SCOTT A. MOSS, University of Colorado Law School
Email: scott.moss@colorado.edu

This short article speculates as to how various areas of constitutional law (i.e., reproductive rights, the Establishment Clause, affirmative action, the Commerce Clause, and Presidential power) might evolve if a President McCain or a President Obama gets to appoint two to five new Supreme Court Justices in the next four to eight years.

CHRISTOPHER J. PETERS, Wayne State University Law School, Loyola Law School - Los Angeles
Email: c.j.peters@wayne.edu

In this contribution to a Wayne Law Review symposium on the first three years of the Roberts Court, the author normatively assesses the Court's practice of "under-the-table overruling," or "underruling," in high-profile constitutional cases involving abortion, campaign-finance reform, and affirmative action. The Court "underrules" when it renders a decision that undercuts a recent precedent without admitting that it is doing so. The author contends that underruling either is not supported by, or is directly incompatible with, three common rationales for constitutional stare decisis: the noninstrumental rationale, the predictability rationale, and the legitimacy rationale. In particular, while the latter rationale - suggested by the Court's own account of constitutional stare decisis in Planned Parenthood v. Casey - superficially seems to support the practice of underruling, in fact it does not. Casey's association of stare decisis with judicial legitimacy plausibly can be understood to reflect a broader account of the judicial function in constitutional cases, one focusing on the Court's capacity to resolve certain disputes more acceptably than ordinary democratic politics. Underruling may serve this dispute-resolution function by preserving the appearance of the Court's impartiality, although there is reason for doubt. But underruling frustrates the dispute-resolution function in another way: By obscuring the reality of what the Court is doing, it makes meaningful popular participation in constitutional decisionmaking more difficult.

MEEHAN RASCH, University of California, Los Angeles - School of Law
Email: meehan.r@stanfordalumni.org

Civil and criminal appellate review of lower court proceedings, for the most part, are seen as two distinct processes with differing standards for reversal of mistakes by the trial court. Indeed, for forty years, California appellate courts generally have applied one discrete test for harmless error in civil proceedings, while reserving a stricter standard exclusively for federal constitutional error in criminal cases, a distinction predicated on the fundamental rights at stake in state criminal trials. In appeals from convictions in California state criminal cases, errors rising to a federal constitutional dimension are governed by the standard of Chapman v. California, which requires that these errors be proven by the state to be harmless beyond all reasonable doubt. The more lenient standard (for the trial court) of People v. Watson, which holds errors of state law and procedure harmless unless there is a reasonable probability that such error prejudiced the outcome, is generally applicable to civil cases. Where a fundamental right such as personal liberty may be erroneously infringed upon, the logic goes, greater protection of such a right is required, in contrast to the errors merely of state statutory or procedural nature that by and large arise in state civil trials.

However, on several important occasions civil cases enter a gray area involving the suspension or infringement of fundamental constitutional rights. As a result, for the same forty years, appellate courts in the state have varied considerably regarding which of the two standards to apply in assessing the harmlessness of federal constitutional errors arising in civil proceedings. This twilight zone means that little definitive guidance exists for courts evaluating the effect of error in civil cases that nonetheless implicate fundamental rights. Such circumstances include, for example, involuntary civil commitments for sexually violent predators and mentally disordered offenders, conservatorship and competency hearings, and child protection and parental severance ("dependency") proceedings. Given the lack of guidance from higher courts, California appellate courts have varied widely regarding which harmless error standard should be applied to federal constitutional errors in such civil cases.

On appellate review of federal constitutional error arising in civil cases, the harmless error test a court applies may be dispositive of the outcome of the case. Moreover, the degree of protection that a litigant's constitutional rights receive may depend on the choice of harmless error test. Without a clear harmless error standard established for federal constitutional error in these instances, outcomes are rendered unpredictable and the level of protection afforded the affected parties' federal constitutional rights is problematically inconsistent.

