Court rejected counsel-of-choice claims. That includes the two famous and closely related precedents the Justices in the majority strained to differentiate in Luis,7 ultimately relying on unpersuasive statutory and historical formalisms that I will examine. Antisocialization can also begin to explain (though not necessarily justify) the complete denial of the counsel-of-choice right to indigent criminal defendants, a disquieting feature of the doctrine in light of equal-protection principles.I explore these issues below. Part I introduces the leading theories courts and commentators have developed to justify the right to counsel of choice. It then exposes the inability of these theories to explain the doctrine. Part II demonstrates how an antisocialization theory better describes the law. In the tradition of criminal procedure scholarship seeking theories that reconcile the Court’s decisions,8 I do not argue that antisocialization ought to drive the doctrine; my project is positive, not normative. I seek to explain the law, not to justify it. Nevertheless, I do develop in Part II a plausible normative defense for the antisocialization theory in order to bolster my descriptive claim. The defense is sufficient to persuade me that Luis was correctly decided. Were I to craft my own justification for the counsel-of-choice right, however, it might well be markedly more robust.My argument is not that antisocialization is the only fathomable theory that explains the doctrine. It is possible, for example, that counsel-of-choice doctrine tracks historical understandings of the right. Yet neither the Justices nor commentators have shown this to be generally true, leaving the burden of proof, for the time being, on the historical theory’s would-be proponents. I am skeptical, though, I will add, that a historical theory would be as useful as the functional theory I explicate here, confronting, as it must, the familiar problem of what to do when formal materials (i.e., historical understandings) run out.9In Part III, in lieu of a traditional conclusion, I step outside the Sixth Amendment to critique counsel-of-choice doctrine from an external perspective. The doctrine itself is young and undertheorized, and much remains to be worked out in due course. But regardless of how the Court resolves any outstanding Sixth Amendment questions, I argue in Part III that several of its counsel-of-choice precedents may run aground on other, settled constitutional protections. These are conflicts the Court should consider alongside Sixth Amendment principles as it continues to elaborate the right to counsel of choice.I. Difficulties with the Leading Descriptive TheoriesTwo principal theories—what I call fairness and autonomy—dominate judicial and scholarly thinking on the right to counsel of choice. Yet however well these theories might justify the right as a philosophical matter, they cannot explain counsel-of-choice doctrine. In this part, I describe the fairness and autonomy theories and illustrate the limits of their descriptive power. In particular, I show how these theories are unable cogently to distinguish Luis, in which the Court found a stand-alone violation of the defendant’s right to counsel of choice, from the many cases in which it did not.10A. FairnessProbably the most popular theory of counsel of choice describes the right as helping the defendant secure a fair trial. This fairness theory is outcome-oriented and instrumental—it regards the right as a means to the ultimate end of fair adjudication in an adversary system. Perhaps more precisely, the fairness theory views the right to counsel of choice as securing the right to effective assistance of counsel, which itself ensures a fair adjudicatory process.The plurality opinion in Luis (to the extent it is theorized at all) seems to rest upon this understanding. Although it acknowledges that the entitlement at stake is that to “counsel of choice,” the plurality elides that right with the more “fundamental” right to counsel itself, without which the defendant, “though he be not guilty, … faces the danger of conviction because he does not know how to establish his innocence.”11 Elsewhere the Court has “recognized that the purpose of providing assistance of counsel ‘is simply to ensure that criminal defendants receive a fair trial,’” and thus, “while the right to select and be represented by one’s preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant.”12There is a related position, which is sometimes portrayed as independent from the fairness theory, but which seems to me sufficiently related to warrant common treatment. That view regards the right to counsel of choice as facilitating a “meaningful relationship” between counsel and her client. The idea is that a criminal defendant will place greater trust in, and form a better relationship with, a lawyer he has selected rather than one the court has thrust upon him.13 Upon inspection, however, most formulations of the “meaningful relationship” position are grounded in the belief that a better attorney-client relationship will enable a stronger defense.14 The relationship is typically not thought to be valuable in its own right.Some argue that good attorney-client relationships help legitimize case outcomes—that defendants will accept their fate more readily if they believe they received zealous representation from counsel they selected.15 To the extent the outcomes being legitimized are substantively fair, this seems reasonable to me, though not meaningfully distinct from the fairness theory itself. To