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    Harvard Law Review: Volume 129, Number 8 - June 2016
    Harvard Law Review: Volume 129, Number 8 - June 2016
    Harvard Law Review: Volume 129, Number 8 - June 2016
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    Harvard Law Review: Volume 129, Number 8 - June 2016

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    The June 2016 issue, Number 8, features these contents:

    * Article, "Systemic Facts: Toward Institutional Awareness in Criminal Courts," by Andrew Manuel Crespo
    * Book Review, "Fixing Statutory Interpretation," by Brett M. Kavanaugh
    * Book Review, "Knowledge and Politics in International Law," by Samuel Moyn
    * Note, "Major Question Objections"
    * Note, "Chinese Common Law? Guiding Cases and Judicial Reform"
    * Note, "OSHA's Feasibility Policy: The Implications of the 'Infeasibility' of Respirators"

    Furthermore, student commentary analyzes Recent Cases on sex-discrimination implications of gender-normed FBI fitness requirements; trademark law and the antidisparagement rule as a constitutional problem; practical elimination of the adverse-interest exception as a defense to fraud-on-the-market claims; deference to administrative agency's amicus brief's interpretation of student-loan regulations; parties' analysis of fair use before issuing copyright-violation takedown notice; causation standards for penalty enhancement in Controlled Substances Act cases; and admiralty jurisdiction and removal to federal court after a 2011 amendment to 28 USC 1441. Finally, the issue includes several brief comments on Recent Publications.

    The Harvard Law Review is offered in a quality digital edition, featuring active Contents, linked footnotes, active URLs, legible graphics from the original, and proper ebook and Bluebook formatting. This is the eighth and final issue of academic year 2015-2016.

    LanguageEnglish
    PublisherQuid Pro, LLC
    Release dateJun 10, 2016
    ISBN9781610277907
    Harvard Law Review: Volume 129, Number 8 - June 2016
    Author

    Harvard Law Review

    The Harvard Law Review is a student-run organization whose primary purpose is to publish a journal of legal scholarship. The Review comes out monthly from November through June and has roughly 2500 pages per volume. The organization is formally independent of Harvard Law School. Primary articles are written by leading legal scholars, with contributions in the form of case summaries and Notes by student members.

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      Book preview

      Harvard Law Review - Harvard Law Review

      Volume 129

      Number 8

      June 2016

      Harvard Law Review

      Smashwords edition. Copyright © 2016 by The Harvard Law Review Association. All rights reserved. This work or parts of it may not be reproduced, copied or transmitted (except as permitted by sections 107 and 108 of the U.S. Copyright Law and except by reviewers for the public press), by any means including voice recordings and the copying of its digital form, without the written permission of the print publisher.

      Published by the Harvard Law Review. Digitally published in ebook editions, for the Harvard Law Review, by Quid Pro Books, at Smashwords. Available in major digital formats and at leading ebook retailers and booksellers.

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      Cataloging for Volume 129, Number 8:

      ISBN 978-1-61027-790-7 (ePUB)

      CONTENTS

      ARTICLE

      Systemic Facts: Toward Institutional Awareness in Criminal Courts

      Andrew Manuel Crespo     (129 HARV. L. REV. 2049)

      BOOK REVIEWS

      Fixing Statutory Interpretation

      Brett M. Kavanaugh     (129 HARV. L. REV. 2118)

      Knowledge and Politics in International Law

      Samuel Moyn     (129 HARV. L. REV. 2164)

      NOTES

      Major Question Objections

      (129 HARV. L. REV. 2191)

      Chinese Common Law? Guiding Cases and Judicial Reform

      (129 HARV. L. REV. 2213)

      OSHA’s Feasibility Policy: The Implications of the Infeasibility of Respirators

      (129 HARV. L. REV. 2235)

      RECENT CASES

      Title VII — Sex Discrimination — Fourth Circuit Applies Unequal Burdens Analysis to Gender-Normed Fitness Test. — Bauer v. Lynch, 812 F.3d 340 (4th Cir.), reh’g en banc denied, No. 14-2323 (4th Cir. Mar. 8, 2016)

      (129 HARV. L. REV. 2257)

      First Amendment — Offense-Based Bar on Trademark Registration — Federal Circuit Holds the Lanham Act’s Antidisparagement Provision Unconstitutional. — In re Tam, 808 F.3d 1321 (Fed. Cir. 2015) (en banc)

      (129 HARV. L. REV. 2265)

      Securities Law — Rule 10b-5 — Ninth Circuit Effectively Eliminates Adverse-Interest Exception as a Defense to Fraud-on-the-Market Claims. — In re ChinaCast Education Corp. Securities Litigation, 809 F.3d 471 (9th Cir. 2015)

      (129 HARV. L. REV. 2273)

      Administrative Law — Auer Deference — Seventh Circuit Defers to Department of Education Amicus Brief Interpreting Student Loan Regulations. — Bible v. United Student Aid Funds, Inc., 799 F.3d 633 (7th Cir.), reh’g denied, 807 F.3d 839 (7th Cir. 2015), cert. denied, 2016 WL 2842875 (U.S. May 16, 2016).

