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Defending Those People
Get PDFMany practitioners and scholars have written perceptively about the motivations of criminal defenders. Some have written eloquently. I have my own body of work on this and related questions.
This essay is about why the author has devoted her professional career--her life--to defending people most of society would just as soon banish and forget. After nearly thirty years of criminal law practice, her reasons are such a part of her that they are nearly inarticulable. The author is a criminal defender in her soul. She also has been teaching and writing about criminal defense for almost as long as she has been doing it
That the Laws be Faithfully Executed: The Perils of the Government Legal Advisor
Get PDFSuppose you practice business law. Your client comes to you and says We have a major deal in the works. It is aggressive and cutting edge, and we need an opinion from you saying that it is legal. Obviously, you cannot promise that. First, you need to know what the deal is. So, you examine the documents and carefully analyze the law. Unfortunately, you have only bad news to report: the deal is illegal, and there is no way to fix it. But with a little creative stretching of the law and some body English you could make a case for it that might, just might, pass the laugh test-but only barely. What do you do? Should you stretch the law and write the opinion that your client dearly wants
Decarceration Courts: Possibilities and Perils of a Shifting Criminal Law
Get PDFA widely decried crisis confronts U.S. criminal law. Jails and prisons are overcrowded and violence plagued. Additional causes for alarm include the rate of increase of incarcerated populations, their historically and internationally unprecedented size, their racial disproportionality, and exorbitant associated costs. Although disagreement remains over the precise degree by which incarceration ought to be reduced, there is a growing consensus that some measure of decarceration is desirable.
With hopes of reducing reliance on conventional criminal supervision and incarceration, specialized criminal courts proliferated dramatically over the past two decades. There are approximately 3,000 specialized criminal courts in the United States, including drug courts, mental health courts, veterans courts, and reentry courts. The existing scholarly commentary on specialized criminal courts is largely trapped in the mode of advocacy, alternately celebratory or disparaging, and insufficiently attentive to the remarkable variation between different specialized criminal courts. In contrast, this Article takes a closer and more critical look at the marked expansion of these courts as a peculiar strategy to devise alternatives to conventional jail- and prison-based sentencing.
This article reveals that specialized criminal courts have become significant terrain for a contest between competing criminal law reformist models and that different outcomes in this contest may portend starkly contrasting futures for U.S. criminal law and governance. More specifically, this article introduces a typology and critical theoretical account of four criminal law reformist models at work in specialized criminal courts: a therapeutic jurisprudence model, a judicial monitoring model, an order maintenance model, and a decarceration model. Part II argues that, whereas the first three of these models threaten to aggravate existing pathologies in U.S. criminal law administration—expanding criminal supervision, diminishing procedural protections, and possibly even increasing incarceration despite opposite intended effects—the fourth, less predominant model, a decarceration model, holds the potential to bring about substantial transformative change in U.S. criminal law. On a decarceration model, specialized criminal courts function as experimental diversionary programs that assign otherwise jail- or prison-bound defendants mental health and drug treatment, job and housing placement, along with other services in lieu of incarceration. On this model, integration within social contexts outside criminal justice systems substitute for the surveilling function of criminal supervision and incarceration.
Part III provides a theoretical framework to capture the possibilities for criminal law reform opened by a decarceration model, which may cognitively reframe shared understandings of crime and punishment; engage in institutional reinvention, transforming criminal law administrative institutions into different configurations; and facilitate systemic change by spurring conceptual shifts and freeing resources from criminal law administration for other sectors. Part IV begins to explore the more general perils attending a specialized criminal courts law reform strategy, including excessive legalism; dilution of the retributive and deterrent features of criminal punishment; inefficient proliferating specializations; and legitimation of harshness in conventional courts and unfairness toward less sympathetic, racial minority, or otherwise stigmatized defendants
The Legal Significance of the Psychological Ability to Appreciate the “Other”
Get PDFRecently the U.S. Supreme Court, citing neurological and psychological studies, held that because juveniles are deficient in appreciating consequences to others, they should never be given the death penalty. The author found, in his years as a legal scholar, educator, and practitioner, that “appreciating the ‘other’”--putting oneself in the position of others---is critical to law and the study of law in more than the obvious ways.
The author became aware of empirical studies and psychological experiments demonstrating that children below a certain age have trouble seeing things from another’s vantage point, and found that the facility to do so develops gradually with age, but more in some people than others
The Role of Charity in a Federal System
Get PDFThis Article critiques the prevailing justification for subsidies for the charitable sector, and suggests a new alternative. According to contemporary accounts, charity corrects the failure of the private market to provide public goods, and further corrects the failure of government to provide goods other than those demanded by the median voter.