the extent that unfair outcomes will appear legitimate, it is far less clear that this plausibly justifies the right.B. AutonomyA second strand of legal thought—absent in Luis—maintains that the right to counsel of choice has intrinsic value as an aspect of the criminal defendant’s individual autonomy and control over his own defense. Unlike the fairness theory, this autonomy theory is not outcome-oriented; it does not depend on an assumption or prediction about how counsel will affect the fairness or result of the defendant’s proceedings. The right to counsel of choice, on this view, is valuable for its own sake, not because of the results it’s thought to produce.16The Supreme Court’s opinion in Gonzalez-Lopez v United States17 exemplifies the autonomy position. The Sixth Amendment “commands,” the Court admonished in Gonzalez-Lopez, “not that a trial be fair, but that a particular guarantee of fairness be provided—to wit, that the accused be defended by the counsel he believes to be best.”18 This “right to select counsel of one’s choice,” the Court continued, “has never been derived from the Sixth Amendment’s purpose of ensuring a fair trial” and should not be confused with the “right to effective counsel.”19 It “reflects constitutional protection of the defendant’s free choice independent of concern for the objective fairness of the proceeding.”20Much scholarly commentary on the right to counsel of choice accords with this view, agreeing that “the most important decision a defendant makes in shaping his defense is his selection of an attorney.”21 The attorney acts, among other things, as conduit for the defendant’s “communicative activity in the public forum of the courtroom”; respect for the defendant’s choice of counsel is thus “‘respect for the individual’” himself.22 One commentator, analogizing to the right to self-representation, aptly quoted the Court’s sharp language from that context: “An unwanted counsel ‘represents’ the defendant only through a tenuous and unacceptable legal fiction. Unless the accused has acquiesced in such representation, the defense presented is not the defense guaranteed by the Constitution, for, in a very real sense, it is not his defense.”23C. The Theories’ Descriptive ShortcomingsThe fairness and autonomy theories for the right to counsel of choice are perfectly lucid as a philosophical matter. What they lack, however, is any real explanatory power. If the theories did explain the doctrine, they would be able to distinguish Luis, in which the Court found a counsel-of-choice violation, from the many cases in which it did not. Yet as I show in this section, neither theory is up to this task. Specifically, neither theory is able persuasively to differentiate Luis from three sets of counsel-of-choice precedents that capture most, if not all, of the Supreme Court’s work in this domain: (1) cases involving the inherent powers of the trial court to control litigation; (2) fee-forfeiture cases involving “tainted” (rather than “untainted”) assets; and (3) cases involving indigent criminal defendants.1. Inherent powersMundane decisions courts make in the course of criminal litigation, or even antecedent choices regarding judicial administration, can have the effect of denying a criminal defendant his first-choice aide. Consider three examples. In one case, the court denies a midtrial continuance necessary to accommodate the desired attorney’s schedule. In another, it prohibits counsel from representing the defendant alongside two of his codefendants, notwithstanding conflict-of-interest waivers from all of the defendants concerned. And in the third, it simply enforces court rules barring practice by nonlawyers, disbarred lawyers, and lawyers from out of state.In none of these cases, the Court has said, does the trial court violate the defendant’s right to counsel of choice.24 But the trial court’s actions in each instance certainly implicate the defendant’s fairness and autonomy interests. The defendant who was denied a continuance, for example, argued that the lawyer assigned to him had not zealously represented his interests.25 Disagreeing, the Court denied his claim and expressly rejected the lower court’s position, rooted in the fairness theory, that the right to counsel of choice safeguards a “meaningful relationship” between the defendant and his attorney.26 Likewise, deciding to roll the dice with a lay representative27 or one subject to a potential conflict of interest28 would seem to fall squarely within the autonomy-premised right to control one’s defense. This is the same interest, notably, that supports the right to self-representation, which requires the trial court to let an uneducated defendant represent himself.29 At the very least, these outcomes are difficult to reconcile with the type of robust individual protection the Court’s “root meaning” language implies.Of course, observing that the right fails in some cases to protect the defendant’s interests—whether rooted in fairness or autonomy—may suggest nothing more than that those interests were outweighed by the government’s countervailing needs through a process of interest-balancing. Yet if counsel-of-choice doctrine reflects a weighing of fairness or autonomy interests, on the one hand, and government need, on the other, we would expect the government to prevail when it matters most and lose when it matters least—especially as the defendants’ interests seem roughly equivalent across the cases.30The doctrine does not line up this way, however. This is a point that was harder to see before