      (129 HARV. L. REV. 2281)

      Copyright Law — Digital Millennium Copyright Act — Ninth Circuit Requires Analysis of Fair Use Before Issuing of Takedown Notices. — Lenz v. Universal Music Corp., No. 13-16106, 2016 WL 1056082 (9th Cir. Mar. 17, 2016), reh’g en banc denied, id.

      (129 HARV. L. REV. 2289)

      Criminal Law — Controlled Substances Act — District Court Denies Oxycodone Distributor’s Post-trial Motions in Penalty-Enhancement Case. — United States v. Smith, No. 6:13-34-KKC, 2015 WL 4458891 (E.D. Ky. July 21, 2015)

      (129 HARV. L. REV. 2297)

      Admiralty Law — Removal — Seventh Circuit Holds that 2011 Amendment to 28 U.S.C. § 1441 Permits Removal Based Solely on Admiralty Jurisdiction. — Lu Junhong v. Boeing, 792 F.3d 805 (7th Cir.), reh’g en banc denied, No. 14-1825 (7th Cir. Aug. 10, 2015)

      (129 HARV. L. REV. 2305)

      RECENT PUBLICATIONS

      (129 HARV. L. REV. 2313)

      ABOUT THE HARVARD LAW REVIEW

      The Harvard Law Review (ISSN 0017-811X) is published monthly eight times a year, November through June, by The Harvard Law Review Association at Gannett House, 1511 Massachusetts Ave., Cambridge, MA 02138. Periodicals postage paid at Boston, Mass., and additional mailing offices. POSTMASTER: Send address changes to the Harvard Law Review, Gannett House, 1511 Massachusetts Ave., Cambridge, MA 02138.

      Current subscription: $60.00 individual / $200.00 institution, payable in advance. Remittance must be made by U.S. Dollar Draft payable at a United States bank. Subscription requests that are received midvolume may be subject to an additional postage and handling charge. Domestic claims of nonreceipt of issues should be made within 90 days of the month of publication, overseas claims within 180 days; thereafter, the regular back issue rate will be charged for replacement. All notifications of changes of address should include old and new addresses, with ZIP codes. Please inform us one month in advance to ensure prompt delivery.

      Single issues of Volume 129 are available from The Harvard Law Review Association at the following prices: $15.00 individual / $55.00 institution. Back issues and volumes prior to Volume 129 are available from William S. Hein & Co., Inc., 1285 Main St., Buffalo, NY 14209-1987. For the prices of issues, volumes, and sets prior to Volume 128, please inquire of William S. Hein & Co., Inc. (http://www.wshein.com).

      INFORMATION FOR CONTRIBUTORS

      The Review invites the submission of unsolicited manuscripts. The Review strongly prefers articles under 25,000 words in length — the equivalent of about 50 law review pages — including text and footnotes. Length in excess of 30,000 words — the equivalent of about 60 law review pages — will weigh significantly against selection. Please confine author’s name and biographical information to a removable title page. Footnotes should conform to the 20th edition of The Bluebook: A Uniform System of Citation.

      Review of manuscripts may take from four to six weeks. Authors who are considering concurrent submissions to other journals should be aware that the Review cannot guarantee timely responses to requests for expedited review.

      Send all correspondence to The Harvard Law Review Association, Gannett House, 1511 Massachusetts Ave., Cambridge, MA 02138.

      For additional information about the Harvard Law Review, or to submit a manuscript, please visit our website at http://www.harvardlawreview.org.

      ARTICLE

      SYSTEMIC FACTS:

      TOWARD INSTITUTIONAL AWARENESS

      IN CRIMINAL COURTS

      Andrew Manuel Crespo

      [129 HARV. L. REV. 2049 (2016)]

      CONTENTS

      SYSTEMIC FACTS:

