Articles

For more than half a century, the retributivists and the crime-control instrumentalists have seen themselves as being in an irresolvable conflict. Social science increasingly suggests, however, that this need not be so. Doing justice may be the most effective means of controlling crime. Perhaps partially in recognition of these developments, the American Law Institute’s recent amendment to the Model Penal Code’s “purposes” provision—the only amendment to the Model Code in the forty-eight years since its promulgation—adopts desert as the primary distributive principle for criminal liability and punishment.

That shift to desert has prompted concerns by two groups that, ironically, have been traditionally opposed to each other. The first group—those concerned with what they see as the over-punitiveness of current criminal law—worries that setting desert as the dominant distributive principle means continuing the punitive doctrines they find so objectionable, and perhaps making things worse. The second group—those concerned with ensuring effective crime control—worries that a shift to desert will create many missed crime-control opportunities and will increase avoidable crime.

The first group’s concern about over-punitiveness rests upon an assumption that the current punitive crime-control doctrines of which it disapproves are a reflection of the community’s naturally punitive intuitions of justice. However, as Study 1 makes clear, today’s popular crime-control doctrines in fact seriously conflict with people’s intuitions of justice by exaggerating the punishment deserved.

The second group’s concern that a desert principle will increase avoidable crime exemplifies the common wisdom of the past half-century that ignoring justice in pursuit of crime control through deterrence, incapacitation of the dangerous, and other such coercive crime-control programs is cost-free. However, Studies 2 and 3 suggest that doing injustice has real crime-control costs. Deviating from the community’s shared principles of justice undermines the system’s moral credibility and thereby undermines its ability to gain cooperation and compliance and to harness the powerful forces of social influence and internalized norms.

The studies reported here provide assurance to both groups. A shift to desert is not likely either to undermine the criminal justice system’s crime-control effectiveness, and indeed may enhance it, nor is it likely to increase the system’s punitiveness, and indeed may reduce it.

Students of the history of administrative law in the United States regard the antebellum era as one in which strict common law rules of official liability prevailed. Yet conventional accounts of the antebellum period often omit a key institutional feature. Under the system of private legislation in place at the time, federal government officers were free to petition Congress for the passage of a private bill appropriating money to reimburse the officer for personal liability imposed on the basis of actions taken in the line of duty. Captain Little, the officer involved in one oftcited case, Little v. Barreme, pursued this avenue of indemnification successfully. As a result, the ultimate loss associated with that officer’s good faith effort to enforce federal law fell on the government rather than on the officer himself.

This paper fills out the picture of government accountability in the early nineteenth century by clarifying the practice of congressional indemnification. After identifying cases in which officers sought indemnity from Congress through a petition for private relief, we examine the way official liability, as administered by the courts,
interacted with private legislation, as administered by Congress, to shape the incentives of government officers to comply with the law. We find that a practice of relatively routine indemnification took the sting out of sovereign immunity, a doctrine that key players—including James Madison and John Marshall—treated as thinly formalistic. We also find that Congress assumed responsibility for deciding when federal officers were entitled to indemnity for acts taken in the scope of employment.

The antebellum system thus contrasts sharply with modern government accountability law. Jurists today tend to regard sovereign immunity as a barrier to relief, rather than a principle of forum allocation that preserves legislative primacy in the adoption of money bills. Moreover, courts today often refrain from deciding the question of formal legality in an effort to strike a proper balance between the victim’s interest in accountability and the official’s interest in immunity. Whatever the wisdom of the resulting body of qualified immunity law, the doctrine reflects judicial control of matters that the early republic had assigned to the legislative branch.

Modern doctrine has not been faithful to the text, history, and structure of the Thirteenth, Fourteenth, and Fifteenth Amendments. These amendments were designed to give Congress broad powers to protect civil rights and civil liberties; together they form Congress’s Reconstruction Power.

