A retroactivity retrospective, with thoughts for the future: What the supreme court learned from Paul Mishkin, and what It might

California Law Review

Volumn 95, Issue SPEC. ISS., 2007, Pages 1677-1702

  Roosevelt III, Kermit ^a  

^a UNIVERSITY OF PENNSYLVANIA   (United States)

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EID: 38849149013     PISSN: 00081221     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (191)

1. 381 U.S. 618 (1965).
2. 79 HARV. L. REV. 56 (1965).
3. 381 U.S. 479 (1965).
4. Mishkin, supra note 2, at 56.
5. Id. at 58.
6. 530 U.S. 466 (2000).
7. 543 U.S. 220 (2005).
8. In an earlier article, I argued that we would be better off without the concept of retroactivity at all. See Kermit Roosevelt III, A Little Theory is a Dangerous Thing: The Myth of Adjudicative Retroactivity, 31 CONN. L. REV. 1075 (1999) [hereinafter Roosevelt, Retroactivity]. This Article refines that analysis by incorporating new work in constitutional theory and applies it to the Booker problem.
9. 367 U.S. 643 (1961).
10. 338 U.S. 25 (1949).
11. See, e.g., Ker v. California, 374 U.S 23 (1964).
12. Linkletter, 381 U.S. 479, 627, 628 (1965).
13. Mishkin, supra note 2, at 59.
14. As Mishkin points out, see id.
15. Roosevelt, Retroactivity, supra note 8, at 1084, n.44.
16. 41 U.S. (16 Pet.) 1 (1842) (holding that federal courts are not bound by state court interpretations of general common law). See Roosevelt, Retroactivity, supra note 8, at 1084-87 (discussing pie-Linkletter "spurious nonretroactivity" cases).
17. Linkletter, 381 U.S. at 653 (Black, J., dissenting).
18. Id. at 652 (Black, J., dissenting).
19. Id. at 649 (Black, J., dissenting).
20. 384 U.S. 436 (1966).
21. See Mishkin, supra note 2, at 100 (discussing balance between justice and administrability).
22. Assuming, that is, that results such as Miranda were to be reached. A "solution" that I do not consider would be for the Court simply never to decide cases in such a way that granting relief on collateral review would be unacceptably disruptive. This has been suggested. See sources cited infra note 74.
23. Linkletter, 381 U.S. at 623 n.7.
24. Mishkin, supra note 2, at 59.
25. Linkletter, 381 U.S. at 623-24.
26. See Bousley v. United States, 523 U.S. 614, 620 (1998) (noting that Teague analysis does not apply to statutory interpretation);
27. Roosevelt, Retroactivity, supra note 8, at 1076.
28. Linkletter, 381 U.S. at 624.
29. In fact, even this premise will not produce the Linkletter result, because it does not distinguish between direct and collateral review, a fact the Court later realized. See infra Section I.B. The alternative is that courts should generally decide cases according to their best current understanding of the law, what I have termed the "decision-time" as opposed to the "transaction-time" model.
30. See Roosevelt, Retroactivity, supra note 8, at 1078-79.
31. See Mishkin, supra note 2, at 63 (noting "the loss involved if judges could not appeal to the idea that it is 'the law' or 'the Constitution'-and not they personally-who command a given result").
32. See, e.g., LARRY KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW (2004);
33. MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS (1999).
34. Mishkin, supra note 2, at 67. The other pervasive attitudes are those that attend the belief that the Court is a passive interpreter of the law rather than an active producer, e.g., that the social or political views of the Justices have no effect on their decisions.
35. Id. at 68.
36. See KERMIT ROOSEVELT HI, THE MYTH OF JUDICIAL ACTIVISM 2, 12 (2006) [hereinafter, ROOSEVELT, MYTH] (discussing charges of activism).
37. See, e.g., JEFFREY A. SEGAL & HAROLD SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL REVISITED (Cambridge 2002);
38. Richard J. Pierce, Jr., Two Problems in Administrative Law: Polarity on the District of Columbia Circuit and Judicial Deterrence of Agency Rulemaking, 1988 DUKE L.J. 300.
