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And Then Cnut Told Reagan . . .Lessons from the Tax Reform Act of 1986*

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Federle, Katherine Hunt

Ohio Northern University Law Review 
Volume 38 Issue 2 Article 5 
A Tribute to Victor Streib 
Katherine Hunt Federle 
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425 
A Tribute to Victor Streib 
KATHERINE HUNT FEDERLE

 
Recently, law schools have come under attack for being too theoretical, 
emphasizing scholarship over teaching and theory over practice.
1
  Law 
faculties, it is claimed, have little or no real practice experience, and offer 
esoteric courses that cannot possibly inform future lawyers.
2
  Moreover, law 
professors are rewarded for deeply theoretical scholarship but less for 
teaching or community service.
3
  From within this critique, it is claimed that 
law schools are divorced from the realities of law practice, churning out 
graduates lacking basic lawyering skills.
4
  Although new lawyers often 
receive on-the-job training (the costs of which could be passed on to 
clients), economic pressures have made this approach seem less feasible.
5
 
The divide between theory and practice is an old one.  Many attribute 
the split to Christopher Langdell, who was appointed Dean of the Harvard 
Law School in 1870.
6
  Responding to criticisms that law was a mere trade 
and not a graduate-school worthy area of study, Langdell sought to establish 
the underlying theoretical approaches to the study of law.
7
  Legal reasoning, 
case analysis, and logic became central to law teaching, with little to no 
emphasis on the other skills necessary to good lawyering.  Those skills, 
such as client counseling or trial practice, were deemed too practical by the 
legal academy to warrant inclusion.  Although law schools more recently 
have added new courses designed to teach these important “practical” skills, 
they remain isolated from the traditional curriculum in important ways—
taught by adjuncts or faculty without tenure, and not part of the required 
curriculum, for example.
8
 
  
  Professor of Law and Director, Center for Interdisciplinary Law and Policy Studies, The 
Ohio State University Michael E. Moritz College of Law.  She is the former Director of the Justice for 
Children Project at the Moritz College of Law and has written extensively about children and their 
rights. 
 1. See David Segal, What They Don’t Teach Law Students: Lawyering, N.Y. TIMES, Nov. 20, 
2011, at A1. 
 2. See id. 
 3. See id. 
 4. See id. 
 5. See id.  
 6. See David Segal, supra note 1.  
 7. See id. 
 8. See id. 
1
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426 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 38  
The notion that theory can do without practice—or the converse—is 
deeply flawed.  Despite the academy’s claims to intellectual bona fides, the 
reality is that most law graduates will practice, not teach, law.  Moreover, 
the distinction between legal reasoning, logic, and case analysis on the one 
hand and “practical skills” on the other is largely specious, for the former is 
a set of skills essential to the practice of law, as is the latter.  On the other 
hand, the disdain for the academy is—at its worst—anti-intellectual.  The 
best attorneys know that the practice of law is not simply a matter of 
screwing pipes together to make liquid flow; one must know certain 
fundamental principles governing gravity and mechanics to make the water 
flow in the direction and manner desired.  
The reality is that theory informs practice and practice informs theory.  
The best lawyers and academics know this and find ways to learn from one 
another to accomplish change, innovation, reform.  Nevertheless there are 
certain institutional disincentives: woe to the untenured professor who 
writes a “merely descriptive” article or a treatise for the bar.  And the 
practitioner who wants to delve into the theory of the law finds little time, 
encouragement, or financial incentive to do so, for what client wants to pay 
for time spent reading academic work? 
But as I have said, I believe excellent practitioners and academics 
understand the value of thinking deeply about the law in order to implement 
or effectuate change.  From an academic perspective, using law as a tool for 
social reform is not only appealing but possible; the security of tenure 
enables one to take positions that may be unpopular or politically infeasible.  
There nevertheless is a certain exhilaration in articulating a new theory or 
arguing for societal change while simultaneously exploring these ideas with 
young (and often quite insightful) law students.  Such an approach provides 
purpose to a career, can rescue one from becoming an intellectual dilettante, 
and exposes young lawyers to the value of intellectual exploration.  In short, 
intellectual pursuits could—and do—change the way the world is 
understood. 
Professor Victor Streib in many ways is the epitome of the academic 
who understands this important connection between theory and practice.  
Although a prolific scholar, his intellectual pursuits had a deeper purpose: to 
reform the law.  The work that most influenced me (and with which I am 
most familiar) is his work on the juvenile death penalty.  His scholarship, 
including his book, Death Penalty for Juveniles, showed us the realities—
and injustices—of executing juveniles, and educated all of us on the need to 
see beyond stereotypes.
9
  He also challenged the way the law was 
  