Luis, because the government’s interests had prevailed in every case. That they fell short in Luis suggests—if the doctrine indeed reflects a balance of the defendant’s fairness or autonomy interests against state prerogatives—that the government interest in Luis was weaker than in all the prior cases. But that is a difficult position to maintain. In the earlier cases, the government won by asserting interests such as the “great deal of latitude” necessary “in scheduling trials,”31 the desire to ensure that “legal proceedings appear fair to all who observe them,”32 and “the legitimate wish of district courts that their judgments remain intact on appeal.”33 In Luis, it had what the Court has elsewhere characterized as a “strong governmental interest in obtaining full recovery of all forfeitable assets,”34 which aims to punish and deter serious crimes.35 If there is a theory as to why that “strong governmental interest” is actually weaker than the trial court’s interest in controlling litigation by, say, denying a continuance, the Court has never disclosed it.The point is not that balancing is irrelevant, or in no way enhances the explanatory power of the leading theories. Rather, the point is that, to transcend simplistic, ad hoc explanations, balancing—to borrow from Professor William Stuntz—“must reflect some underlying theoretical structure.”36 Where, as here, the interests on each side of the balance are neither trivial nor overwhelming, “balancing without structure explains all results equally well; it is not so much a positive theory as a confession that no positive theory exists.”37 “The real challenge,” I agree with Stuntz, “is to explain why the balances are struck as they are in particular cases, and to do so in a way that allows one to assess, at least in broad terms, whether the doctrine is internally coherent.”38 Proponents of the fairness and autonomy theories have produced no such explanation, and I am doubtful that they can.2. of fee-forfeiture cases the Court in the issues it in In v United the Court held that the Sixth Amendment to of “tainted” traceable to criminal even when the defendant to spend the to pay the lawyers who defended The same the Court in United v for a pretrial order the government are and Court’s (1) though in the defendant’s possession, are “not and (2) the defendant has Sixth Amendment right to spend for by an even if those are the only way that that defendant will be able to retain the attorney of his way, defendants have Sixth Amendment right to choose their and a defendant are as it will not be forfeitable until by which time the defense will have an interest in Yet through a statutory in the in the United at the time of the criminal the government a claim to the to the And the pretrial order in of course, long before to pretrial of the defendant It is, in other a on the defendant’s protect its at trial and protect the interest in full recovery of any seems to that the of with which a criminal defendant to pay his attorney on the fairness and autonomy interests the right to counsel of choice is to or at least less the defendant may be to with counsel and defense his to with the in an and him of some control over his own defense. If the fairness and autonomy theories are to explain these cases, therefore, it be because the “strong governmental interest in obtaining full recovery of all forfeitable the defendants’ And in this does not seem a The principal is how to reconcile these earlier cases with the defendant’s in the fairness nor the autonomy theory explains why the Court the result in that between and on the that the of but in Luis the was does that affect the Sixth Amendment the fairness and autonomy an matter, whether the are does not affect the defendant’s fairness and autonomy interests. interests in controlling her defense and obtaining a fair adjudication are the same regardless of what of she to The explanation, if there is be that the government’s argument for is stronger than for assets. The Luis plurality can be to this position. however, is least to one in of a functional plurality characterized the between and as “the between what is and what is the statutory the plurality to to the government at the time the is The same is not true, it of her the defendant before trial, claim that the is free and This the plurality to the government’s interest in of a criminal or restitution as in to the right to counsel of choice, from the of a fair, effective criminal between and cannot the the plurality upon while it is that the government does not own forfeitable before the same is of forfeitable assets. What the Court calls “tainted” all, only defendant ownership of either with the only a What the pretrial order in is that the defendant’s were not that they were The in that case to be forfeitable because they were but that does not that forfeitable for some other as to for already of a different constitutional way, to the government can but not is to the The purpose of the either to whether the are the defendant’s or are forfeitable because the defendant a trial, when the are the to this is The the Court thought “the up until conviction was simply that they be upon a of the same here, with respect to the the Luis plurality to to but not the “The purpose is to defendants from by their to it does however, the time at which to forfeitable to the is it clear why statutory of is to a Sixth Amendment analysis. If only to that is simply a of It is to that, if to the plurality would its But that is what the of its because is “the to as among criminal