The Politics of "Inmate Litigation"

I feel compelled to respond to a recent student-written Note1 that critiques my Article, Inmate Litigation,2 published last year in the Review. The Note aims to expose my work as an (“at least . . . unconscious”3) exercise in left-leaning political argumentation in the guise of technocratic, quantitative data-crunching. The accusation of covert politics is puzzling. My piece employed careful quantitative and qualitative empirical techniques to evaluate a statute, the Prison Litigation Reform Act (PLRA),4 that restricts the legal rights of some of the most disempowered and vulnerable people in this country. The politics of that inquiry are clear, and I made no attempt to hide them: I think that the outcome of such systematic investigation matters — that it is wrong to curtail litigation rights, even of inmates, if the effect is to deny redress to victims of unconstitutional misconduct or if the policy change is based on false factual arguments. Unlike the Note, that is, I would hold Congress accountable for both the premises on which it rested inmate litigation reform and the results of that reform. The anonymous Note author’s (shocked, shocked!) discovery that my piece was driven by such an agenda, hidden in plain sight, hardly requires much analytic insight. But whatever one’s politics, I believe that there is something to be said for fair and careful use of data, as well. Unfortunately, these qualities are nowhere to be found in the Note. Instead, its author engages both in egregious misreading of my piece — mischaracterizing both my arguments and the data on which they rest — and in illogical argumentation that hides rather than clarifies the meaning and effects of statutory provisions. These failings are particularly unfortunate because they obstruct serious policy debate, which is what my piece attempted to promote. The problem begins with the Note’s frame, which asserts that I attempted but failed to establish that the PLRA’s proponents would, if only