      TOWARD INSTITUTIONAL AWARENESS

      IN CRIMINAL COURTS

      Andrew Manuel Crespo

      *

      Criminal courts are often required, in the course of implementing existing doctrines of constitutional criminal law, to regulate other institutional actors within the criminal justice system — most notably, prosecutors and police officers. The one-off nature of constitutional criminal adjudication, however, often impedes such regulation, in part by denying courts an opportunity to see the systemic features of law enforcement behavior. This mismatch between criminal courts’ institutional task and their institutional capacity has inspired efforts to identify other means of addressing systemic failings of American criminal justice — including calls for a pivot to law enforcement self-regulation as a primary means of constraining state power in the criminal justice arena. The true capacity of criminal courts, however, has thus far been significantly underappreciated. For at an institutional level, criminal courts are not only deeply and serially engaged with the very governmental entities that constitutional criminal law seeks to regulate, but are also constantly collecting — often in a digital format readily amenable to organization, search, and analysis — valuable and detailed systemic facts about how other criminal justice actors operate. This information extends far beyond the truncated transactional horizon of a given case, and thus could allow courts to access a deep internal well of institutional knowledge about their local criminal justice systems. Uncovering the hidden potential of this latent institutional knowledge raises important questions about the opportunities for — and the responsibilities of — criminal courts to collect systemic facts, to analyze them, to make them transparent to litigants and to the public, and to integrate them into the process of constitutional criminal adjudication.

      INTRODUCTION

      Atroubling troubling tension has come to define constitutional criminal law, that large and ever-growing body of jurisprudence that serves as the principal mechanism for regulating American law enforcement.¹ Substantively grounded in judicial precedent and enforced through the adjudicative process, this regulatory regime is fundamentally court-centric: it requires criminal courts to serve as the systemic regulators of first — and, in practice, often last — resort when it comes to channeling or constraining law enforcement authority and behavior. The process through which courts undertake that responsibility, however, is hardly designed to facilitate systemic judicial review.² On the contrary, case-by-case adjudication naturally focuses judicial attention on the case-specific details of individual claims, presented by individual litigants, one case at a time. The very process of constitutional criminal adjudication, in other words, inculcates in criminal courts a transactional myopia that frustrates their capacity to recognize, understand, and engage the broader institutional dynamics of the criminal justice system — and thus to implement the deterrent remedies that constitutional criminal law expressly requires courts to utilize as tools for shaping and altering state action at the systemic level.³

      This Article is hardly the first to recognize this core tension. Indeed, an emerging scholarly view has come to see criminal courts’ transactional myopia not only as a serious impediment to meaningfully systemic judicial review, but also as an essentially intractable feature of the criminal courts that renders them incapable of appreciating the broader institutional activities of the law enforcement entities they are called upon to regulate and oversee.⁴ This diagnosis, in turn, has prompted calls to move away from criminal courts and toward a markedly different regulatory regime, a regime in which constitutionally grounded judicial review is largely replaced by an administrative framework built around law enforcement self-regulation. Rather than judging the lawfulness of law enforcement actions directly, courts in this new regime would instead judge the processes by which law enforcement actors judge themselves, ensuring that those processes adhere to basic norms of transparency and democratic accountability, but otherwise deferring to law enforcement actors when it comes to the substantive validity of the decisions, policies, and actions that those actors pursue.

      This Article joins in the growing body of scholarship examining the vexing challenges presented by criminal courts’ transactional myopia, a real and important institutional problem that arises from the narrow manner in which constitutional criminal adjudication is currently practiced. Contrary to the emerging scholarly view, however, I do not see the current state of affairs as inevitable or intractable. Criminal courts do not lack the capacity for broader institutional awareness of the criminal justice systems over which they preside. Rather, they have simply failed to realize a latent capacity for such awareness that already exists. If that capacity were to be actualized, it could facilitate a regime in which criminal courts actively and meaningfully participate in systemic criminal justice regulation — a regime preferable to one in which they are relegated to the sidelines.

      The key question is how criminal courts might actually go about attaining such greater institutional awareness. That is the question this Article explores. And in an effort to answer it, the Article identifies a potentially powerful catalyst of criminal courts’ institutional awareness, lying within what I call the courts’ own systemic facts.

      As a conceptual device, systemic facts occupy a space beyond the familiar and canonical concepts of adjudicative facts and legislative facts first introduced by Professor Kenneth Culp Davis over half a century ago.⁵ Unlike adjudicative facts, systemic facts are not case specific; they concern phenomena broader than the who, what, when, where, or why of a specific factual incident. But unlike legislative facts, systemic facts do not relate to social phenomena detached or removed from the judiciary itself. Rather, systemic facts look inward: they are facts about the criminal justice system itself, and about the institutional behavior of its key actors. Because criminal courts and their judges are themselves key institutional actors within that system, and because they are constantly and serially engaged with the other institutional actors composing the system, they often have both privileged access to and an imbued sense of familiarity with this special body of information. Indeed, systemic facts frequently reside within the considerable amounts of information already within criminal courts’ custody and control.