39. For a rebuttal to some attitudinal studies, see, for example, Michael C Dorf, Whose Ox is Being Gored? When Attitudinalism Meets Federalism, 21 ST. JOHN'S J. LEGAL COMMENT 497 (2007);
40. Ernest Young, Just Blowing Smoke? Politics, Doctrine, and the Federalist Revival After Gonzales v. Raich, 2005 SUP. CT. REV. 1;
41. Harry T. Edwards, Collegiality and Decisionmaking on the D.C. Circuit, 84 VA. L. REV. 1335 (1998).
42. Richard A. Posner, Foreword: A Political Court, 119 HARV. L. REV. 31 (2005).
43. Justice Scalia has made this point eloquently in several places. See, e.g., Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 999-1000 (1992) (Scalia, J., concurring/ dissenting).
44. The key question is what sort of considerations judges may legitimately take into account when deciding cases that do not have clear answers. Faithful judges understand that they may not rely on a preference for one litigant or the other; presumably they also understand that they may not rely on a preference for a particular policy outcome. The permissible considerations are what Jack Balkin and Sandy Levinson call "high politics," things such as general beliefs about the competencies of courts versus legislatures, or the circumstances under which the outcome of a democratic process can or cannot be trusted as a reliable guide to the public interest. See Jack M. Balkin & Sandy Levinson, Understanding the Constitutional Revolution, 87 VA. L. REV. 1045 (2001);
45. ROOSEVELT, MYTH, supra note 33.
46. See Jack M. Balkin, The Basic Structure of Constitutional Interpretation and the Limits of Interpretive Theory (Apr. 12, 2006), Balkinization, http://balkin.blogspot.com/2006/04/basic-structure-of- constitutional.html.
47. Linkletter, 381 U.S. 479, 636 (1965).
48. Id. at 637.
49. See id. at 646-49 (Black, J., dissenting).
50. See id. at 641-42 (Black, J., dissenting).
51. Mishkin, supra note 2, at 74-75. Mishkin did, however, predict that the Court would adhere to the rule of retroactivity on direct review,
52. see id. at 76 (discussing Griffin), confidence that turned out to be misplaced.
53. See infra text accompanying notes 46-49 (discussing selective prospectivity).
54. See Roosevelt, Retroactivity, supra note 8, at 1124 (stating that Linkletter "did not offer the best possible response to a difficult new problem. It created the problem and offered a plainly inadequate response").
55. 388 U.S. 293 (1967).
56. Among the academics who seem to endorse it, one finds persons of good faith and great intelligence. See infra text accompanying notes 77-80.
57. See Roosevelt, Retroactivity, supra note 8, at 1091 n.84 (citing sources).
58. See BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 33-34 (1921) ("It will not do to decide the same question one way between one set of litigants and the opposite way between another."). Another contender is the announcement that a particular ruling shall have no precedential value but be good for one case only, a description that might be applied either to Bush v. Gore, 531 U.S. 98 (2000), or to some circuits' practice of designating opinions as unpublished or nonprecedential and forbidding litigants to cite them. The Supreme Court's rejection of Stovall rests on constitutional grounds and provides a strong argument against designating opinions as nonprecedential.
59. See Griffith v. Kentucky, 479 U.S. 314, 322-23 (1987) ("After we have decided a new rule in the case selected, the integrity of judicial review requires that we apply that rule to all similar cases pending on direct review.").
60. See also Anastasoff v. United States, 235 F.3d 1054 (8th Cir. 2000) (striking down a nocitation rule as inconsistent with the judicial power), vacated as moot 235 F.3d 1054 (8th Cir. 2000) (en banc). The question of whether no-citation rules are constitutional has itself been mooted by the Supreme Court's recent promulgation of a rule requiring the circuits courts to allow citation of unpublished opinions.
61. See Bennett L. Gershman, At Last, A Citability Rule, NAT'L L.J. 26, May 22, 2006.
62. Mackey v. United States, 401 U.S. 667, 679 (1971) (Harlan, J., dissenting).
63. Desist v. United States, 394 U.S. 244, 262-63 (1969).
64. Mackey, 401 U.S. at 692.
65. Desist, 394 U.S. at 262.
66. Mishkin, supra note 2, at 82.
67. For similar criticism of the "fundamental right" prong of Harlan's approach, see Note, Rethinking Retroactivity, 118 HARV. L. REV. 1642 (2005).
68. 479 U.S. 314 (1987).
69. 489 U.S. 288 (1989).
70. Unfortunately, by this point the palimpsest of opinion had descended over the initial article, and Griffith and Teague cite Harlan's opinions rather than Mishkin's superior original.
71. Teague, 489 U.S. at 301.
72. 494 U.S. 407, 414 (1990).