However, the claim that government can meet the needs only of a single “median voter” neglects both federalism and public choice theory. Citizens dissatisfied with the services of one government can move to or even create another. Alternatively, they may use the threat of exit to lobby for local change. Subsidies for charity inefficiently distort the operation of these markets for legal rules.
Nonetheless, there remains a strong case for subsidizing charity, albeit on grounds new to the literature. Charity serves as gap-filler when federalism mechanisms break down. For example, frictions on exit produce too little jurisdictional competition, and excessively easy exit produces too much competition - a race to the bottom. At the same time, competition from government constrains inefficient charities. Thus, charity and government each perform best as complements to the other.
Finally, this Article sketches the normative legal consequences of these claims. Most significantly, I respond to the claims by Malani and Posner that for-profit charity would be superior to current arrangements. That suggestion would fatally weaken competition between charity and government, defeating the only persuasive purpose for charitable subsidies
The Hidden Limits of the Charitable Deduction: An Introduction to Hypersalience
Get PDFBehavioral economics introduced the concept of salience to law and economics. In the area of tax policy, salience refers to the prominence of taxes in the minds of taxpayers. This article complicates the literature on salience and taxation by introducing the concept of “hypersalience,” which is in many ways the mirror image of hidden taxation. While a revenue-raising tax provision must be hidden for taxpayers to underestimate their tax bill, a revenue-reducing tax provision – such as a deduction, exclusion, or credit – must be more than fully salient for taxpayers to underestimate their tax bill. In other words, the provision itself must be salient, but the limits of that provision must be hidden, or low-salience.
This article uses the charitable deduction to illustrate the concept of hypersalience. While the charitable deduction is extremely salient to many taxpayers, not all taxpayers who believe that they will benefit from the deduction are correct. In fact, even though many Americans are aware that donations are tax-deductible, fewer than 50% of taxpayers can take advantage of the charitable deduction.
The concept of hypersalience is important for several reasons. First, it highlights the role of non-governmental actors in fostering taxpayer ignorance about the tax system. This article suggests that the hypersalience of the charitable deduction is at least partly due to marketing efforts by private third-party beneficiaries. Second, it complicates economic models, such as those of price elasticity of giving, and suggests that certain tax provisions may be more treasury efficient than previously thought. Third, it may lead to increased consumption of certain goods.
This article concludes that, although hypersalience may mean that the government is able to induce greater behavioral distortions without losing revenue, the costs of this phenomenon outweigh its benefits. Because hypersalience is due to taxpayer misunderstanding and the actions of third-party beneficiaries acting in their own interest, this article proposes several possible avenues for curtailing this phenomenon
From Goods to a Good Life: Intellectual Property and Global Justice
Get PDFMost scholarship on intellectual property considers this law from the standpoint of law and economics. Under this conventional wisdom, intellectual property is simply a tool for promoting innovative products, from iPods to R2D2. In this highly original book Madhavi Sunder calls for a richer understanding of intellectual property law’s effects on social and cultural life. Intellectual property does more than incentivize the production of more goods. This law fundamentally affects the ability of citizens to live a good life. Intellectual property law governs the abilities of human beings to make and share culture, and to profit from this enterprise in a global Knowledge economy. This book turns to social and cultural theory to more fully explore the deep connections between cultural production and human freedom
To Perform or Pay Damages
Get PDFIn The Myth of Efficient Breach: New Defenses of the Expectation Interest, Daniel Markovits and Alan Schwartz argue that contractual promises between sophisticated parties are best interpreted as disjunctive promises to perform or pay damages. They further argue that this dual performance hypothesis answers moral critics of the expectation remedy. This comment makes three claims about Markovits and Schwartz\u27s argument. First, although the dual performance hypothesis is supported by Markovits and Schwartz\u27s instrumentalist model, they do not have a good argument that it is empirically correct -- that it is the best interpretation of what sophisticated parties actually intend. Such an argument is necessary to fully answer the moral critics. Second, the dual performance hypothesis is still worth taking seriously, as it casts new light on the implications of the theory of efficient breach and the economic model that stands behind it. In particular, the hypothesis helps explain why punitive damages can make sense when breaching parties attempt to evade their obligation to pay damages. Finally, the dual performance hypothesis is not the best answer to moral critics of expectation damages. Rather than reinterpreting the content of contractual promises, we should reject the premise that parties\u27 moral obligations are best understood on the model of promises. We should also reject the assumption that contract law serves morality only if it enforces parties\u27 first-order moral obligations. A contract law might serve morality instead by serving corrective justice or by supporting the social practice of entering into and keeping agreements
A Framework Convention on Global Health: Health for All, Justice for All
Get PDFHealth inequalities represent perhaps the most consequential global health challenge and yet they persist despite increased funding and innovative programs. The United Nations is revising the Millennium Development Goals (MDGs) that will shape the world for many years to come. What would a transformative post-MDG framework for global health justice look like? A global coalition of civil society and academics—the Joint Action and Learning Initiative on National and Global Responsibilities for Health (JALI)—has formed an international campaign to advocate for a Framework Convention on Global Health (FCGH). Recently endorsed by the UN Secretary-General, the FCGH would reimagine global governance for health, offering a new post-MDG vision. This Special Communication describes the key modalities of an FCGH to illustrate how it would improve health and reduce inequalities. The modalities would include defining national responsibilities for the population’s health; defining international responsibilities for reliable, sustainable funding; setting global health priorities; coordinating fragmented activities; reshaping global governance for health; and providing strong global health leadership through the World Health Organization
Chief Justices Marshall and Roberts and the Non-Self-Execution of Treaties
Get PDFThis article is a response to David L. Sloss, Executing Foster v. Neilson: The Two-Step Approach to Analyzing Self-Executing Treaties, 53 Harv. Int\u27l L L.J. 135 (2012).