defendants who are in To borrow an from Justice a who million and million in a If he his on and and then needs for defense counsel, out of the government can the But if he the he can use the to pay an This is “the and the defendant’s legal in the two of and the opinion, I should add, no Thomas that the of the Counsel the defendant’s right to spend his to a defense that that right necessarily some on the government’s to the defendant’s before and that the practice pretrial of but not that necessary are several with Justice position for my Thomas expressly any interest in an that functional for the it practice is however much sense it it is far from clear that Justice Thomas advances a theory of the Sixth Amendment at all, as to a theory about the due process to the of any assets. Thomas that a defendant’s may not be before trial whether he to spend on a defense attorney or something This that the Sixth Amendment itself is actually even if historical practice does reconcile Luis with the prior cases, Justice Thomas makes no to show that it also explains the Court’s other counsel-of-choice to that of law at all. I at the it remains that all of the Court’s decisions to with historical but I am and neither the Court nor commentators have the work to it. because the defendant’s interest in counsel of choice is the same regardless whether he to pay his attorney with or the fairness and autonomy theories can explain the cases only if the government’s side of the balance is in the case than in the is, however, no good functional account of why that would be The cases thus from the explanatory power of these leading theories of the that indigent criminal defendants might retain a Sixth Amendment right to counsel of choice has to the a is one indigent defendants have no right to counsel of If the theories are this be because in counsel to these defendants is not does not on autonomy interests, or is by governmental some of the of these however, are weaker than they may at first I each one in what would have to the defendant in Luis had the Court against her and her to pay is no that she would have been through trial by “the of course not. the court would have an attorney to represent a public or a private attorney funded the Justice an have to the defendant a fairness only if there were an unacceptable that counsel would to the effective assistance of counsel necessary to make the trial of two it may be that the defendant to with counsel would not have her right to a fair trial, and thus should not have been to violate her right to counsel of choice. the Court has rejected any that counsel are or less effective than be the Court has the on a an matter, this is not an
When a dangerously mentally ill person is in need of in-patient psychiatric hospitalization, the apparatus for involuntary civil commitment goes into motion. As a result, a mentally ill person can be confined against his or her will, to remain in the hospital indefinitely. The mentally ill person’s freedom depends on the outcome of a single hearing. The civil commitment process raises a number of legal questions: What are the constitutional protections against self-incrimination and the right to remain silent? Who presides over the hearing? Do the rules of evidence apply, specifically hearsay? Is the burden of proof standard by the preponderance of evidence, clear and convincing, or beyond a reasonable doubt? Should the mentally ill person have the right to an independent evaluation of his or her psychiatric condition to contest the view of the hospital psychiatrist? Is the adversarial hearing process best suited to address the need for in-patient hospitalization? Should legal guardians and those designated as power of attorney be given the authority to voluntarily admit a patient into a psychiatric hospital? This Article will explore the current involuntary civil commitment process for confining a mentally ill and dangerous person in a psychiatric hospital. A criminal defendant is often guaranteed greater protections than a mentally ill person facing involuntary civil commitment. As a person’s freedom is at stake, the serious nature of confinement warrants a critical review of how we address the need for psychiatric treatment of our dangerously mentally ill. Part I will examine the government’s power to confine a mentally ill person and the minimum due process safeguards for involuntary admission. Part II will explore the applicability of the constitutional right to remain silent in civil commitment proceedings. Part III will discuss the authority of mental health professionals to testify at the civil commitment hearings and consider issues of privileged communication. Parts IV and V will look at issues pertaining to the rules of evidence, ranging from the burden of proof to hearsay evidence as heard by the hearing judge. Parts VI and VII will analyze respectively the right to an independent psychiatric evaluation and alternative procedures to resolve the determination of the need for hospitalization. Part VIII will address the rights of others to consent to voluntary hospitalization of a mentally ill person, including guardians, persons with power of attorney, and parents of minor persons. Part IX will make recommendations for improving the involuntary civil confinement process. This Article provides an analysis of the current system and practical, concrete suggestions for improving the involuntary civil confinement process through the eyes of the attorney representing the mentally ill client facing involuntary psychiatric hospitalization.