73. M. at 415.
74. Pub. L. No. 104-132, codified at various sections of 28 U.S.C.
75. 28 U.S.C. § 2254(d)(1).
76. For a valuable and insightful analysis of the issues posed by § 2254(d)(1) and other sections of the AEDPA, and their interaction with retroactivity analysis, see A. Christopher Bryant, Retroactive Application of "New Rules " and the Antiterrorism and Effective Death Penalty Act, 70 GEO. WASH. L. REV. 1 (2002).
77. For the disputes, see, e.g., Williams v. Taylor, 529 U.S. 362 (2000).
78. Griffith v. Kentucky, 479 U.S 314, 322-23 (1987).
79. Toby J. Heytens, Managing Transitional Moments in Criminal Cases, 115 YALE L.J. 922, 979 (2006).
80. See, e.g., Yakus v. United States, 321 U.S. 414, 444 (1944).
81. See Heytens, supra note 65;
82. Meir Katz, Note, Plainly Not "Error": Adjudicative Retroactivity on Direct Review, 25 CARDOZO L. REV. 1979 (2004).
83. Heytens, supra note 65, at 958.
84. See, e.g., FED. R. CRIM. PRO. 52(b).
85. One might argue instead that error should be determined by reference to law existing at the time of trial. Consistent with my belief that courts should generally decide legal issues according to their best current understanding of the law,
86. see Roosevelt, Retroactivity, supra note 8, at 1117, I think that the law at the time of appeal provides the appropriate referent. Accord United States v. Cotton, 535 U.S. 625, 632 (2002);
87. Heytens, supra note 65, at 959.
88. See Roosevelt, Retroactivity, supra note 8, at 1131-34 (advocating purpose-based analysis). The Supreme Court suggested something similar in its analysis of Apprendi error in United States v. Cotton, 535 U.S. 625 (2002). There it granted that the error (failing to charge and prove a specific quantity of drugs) was plain but found that because the evidence relating to quantity was overwhelming and uncontroverted, the error did not seriously affect the "fairness, integrity, or public reputation of judicial proceedings."
89. Id. at 633.
90. In addition to inefficiency, other undesirable consequences include the possibility of diverting attorney resources from valid arguments, weakening those arguments by associating them with foreclosed ones, antagonizing the judge, and earning sanctions. See Heytens, supra note 65, at 961-62.
91. Heytens provides a compelling analysis of the circumstances under which forfeiture is appropriate, concluding that it should typically not bar claims when trial-time law was clearly unfavorable but should when the law was merely unclear. See Heytens, supra note 65, at 959-72. The analysis works in terms of the purpose of claim-presentation rules, but one might also say that the resolution of legal unclarity should generally not be understood to create a new rule.
92. See, e.g., Harper v. Va. Dept. of Taxation, 509 U.S. 86, 105 (1993) (Scalia, J., concurring) ("Prospective decisionmaking is the handmaid of judicial activism, and the born enemy of stare decisis."); James v. United States, 366 U.S. 213, 224-25 (1961) (Black, J., concurring/dissenting) ("one of the great inherent restraints upon this Court's departure from the field of interpretation to enter that of lawmaking has been the fact that its judgments could not be limited to prospective application");
93. Bradley Scott Shannon, The Retroactive and Prospective Application of Judicial Decisions, 26 HARV. J.L. & PUB. POL'Y 811, 856-57 (2003) (suggesting that the sort of disruption prospective application aims to avoid is in fact an indication that the new rule "should simply be rejected as bad law").
94. As by applying new rules of law to cases in which application does not serve their purpose - for instance, excluding from evidence confessions obtained voluntarily but without Miranda warnings prior to the Miranda decision.
95. A somewhat more sophisticated version of this argument suggests that reducing disruption (as through prospectivity) skews the stare decisis analysis by eliminating reliance interests the Court ought properly to weigh. See Shannon, supra note 74, at 872. It seems to me, however, that to the extent these reliance interests are not disrupted, they need not be weighed.
96. See Heytens, supra note 65, at 983-990.
97. Id. at 979-82.
98. Id. at 983-90.
99. Richard H. Fallon, Jr. & Daniel J. Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104 HARV. L. REV. 1731 (1991).