 9. VICTOR L. STREIB, DEATH PENALTY FOR JUVENILES (1987).  
2
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2012] A TRIBUTE TO VICTOR L. STREIB 427 
constructed around the death penalty and children, and argued that the 
constitutional framework should—and must—accommodate juveniles.
10
 
Professor Streib, however, also walked the walk of the practitioner.  He 
served as co-counsel in a number of cases involving juveniles sentenced to 
death,
11
 including that of Wayne Thompson, a fifteen-year-old Oklahoma 
youth sentenced to death for his crimes.
12
  In Thompson v. Oklahoma,
13
 
Justice Stevens, writing for a plurality of the Supreme Court of the United 
States, held the imposition of a death sentence on a juvenile who was fifteen 
at the time of his crimes violated the Cruel and Unusual Punishment Clause 
of the Eighth Amendment.
14
  Noting that evolving standards of decency 
determined the boundaries of the Cruel and Unusual Punishment Clause, the 
Court looked to statutes and jury determinations as reflections of those 
evolving and contemporary standards.
15
  The plurality cited Professor 
Streib’s book, Death Penalty for Juveniles, as evidence that the execution of 
juveniles was both rare and now “abhorrent to the conscience of the 
community.”
16
  Even the dissent cited Professor Streib’s work.
17
 
In retrospect, the Thompson case was the breach in the dike, although it 
did not seem so at the time.  Less than a year later, the Supreme Court 
upheld the imposition of the death penalty on sixteen- and seventeen-year-
old offenders in Stanford v. Kentucky.
18
  Justice Scalia, who had written the 
dissenting opinion in Thompson,
19
 now authored the Court’s plurality 
opinion.
20
  The plurality concluded that the “majority of . . . [s]tates that 
permit capital punishment authorize it” against minors who are at least 
sixteen at the time of the offense.
21
  Petitioners’ arguments that the death 
penalty violated evolving standards of decency thus were without merit 
because petitioners had failed to establish a national consensus against the 
death penalty.
22  Rejecting the claim that society viewed capital punishment 
of juvenile offenders as inappropriate, Justice Scalia again cited Professor 
  
 10. See id. 
 11. See, e.g., Allen v. Florida, 636 So. 2d 494 (Fla. 1994) (Co-counsel for appellant in a death 
penalty case involving a fifteen-year-old boy); Cooper v. Indiana, 540 N.E.2d 1216 (Ind. 1989) (Co-
counsel for petitioner in a death penalty case for a fifteen-year-old girl). 
 12. See Thompson v. Oklahoma, 487 U.S. 815 (1988). 
 13. 487 U.S. 815 (1988). 
 14. Id. at 838. 
 15. See id. at 826-32. 
 16. Id. at 832. 
 17. Id. at 869-70 (Scalia, J., dissenting) (arguing that statistical evidence does not support claim 
of changing attitude toward execution of juveniles). 
 18. 492 U.S. 361, 380 (1989). 
 19. Thompson, 487 U.S. at 859. 
 20. Stanford, 492 U.S. 361.  
 21. Id. at 371. 
 22. Id. at 377. 
3
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Streib’s book, arguing evidence that such sentences were rare did not 
support the contention that they should never be imposed.
23
 
Professor Streib nevertheless continued to influence the debate about 
the execution of juveniles.  He continued to write and practice, serving as 
co-counsel for other juveniles sentenced to death and testifying as an expert 
witness on the juvenile death penalty.
24
  In 2005, the Supreme Court 
returned to the issue of the execution of juvenile offenders in Roper v. 
Simmons.
25
  This time, a majority of the Court found that the imposition of a 
death sentence on a criminal defendant for crimes committed as a juvenile 
violated the Eighth Amendment.
26
  The Court once again cited Professor 
Streib’s work as evidence of a national consensus opposing the death 
penalty for juveniles.
27
  
Professor Streib’s work on the juvenile death penalty may be seen as 
part of a broader agenda examining the sentencing and punishment of 
juveniles.  Some of his early scholarship raised legitimate questions about 
the efficacy of severe sanctioning in juvenile law.
28
  For example, he raised  
issues about the imposition of a sentence of life without the possibility of 
parole for juveniles convicted of criminal offenses.
29
  Moreover, his work 
on the capital punishment of juveniles reflects a broader interest in the death 
penalty.  He has examined issues surrounding the death penalty for female 
offenders and written several articles and books on the subject.
30
  Professor 
Streib also has written more broadly about death penalty law as well as 
considered ethical issues in the representation of death row inmates.
31
 
