Optimism or Hope? The Ethic of Abundance and the Ethic of Limits

In this essay Christopher Lasch characterizes two cultures in society, one a culture of possibility and abundance and the other the culture of limits and constraint. He exemplifies this conflict of cultures by discussing views on abortion and family policy by the two groups. The conflict of cultures is more a class confict than a political party conflict. The author\u27s intent as he voices it is to explain the two cultures to each other rather than make a case for one over the other. This essay was presented as part of the Orestes Brownson Lecture Series at Sacred Heart University on October 9, 1990

The Future of Teague Retroactivity, or “Redressability,” after Danforth v. Minnesota: Why Lower Courts Should Give Retroactive Effect to New Constitutional Rules of Criminal Procedure in Postconviction Proceedings

Although the Supreme Court’s 1989 decision in Teague v. Lane generally prohibits the application of new constitutional rules of criminal procedure in federal habeas review of state-court judgments, the Court’s 2008 decision in Danforth v. Minnesota frees state courts from Teague’s strictures. Danforth explicitly permits state courts to fashion their own rules governing the retroactive application of new federal constitutional rules in postconviction proceedings, and leaves open the question whether lower federal courts are bound by Teague in postconviction review of federal criminal convictions. In this Article, I examine the doctrinal underpinnings of the Court’s retroactivity jurisprudence, and propose that state courts and the lower federal courts abandon the Supreme Court’s experiment with nonretroactivity. Affording retroactive application to new constitutional rules in state and federal postconviction proceedings promotes fairness to litigants and uniformity in the development of federal constitutional criminal doctrine. Perhaps most importantly, a rule of retroactivity permits the lower state and federal courts to regain a role in the development of constitutional doctrine that had previously been constricted, first by Teague and then by the Antiterrorism and Effective Death Penalty Act. My examination of the Danforth opinion leads me to believe that the foundations upon which Teague was built are now crumbling. Danforth marks a shift in the Court’s conception of the function of habeas corpus which portends well for the reinvigoration of a constitutional dialogue among the lower courts and an increased role in constitutional development for the lower federal courts

Initiating a New Constitutional Dialogue: The Increased Importance Under AEDPA of Seeking Certiorari From Judgments of State Courts

The Antiterrorism and Effective Death Penalty Act (AEDPA) contains a provision restricting federal courts from considering any authority other than holdings of the Supreme Court in determining whether to grant a state prisoner’s petition for habeas corpus. Through an empirical study of cert filings and cases decided by the Supreme Court, the Authors assess this provision’s impact on the development of federal constitutional criminal doctrine. Before AEDPA and other restrictions on federal habeas corpus, lower federal courts and state courts contributed to doctrinal development by engaging in a dialogue. This dialogue served to articulate the broad constitutional principles set forth in Supreme Court precedent. AEDPA has effectively ended the conversation, because under AEDPA federal courts lack the power to resolve emerging constitutional issues in the context of state prisoners’ federal habeas petitions. Now that only Supreme Court precedent can provide the basis for federal habeas relief under AEDPA, it is more important for open questions to be presented to the Supreme Court. Unless cert is sought and granted in cases arising out of state criminal proceedings, constitutional criminal doctrine may be frozen. Current certiorari practice is out of step with this reality. The Authors\u27 analysis of the procedural posture of criminal cases in which certiorari was granted by the Supreme Court over the past twelve years demonstrates that, since 1995, the Supreme Court’s certiorari grants in criminal cases have been tilting away from federal prisoners’ direct appeals and towards state prisoners’ federal habeas and (to a lesser degree) state court direct appeals. Because the Court is not, as a general matter, using certiorari grants in state prisoners’ federal habeas cases to develop doctrine, it appears that certiorari from state court direct appeals is poised to become the primary vehicle for such development. Yet an empirical analysis of certiorari petitions filed in the October 2006 Supreme Court term reveals a gap between this opportunity for doctrinal development and practitioners’ current certiorari-seeking behavior. The Authors coded 347 “paid” certiorari petitions and a sample of 300 in forma pauperis petitions, categorizing cases by procedural posture. Although certiorari grants in federal prisoners’ direct appeals are declining dramatically, the leading category of cert filings remains federal prisoners’ direct appeals. Given that there are far more state criminal proceedings each year than federal prosecutions, the Authors argue that these trends demonstrate an opportunity to file more and better certiorari petitions. The Authors urge the criminal defense community to close this “cert gap,” both to ensure a better standard of review for individual clients and to promote continued development of the law

Letter from Christopher Lasch to Linda Grace Hoyer, April 13, 1951

In this typed letter from John Updike\u27s roommate, Christopher Lasch, to Linda Grace Hoyer, Christopher thanks Linda for her kindness during a visit to Plowville over the spring vacation. Christopher also provides his opinion of the Dear Juan novel.https://digitalcommons.ursinus.edu/hoyer_correspondence/1082/thumbnail.jp