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In Place of Prison
No full textA new, previously unstudied institution is addressing felonies, including violent felonies of the highest levels, without imposing incarceration as the sanction. Attempts to abolish prisons, or at least reduce racialized mass incarceration, must consider how to respond to serious and violent crimes. This Article offers an analysis of a real-world, ongoing experiment in doing so.
The Manhattan Felony Alternative-to-Incarceration Court (“ATI Court”) is the first and, thus far, the only court in the country that systematically offers defendants of any demographic and any charge the opportunity to be diverted from the traditional criminal legal system and to avoid prison. Defendants are mandated instead to engage with community-based social services, such as education, mental health treatment, job skills training, substance use programming, and housing support.
This Article is the first academic work to describe and conduct an institutional analysis of this paradigm-shifting phenomenon, and the first text providing an in-depth, publicly available account of the court. I collected empirical data using qualitative methods. Based on my site visits, my interviews and correspondence with court actors, and court documents, this Article describes the court, situates it in the context of existing “alternatives to incarceration,” and analyzes the court’s design.
This court has three innovative features that transform the genre of specialized criminal courts, which already provide opportunities to avoid incarceration. First, it is a non-specialized specialized court: It employs no eligibility restrictions based on demographic, need, or charge. Rather than siphoning off low-level cases or sympathetic groups (such as veterans) from the traditional criminal system as older specialized courts do, this court opens the non-incarceration option to all defendants. Second, the court performs the function of probation without probation officers and their law enforcement tools and approaches. Third, the court makes operational changes to the traditional specialized court model that, with the first two innovations, avert the usual effect of specialized courts: widening and strengthening the “net” of carceral supervision.
This court is the latest among a number of approaches already operating on the margins of the criminal system, but some of the court’s stakeholders intend for its model to become the default criminal legal response, replacing the current default: prison. This Article assesses the role the court plays within the wider criminal legal system. While imperfect, this new court expands the realm of possible responses to crime and provides further evidence of the obsolescence of prisons
The Income Tax as a Market Correction
No full textI confess. As a tax professor, it has long hurt my feelings that economists label tax as a market distortion. My field is summed up as an impurity on the otherwise pristine complexion of the economist’s pure market. I like to think that tax scholars are not so disparaging of economics. We do not view economically motivated action as a distortion to our tax system, but as a component of it. It is tax planning. This Article proposes that tax should be viewed as a component of a market system. Just as tax scholarship acknowledges that an imagined world in which tax is imposed in isolation does not and cannot exist, might economic scholarship similarly concede that it lacks a robust basis to characterize tax as a distortion to the market, as opposed to a component of it? After all, could a market exist without government enforcement of market rules, and could a lasting, functioning government exist without tax?
This Article argues that an income tax is the vestibular system of our market economy. It can balance the market and help send better information to our brains. Without an income tax to balance the otherwise harmful effects of excessive risk aversion, narrow framing, and the disposition effect, transactions would be made by brains that are preoccupied with avoiding loss. The market system would lean inefficiently against risk. Luckily, an income tax ramps up risktaking and counterbalances risk aversion. Viewing tax as a component of a market system, rather than viewing it in isolation, reveals that the income tax corrects the market. It mitigates the harmful economic consequences of loss aversion.
The implications of this insight are significant. They support arguments that: higher income tax rates might fuel economic growth, loss offsets encourage risk-taking better than preferred rates do, and the realization requirement offers additional corrective power
The Federal Government Cannot Prohibit the Exercise of a Core State Sovereign Function: Haaland v. Brackeen and Expanding the Anticommandeering Doctrine
Get PDFThe Tenth Amendment’s anticommandeering doctrine limits the ability of the federal government to issue directives to state legislative bodies and executive officials. While the Supreme Court’s path through the Tenth Amendment has been less than direct, New York v. United States and United States v. Printz clarified that the federal government cannot “commandeer” state legislatures or executives to implement federal policy. While the core of the Court’s approach to anticommandeering remains focused on halting congressional efforts to press state agents into implementing federal regulatory programs, the Haaland v. Brackeen decision may be read to expand the anticommandeering principle. That is, it could be used to invalidate certain federal action that regulates States even when the State is not made a puppet of the federal government.
In Haaland, the Court suggests there may be times (however “unlikely”) when a generally applicable law does run afoul of the Tenth Amendment’s anticommandeering doctrine. For example, when a law primarily affects the States or prohibits the exercise of its core sovereign regulatory functions.
In this Article, I argue that the Court in Haaland quietly strengthened the application of the anticommandeering doctrine, despite rendering an opinion that declines to find a violation of the Tenth Amendment when Congress imposes requirements on state courts. Specifically, the anticommandeering doctrine should be expanded to prohibit federal action that, as a practical matter, prohibits the exercise of a core state sovereign function such as the prosecution and adjudication of state crimes. I also offer a post- Haaland set of principles to guide any anticommandeering analysis
Litigation as Accommodation
Get PDFAs persistent threats to the integrity of some of our most important public institutions remind us, every public institution faces the challenge of combating the abuse of its powers for ends inconsistent with the public values it aims to serve. Public law employs a distinctive set of strategies for addressing that challenge: vesting institutional powers with public officials, imposing public-regarding duties on those officials, and ensuring compliance with the duties by subjecting officials’ decisions to various forms of oversight and accountability.