David Sloss’s article, Executing Foster v. Neilson, is an important contribution to the literature on the judicial enforcement of treaties. The author agrees with much of it, as he agrees with much of Professor Sloss’ other writing on treaties. In particular, the author agrees that the two-step approach to treaty enforcement that Professor Sloss proposes is generally the right approach, and he agrees that the “intent-based” approach to the self-execution issue that Professor Sloss criticizes is highly problematic. But he disagrees with Professor Sloss about the source of this problematic approach.
The much-controverted question of treaty self-execution is widely understood to concern whether a treaty may be enforced directly by the courts or must instead await legislative implementation. Professor Sloss proposes a two-step analysis for addressing this question. The first step is to determine what the treaty obligates the United States to do. This is a question of treaty interpretation, to be answered through the application of the international law of treaty interpretation. The second step is to identify which domestic officials have the power and duty to enforce the obligation. This, Professor Sloss argues, is entirely a matter of U.S. domestic law, not a matter of treaty interpretation. Courts and commentators have fallen into error, and produced much confusion, by treating the second question as one of treaty interpretation, seeking an answer in the text of the treaty or in the parties’ intent. Professor Sloss notes that treaties seldom address the question of which domestic officials—legislative, executive, or judicial—are responsible for enforcing the treaty. Instead, treaty parties almost always leave that question to the domestic law of the states-parties.
The author states that Professor Sloss is entirely correct to note that seeking the answer to this question in the treaty itself is highly problematic. Although there is nothing in international law that prevents states from addressing that question in the treaty itself, the fact is that states almost never do so. Domestic officials take their cues from domestic law, and states have very different constitutional rules concerning the need for legislative implementation of treaties. In the United Kingdom and most nations of the British Commonwealth, treaties are never enforceable in the courts until they have been implemented by legislation. The constitutional law of other countries permits the direct judicial enforcement of some treaties but not of others. In the United States, for example, treaties that require the criminalization of conduct or the appropriation of money must be legislatively implemented because the Constitution has been interpreted to require a statute for those purposes. Because of the diversity of domestic constitutional rules on the question, states rarely, if ever, address the issue of domestic implementation in the treaties they conclude. Seeking an answer to the self-executing question in the treaty itself is thus, in Justice Breyer’s words, like “hunting [for] the snark.” No matter how hard they look, the courts will almost never find an answer there.
States instead leave the question to the domestic law of each state-party. The most relevant provision of our Constitution is the Supremacy Clause, which provides that “all Treaties” of the United States are “the supreme Law of the Land,” and instructs judges to give them effect. This clause, the author argues, was intended to reverse the British rule, which we would otherwise have inherited. It establishes that treaties in the United States do not, as a constitutional matter, always require implementing legislation, and it appears to establish that treaties are judicially enforceable in the same circumstances as constitutional and statutory provisions of like content. The first task for a court confronted with a treaty should thus be to identify the treaty’s content, which, as Professor Sloss argues, is a matter of treaty interpretation. The next step should to be to ask whether the obligation imposed by the treaty is one that would be judicially enforceable if it were found in a statute. Thus, as with statutes, a treaty would not be judicially enforceable if it were unconstitutional—for example, if it purported to accomplish something for which the Constitution requires a statute, such as criminalization of conduct or appropriation of money. Similarly, a treaty would not be judicially enforceable if it imposed an obligation requiring the exercise of political judgment. This category would include treaties that set forth aspirations or that contemplate the exercise of discretion requiring political judgment. But, as Professor Sloss correctly argues, a treaty imposing a non-discretionary duty of government to behave in a determinate way towards individuals should not generally give rise to questions regarding its judicial enforceability at the behest of such individuals