Congress gave itself broad powers because it believed it could not trust the Supreme Court to protect the rights of the freedmen. The Supreme Court soon realized Congress’s fears, limiting not only the scope of the Reconstruction Amendments but also Congress’s powers to enforce them in decisions like  United States v. Cruikshank and the Civil Rights Cases. Due to these early cases, Congress was often forced to use its Commerce Power to protect civil rights. Modern decisions beginning with City of Boerne v. Flores and United States v. Morrison have compounded these errors.

When we strip away these doctrinal glosses and look at the original meaning and structural purposes underlying the Reconstruction Amendments, we will discover that the Reconstruction Power gives Congress all the authority it needs to pass modern civil rights laws, including the Civil Rights Act of 1964. That was the original point of these amendments, and that should be their proper construction today.

When it enforces the Reconstruction Amendments, Congress is not limited to remedying or preventing state violations of rights. It has long been recognized that Congress may reach private conduct through its Thirteenth Amendment powers to eradicate the badges and incidents of slavery. But Congress also has the power to enforce the Fourteenth Amendment’s Citizenship Clause—a guarantee of equal citizenship that, like the Thirteenth Amendment, contains no state action requirement. The Citizenship Clause, designed to secure equality of citizenship for freedmen, gives Congress the corresponding power to protect the badges and incidents of citizenship. Congress may therefore ban discriminatory private conduct that it reasonably believes will contribute to or produce second-class citizenship.

In addition to having powers to enforce the Citizenship Clause, Congress also may reach private action to prevent interference with federal constitutional rights. Along with its powers to enforce the Guarantee Clause, Congress may therefore reach private violence designed to deter political participation, terrorize political opponents, or undermine representative government.

The failure of state and local governments to guarantee equal protection of the laws was a central concern of the framers of the Fourteenth Amendment, and giving Congress the power to remedy this violence was thus one of the central purposes of the amendment. Today, this same power enables Congress to pass laws banning violence directed at women and other federal hate crimes legislation.

Finally, because of institutional differences between courts and legislatures, Congress may implement the state action requirement more broadly than courts currently do, for example, by imposing antidiscrimination norms on government contractors and operators of public accommodations. For this reason Title II of the 1964 Civil Rights Act, which bans discrimination in public accommodations, is not only a legitimate exercise of Congress’s power to enforce the Fourteenth Amendment; it is a paradigmatic example of that power.

The Supreme Court did not reach these questions in 1964 because it feared that overturning old precedents like the 1883  Civil Rights Cases would encourage Southern resistance to the new Civil Rights Act. But we should have no such compunction today. It is long past time to remedy the Supreme Court’s errors, and reconstruct the great Reconstruction Power of the Constitution.

The Supreme Court’s recent Second Amendment decision, District of Columbia v Heller, asserts that the Constitution’s right to bear arms is an individual right to armed self-defense held by law-abiding “citizens.” This Article examines the implications of this description, concluding that the Second Amendment cannot concurrently be a right of armed self-defense and restricted to citizens. The Article proceeds in three parts. First, it analyzes the term “the people” as it has been interpreted in recent Court cases. The Article concludes that constitutional text and Supreme Court jurisprudence provide no sustainable basis to believe the Second Amendment is limited to citizens. Second, the Article situates Heller within a historical context of gun regulation motivated by racial animus and xenophobia, manifested by contractions of citizenship to exclude—and gun laws intended to disarm—racial minorities and noncitizens. Third, the Article attempts to revive a coherent theory justifying the limitation of gun rights to citizens but ultimately concludes that armed self-defense is conceptually unrelated to historically political rights such as voting and jury service. Thus, Heller’s holding regarding who is entitled to armed self-defense is logically unsound and doctrinally troubling.