Professor Streib has made numerous other contributions to our 
understanding of law, and I do not mean to disparage those contributions by 
not focusing on them here.  I simply want to emphasize that his work has 
helped to change the face of juvenile justice in the United States for the 
better.  He has served as a model for those who see the importance of 
  
 23. Id. at 373-74. 
 24. Victor L. Streib, Biography, OHIO NORTHERN UNIVERSITY, http://www.law.onu.edu/faculty_ 
staff/faculty_profiles/victorstreib.html (last visited Feb. 20, 2012). 
 25. 543 U.S. 551 (2005).  
 26. Id. at 578-79. 
 27. See id. at 564-65; see id. at 595-96 (O’Connor, J., dissenting).  
 28. See, e.g., Victor L. Streib, Death Penalty for Children: The American Experience with Capi-
tal Punishment for Crimes Committed While Under Age Eighteen, 36 OKLA. L. REV. 613 (1983). 
 29. See Victor L. Streib, Moratorium on the Death Penalty for Juveniles, 61 LAW & CONTEMP. 
PROBS.  55, 73-74 (1998). 
 30. See, e.g., Victor L. Streib, Rare and Inconsistent: The Death Penalty for Women, 33 
FORDHAM URB. L.J. 609 (2006); see also VICTOR L. STREIB, THE FAIRER DEATH: EXECUTING WOMEN 
IN OHIO (2006). 
 31. See, e.g., VICTOR L. STREIB, DEATH PENALTY IN A NUTSHELL (3d  ed. 2008); see Victor L. 
Streib, Would You Lie To Save Your Client’s Life? Ethics and Effectiveness in Defending Against Death, 
42 BRANDEIS L.J. 405 (2004). 
4
Ohio Northern University Law Review, Vol. 38 [], Iss. 2, Art. 5
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2012] A TRIBUTE TO VICTOR L. STREIB 429 
bridging the artificial gap between theory and practice and has no doubt 
inspired others to do the same.  While I might hope that he continues to 
exhort all of us to do more, I also wish him the best in this, the next stage of 
his life. We will miss him. 
 
5
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A Tribute to Victor Streib

Dieter, Richard C.

Ohio Northern University Law Review 
Volume 38 Issue 2 Article 13 
Introduction to “Struck by Lightning” 
Richard C. Dieter 
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 Part of the Law Commons 
Recommended Citation 
Dieter, Richard C. () "Introduction to “Struck by Lightning”," Ohio Northern University Law Review: Vol. 38: 
Iss. 2, Article 13. 
Available at: https://digitalcommons.onu.edu/onu_law_review/vol38/iss2/13 
This Article is brought to you for free and open access by the ONU Journals and Publications at 
DigitalCommons@ONU. It has been accepted for inclusion in Ohio Northern University Law Review by an 
authorized editor of DigitalCommons@ONU. For more information, please contact digitalcommons@onu.edu. 
497 
Introduction to “Struck by Lightning” 
RICHARD C. DIETER

 
It has been thirty-five years since the Supreme Court of the United 
States allowed the death penalty to resume under state statutes that promised 
to protect against the arbitrary application which had been a hallmark of the 
punishment’s past.  This is a fitting time to evaluate whether the death 
penalty experiment has met those expectations.  The Article that follows 
this introduction, Struck by Lightning: The Continuing Arbitrariness of the 
Death Penalty Thirty-Five Years After Its Re-instatement in 1976, was 
written for the Death Penalty Information Center in July 2011.  This Article 
examined two streams of evidence: the dramatic decline in the use of the 
death penalty, especially in the past decade, and the ongoing influence of 
irrelevant factors in determining who is sentenced to death and executed in 
this country. 
Professor Victor Streib of Ohio Northern University Pettit College of 
Law, whose years of work are being honored in this tribute issue of the Law 
Review, has played a critical role in developing both these strands of 
analysis.  His research on juveniles and the death penalty was pivotal in the 
eventual ruling by the Supreme Court in 2005 to bar capital punishment for 
young offenders, pointing the way to a narrowing of the death penalty’s use.  
Similarly, his research on gender disparities in the application of the death 
penalty has raised awareness of the role that arbitrary factors continue to 
play in this system.  If the death penalty is someday struck down because of 
its rare but capricious application, the insights and empirical research of 
Professor Streib and many others will surely be noted. 
 
  
  Executive Director, Death Penalty Information Center. 
1
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Introduction to “Struck by Lightning”

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