This Article argues that the public institution of civil litigation pursues a very different strategy for countering abuse from public law’s, one that belies predominant scholarly understandings of civil procedure and reveals an inherent, ineliminable tension within any liberal civil justice system between the impartial public values such a system espouses and the significant degree of partiality it must permit parties to display for their own personal interests, relationships, and moral beliefs. Parties can end up exercising their partiality by engaging in litigation conduct that contravenes important public values. And yet, it turns out that civil procedure doesn’t always suppress such conduct, but often tolerates, and sometimes even facilitates, it. The result is that civil procedure frequently declines to compel parties to internalize all the moral costs of their litigation conduct, thus affording them a series of moral subsidies. Those moral subsidies, this Article contends, are best understood as a kind of accommodation, which in other contexts has been theorized as the tolerated externalization of some of the costs—including the moral costs—of individual conduct for the sake of autonomy and other personal values.
By better comprehending civil procedure’s accommodations and their normative logic, we can more readily appreciate conflicts between parties’ personal interests and moral beliefs, on the one hand, and, on the other, the public values we expect the civil justice system to reflect or promote, as well as more candidly debate the resulting value tradeoffs. And while those tradeoffs are inevitable, this Article identifies current practices in civil procedure that appear either to confer significant moral subsidies even in the absence of substantial personal interests or to fail to adequately accommodate such interests. The most fundamental lesson of civil procedure’s accommodations, however, is that, in contrast both to public law’s strategies for addressing abuse and to prevailing accounts of civil procedure, litigation’s adversarial architecture constrains— and often compromises—the pursuit of public values through the civil justice system in order to respect parties’ competing pursuit of their own personal interests and moral beliefs
There Would Be Food Forever: Leveraging the Culvert Case to Fight Toxic Fish Contamination in the Columbia River
Get PDFThe Native American Tribes of the Pacific Northwest signed treaties in the 1800s with a representative of the federal government that purported to protect their right to fish in their usual and accustomed places. Despite this explicit pro-vision of their treaties, the Tribes have struggled to exercise this right to fish. Through a series of court cases spanning decades, culminating in The Culvert Case in 2017, the Stevens Treaty Tribes have secured their right to access their tradi-tional fishing grounds, their right to an equal share of the harvestable fish, and finally, their right to the continued existence of the fish. However, a recent report uncovered a worrying new threat to the Tribes’ source of sustenance: chemical contamination due to unchecked pollution of the Columbia River. The fish that make up a sizable portion of the Tribes’ diet are contaminated with levels of mercury and polychlorinated biphenyls that render the fish unsafe to eat in the amounts typical of the Tribes. In the face of this cancer-causing contamination, this Note examines how the Stevens Treaty Tribes could sue the federal government and the individual states through which the Columbia River runs to enforce their treaty rights and ensure action is taken to address the contamination and keep the fish safe for human consumption
Default Is No Option: The Unconstitutionality of the Debt Limit Law
Get PDFThis article demonstrates conclusively the unconstitutionality of a widely feared default on the public debt due to the debt limit.
First, we find that Article I of the Constitution granted Congress no power, express or implied, to provide for a default by the United States. Under the principles of constitutional law established by the Supreme Court in Marbury v. Madison (1803), any law outside the powers of Congress is void. Thus, the unconstitutionality of a default may be readily established pursuant to Article I, with additional support from the Tenth Amendment.
Furthermore, we find that the Fifth and Fourteenth Amendments each protect, indisputably, a person’s right to payment in accordance with the terms of a lawfully authorized obligation of the United States, reinforcing a fundamental principle of the common law–that lawful debts are binding. Indeed, the Supreme Court has determined repeatedly, for nearly 150 years, that a default by the government violates the Constitution.
Thus, Congress must authorize all borrowing necessary to avert a default by the United States, regardless of the amount, as it has clearly done pursuant to 31 U.S.C. §§ 3102-3104, 3111. However, Congress has, at the same time, sought to limit the Treasury’s borrowing to a fixed amount, pursuant to 31 U.S.C. § 3101(b), as amended (the law establishing the debt limit). In the absence of its change, suspension, or repeal by Congress, the debt limit law would, as a natural and foreseeable consequence of its unyielding ceiling on outstanding Treasury obligations, force a willful default by the United States whenever additional borrowing in excess of the debt limit is necessary to pay the public debt. Thus, we conclude, the debt limit law is repugnant to the Constitution, in clear violation of Article I, the Fifth Amendment, the Tenth Amendment, and the Fourteenth Amendment, or any one of them alone