      Scholars to date have failed to appreciate just how much of this information exists — or how valuable it can be. This oversight is in large part a function of the academic tendency to discount the role of trial courts in studies of judicial administration, adjudication, and institutional design.⁶ That oversight, however, obscures an important reality: the institutions responsible for resolving constitutional claims in the first instance — criminal trial courts — have over the past decade and a half become great warehouses of criminal justice data, information that reveals impressive details about the performance of the criminal justice system on matters centrally relevant to constitutional criminal adjudication. These internal facts exist, moreover, in a digital format that can be readily aggregated, organized, searched, and analyzed.

      If criminal courts continue to allow this specialized institutional knowledge to lie dormant, they will merit the critique that they have failed to live up to their institutional responsibility as proponents of systemic criminal justice. If, however, criminal courts are able to acquire, collect, and organize their systemic facts; to report them to litigants, other vested institutional actors, and the public; to enlist expert assistance where necessary to access and understand them; and to pro-actively encourage the integration of such understanding into the judicial process, then criminal courts could well gain the capacity to participate, at a systemic level, in budding efforts to reform the failed criminal justice state over which they now preside.

      Identifying such a pathway toward criminal courts’ enhanced institutional capacity is this Article’s primary aim. The project is self-consciously a first step: improving criminal courts’ capacity for institutional awareness will not alone transform them into fully competent systemic actors. Other important issues — including the scope and effectiveness of criminal court remedies, as well as questions about the substantive contours of underlying doctrinal frameworks — will necessarily remain open.⁷ Engaging criminal courts’ basic capacity for institutional awareness, however, is a necessary first step. For an institution cannot hope to promote systemic justice within a system that it fundamentally fails to comprehend.

      The discussion that follows proceeds in four Parts: Part I explores the central tension between the regulatory role that contemporary constitutional criminal law assigns to criminal courts and the inadequately transactional mode of adjudication through which criminal courts undertake that task. It then partially critiques emerging proposals to turn away from courts and toward law enforcement self-regulation as the primary solution to this problem. Part II conceptually introduces systemic facts as catalysts of criminal courts’ institutional awareness. Part III is the Article’s core. Through a series of detailed examples grounded in a case study of the criminal courts in the nation’s capital, it demonstrates just how valuable systemic facts can be when it comes to improving constitutional criminal adjudication as a tool of systemic criminal justice regulation. Finally, Part IV steps back to examine the limitations, obstacles, and potential objections to systemic factfinding’s emergence as a new mode of constitutional criminal adjudication — making clear what systemic facts can and cannot do, highlighting practical challenges to systemic factfinding in criminal courts, and ultimately arguing that a transition to a regime in which systemic factfinding plays a greater role is both achievable and desirable.

      I. SYSTEMIC CRIMINAL JUSTICE,

      TRANSACTIONAL CRIMINAL COURTS

      How can criminal courts better fulfill their jurisprudentially assigned role as systemic regulators of law enforcement behavior? This Part frames that central question, which animates the broader project. The Part begins by examining the troublesome disjunction between the regulatory mandate assigned to criminal courts by constitutional criminal law and the transactional process through which courts adjudicate constitutional claims.⁸ It then introduces — and partially critiques — an emerging scholarly response to this institutional mismatch: the proposed turn away from courts and toward administrative self-regulation as a primary constraint on law enforcement authority.

      A. The Regulatory Jurisprudence of Constitutional Criminal Law

      Constitutional criminal law, scholars often observe, has long been marked by a distinction between two basic perspectives.⁹ The first of these perspectives is primarily rights based, envisioning the protection of individual interests of personhood, property, and privacy against governmental transgressions as constitutional criminal law’s central function.¹⁰ The second perspective, by contrast, presents a more instrumental view, in which the relevant constitutional doctrines function as components of a regulatory system designed to constrain law enforcement authority writ large.¹¹ On the former account, criminal courts are fora for adjudicating individual claims and for redressing the harm suffered by the litigant when a violation of rights occurs.¹² On the latter account, they are primarily institutions responsible for promoting systemic justice and for regulating state power at an institutional level.¹³

      While the Supreme Court’s early cases evince some support for the rights-based account,¹⁴ the Court’s strong tendency over the past forty years has been to emphasize the regulatory model. Nowhere is this more apparent than in the Court’s discussion of the central implementing device of constitutional criminal law — the exclusionary rule — which the Court described decades ago not as a means of vindicating a personal constitutional right of the party aggrieved but rather as a regulatory device designed to safeguard constitutional values systemically, through its deterrent effect on future law enforcement misconduct.¹⁵ More recently, the Court has described this deterrent effect as the sole purpose of the exclusionary rule,¹⁶ underscoring a regulatory conception of constitutional criminal law that undergirds constitutional remedies beyond just the suppression of evidence.¹⁷ Indeed, in view of the Court’s many pronouncements in this vein, contemporary scholars often observe that the Supreme Court has largely abandoned the individual-rights framework of constitutional criminal adjudication in favor of the more instrumental, regulatory approach.¹⁸

