Recent UW Law Faculty Scholarship: Ending Manner-of-Death Testimony, a Reexamination of Madison’s Enumerationist Interpretation, Democratic Opportunities Offered by State Institutions, & Pro Se Successes with Distributive Precedents

Here is the latest faculty scholarship appearing in the University of Wisconsin Law School Legal Studies Research Papers series found on SSRN.

  • “Ending Manner-of-Death Testimony and Other Opinion Determinations of Crime” by KEITH A. FINDLEY (UW Law) and DEAN A. STRANGThis article examines the statutory requirement that medical examiners (MEs) and coroners determine both cause and manner of death for administrative, recordkeeping, and public health purposes. It then turns to the very different purposes of the judicial process and to the mismatch of the manner determination with the proper roles of experts and factfinders at trials. It takes a fresh look at (in)admissibility of manner-of-death opinions in view of that mismatch. The article considers the rules of evidence, the claims of forensic pathologists themselves about the nature of manner-of-death opinions, and the information that physicians rely upon when determining manner of death (and sometimes even cause of death). It demonstrates that manner-of-death opinion testimony, when properly understood, should be inadmissible in any case, while cause-of-death opinion evidence generally, but not always, remains admissible. On the same analysis, existing rules of evidence and trial norms also should lead to the exclusion of medical opinions that address the mental elements and etiology of any alleged crime, most notably child abuse allegations like Shaken Baby Syndrome or Abusive Head Trauma.
  • “Mr. Madison’s War on the General Welfare Clause” by DAVID S. SCHWARTZ (UW Law)The General Welfare Clause of Article I, section 8, clause 1 of the Constitution (“Clause 1”), though ambiguous, is most naturally read to grant Congress the power to “provide for the general welfare” that is, to legislate on all national matters. James Madison understood this and recognized that this “general welfare interpretation” of Clause 1 presented a major textual obstacle to his tendentious “enumerationist” interpretation of federal powers: that the “the essential characteristic” of the Constitution was to grant only limited enumerated powers to the federal government. Madison therefore waged a 50-year campaign to render the General Welfare Clause “harmless,” as an essential element of his broader project to win his preferred enumerationist interpretation and erase the nationalist interpretations of his one-time Federalist allies. Madison achieved a partial victory in this political struggle for constitutional meaning, by taming the General Welfare Clause and establishing enumerationism as an ideology to which we pay continued lip service.

    But Madison’s arguments against the general welfare interpretation, based primarily on text and Framers’ intent, were circular, fallacious, or disingenuous. The weakness of his arguments on this critical issue of federal power may account for his puzzling drift toward embracing “compact theory,” the view that states, and not the sovereign people of the United States, are the true parties to the Constitution. Madison’s war on the General Welfare Clause casts doubt on the practice of treating his partisan views on enumerationism as authoritative statements of the Constitution’s original meaning.

  • “State Institutions and Democratic Opportunity” by MIRIAM SEIFTER (UW Law)The burgeoning commentary on democratic decline in the United States focuses disproportionately on the national level…  This Article urges legal scholars and reformers to turn their gaze to state-level institutions. State institutions, the Article shows, offer democratic opportunity that federal institutions do not. By design, they more readily give popular majorities a chance to rule on equal terms. Utilizing these opportunities can help stave off democratic decline in the short term and build a healthier democracy in the long term. But these opportunities are not guarantees, and they are in danger. State majoritarian institutions today face active threats from antidemocratic forces. These attacks—on state courts, ballot initiatives, and elected executives—have largely flown under radar or been noticed only in isolation. Their proponents, moreover, have sought to disguise them as good-governance reforms, exploiting the muddled dialogue surrounding democracy generally.

    After highlighting the vital role of state institutions in American democracy, the Article provides a holistic account of the attacks they face today. It then offers a theoretical framework for distinguishing appropriate constraints on popular majorities from those that should be out of bounds— because, for example, they would install minority-party rule. The Article suggests steps that state courts, state officials, and organizers can take to protect state institutions. At the highest level, it shows how a richer theory and discourse surrounding state institutions can advance both state and national democracy.

  • “Distributive Precedent and the Pro Se Crisis” by SUSANNAH CAMIC TAHK (UW Law)A crisis in pro se litigation is currently facing the U.S. legal system. This crisis appears in areas of law ranging from family law to consumer protection law to employment law to the rights of people currently experiencing incarceration. In these and other areas, litigants without lawyers almost invariably lose due to enormous legal and sociolegal impediments. Most scholars and other legal observers view this situation as virtually hopeless, but this Article turns in a novel direction by conducting an empirical study of those rare cases where pro se litigants succeed… Analysis of [two] datasets shows that the substantial majority of pro se successes relied on a body of “distributive precedents,” established by cases in which both original parties had lawyers. This Article identifies several of the key legal and social features of the distributive precedents, including their areas of law, geographical origins, and procedural and substantive characteristics. Based on these research findings, the Article outlines policy interventions into the pro se crisis, identifying several mechanisms for expanding the supply of distributive precedents and for increasing access to them.

For the full text of these works and additional scholarship from UW Law faculty and staff, visit the University of Wisconsin Law School Legal Studies Research Paper Series on SSRN. A free email subscription is available at the top right of the page.