Modeling the Congressional End-Run Constraint

Luke M. Milligan *

For over a century law professors and political scientists have shared a commitment to the study of how judges decide cases. Today the subject of judicial decisionmaking continues to hold the focus of some of the most influential scholars in law schools and political science departments. Despite their common point of study, legal scholars and political scientists have traditionally held deep suspicions about the other‘s models, data, and ideas. Their mutual distrust is a function of contending assumptions about judicial values and goals. Within political science, scholars of “judicial politics” have tended to assume that judges use their office to maximize the implementation of a broad platform of individual policy preferences. This assumption has been resisted, and in most cases flatly rejected, by the constitutional theorists of the legal academy.

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The Complexities of Judicial Takings

Benjamin Barros*

When (if ever) a judicial action can be an unconstitutional taking of private property has long been an open question in American constitutional law. Nested within this larger question are a host of detailed issues concerning both substance and procedure. Despite passing references in some cases, and a more direct discussion in one concurring opinion, the Supreme Court of the United States—until recently—had never squarely addressed the question of judicial takings or the detailed issues that a judicial takings doctrine would present.

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And Death Shall Have No Dominion: How To Achieve the Categorical Exemption of Mentally Retarded Defendants from Execution

J. Amy Dillard *

Shortly after the Supreme Court of the United States handed down its opinion in Atkins v. Virginia, exempting mentally retarded capital defendants from execution, the American Bar Association (“ABA”) issued two legislative options for states to adopt in order to comply with the directive of Atkins. Alternative A recommended that, upon notice from defense counsel that she had a good faith belief that her capital client was mentally retarded, the trial judge should conduct a pretrial hearing to determine if the defendant is mentally retarded and, thus, not death-eligible. Alternative B recommended that, upon notice from defense counsel that she had a good faith belief that her capital client was mentally retarded, the judge should empanel a jury for the sole purpose of determining if the defendant is mentally retarded and, thus, not death-eligible. By adopting either option, the mental retardation assessment would be kept away from the death-qualified juror, who might be inclined to ignore the core values of the criminal justice system and, more narrowly, the rationale in Atkins. With either ABA-suggested procedure, the trial court could assure due process for the mentally retarded capital defendant.

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The Recent Amendments to UCC Article 9: Problems and Solutions

David Frisch *

First, the old news. In 1998, the American Law Institute (“ALI”) and the Uniform Law Commission (“ULC”)—as sponsors of the Uniform Commercial Code (“UCC” or “Code”)—gave their approval to the final text of the newest version of Article 9 (“Revised Article 9”) after eight years of studying, drafting, and the inevitable wrangling between consumer and credit representatives. In an effort to reduce the likelihood of national non-uniformity during the transition stage as each state moved from the old version to the new at its own legislative pace, the drafters included a provision making July 1, 2001 the effective date of Revised Article 9. The drafters hoped that on this date Revised Article 9 would become effective nationwide. That hope was, as a practical matter, realized as all but four states adopted the date.

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On Equality: The Anti-Interference Principle

Donald J. Kochan *

Equality —it is a concept that pervades political and social discourse throughout the country, and has done so for centuries. The Declaration of Independence provides, “WE hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness . . . .” Consider the inscription on the façade of the Supreme Court of the United States—“Equal Justice Under Law”—as an indelible monument to equality in the foundation of our legal system. As Karst describes in his influential article, “[t]he ideal of equality is one of the great themes in the culture of American public life. From the Declaration of Independence to the Pledge of Allegiance, the rhetoric of equality permeates our symbols of nationhood.” Karst may or may not concur with this essay’s ultimate conclusion, but his sentiment frames the debate—defining equality and defining its ideal in light of governing principles.

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Failed Constitutional Metaphors: The Wall of Separation and the Penumbra

Louis J. Sirico, Jr. *

Metaphors are common devices in judicial opinions. Courts often find them useful in explaining the law and its application. And in recent years, metaphors have sparked an increased interest among legal scholars who are concerned with the metaphor’s role in advocacy and judicial opinion writing. Although courts use metaphors to explain the law, they also use metaphors for a more significant purpose: they use them to create the meaning of the law. For example, when courts use the metaphor “the marketplace of ideas” with respect to the First Amendment’s guarantee of freedom of expression, we understand that freedom of expression was meant to take place in a forum resembling a laissez-faire market. Further, in this environment the best arguments should win out. As Justice John Paul Stevens wrote, “But the First Amendment does guarantee an open marketplace for ideas—where divergent points of view can freely compete for the attention of those in power and of those to whom the powerful must account.” Thus, because the constitutional amendment now promises a marketplace of ideas, freedom of expression furthers essential societal goals and enjoys considerable protection.

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Putting Rationality Back into the Rational Basis Test: Saving Substantive Due Process and Redeeming the Promise of the Ninth Amendment

Jeffrey D. Jackson *

Substantive due process is broken. This doctrine, which provides that the Due Process Clauses of the Fifth and Fourteenth Amendments contain substantive limits on the power of federal and state governments, has been an important protector of rights since its beginnings in English law, and the main vehicle through which the protections of the Bill of Rights have been incorporated against the states. However, as currently practiced by the Supreme Court of the United States, the tiered scrutiny formulation of substantive due process is illusory. It is followed only in easy cases, and abandoned in hard ones. This practice throws the legitimacy of the entire doctrine into question.

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Beyond Formalist Sovereignty: Who Can Represent “We the People of the United States” Today?

David Chang*

To so many among us, it appears that our political system is broken. From the rigid partisanship in Congress, to the Senate’s rule of sixty, to the influence of lobbyists, to the vapid commercials and “robo-calls” used to influence voters, to the disproportionate power of small states in presidential primaries and in the Senate, to the disproportionate political influence of profit-seeking corporations, it seems that a system predicated on the people’s rule is badly in need of repair. The Supreme Court’s decision last term in Citizens United v. FEC, striking down a recent congressional effort to curb the influence of corporations in political campaigns, is just the latest occasion when pressing public needs have crashed against the barriers posed by an aging Constitution and a broad range of aging practices that have evolved within its framework.

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Modal Retributivism: A Theory of Sanctions for Attempts and Other Criminal Wrongs

Anthony M. Dillof *

This article attempts to think systematically about what sanctions are deserved for a range of criminal offenses. The offenses considered include both consummate offenses (such as murder) and inchoate offenses (such as attempts), as well as offenses of negligence and crimes of passion. Unlike other theories of punishment, which tend to focus on justifications of the practice of punishment, or the “why” question, the theory presented here focuses on the amount of punishment, that is, the “how much” question: Specifically, “How much punishment, in terms of size and severity, is deserved for a given criminal offense?” The article attempts to answer this question for a variety of crimes in a unified, principled manner.

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Blowing Out All the Candles: A Few Thoughts on the Twenty-Fifth Birthday of the Sentencing Reform Act of 1984

J.C. Oleson *

Happy Birthday, Sara!

Yes, I know that your full name is the Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1987, codified at 18 U.S.C. § 3551 et seq. and 28 U.S.C. §§ 991 to 998, but that’s an awful mouthful. And really, you’ll always be just “SRA”—Sara—to me. Sara, 2009 was your twenty-fifth birthday and in your honor, throughout 2009 and early 2010, the United States Sentencing Commission (“Commission”) held parties across the country. Yes, I know, officially they called them regional hearings, convened pursuant to the Commission’s authority under 28 U.S.C. § 994(o), but we know that they were really birthday parties for you.

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