I. INTRODUCTIONThe recent Great Recession soiled the credit reports of many Americans. Furthermore, advances in database technology have allowed employers and others wider access to comprehensive information about consumers, sometimes significantly narrowing the opportunities those consumers might have for employment, credit, housing, or insurance. These results have inspired some state legislatures to revise their credit reporting statutes to ameliorate the percussive effects of the economic crisis on their citizens' credit records. However, state lawmakers must navigate the thicket of the federal Fair Credit Reporting Act's preemption provisions if they are to create legislation that will be effective rather than impotent. This Article analyzes these provisions alongside recent Supreme Court decisions about preemption. The Article then provides both a theory of the intersection of state and federal credit reporting laws and describes the space remaining for state legislatures to create preemption-proof, or at least preemption-resistant, credit reporting provisions that can fairly balance the concerns of individuals and those who want access to their background information.Part II describes some recent legislative efforts in protecting consumers' financial and criminal record information. Following, Part III sets forth the framework of federal preemption generally and analyzes the Supreme Court's recent preemption decisions that are relevant to information-protection laws. Part IV describes the Fair Credit Reporting Act provisions that may overlap with state legislative activity, along with its specific preemption provisions, and analyzes the vulnerability of various state credit reporting provisions to preemption. The Article then maps out tactics for states to employ to preemption-proof their legislation and maximize the effects of their state information-protection laws.II. STATES' REGULATION OF DISCLOSURE OF CONSUMER FINANCIAL AND CRIMINAL RECORD INFORMATIONNearly every state regulates how consumers' financial and criminal record information may be collected and disclosed; these are, in essence, reputation-protecting provisions. However, given recent developments in the economy and data technology, this may be a suitable time to adjust these laws to better balance the privacy interests of consumers against the information interests of employers, banks, and insurance companies.The Great Recession inflicted tremendous damage to credit records by causing widespread unemployment and depressing housing values, putting great stress on the ability of many to repay debts.1 Those defaults and delays in payment have been duly amassed by the consumer reporting agencies that publish credit reports about consumers and compute their credit scores. Seeing this information about those hurt by economic blows may make employers less likely to hire them, landlords less likely to rent to them, and insurers less likely to insure them (or willing to insure them, but only at elevated premiums).Aside from the economic environment, advances in data technology have increased our ability to view public records across the country, leading many to be marked by visible criminal records incurred even decades ago-records that many might have thought they had surpassed.2 In addition, medical costs continue to accelerate and medical debt not only spoils many otherwise solid credit reports but has also led to a significant number of bankruptcies.3 Finally, the crime of identity theft has increased as data breaches become more common, exposing sensitive financial information to thieves who can then poison their victims' credit reports.4State legislators can ameliorate the effects of some of these historical events on their constituents' opportunities, curbing the impact of old credit, criminal, medical, and identity theft problems. However, for such record-enhancing provisions to have their intended impact, the drafters must carefully navigate the express preemption provisions staked throughout the Fair Credit Reporting Act (FCRA), the federal statute governing the creation and use of credit reports. …
INTRODUCTIONAt its heart, antitrust law believes it is exceptional. Unlike most areas of regulation where rules must trade off costs and benefits different in kind, antitrust claims to pursue one single goal: competition.1 Courts often endorse the idea that the values traded off in regulation-the procompetitive effects and the anticompetitive effects-are commensurate. For example, courts frequently characterize Sherman Act § 1 as condemning restraints on trade having a net anticompetitive effect, and condoning those whose effects sum to a neutral or procompetitive effect. This supposedly unitary goal of antitrust-to facilitate competition-allows the law to appear to avoid the murky, value-laden compromises struck by other areas of regulation.But antitrust law is not exceptional. Even within the nowdominant paradigm that antitrust pursues only economic goals,2 value judgments are unavoidable. What are typically offered in antitrust cases as procompetitive and anticompetitive effects are rarely two sides of the same coin, and there is no such monolithic thing as competition that is furthered or impeded by competitor conduct. In fact, competition-whether defined as a process or as a set of outcomes associated with competitive markets-is multifaceted. Antitrust law often must trade off one kind of for another, or one salutary effect of (such as price, quality or innovation) for another. And in so doing, antitrust courts must make judgments between different and incommensurate values.The incommensurability problem is not entirely unrecognized in