Many critics have noted that patent litigation’s institutional structure is riddled with shortcomings that lead to unjust and inefficient outcomes and decrease public faith in the legal system. This Article relies on theory and empirical data to propose that the patent litigation system can be improved by harnessing patentography—the geography of patent disputes. There are three principal concerns with patent litigation’s institutional structure: widespread forum shopping in district court patent cases, district courts’ typically poor factfinding and lawmaking in these cases, and insufficient deference by the Federal Circuit—the court hearing nearly all patent appeals—to district courts’ factual findings. Harnessing patentography by restricting venue in patent litigation to the principal place of business of one of its defendants will help repair each problem. It will clamp down on forum shopping. Contrary to conventional wisdom, it will also improve district courts’ patent decisionmaking. As industries tend to cluster stably in discrete geographic areas, my proposed rule will tend to cluster patent cases by technology in particular districts, such as software cases in the Northern District of California and pharmaceutical cases in the District of New Jersey. Clustering together large numbers of an industry’s patent cases in a limited number of district courts will develop those courts’ proficiencies in patent law and in the underlying industry-specific facts critical to sound legal determinations. Under my proposal, this clustering will occur in districts in which judges and juries already tend to have background industry knowledge, given the associated industry cluster. An empirical review of patent cases filed in district courts in 2005 confirms that harnessing patentography as I propose would intensify patent litigation clusters. Finally, improving district courts’ decisionmaking ought to encourage the Federal Circuit to defer more appropriately to district courts’ factual findings.

Fueled by police reliance on offender databases and advances in crime scene recovery, a new type of prosecution has emerged in which the government’s case turns on a match statistic explaining the significance of a “cold hit” between the defendant’s DNA profile and the crime-scene evidence. Such cases are unique in that the strength of the match depends on evidence that is almost entirely quantifiable. Despite the growing number of these cases, the critical jurisprudential questions they raise about the proper role of probabilistic evidence, and courts’ routine misapprehension of match statistics, no framework—including a workable standard of proof—currently exists for determining sufficiency of the evidence in such a case. This Article is the first to interrogate the relationship between “reasonable doubt” and statistical certainty in the context of cold hit DNA matches. Examining the concepts of “actual belief” and “moral certainty” underlying the “reasonable doubt” test, I argue that astronomically high source probabilities, while fallible, are capable of meeting the standard for conviction. Nevertheless, the starkly numerical nature of “pure cold hit” evidence raises unique issues that require courts to apply a quantified threshold for sufficiency purposes. I suggest as a starting point—citing recent juror studies and the need for uniformity and systemic legitimacy—that the threshold should be no less favorable to the defendant than a 99.9% source probability.

Criminal law generally assumes that all defendants are alike. Social science research, however, has demonstrated that most defendants with mental retardation are unlike their peers of average intelligence in their cognitive and behavioral capacities—a difference with profound effects on their blameworthiness. The law acknowledges these differences in a few limited areas, most notably in the Supreme Court’s recent decision excluding defendants with mental retardation from death penalty eligibility. But while that decision arguably has begun to percolate into the rest of criminal law, consideration of the unique circumstances facing defendants with mental retardation has not yet reached the law of statutory rape.

When framed as a strict liability offense, statutory rape precludes the fact-finder from considering the defendant’s state of mind altogether. This exclusion of mens rea is an anomaly in criminal law, where a finding of guilt typically requires proof not only of an “evil act,” but also of an “evil mind.” Commentators have criticized strict liability but have ignored its increased injustice when applied to defendants with mental retardation.

A close analysis of statutory rape law reveals several assumptions which are thought to justify departing from a mens rea requirement for such a significant offense: Would-be defendants are presumed to have notice that sex with underage partners is unlawful; to be in the best position to prevent any harm from occurring; and to be deviant, immoral aggressors. When examined in light of research about mental retardation, however, these assumptions collapse. Further, punishing persons with mental retardation without regard to their awareness of the law, social cues, and the nature of their conduct may also run afoul of constitutional due process and proportionate sentencing principles.

This Article therefore argues that legislators, prosecutors, and judges should modify the ways that defendants with mental retardation may be prosecuted for statutory rape. In particular, the government should have to prove that a defendant with mental retardation had the appropriate mens rea. This Article also recommends formalizing the existing ways of addressing differences in culpability of defendants with mental retardation through charging and sentencing.