      Without intending to detract from or undermine the rights-based account, or to suggest that the two models are mutually exclusive, this Article takes at face value the Supreme Court’s assertion that deterrent regulation is constitutional criminal law’s sole purpose.¹⁹ It thus proceeds from a backdrop understanding of criminal courts as systemic actors, called upon to implement existing doctrinal frameworks in a manner designed to regulate law enforcement behavior at an institutional level. Framed as such, the discussion that follows is concerned not so much with the substantive content of various doctrinal rules that the Supreme Court has adopted over the years.²⁰ Rather, the focus here is on criminal courts’ institutional structure, design, and capacity: Are criminal courts — tasked by contemporary constitutional criminal law with an unmistakably regulatory mandate — capable of living up to that responsibility?

      B. The Challenge of Transactional Myopia

      One emergent scholarly response to that question takes a decidedly negative view of criminal courts’ basic institutional capacity, describing constitutionally grounded judicial review as a completely inadequate means of regulating law enforcement behavior carried out pro-grammatically at a systemic level, as so much law enforcement behavior today is.²¹ The germ of this critique lies in the wholly fair observation that while constitutional criminal law may frame criminal courts’ responsibilities in broad systemic terms, constitutional criminal adjudication, at least as it is currently practiced, is largely transactional in nature, focusing on the one-off interaction typified by the singular search, seizure, or prosecution of a particular suspect for a specific crime.²² As Professor Daphna Renan explains, transactional adjudication hinders criminal courts largely because it denies them the basic tools to put the pieces together, to see a whole greater than the sum of its parts when overlapping and interconnected law enforcement practices operate in combination to create systemic risks to constitutionally protected interests.²³ Lacking a holistic picture of how the criminal justice system operates, criminal courts ultimately end up deferring to law enforcement activity — not out of some normative sense that deference to executive action is appropriate, but rather because the courts lack the basic institutional capacity to comprehend the institutional subjects of constitutional criminal law’s intended regulation.

      Given this criticism, scholars writing in this emerging literature often seek to identify alternative institutional structures that might better provide the systemic oversight of law enforcement that criminal courts, hindered by their transactional myopia, have thus far failed to deliver. Among the various candidates to provide that alternative regulation, one common nominee attracts increasing scholarly attention: administrative agencies — including, most especially, the same agencies of executive government that constitute law enforcement itself.²⁴

      The driving rationale of this proposal, to quote Professor Christopher Slobogin, is the contention that law enforcement agencies possess expertise about the various ways the criminal law can and should be enforced, including expertise about how crime is committed, targeted, and prevented, that courts simply do not have.²⁵ Agencies possessing such knowledge, including the police themselves,²⁶ are viewed within this line of scholarship as much better positioned to make decisions about . . . the relative efficacy of enforcement methods than other institutions, like courts.²⁷ So long as law enforcement agencies arrive at their policy decisions through transparent democratic processes such as legislative authorization and public rulemaking,²⁸ two core ingredients of legitimate administration, these scholars contend that an agency-driven approach to regulating the criminal justice system offers a viable means of filling the regulatory void left behind by criminal courts’ perceived inability to regulate policing directly.²⁹

      As the foregoing should make clear, this proposed alternative regime entails a fundamentally New Role for Courts.³⁰ Specifically, to quote Professors Barry Friedman and Maria Ponomarenko, two scholars leading this burgeoning movement, the shift to agency-centric administration would eliminate the need for courts to uphold or strike down policing decisions on the merits, and thus largely relieve courts of the responsibility to rule ‘aye’ or ‘nay’ on the constitutionality of policing practices.³¹ Instead, the model would shift courts from serving as sources of substantive judicial oversight into a role familiar in the administrative law context: courts would oversee the procedural validity of law enforcement behavior by determining whether the decisionmaking and conduct of such actors comply with basic standards of transparency and democratic accountability.³² So long as those procedural requirements are satisfied, however, courts would retreat from passing judgment on the merits of law enforcement activity that adheres to the substantive policies that the law enforcement agencies have authored to govern their own behavior.³³ Judicial deference to law enforcement activity, in other words, would become structured, channeled, and intentional,³⁴ as opposed to being a de facto byproduct of courts’ functional incapacity to regulate systemically. Courts need not judge the police under this model; they need judge only the processes by which the police and other law enforcement actors judge themselves.³⁵

      C. A Partial Critique of the New Administrativist Turn

      The contemporary scholars advocating this pivot toward agency-centric regulation of law enforcement authority are admirably rejuvenating and expanding upon an earlier academic effort,³⁶ leveraging valuable insights from administrative law in the hopes of righting a criminal justice system accurately perceived as having gone seriously awry.³⁷ It is surely a project with great promise: given the transformation of American government accomplished by the administrative revolution of the last century, efforts in this century to promote a similarly successful revolution in the administration of American law enforcement seem undeniably worthwhile.