100. See id. at 1806.
101. In defense of prospectivity, one might argue that it is not much different from dictum. But dictum is not binding precisely because courts have authority to say what the law is only in the context of deciding concrete disputes. Prospectivity, one could say, is an attempt to produce binding dictum: the court announces that a particular rule of law takes effect not in the case before it but in some other (future) case. But binding dictum does not exist, and neither should pure prospectivity. Admittedly, a court could achieve much the same result by foreshadowing through heavy-handed use of ordinary dictum, but that is simply one more reason why prospectivity is not needed.
102. Giving one person the benefit of a particular rule of law but denying it to another identically situated person: what could be a plainer violation? In federal court, of course, the Fifth Amendment Due Process Clause would be at issue, but even if this had not been held to include an equal protection component, deciding like cases differently also seems a straightforward due process violation.
103. See Roosevelt, Retroactivity, supra note 8, at 1132. The most obvious risk in such an approach is that it will discourage litigants from pressing novel arguments, but as long as the calculus is not perfectly predictable, this risk seems manageable.
104. See id. Another problem is that not all contexts lend themselves to remedial analysis as well as constitutional criminal procedure-if the question is the validity of a statute, for instance, it is hard to imagine a "remedial analysis" that would hold the statute invalid but enforce it nonetheless.
105. See id. at 1108.
106. See Kuhn v. Fairmont Coal Co., 215 U.S. 349, 372 (1910) (Holmes, J., dissenting) ("judicial decisions have had retrospective operation for near a thousand years"). The difference is that the Court now has the concept of retroactivity, but the concept does no real mischief in the context of direct review.
107. Butler v. McKellar, 494 U.S. 407, 415 (1990).
108. Id. at 414.
109. More troubling, the decision that appears wrong but reasonable in light of trial-time Supreme Court decisions will survive even if it is unreasonable and squarely foreclosed in light of trial-time circuit law, pursuant to 28 U.S.C. § 2254(d)(1)'s reference to federal law "as determined by the Supreme Court of the United States." The restriction has led some to doubt the constitutionality of § 2254(d)(1). See, e.g., Irons v. Carey, 479 F.3d 658 (9th Cir. 2007) (Noonan, J., concurring);
110. James S. Liebman & William F. Ryan, "Some Effectual Power": The Quantity and Quality of Decisionmaking Required of Article III Courts, 98 COLUM. L. REV. 696 (1998).
111. Bryant, supra note 63, argues that it is inconsistent with both the general principle of federal superiority with respect to federal law and the command of AEDPA.
112. Desist v. United States, 394 U.S. 244, 262-63 (1969). In Desist, Harlan followed Mishkin and identified the assurance of reliability as another purpose; however, this concern dropped away in Mackey v. United States, 401 U.S. 667 (1971) (Harlan, J., concurring).
113. As Mishkin noted, "Reliance upon direct review by the Supreme Court as the exclusive means of enforcement would be illusory. The sheer volume of the Court's work, not to mention inadequacy of some state procedures for presenting these questions, would preclude adequate vindication of these constitutional rights." Mishkin, supra note 2, at 86-87.
114. See generally ROBERT L. STERN, ET AL., SUPREME COURT PRACTICE 219-86 (2002) (discussing factors motivating grants of certiorari).
115. See, e.g., Barry Friedman, A Tale of Two Habeas, 73 MINN. L. REV. 247, 253-54 (1988);
116. James S. Liebman, Apocalypse Next Time?: The Anachronistic Attack on Habeas Corpus/Direct Review Parity, 92 COLUM. L. REV. 1997, 2009-10 (1992).
117. For a sampling of the literature, see, for example, Paul M. Bator, The State Courts and Federal Constitutional Litigation, 22 WM. & MARY L. REV. 605 (1981);
118. Erwin Chemerinsky, Parity Reconsidered: Defining a Role for the Federal Judiciary, 36 UCLA L. REV. 233, 238 (1988);
119. Daniel J. Meador, Federal Law in State Supreme Courts, 3 CONST. COMMENT. 347 (1986);
120. Burt Neuborne, The Myth of Parity, 90 HARV. L. REV. 1105 (1977);
121. William B. Rubenstein, The Myth of Superiority, 16 CONST. COMMENT. 599 (1999);
122. Michael E. Solimine, The Future of Parity, 46 WM. & MARY L. REV. 1457 (2005).
123. This idea that "retroactive" decisions reach back to change what the law was is the concept that I have argued should be eliminated from our jurisprudence.
