Vol. 101 Issue 1

Envision this scenario: a president, seeking a significant shift in foreign policy from the path of his predecessors, announces to the world that the United States is terminating a treaty between the nations. The overwhelming majority of Senators, two-thirds of which approved the treaty, strongly disagree with the decision; a majority of members of the House of Representatives, who, along with a majority of the Senate, approved enabling legislation, are similarly distressed. Consulting the Constitution, they discover that it is silent on the question of treaty termination authority. Seeking judicial relief, they are told that their claim is nonjusticiable, and should a president seek to terminate any of the other roughly 1,130 Senate-approved treaties on the books, they would be similarly without legal recourse. Imagine their further bafflement upon learning that the first time the United States terminated a treaty, only a decade after the Constitution was ratified, that termination was, without question, a power of Congress.

The countermajoritarian difficulty assumes that the democratically elected branches are majoritarian and the unelected Supreme Court is not. But some- times the opposite is true. Sometimes it is the elected branches that are out of sync with majority will and the Supreme Court that bridges the gap, turning the conventional understanding of the Court’s role on its head. Instead of a countermajoritarian Court checking the majoritarian branches, we see a majori- tarian Court checking the not-so-majoritarian branches, enforcing prevailing norms when the representative branches do not. What emerges is a distinctly majoritarian, upside-down understanding of judicial review. This Article illus- trates, explains, and explores the contours of this understanding, using three classic cases of the countermajoritarian difficulty—Brown v. Board of Education, Furman v. Georgia, and Roe v. Wade—to anchor the discussion. Democracy never looked so undemocratic, nor (in an upside-down way) has it ever worked so well.

American state prosecutors are increasingly confronting the question of how to modify their practice, if at all, when prosecuting noncitizen defendants. As a result of recent trends in immigration law and policy, virtually any interaction with the criminal justice system leaves noncitizens, regardless of their lawful or unlawful status, at a very real risk of deportation or other negative immigration penalties. The Supreme Court’s decision in Padilla v. Kentucky, identifying deportation as a penalty directly tied to the criminal process, has prompted a wealth of scholarship, particularly regarding the role of the criminal defense attorney. Yet this scholarship has largely glossed over the role played by the prosecutor, arguably the central actor in determining the outcome of most criminal cases. This Article is a step toward filling that gap.
The Article begins by identifying and exploring emerging trends in state prosecutors’ attitudes and practices regarding immigration penalties that flow from criminal convictions, presenting the results of a survey conducted in the Kings County (Brooklyn) New York District Attorney’s office. Addressing com- mon concerns shared by many state prosecutors, the Article proposes that the informed consideration of immigration consequences does not offend principles of federalism or equity but instead focuses prosecutorial resources on ensuring case outcomes that are proportionate to the charged offense. In Padilla, the Supreme Court proposed that plea negotiations are an area in which the interests of the state and the interests of noncitizen defendants converge. Elaborating on this identified convergence of interests, this Article concludes that state prosecutors can best embody their role as stewards of justice and community safety by engaging with immigration penalties during the plea- bargaining phase of a case and working with the defense to craft immigration- neutral pleas when appropriate.

This Article challenges the conventional wisdom that the right of publicity is universally and uncontroversially alienable. Although there are different definitions of alienability, I use the term in a broad sense to indicate that an entitlement is transferable in gross without any restrictions on its sale, donation, or ownership. Courts and scholars have routinely described the right of public- ity as such a freely transferable property right. The leading treatise author in the field, J. Thomas McCarthy, has observed that the “rule of free assignability in gross of the right of publicity has never been seriously questioned.” The Supreme Court of Georgia has gone even further, concluding that the right of publicity “could hardly be called a ‘right’” if it were not freely assignable. Thus, the right of publicity is most often described as sitting at one end of the alienability spectrum—that of free or complete alienability.

Courts, scholars, and lawyers think of testation—the creation of a will or a trust—as a transfer of wealth. As a result, they analogize the field of decedents’ estates to property, contract, and corporate law: other spheres that regulate the use, conveyance, and investment of assets. Conversely, this Article identifies a quality that makes testation unique: it is a singular form of self-expression. Conditional gifts, charitable bequests, and other posthumous directives often communicate a testator’s or settlor’s deeply felt views. Likewise, distributional choices can be profoundly revelatory: by rewarding some beneficiaries and snubbing others, testators and settlors offer a final assessment of their lives, their loved ones, and the world.

Recognizing testation’s expressive impact has broad implications. For one, there has long been consensus that the Constitution does not apply to limits on testamentary freedom. However, because testation is a “speech act,” some wills-and-trusts rules, such as the doctrine of undue influence, must satisfy the First Amendment. Moreover, conceptualizing testation as speech bolsters the normative case for testamentary freedom and cuts against the grain of recent developments in trust law. In the last decade, the rise of law and economics and an unprecedented intergenerational wealth transfer have inspired a series of doctrinal changes that shift power away from settlors in order to enhance the value of the corpus. This new fixation on profit maximization overlooks the virtues of testamentary self-expression—the fact that it facilitates autonomy and self-determination—and reflects an impoverished vision of trust law.