Dependency proceedings present a complex case for harmless error analysis due to the unique rules governing dependency and the separate, often-conflicting fundamental rights of both parents and minor children. So, it is little wonder that this area has provoked quite divergent applications by different California appellate districts, with a consequent lack of guidance for all courts across the state. The California Supreme Court has never reached the open question of which harmless error standard should apply in dependency appeals, nor does United States Supreme Court precedent illuminate the matter. As a result, California appellate courts remain split on the issue. Outside of the judicial system, too, where the issue has not been addressed at all, no clear consensus exists among scholars or practitioners; some commentators even go as far as to advocate reversal per se for certain federal constitutional errors in dependency proceedings, precluding harmless error analysis altogether; others propose the application of an intermediate "clear and convincing evidence" standard somewhere between Chapman and Watson.

This Article argues for the application of the Chapman v. California harmless error standard on appeal when rights of federal constitutional magnitude arise in dependency proceedings. Part II provides an overview of the evolution of harmless error analysis in California appeals, and describes the People v. Watson test used for review of virtually all error in civil proceedings and the Chapman v. California "constitutional" test applied to constitutional error in criminal appeals. Part III explores the variety of applications of the Chapman and Watson standards to non-dependency civil proceedings, such as involuntary civil commitments, and identifies a perceptible trend toward application of Chapman in many instances. Part IV addresses the fundamental rights implicated by dependency proceedings and summarizes the inconsistency in California cases as to which harmless error standard should be applied to dependency reviews. Part V concludes that the Chapman standard best protects fundamental constitutional rights for both parents and children in the dependency context.

JEFFREY A. PARNESS, Northern Illinois University - College of Law
Email: jparness@niu.edu

Can civil litigants enforce settlements resolving their actions before the very trial judges who presided over those actions? And, are such same case enforcements always subject to similar guidelines in federal and state trial courts? This short paper answers these questions, responding not always and no.

The paper employs Director of Insurance v. A and A Midwest Rebuilders, Inc., 891 N.E.2d 500 (Ill.App.2d 2008) to explore the limits of same case enforcement authority and the differences in federal and state practices. The state appellate court correctly distinguished federal court precedents that focused on distinctions between dismissals with and without prejudice. It instead looked to distinctions between judgment enforcement and judgment modification.

Unfortunately, the court in A and A also sanctioned same case enforcement where the earlier dismissal was made "pursuant to the terms" of a settlement that was not made part of the record. While relying on Lynch v. Samatamason Inc., 279 F.3d 487 (7th Cir. 2002), the Illinois state court did not follow the "standard practice" suggested in Lynch. Under Lynch, upon settlement subject to possible same case enforcement, the trial judge normally should call in the court reporter and dictate the terms of an oral agreement, or should place a written agreement on the record. As well, the judge should make sure all parties consent. Further, the court in A and A failed to address the public record nature of some civil case settlements, discussed in Jessup v. Luther, 277 F.3d 926 (7th Cir. 2002), cited by the A and A court.

Not all civil case settlements are subject to same case enforcement. Final judgments should clearly reflect when settlement enforcement jurisdiction is retained. When same case enforcement is possible, trial judges should follow public access limits imposed by both First Amendment and common law decisions. Further, judges and lawyers should recognize that settlement enforcement guidelines may differ in federal and state courts.

LAWRENCE M. FRANKEL, U.S. Department of Justice - Antitrust Division
Email: lawfrank@aol.com

For more than thirty years, the Tunney Act - which governs the judicial review of antitrust consent decrees proposed by the U.S. Department of Justice Antitrust Division - has been a source of controversy, due largely to the open-ended nature of the statute and the ambiguities inherent in it. Judicial and congressional attempts to clarify the Act, while helpful, have failed to provide clear guidance to district courts. However, by examining the Act's text and legislative history, the policy objectives the Act can usefully serve, and the costs of various review options, and by bearing in mind both practical and constitutional limitations as well as analogous administrative law principles, it is possible to design a procedural and substantive model for judicial review of antitrust consent decrees that advances, rather than hinders, effective antitrust enforcement.