This Article argues, contrary to conventional accounts, that the animating purpose of the American Constitution was to facilitate the admission of the new nation into the European-centered community of “civilized states.” Achieving international recognition—which entailed legal and practical acceptance on an equal footing—was a major aspiration of the founding generation from 1776 through at least the Washington administration in the 1790s, and constitution-making was a key means of realizing that goal. Their experience under the Articles of Confederation led many Americans to conclude that adherence to treaties and the law of nations was a prerequisite to full recognition but that popular sovereignty, at least as it had been exercised at the state level, threatened to derail the nation’s prospects. When designing the Federal Constitution, the framers therefore innovated upon republicanism in a way that balanced their dual commitments to popular sovereignty and earning international respect. The result was a novel and systematic set of constitutional devices designed to ensure that the nation would comply with treaties and the law of nations. These devices, which generally sought to insulate officials responsible for ensuring compliance with the law of nations from popular politics, also signaled to foreign governments the seriousness of the nation’s commitment. At the same time, however, the framers recognized that the participation of the most popular branch in some contexts—most importantly, with respect to the question of war or peace—would be the most effective mechanism for both safeguarding the interests of the people and achieving the Enlightenment aims of the law of nations. After ratification, the founding generation continued to construct the Constitution with an eye toward earning and retaining international recognition, while avoiding the ever-present prospect of war. This anxious and cosmopolitan context is absent from modern understandings of American constitution-making.

Courts often hold legislation unconstitutional, but nearly always only part of the statute offends. The problem of partial unconstitutionality is therefore pervasive and persistent. Yet the exclusive doctrinal tool for dealing with this problem—severability doctrine—is deeply flawed. To make matters worse, severability doctrine is purportedly necessary for any workable system of judicial review. The accepted view is that severance saves: A court faced with a partially unconstitutional law must sever and excise the unconstitutional provisions or applications so that the constitutional remainder can be enforced going forward. Absent severance and excision, a law must fall in its entirety. This excision-based understanding of judicial review is supposedly traceable to Marbury v. Madison. In fact, this attribution is anachronistic. Moreover, the prevailing view is wrong about the distinctive function
of modern severability doctrine, which is not to save, but to destroy. This Article retrieves the original approach to partial unconstitutionality and develops a proposal for implementing a version of that approach. The proposal, displacement without inferred fallback law, is simultaneously ambitious and modest. It is ambitious because it proposes a shift in the general framework for judicial review in every case; it is modest because the proposed shift would change case outcomes in only a small set of highly consequential cases.

The last several years have seen a vigorous debate among antitrust scholars and practitioners about the appropriate standard for evaluating the conduct of monopolists under section 2 of the Sherman Act. While most of the debate over possible standards has focused on the empirical question of each standard’s economic utility, this Article undertakes a somewhat different task: It examines the normative benchmark that courts have actually chosen when adjudicating section 2 cases. This Article explores three possible benchmarks—producer welfare, purchaser welfare, and total welfare—and concludes that courts have opted for a total welfare normative approach to section 2 since the formative era of antitrust law. Moreover, this Article will show that the commitment to maximizing total social wealth is not a recent phenomenon associated with Robert Bork and the Chicago School of antitrust analysis. Instead, it was the Harvard School that led the charge for a total welfare approach to antitrust generally and under section 2 in particular. The normative consensus between Chicago and Harvard and parallel case law is by no means an accident; rather, it reflects a deeply rooted desire to protect practices—
particularly “competition on the merits”—that produce significant benefits in the form of enhanced resource allocation, without regard to the ultimate impact on purchasers in the monopolized market. Those who advocate repudiation of the longstanding scholarly and judicial consensus reflected in the total welfare approach to section 2 analysis bear the heavy burden of explaining why courts should, despite considerations of stare decisis, suddenly reverse themselves and adopt such a different approach for the very first time, over a century after passage of the Act.