      And yet, there is a risk of going too far. For while agencies surely have comparative institutional advantages over courts, so too courts have comparative institutional advantages of their own — particularly in the criminal justice arena, where judicial engagement is unavoidable and where the executive power of the state is exercised in its most concentrated form, often against a sociopolitical backdrop rife with longstanding structural inequalities. The question, as always, is one of tradeoffs: In a potential transition from one institutional paradigm to another, what will be gained — and what will be lost?

      It is in this respect that there is reason to worry that some recent proposals have moved perhaps too quickly to reduce — or indeed, in the strongest version of the argument, to eliminate — the need for courts to uphold or strike down potentially illegitimate governmental actions in the criminal justice arena on the merits through direct judicial review,³⁸ as criminal courts have done for the past half century and more. Before one enthusiastically embraces so sweeping a reform agenda, it seems important at least to examine closely what might be lost in the bathwater of institutional redesign.³⁹ In particular, at least three significant institutional advantages of the judiciary deserve careful consideration.

      First, as compared to law enforcement actors themselves, one might expect criminal courts to take a relatively more balanced approach to the hard normative question that so often lies at the heart of criminal justice law, policy, and administration: how to balance competing societal values of liberty and security.⁴⁰ As I have observed elsewhere, in the debate over how to strike the always difficult balance between robust law enforcement authority and a solicitude for civil liberties that constrains such authority, it is entirely understandable that the executive agencies of the state will champion law enforcement power,⁴¹ for it is uniquely their responsibility to keep society safe.⁴² Courts, however, operate within a different professional tradition, a tradition that at least aspires to reflective and dispassionate analysis⁴³ insulated from the political and institutional forces that often drive law enforcement actors to favor only one half of the liberty-security equation.⁴⁴ This is not to say that courts have always struck the balance between these competing value systems perfectly, or that they are immune to public sentiments, particularly in moments of heightened alarm or when the courts themselves are staffed by elected officials.⁴⁵ The claim, rather, is the more modest contention that — as compared to the security apparatus of the state itself — courts are relatively more likely to approach the hard normative task of weighing liberty and security with a balanced regard for each, an institutional feature of the judiciary that ought to give criminal courts a distinctive claim to participate in the broader project of promoting and ensuring systemic criminal justice.⁴⁶

      Second, criminal courts are uniquely structured to afford a voice and, ideally, a fair forum to constituencies that are often marginalized by the criminal justice system, and indeed by the political process more broadly. The very existence of such marginalization is significant when comparing the institutional advantages of courts and agencies, given that scholarly appeals to law enforcement self-regulation often respond to concerns regarding executive overreach by appealing to the constraining and legitimating force of democratic authorization, which they assert will be promoted and achieved through the administrative law framework.⁴⁷ Genuine democratic authorization, however, is often hard to attain in the poor, urban, minority communities that live on the criminal justice system’s front lines.⁴⁸ Indeed, even proponents of law enforcement self-regulation acknowledge that [t]he costs of policing fall disproportionately on communities of color and on the poor, constituencies that are either underrepresented in the political process or are too diffuse to generate much political pull.⁴⁹ These very failures of the democratic process, however, call into serious question whether public participation and engagement will in fact be meaningfully solicit[ed] and welcomed under an agency-centric regime, as proponents of the administrative model contend.⁵⁰ Criminal courts, by contrast, not only have the unique capacity to safeguard minority interests that may be ignored or abused in the political process,⁵¹ but are also the only governmental forum that guarantees an advocate — and thus a voice — to members of the very marginalized communities whose participation is vital to any truly democratic law enforcement regime.⁵² The courts, to be sure, have not always been stalwart protectors of underrepresented groups. And the shortcomings of appointed counsel in the criminal justice system are undeniable and often severe.⁵³ Still, insofar as comparative institutional assessments go, a reform agenda that would marginalize the judicial fora in which already marginalized groups are currently most able to be heard should cause some concern.