124. See Griffith v. Kentucky, 479 U.S. 314, 324 (1987) (discussing "clear break").
125. Teague's concept of newness has been widely criticized. See, e.g., Fallon & Meltzer, supra note 80, at 1748.
126. Desist v. United States, 394 U.S. 244, 263 (1969).
127. See Fallon & Meltzer, supra note 80, at 1748 (stating that "[t]he conception of legal newness implicit in Teague and its progeny is difficult to reconcile with the conception of the judicial role embraced by Justice Harlan").
128. Williams v. United States, 401 U.S. 667, 692 (1971) (Harlan, J., concurring/dissenting).
129. For elaboration of this point, see Roosevelt, Retroactivity, supra note 8, at 1122-23.
130. Mishkin, supra note 2, at 81.
131. Compare Desist, 394 U.S. at 262 (endorsing reliability criterion) with Williams, 401 U.S. at 694 (endorsing Palko standard).
132. See Teague v. Lane, 489 U.S. 288, 312-13 (1989).
133. See Roosevelt, Retroactivity, supra note 8, at 1096 and n.118.
134. See generally Note, supra note 54 (criticizing use of Palko standard, and advocating return to reliability criterion alone).
135. Significant works employing the distinction were published in the 1970s, and those wishing to trace it back farther can find antecedents in the nineteenth or even eighteenth century. See Owen M. Fiss, Groups and the Equal Protection Clause, 5 PHIL. & PUB. AFFAIRS 107 (1976);
136. Lawrence Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 HARV. L. REV. 1212, 1213-15 (1978);
137. James Bradley Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 1 HARV. L. REV. 129, 144 (1893);
138. Fletcher v. Peck, 10 U.S. 87, 128 (1798) (suggesting that a judge should not strike a law down merely because he believes it unconstitutional, but only if "the opposition between the constitution and the law [were] such that the judge feels a clear and strong conviction of their incompatibility with each other").
139. In recent times, Richard Fallon has been one of the leaders in developing and analyzing the distinction. See, e.g., RICHARD H. FALLON, JR., IMPLEMENTING THE CONSTITUTION (2001);
140. Richard H. Fallon, Jr., Judicially Manageable Standards and Constitutional Meaning, 119 HARV. L. REV. 1274 (2006).
141. The terminology I use here is drawn from Mitchell Berman's excellent and comprehensive Constitutional Decision Rules, 90 VA. L. REV. 1 (2005).
142. See Ferguson v. Skrupa, 372 U.S. 726, 732 (1963) (stating that "it is only invidious discrimination which offends the Constitution").
143. See generally Kermit Roosevelt III, Constitutional Calcification: How the Law Becomes What the Court Does, 91 VA. L. REV. 1649, 1657 (2005) [hereinafter Roosevelt, Calcification] (discussing equal protection).
144. 429 U.S. 190 (1976).
145. For one attempt to set out particularly salient factors, see Roosevelt, Calcification, supra note 108, at 1658-66.
146. See supra text accompanying notes 80-83.
147. See generally Roosevelt, Calcification, supra note 108, at 1687-88.
148. See Berman, supra note 107, at 100 (noting relevance of distinction between "minimizing adjudicatory error" and "providing better guidance for non-judicial actors" to retroactivity analysis). Of course, more than one factor may be operating in any particular case. The Miranda rule, for instance, likely does aim to reduce error (because it substitutes a more tractable question for the prior totality-of-the-circumstances analysis) but it does so primarily by giving officials a clear rule to follow. Its application to pre-Miranda interrogations, in which officials were unaware of the rule, will not enhance accuracy but rather produce a large number of errors in favor of exclusion. Miranda is a prime focus of Berman's article, which includes many complexities elided here.
149. Imagine, for instance, that the Court had followed John Hart Ely's approach and employed heightened scrutiny in the equal protection context in response to a burdened group's lack of political power. As demographic shifts deprived a previously dominant group of majority status, the Court might respond by increasing the level of scrutiny it applied to discrimination against that group. But applying this decision rule to cases concluded before the shift occurred would make no sense, even though it would likely fall into the conventional understanding of Harlan's "substantive" category.
150. 372 U. S. 335 (1963) (finding right to counsel for indigents in felony prosecutions).
151. 397 U.S. 358 (1970) (requiring proof of guilt beyond a reasonable doubt for conviction).
152. 302 U.S. 319 (1937).
153. See Ivan V. v. New York, 407 U.S. 203 (1973) (holding Winship retroactive); Pickelsimer v. Wainwright, 375 U.S. 2 (1963) (holding Gideon retroactive).
