SelectedWorks @ Chapman University Dale E. Fowler School of Law
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Mental Health Treatment for Juvenile Offenders in Residential Psychiatric and Juvenile Justice Settings
No full textThe Unconstitutionality of Class-Based Statutory Limitations on Presidential Nominations: Can a Man Head the Women\u27s Bureau at the Department of Labor?
No full textCan a man be the Director of the Women\u27s Bureau at the Department of Labor? According to Congress, the answer is no. Congress has stated by statute that a woman must be the nominee to head the Women\u27s Bureau at the Department of Labor. The key questions are: (1) even if it makes sense on policy grounds, is it constitutional? and (2) if we accept such a statutory limitation power what are the potential precedential consequences for other appointment matters? This Article\u27s case study is particularly relevant today, examining just how far Congress can go to limit the discretion of Executive authority. This Article examines instead the statutory ability to, ex ante, limit the President\u27s choice of nominees. It examines the role of the Senate and Congress in the pre-selection criteria for nominees of the President to fill Officer positions within the United States government. Can sex, race, sexual orientation, economic status, or whether a nominee is a member of a particular organization be statutorily mandated (or prohibited) to limit the discretion of Presidential nominations for any particular position for Officers of the United States? Any such preferences can be taken into account as to whether the Senate will provide its advice and consent to any particular nomination, but it is unconstitutional to place such class-based preferences in statutory, pre-nomination mandates and restrictions. This Article argues that class preferences belong in the decision whether to provide advice and consent and not in pre-nomination statutory restrictions. This Article uses one example, the pre-nomination, statutory limitation regarding the Women\u27s Bureau at the Department of Labor, to demonstrate the illegitimacy of statutory limitations on the President\u27s nomination power based on class preferences. The place for the invocation of preferences is in the post-nomination/advice and consent process - not in statutory mandates. This Article concludes that the Constitution precludes Congress from placing limitations on the presidential nomination power. Mandatory, statutory pre-nomination limitations are simply beyond the Senate\u27s advice and consent power
The Value of Plea Bargaining
No full textThis article defends plea bargaining and responds to a trend in the academic literature to evaluate bargaining according to a shadow of trial efficiency theory. The efficiency perspective on bargaining gained prominence in the early 90s when two highly respected academics, Robert Scott and William Stuntz, along with a prominent Circuit judge, Frank Easterbrook, endorsed it in articles appearing in the Yale Law Journal. Judicial efforts to justify regularized plea concessions on penological grounds were widely viewed among academics as unpersuasive, and almost all of the academic commentary on bargaining was negative. The shadow-of-trial efficiency theory offered something new. Based on perspectives earlier applied in the civil settlement context, proponents of the theory argued that plea bargaining is justified in part because its results largely mirror the results that would occur after a highly regularized trial process, discounted to reflect uncertainty and avoided adjudication costs. Soon, however, this rationalization of plea bargaining was itself attacked by other prominent academics, first Stephen Schulhofer and more recently Stephanos Bibas. They contended persuasively that defects in the plea bargaining process distort results away from accurately discounted trial outcomes. Consequently, they contended that bargaining should be seriously reformed and preferably abolished. In response to such commentary, this article defends plea bargaining without reliance on shadow-of-trial efficiency theory and, indeed, shows why that theory is an ill-conceived way to assess bargaining