      Finally, criminal courts enjoy an institutional advantage simply by virtue of the fact that criminal sanctions cannot be imposed without them, a reality that puts criminal courts in a position to see and adjudicate a large stream of cases.⁵⁴ This inescapable intertwinement between criminal courts and the administration of the criminal process is potentially advantageous in at least two respects: First, the fact that criminal courts have an obligation to address claims for relief presented by the parties⁵⁵ means that they cannot dodge potentially pressing systemic issues that may well require attention — unlike administrative agencies, which are free to avoid such issues at their discretion, even if their ultimate motives for doing so derive from narrow or distorted institutional self-interests, bureaucratic politics and inertia, or interest-group capture.⁵⁶ Second, the fact that criminal courts serially engage with systemic criminal justice issues in the context of real-world disputes allows them to observe the gritty lived reality of criminal justice administration in the close and often stark relief sometimes necessary to expose the nuances that reside at the myriad points of contact where criminal justice policy meets its implementation.

      Indeed, the very fact that criminal courts are inextricably intertwined with the criminal justice systems over which they preside simply underscores the need to focus on their institutional capacity to regulate law enforcement authority. For when criminal courts are called upon to adjudicate criminal cases, they are frequently and inevitably also required to implement a now quite comprehensive constitutional code of criminal procedure,⁵⁷ which the judiciary has promulgated, curated, and implemented as a tool of law enforcement oversight and regulation for the past five decades. Notably, the idea of agency-centric administration as an alternative to this court-centric regime did not go undiscovered all those many years.⁵⁸ Rather, criminal courts have assumed their current role as the sole institutional regulators of American criminal justice in the face of a longtime wholesale ‘legislative [and administrative] default’ when it comes to regulating police practices.⁵⁹

      Contemporary scholars promoting a pivot away from courts and toward administrative self-regulation aim to end that longstanding default. But even the leading proponents of that nascent project acknowledge that it faces a long, uphill march through winter, with no signs yet of spring.⁶⁰ In the meantime, the criminal courts — with all of their transactional flaws and institutional shortcomings — are likely to remain the only institutions even remotely positioned to serve as meaningful proponents of systemic criminal justice regulation for the foreseeable future. An essential question thus necessarily comes to the fore: Is there a way for criminal courts to pursue their institutional task of systemic criminal justice regulation better?

      II. SYSTEMIC FACTS:

      CATALYSTS OF INSTITUTIONAL AWARENESS

      Any effort to answer that question must begin by engaging the central issue at the heart of the critique of criminal courts’ institutional capacity: the transactional methodology underlying constitutional criminal procedure and its adjudication.⁶¹ Transactional myopia is not the only impediment to realizing criminal courts’ greater systemic potential.⁶² It is, however, the fundamental first-order problem: An institution cannot hope to regulate a system that it lacks the basic capacity to comprehend. Thus, finding a way to enhance criminal courts’ institutional awareness of the criminal justice systems over which they preside is a necessary first step — the trailhead of a pathway toward a more systemically effective criminal judiciary.

      As the emergent scholarly critique explains, the problem of transactional myopia is fundamentally a problem concerning how courts obtain, access, and digest information about the institutional behavior of other criminal justice actors: judges lack the knowledge and lack the data to regulate law enforcement effectively.⁶³ Or that, at least, is the prevailing perception. What this account fails to appreciate, however, is that this prevailing perception is fundamentally misguided. While contemporary criminal courts do engage almost exclusively in transactional modes of constitutional adjudication, they do not lack access to systemic information or the capacity to comprehend it. On the contrary, contemporary criminal courts have at their disposal far more information about the systemic and institutional workings of their local justice systems than we — or they — have thus far come close to realizing. This information, moreover, holds considerable potential to catalyze criminal courts’ latent capacity for greater institutional awareness of the systemic dimensions of criminal justice administration.

      I refer to this body of potentially catalyzing information as systemic facts. The term is intended to evoke Kenneth Culp Davis’s canonical treatment of the various ways in which courts engage with the factual world around them.⁶⁴ Davis famously divided the universe of empirical information relevant to the judicial process into two categories: adjudicative facts and legislative facts. Adjudicative facts, on his account, are facts that concern the immediate parties or participants in a particular dispute and focus on what those actors did, what the circumstances were, what the background conditions were, and other case-specific details.⁶⁵ Legislative facts, by contrast, are ordinarily general,⁶⁶ are usually concerned with social and economic data about the broader world,⁶⁷ and typically arise when a tribunal is engaged in the common law creation of law or of policy⁶⁸ (which Davis calls judicial legislation,⁶⁹ hence the legislative moniker). Legislative facts, in other words, concern the myriad social phenomena that occur in the world beyond the courthouse walls: ranging from the psychological effects of racial segregation on minorities,⁷⁰ to the relative safety of different surgical procedures,⁷¹ to the sociological consequences of same-sex parenting,⁷² to countless other questions of sociological empiricism,⁷³ they inform the generation of broader legal rules, principles, and doctrines.