antitrust discourse, but it is downplayed in a manner harmful to policy and doctrine.3 Antitrust scholars acknowledge-and sometimes even highlight-the incomparability of the effects they measure.4 Judicial opinions occasionally, although less often, contain explicit discussions of the disparate competitive values at stake.5 But more often, these judgments are implicit.The absence of attention to the fact that procompetitive and anticompetitive effects, as they are presented in an antirust suit, are usually incommensurate, and the absence of debate about how to trade them off means that antitrust law is under-theorized. Rhetoric of commensurability in antitrust has made it unpopular for judges to acknowledge the use of value judgments in deciding antitrust cases.6 This has pushed important debates about those values into the subtext of antitrust opinions rather than allowing for the full and open discussion that they merit. It has also led to a set of doctrines that courts use to avoid the appearance of judgment, which distort antitrust litigation usually in favor of defendants. These evasive maneuvers have made a mess out of questions such as when the burden of production shifts from plaintiff to defendant, which arguments require empirical proof or a rigorously defined market, and what kinds of procompetitive justifications are categorically illegitimate.This Article uses Sherman Act § 1 liability to illustrate the incommensurability of most pro- and anticompetitive effects in antitrust litigation. Although the problem pervades antitrust law and policy, § 1 doctrine nicely illustrates the (false) exceptionalism of antitrust. The rhetoric of the Rule of Reason7 (the dominant mode of §1 analysis) exemplifies the problem: it claims to protect agreements that enhance and condemn those that destroy it,8 as if competition referred to one single value that antitrust must promote. But below the surface, the cases and rules actually do struggle with how to trade off very different benefits and costs of agreements among competitors. Examples include trading off quantitative for qualitative measures of consumer welfare, balancing present and future competitive effects, and trading off competitive effects on different classes of consumers. These latent debates play out in cases considering restraints that suppress intrabrand while stimulating interbrand competition,9 that trade a free market with failures for a self-regulated market with suppressed rivalry,10 and that create a new product by otherwise restricting competition. …
For over forty years, South Dakota courts have presumed the Fourth Amendment does not require an officer making an arrest for drunk driving to obtain a warrant before requiring a blood Officers, acting on this presumption, have required suspects to submit to blood tests even after the suspect refuses. Recent case law shows this presumption is mistaken. The need for a warrant depends on the totality of the circumstances. The South Dakota judiciary should act to reclaim the weighty role of standing between police officers seeking evidence through a Fourth Amendment search DUI cases and the citizenry they have sworn to protect. To accomplish this, the judiciary should unequivocally articulate circumstances that require a warrant and circumstances where police officers may forego obtaining a warrant. When police officers clearly understand what the courts expect, the officers' job is made easier, the judiciary's warrant approval process becomes more efficient, and the citizens' rights are better protected. I. INTRODUCTION The Fourth Amendment (1) requires police officers obtain a warrant before a person arrested for Driving Under the Influence (DUI) can be required to submit to a blood (2) If, however, the police officer reasonably believes he faces an emergency in which the delay necessary obtaining a warrant ... threaten[s] 'the destruction of evidence,' the officer may forego the warrant requirement. (3) This exception to the general warrant requirement falls within what are known as exigent circumstances. (4) In a DUI case, the most important evidence of the crime obtaining a warrant that are not as prevalent urban jurisdictions. (176) These include: the lack of cell phone coverage to call a magistrate, distance to medical facilities, and the unavailability of a magistrate to make the warrant determination. (177) Each future determination made by South Dakota courts will help inform police officers and prosecutors about how to conform their procedures to Fourth Amendment requirements, however the courts should not wait to spell out general guidelines: too much is at stake. (178) In the meantime, courts should not exclude the BAC evidence where an officer relied on the Supreme Court of South Dakota's past decisions condoning warrantless nonconsensual blood tests DUI cases. (179) After all, the purpose of the exclusion of evidence for Fourth Amendment violations is to deter future conduct, not to penalize reasonable reliance on past judicial precedent. (180) South Dakota courts should, on the other hand, caution officers that creating exigency by artificially delaying a blood draw would be rejected. (181) C. GUIDELINES FOR OFFICERS Unfortunately, based on the most current statement of the law governing DUI blood tests, A police officer ... would have no idea--no idea--what the Fourth Amendment requires of him, once he decides to obtain a blood sample from a drunk driving suspect who has refused a breathalyzer test. (182) This confusion can, and should, be cleared up at the jurisdictional level. (183) As a starting point, police officers should get a warrant whenever possible, not just to meet Fourth Amendment requirements, but also because warrants insulate the blood test from a suppression motion and switch the burden of proof to the defendant claiming the search, i.e., blood test, was unlawful. (184) South Dakota allows telephonic warrants, but they are not streamlined. (185) This type of warrant requires an officer to fill out the warrant application and read it verbatim to the issuing magistrate. (186) Once the magistrate approves the warrant, the requesting officer can sign the magistrate's name. (187) Because the circumstances a DUI case are often routine, prosecutors and court officers should advocate for a more efficient process including creating form warrants that require less time to fill out yet still provide individualized and detailed information to the issuing magistrate. …
