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Saturday, November 14, 2009

Law and the Little Guy

In a comment to my earlier post on Kelo, Mike complained about the doctrinal protections available to officials (especially prosecutors) who commit major wrongs:

Some would say that the Court should not concern itself with the real-world impact of its cases. . . .  You rarely see that such policy concerns for the "little guy." Why weren't the Justices in Kelo wondering whether forcing Ms. Kelo to surrender her home would be for naught? In Youngblood, why wasn't the Court concerned with the policy implications of a rule that allows prosecutors to throw away exculpatory evidence?

Now, I am also troubled by what seems to me to be the too-broad expansion of a certain class of official immunities, but I don't think it's true that the Court rarely allows "policy concerns for the 'little guy'" to shape doctrine.  Of course it can be hard to tell, because somebody will always defend a case on the ground that it was correct even absent any policy concerns.  There are a lot of cases where the little guy made out all right, and where his success seems to be at least partly related to his little-guy-ness.

For example, City of Willowbrook v. Olech (2001): Plaintiff may state an equal protection claim as a "class of one," if she has been unfairly picked on.  (For some thoughts on the legacy of Olech see this old post by Dave Fagundes.)  

Or Erickson v. Pardus (2007):  Appeals court is summarily reversed for its treatment of a pro se prisoner's claim, with the reminder that pleadings "should be construed to do substantial justice," under Rule 8(f), and the comment that "The Court of Appeals’ departure from the liberal pleading standards set forth by Rule 8(a)(2) is even more pro-nounced in this particular case because petitioner has been proceeding, from the litigation’s outset, without counsel."

And lots of death-penalty cases, like Panetti v. Quarterman (2007) (prisoner given another chance to prove his incompetence to be executed) and Snyder v. Louisiana (2008) (capital defendant given the benefit of the doubt when the trial court might have made a factual finding adverse to him but wasn't clear).  And Gall v. United States (2007), where a sympathetic drug dealer finally gets a break in a sentencing opinion.  These are only a few examples that quickly come to mind, as it is said . . . .

Posted by Will Baude on November 14, 2009 at 01:41 PM | Permalink


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