Precedent in a Polarized Era

My Review begins below in Part I with a brief synopsis of Professor Kozel’s argument. Part II then discusses his theory’s particular value, and challenges, in our historical moment of acute polarization and political conflict over constitutional law. To make Part II’s claims more concrete, Part III then turns to Janus and Wayfair. It uses the two cases to illustrate pressures courts may face in the years ahead and assesses how well these decisions accord with Kozel’s theory. The Review ends with a conclusion reflecting more broadly on the importance of stare decisis and other institutional restraints in the current moment

Faithful Execution in the Fifty States

Amid heightened political conflict over criminal-justice policy, norms surrounding prosecutorial discretion have shifted rapidly. Under the prior mainstream approach, prosecutors exercised broad charging discretion, but generally did so tacitly and in case-by-case fashion out of deference to statutory law’s primacy. Under an emerging alternative approach, associated for the moment with progressive politics, prosecutors categorically and transparently suspend enforcement of laws they consider unjust or unwise. The federal government under President Obama employed this theory in high-profile policies relating to marijuana crimes, as well as immigration and the Affordable Care Act. More recently, a number of self-described “progressive prosecutors” have employed the same theory at the local level to nullify state laws forbidding theft, shoplifting, drug possession, prostitution, and other crimes on social-justice grounds.Although these developments have provoked heated public debate, most discussion to date has presumed incorrectly that a generalized model of prosecutorial discretion applies nationwide. In fact, far from prescribing a common model of prosecutorial authority, the laws of the federal government and the fifty states vary widely with respect to the degree of enforcement discretion they presume and the degree of autonomy they afford to local prosecutors.Some states forbid categorical nonenforcement altogether, while others afford near total autonomy to locally elected prosecutors. Most states fall somewhere in between. These varied laws—and not generalized abstractions about the rule of law, criminal justice policy, the proper prosecutorial function, or even the proper degree of local policy-making autonomy—should govern whether categorical nonenforcement is lawful in a particular jurisdiction. Refocusing debate on these varied state arrangements would not only give proper effect to governing positive laws, but also lower the stakes in each particular controversy. At the same time, it might help build greater capacity to enforce state constitutional law in other areas, helping to stabilize state government amid increasingly turbulent politics

Black Dragon

In Black Dragon, Zachary F. Price illuminates martial arts as a site of knowledge exchange between Black, Asian, and Asian American people and cultures to offer new insights into the relationships among these groups. Drawing on case studies that include Kareem Abdul-Jabbar’s appearance in Bruce Lee’s film Game of Death, Ron Van Clief and the Black Panther Party for Self-Defense, the Wu-Tang Clan, and Chinese American saxophonist Fred Ho, Price argues that the regular blending and borrowing between these distinct cultural heritages is healing rather than appropriative. His analyses of performance, power, and identity within this cultural fusion demonstrate how, historically, urban working-class Black men have developed community and practiced self-care through the contested adoption of Asian martial arts practice. By zeroing in on this rich but heretofore understudied vein of American cultural exchange, Price not only broadens the scholarship around sites of empowerment via such exchanges but also offers a compelling example of nonessentialist liberation for the twenty-first century

Law Enforcement as Political Question

Across a range of contexts, federal courts have crafted doctrines that limit judicial secondguessing of executive nonenforcement decisions. Key case law, however, carries important ambiguities of scope and rationale. In particular, key decisions have combined rationales rooted in executive prerogative with concerns about nonenforcement’s “unsuitability” for judicial resolution. With one nonenforcement initiative now before the Supreme Court and other related issues percolating in lower courts, this Article makes the case for the latter rationale. Judicial review of nonenforcement, on this account, involves a form of political question, in the sense of the “political question doctrine”: while executive officials hold a basic statutory and constitutional obligation to faithfully execute regulatory statutes, that obligation is subject to incomplete judicial enforcement because structural constitutional considerations place a gap between executive duties and judicial enforcement of those duties. What is more, the twin prongs of the modern political question doctrine—“textual assignment” and “judicial manageability”—usefully describe the gap between executive obligation and judicial power. Bringing enforcement suits and prosecutions in particular cases is a textually assigned function of the executive branch, while the broader executive task of setting priorities for enforcement frequently presents a judicially unmanageable inquiry. This reframing may account descriptively for much of the current doctrine but also carries important normative implications. Among other things, the framework clarifies that judicial decisions may not fully define executive obligations with respect to enforcement; it helps identify contexts in which judicial review may be appropriate, including with respect to current immigration programs before the Supreme Court and the controversial prosecutorial practice of entering “deferred prosecution agreements” in white-collar criminal cases; and it reinforces longstanding arguments for a more flexible doctrine of Article III standing