In equal protection jurisprudence, courts adhere to a three-tiered system of review to determine the constitutionality of laws that rely on classifications of people. Strict scrutiny is the most searching inquiry, followed by intermediate scrutiny, and then rational basis. Rational basis review is the default. The two heightened levels of scrutiny apply to only a handful of already-identified groups. As a general principle, courts are deferential to the other branches of government. However, there is a departure to that principle when it comes to individual rights. That is, rational basis review is exceptionally deferential to the government. When individual rights are at stake, courts typically require the government to prove that its action is constitutional in nature and justified in fact. But under rational basis review, courts require the challenger of a law to disprove every conceivable, possible rationale for a law, regardless of whether it was actually a motivating factor behind the legislation. This standard has been interpreted to mean that even if a judge can imagine any reason why a rationale could — even hypothetically — justify a law, then the law stands as constitutional. Often governments do not even assert a rationale for their actions. Rather challengers must disprove even the wildest, most speculative and hypothetical justifications, which could include those introduced by the judge herself.This Article begins by revealing several of the inherent shortcomings of the current rational basis standard. That standard undermines principles of adversarial adjudication, destabilizes other individual rights doctrines, leaves the rights of certain citizens with virtually no protection, and legitimizes discriminatory animus. In effect, rational basis review preserves a discriminatory status quo, meaning that as society’s values evolve, the Equal Protection Clause becomes less capable of protecting those values. Those troubling consequences need not persist. This Article proposes an alternative and improved in standard of review for the least intrusive level of judicial scrutiny in the tiered equal protection framework. This standard, which I call “rationale review,” shifts the burden of proof onto the government to show a reasonable, fact-based justification for laws that classify people. This standard would only marginally increase the burden on governments defending laws that involve classification of people, but it would require those governments to proffer at least an iota of evidence of a constitutionally permissible justification. Rationale review would not dramatically alter the current tiered equal protection framework. Those groups currently afforded heightened scrutiny would continue to receive such a standard of review. And laws concerning all other groups would continue to receive the least intrusive judicial inquiry under the tiered framework. Under rationale review, however, the government would bear the burden of proof in justifying as constitutional — with facts — those laws that make classifications of people.
I. MUST EVERY APPARENT FREE SPEECH CASE HAVE A MEANINGFUL ANSWER UNDER THE FREE SPEECH CLAUSE? The litigation (1) challenging the recently adopted federal statute (2) and FDA rules (3) seeking to regulate tobacco package labeling focuses on freedom of speech. There is, no doubt, an obvious, literal sense in which these tobacco-labeling cases raise various free speech issues, evoke and debate free speech tests, and are judicially resolved on free speech grounds. This article, however, raises an unusual but revealing question about what we might call the legal that is apparently controlled by free speech law. In particular, this article asks whether an apparent free speech law case could, upon closer examination, ever turn out to not really involve a genuine free speech law case. Certainly, in most free speech cases, we expect to encounter typical sorts of indeterminacies (4) and incommensurabilities. (5) This article asks whether there could also be what we might, by analogy, call something like gaps, cavities, faults, voids, lacunae, or vacua within the conceptual space of free speech law. The idea would be roughly this: to begin with, a case that is located within a free speech vacuum might, contrary to initial appearances, not coherently implicate the distinctive basic reasons for according constitutional protection to speech in the first place. By consensus, the most fundamental of such reasons typically include one or more of the following: promoting the search for truth of one sort or another; furthering the value of self-realization or self-fulfillment in one sense or another; and promoting something like democratic self-government, perhaps including the civic virtue of tolerance and the maintenance of popular constraints on the exercise of political power. (6) Setting aside possible