      Davis’s dichotomy has unquestionably become the established vocabulary for describing the kinds of facts that are relevant to legal discourse.⁷⁴ The dichotomy, however, is also substantially incomplete — at least insofar as it relates to constitutional criminal adjudication — for it fails to appreciate the significance of a unique and distinct form of information: facts that are neither narrowly transactional, like adjudicative facts, nor foreign and external to the decisionmaker, like the archetypal legislative fact. It neglects, in other words, to account for information with respect to which a given decisionmaking institution enjoys deep institutional familiarity, privileged (or perhaps even exclusive) access, or both. It is this distinct class of information that is captured by the conceptual device I introduce here — systemic facts.

      Scholarship exploring Davis’s dichotomy has not focused on systemic facts thus far because it has been concerned almost exclusively with the relationship between appellate courts and social empiricism,⁷⁵ and thus has focused largely on facts wholly foreign and external to the judiciary as an institution.⁷⁶ Criminal trial courts, however, are idiosyncratic adjudicative institutions in this respect. Like all trial courts, they are inherently concerned with factfinding and record keeping. But, as we have seen, they are also institutions deeply intertwined with and embedded within the local criminal justice systems in which they reside.⁷⁷ As tribunals uniquely positioned to see a large stream of cases,⁷⁸ they have the potential to gain a broader understanding of the very criminal justice systems that, under the regulatory model of constitutional criminal law, they are called upon to oversee.

      The key question posed by the transactional-myopia critique is whether criminal courts can in fact appreciate the systemic dynamics of that stream of cases, or whether they are destined instead to see only transactional, case-specific bits of flotsam within it — data points that may appear misleadingly static, distorted, or incomplete in isolation. It is in answering this question, however, that systemic facts most helpfully illuminate an alternative framework. The transactional account’s conception of what criminal court judges do is decidedly individualistic: they approach discrete cases or controversies as neutral blank slates, decide those cases on the basis of the information presented by the parties, and then wipe the slate clean so as not to prejudge the next matter on the docket. This notion of judging certainly resonates with many of our cultural touchstones, including the aphorism that justice is blind. Systemic facts, however, show that this account is incomplete. Criminal courts are not simply collections of individual judges. They are also institutions, capable of generating and accessing a body of knowledge that they have obtained through their own serial set of interactions with the world.⁷⁹

      Indeed, there is little reason to think that a criminal court as an institution is different from any other corporate body in this respect: it possesses collective knowledge that consists of the aggregate knowledge obtained by its officers and employees in the course of carrying out their duties. And crucially, it is this capacity to aggregate dispersed information that is the key to unlocking criminal courts’ capacity for greater institutional awareness. For much like an administrative agency, a criminal court operates on a wider and fuller scale than a single adversary litigation, and is thus able to draw upon its [c]umulative experience and understanding when deciding contested issues.⁸⁰ As such, it is able to gain visibility into how overlapping and interconnected policies and practices operate among other institutions within the criminal justice system in combination.⁸¹ In other words, a criminal court has the capacity as an institution to attain — at least in theory — the very informational breadth of knowledge and expertise that contemporary scholars crave in the administrative form — without sacrificing the unique institutional advantages of the judicial process.

      Systemic facts thus pave the way to a broader understanding of criminal courts themselves: by focusing on courts’ ability to aggregate isolated transactional information into a core corpus of institutional knowledge, systemic facts expose the judiciary’s latent capacity to see beyond the truncated transactional horizon of a given case. They thereby allow for a conceptualization of criminal courts that is broad enough to blend the epistemic virtues of agency-style expertise with the institutional virtues of constitutional judicial review — including the important advantages of neutrality, sensitivity to the interests of marginalized groups, and a balanced regard for civil rights and liberties. If criminal courts could only uncover and leverage these systemic facts and the enhanced institutional awareness they unlock, they could overcome a significant barrier to meaningfully systemic judicial review.

      III. SYSTEMIC FACTS IN OPERATION

      Systemic facts are more, however, than just an abstract idea. They are, in prosaic terms, caches of actual data — collected every day by criminal courts across the country. They reside within the official records, internal case files, transcripts, audio recordings, and administrative metadata routinely generated by the broad network of local trial courts that constitute the American criminal judiciary at the ground floor. They are, in short, very much real facts, which real courts and real litigants can use to litigate and decide real cases — with a broader systemic understanding of the issues at stake than contemporary criminal courts currently exhibit or possess.

      In an earlier era, efforts to catalog and organize these massive stockpiles of information would surely have required extensive work in court archives, a task overwhelming to the point of defeat. But in an increasingly paperless world, technology opens up powerful new opportunities, transforming systemic facts from heaps of inaccessible administrative information into a digital library of latent institutional knowledge, a library that is increasingly amenable to technological tools that render it organizable, searchable, and accessible.⁸²

      To appreciate the full potential this library holds, it is

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