154. 384 U.S. 436 (2000).
155. See Roosevelt, Retroactivity, supra note 8, at 1131. At moments the Supreme Court seems to have come close to this approach. See, e.g., Fiore v. White, 528 U.S. 23 (1999).
156. See id. at 1120-22;
157. Schwartz, Retroactivity, Reliability, and Due Process: A Reply to Professor Mishkin, 33 U. CHI. L. REV. 719, 732 n.64 (1966) ("Direct review is considered part of the original proceeding, whereas habeas corpus is independent."). The idea that some decisions can operate "retroactively" to change what the law was, and thereby introduce error into proceedings correct when conducted, is what creates the problem with collateral review, and the irony of Linkletter is that it was Linkletter itself that introduced this idea.
158. Mishkin, supra note 2, at 77. Indeed, the Supreme Court has announced that one variant of the doctrine has constitutional force: while Congress can plainly change law and thereby change the outcome of pending cases, it cannot pass a new law and order courts to re-open final cases in order to apply the new rule.
159. See Plaut v. Spendthrift Farms, 514 U.S. 211 (1995) (striking down on separation of powers grounds a law attempting to reinstate dismissed cases).
160. That is, applying a new decision rule for a procedural operative proposition on collateral review makes sense as error-correction when both a) the new decision rule does a better job (in the instant case) than the old one of determining whether the operative proposition has been violated; and b) the possible violation of the procedural right is sufficiently serious to warrant a remedy.
161. Heytens, supra note 65. The following exposition of recent cases draws from Heytens' account,
162. id. at 934-40.
163. See id.
164. 530 U.S. 466, 490 (2000).
165. 542 U.S. 296 (2004).
166. Id. at 303.
167. Most commentators, including the Department of Justice, expected the federal guidelines to fall. See, e.g., R. Craig Green, Apprendi's Limits, 39 U. RICH. L. REV. 1155, 1155 n.4 (2005).
168. 125 S.Ct. 738 (2005).
169. Id. at 757.
170. Heytens, supra note 65, at 940.
171. See Burton v. Stewart, 127 S.Ct. 793, 796 (2007).
172. Of course, I entertain no illusions that the Court will be moved by my suggestions; after all, it took decades to adopt Mishkin's, and it still hasn't gotten them entirely right.
173. 519 U.S. 148 (1997).
174. 523 U.S. 224 (1998).
175. For a more detailed analysis of pre-Apprendi cases, see Kate Stith, Crime and Punishment Under the Constitution, 2004 SUP. CT. REV. 221 (2004).
176. See Teague v. Lane, 489 U.S. 288, 313 (1989) (stating that "we believe it unlikely that many such components of basic due process have yet to emerge"). Consistent with that hint, federal circuit courts have generally held that these cases do not apply retroactively. See 35 GEO. L.J. 655, 655 (2006);
177. Anup Malani, Habeas Settlements, 92 VA. L. REV. 1, 51 (2006).
178. 397 U.S. 358 (1970).
179. 542 U.S. 348 (2004).
180. 536 U.S. 584 (2002).
181. See Schriro, 542 U.S. at 359 (Breyer, J., dissenting).
182. Teague, 489 U.S. at 311.
183. This is the argument of Note, supra note 54.
184. See supra, text accompanying notes 108-113, 118-122.
185. See, e.g., Christopher S. Strauss, Collateral Damage: How the Supreme Court's Retroactivity Doctrine Affects Federal Drug Prisoners' Apprendi Claims on Collateral Review, 81 N.C L. REV. 1220, 1242-45, 1260 (2003).
186. But see Schriro, 542 U.S. at 354 (rejecting argument that Ring modified the elements of offense under Arizona law).
187. See Berman, supra note 107, at 139 n.404 (explaining that the beyond-a-reasonable-doubt rule is an operative proposition).
188. For a sampling of such criticism, see, for example, Melissa M. McGrath, Federal Sentencing Law: Prosecutorial Discretion in Determining Departures Based on Defendant's Cooperation Violates Due Process, 15 S. III. U. L.J. 321 (1990);
189. David M. Zlotnick, The War Within the War On Crime: The Congressional Assault on Judicial Sentencing Discretion, 57 SMU L. REV. 211 (2004).
190. This is essentially the conclusion the Supreme Court has reached via plain error and forfeiture analysis. See United States v. Cotton, 535 U.S. 625 (2002).
191. Mishkin, supra note 2, at 100.