complications and qualifications, if none of the basic reasons for distinctively protecting speech are coherently or meaningfully at stake in a given case, we could say that the most basic of the various presuppositions or prerequisites of free speech jurisprudence is in that case not met. Of course, the fact that no basic purpose of protecting freedom of speech is significantly implicated in a given case would most typically indicate not that we have entered a void or vacuum within the space of free speech law, but instead merely that the purported speaker should simply lose the free speech case on the merits. For example, literal or symbolic speech that does not intend to, and does not in fact, convey any cognizable message to any possible audience might well simply not count as speech for constitutional purposes.7 And we would presumably say in such cases that the purported speaker has merely lost the entirely genuine free speech case on the merits, (8) Yet what if a particular case involved not only the absence of any sufficient, meaningful, coherent promotion of any of the distinctive basic purposes for constitutionally protecting speech, but the corresponding absence, on the other side of the case, of any sufficiently meaningful, coherent, distinctive, promotion of any legitimate or otherwise sufficient governmental interest, to be promoted through regulating the speech in question? We could, in some sense, still label the case as a free speech case, lost on the merits by whichever side bore the decisive burden of proof. (9) But more substantively, we could in such a case rightly sense something like a free speech law vacuum. The case would present not so much, say, a standard problem of free speech law indeterminacy, as of the absence of any sufficiently meaningful, non-self-contradictory, cogent reasons, based in free speech and regulatory law, (10) for deciding the case in any particular way, or for deciding the case on free speech and regulatory grounds at all. Or we could say that a free speech law vacuum case presents not so much a standard problem of the incommensurability (11) of values and interests, but an absence of any sufficient such interests, bearing favorably or unfavorably upon freedom of speech, on both sides of the case. …
In 1995, a law professor at the University of Chicago Law School dubbed the Supreme Court confirmation hearings “vapid and hollow” and added that they, as implemented, “serve little educative function, except perhaps to reinforce lessons of cynicism that citizens often glean from government.” Ironically, this same law professor, Elena Kagan, later endured the confirmation hearings as a nominee and currently sits as the 112th Justice of the U.S. Supreme Court. While she may be one of the few to ever reach a seat on the High Court, she is not alone in her assessment of the Supreme Court’s lackluster confirmation process. Other legal scholars have called the process a complete mess and likened it to a circus or a kabuki dance.\nAlthough there are multiple aspects of the confirmation process that could use reform, this Note draws attention to one flaw of the confirmation hearings that many overlook—members of the Senate Judiciary Committee (the “Committee”) use the confirmation hearings as a forum to voice their own political beliefs instead of focusing their undivided attention on the qualifications of the nominee. Since senators do not focus entirely on the nominee, they are not thoroughly examining the nominee’s fitness for the Court. As nationally televised events, it only follows that senators use the confirmation hearings as a medium to speak to theirconstituents. One may ask why this matters or point out that one would expect this of senators; after all, senators constantly have their campaigning caps on, especially when receiving national attention. However, these responses ignore the negative effects of senators placing themselves, rather than the nominees, in the confirmation hearings’ limelight. If the purpose of confirmation hearings is to determine the qualifications of a nominee and ensure that he or she is fit for the Court, then this purpose goes unfulfilled if constituents influence senators’ lines of questioning. Senators consume themselves with how their constituents back home will view their questioning and fail to focus on what is at stake—the confirmation of the nation’s next Supreme Court justice. If the purpose of confirmation hearings is to evaluate the nominee, then this purpose would best be served by having undivided attention focused on the nominee and his or her answers. If senators have an ulterior motive—engaging in an open dialogue with their constituents—then the confirmation process does not effectively serve its primary purpose.\nPart I of this Note investigates the confirmation and appointment power that the Constitution delegates to the Senate. Part II provides a detailed history of the confirmation process and its dramatic evolution over the last century, which is crucial in order to fully comprehend today’s process and its problems. Part III, after examining the media’s role within the confirmation process and the publicity that the confirmation hearings attract, offers proof that senators are cognizant of their national audience and highlights specific examples of senators addressing their constituents via the confirmation hearings. Part IV concludes by setting forth three possible solutions to the overarching problem: implementing anonymous questioning of the nominees through Committee representatives; appointing experts to question the nominees in the senators’ places; and replacing video recording of the hearings with audio recording.