Volume 58

The 2006 Stanford Law Review Symposium, "Looking Backward, Looking Forward: The Legacy of Chief Justice Rehnquist and Justice O'Connor," explores the ways in which two of the Law Review's most distinguished alumni left their mark on the Supreme Court and considers how the Court might continue to evolve in the coming years. By focusing on three general themes - judicial philosophy, federalism, and individual rights - we endeavored to provide a forum for one of the first substantive discussions on the jurisprudence of Chief Justice William H. Rehnquist and Justice Sandra Day O'Connor after their departures from the Court. In addition, we wanted to recognize the Justices' exceptional personal qualities by publishing tributes from former Rehnquist and O'Connor clerks...

Thank you for the invitation to be here to honor Sandra O'Connor and the memory of the late William Rehnquist. We meet at Stanford, the place that did so much to shape their lives and careers. The years at Stanford gave them their skills as scholars and professionals. Those years, too, helped them find their self-definition, their sense of identity. At Stanford, they continued to shape their ethical frameworks and their beliefs that the individual can, and must, contribute to the progress of a free society. It is a privilege to discuss not just one but two great Justices, here at the University that means so much to Justice O'Connor and that Chief Justice Rehnquist ever admired.

The legal academy, the Bar, historians, and the American people will study their decisions and, in good time, assess their place in the history of the Court and the history of the law. It will be for later generations to find insights more penetrating, judgments more balanced than are possible for us; but it is appropriate for you to begin the dialogue...

It is not fair to have to follow a speaker as eloquent as Justice Kennedy. And I am not going to try to bend your ears for long. I am very touched by his comments. It was wonderful that you had a chance to hear him talk about our former colleague, William Rehnquist, as well as some remarks about me.

Our Stanford alums have lost two members of the Court who belong to Stanford and who belong to the West. We used to take a lot of pride in how we just needed one more to have a majority on the Court from Stanford. Now I guess the chances of a Court majority from Stanford are not so good.

When I started at Stanford Law School back in the Dark Ages, the Law School was in the inner quad. And it was a funny little part of the inner quad - the law library was quite old and musty and we had an owl that lived in the stacks. I used to do homework in that library, and I'd always watch and see where the owl was sitting that day...

Over the past 230 years, the United States has had forty-three Presidents but just seventeen Chief Justices. For thirty-three years, fourteen years as an Associate Justice and nineteen as Chief Justice, William Hubbs Rehnquist changed the landscape of American law. As Chief, he was the leader of a Court majority that often adopted positions that he had staked out in dissenting opinions as an Associate Justice.

Most public figures in Washington closely read the daily newspapers in search of their names. Not William Rehnquist. When I clerked for the Chief during the 1988 Term, The Wall Street Journal and The New York Times wrote opposing editorials about one of his opinions. I went to his office and asked him if he wanted to read the editorials. His response was telling: "Reading the newspapers to grade Supreme Court opinions is like predicting who will win a baseball game in the first inning."...

By the summer of 1992, I had interviewed with numerous prospective employers, including partners in law firms, career prosecutors, and federal appellate judges. Each interview generally included a moment when the interviewer would ask something along the lines of "What do you want to do in your legal career?" I occasionally stumbled over my response as I sought to tailor my answer to what I assumed would impress the potential job-giver. So I was not surprised in the summer of 1992 when Chief Justice Rehnquist posed his version of the question about halfway through my interview for a clerkship position.

I paused momentarily, cleared my throat, and announced that I wanted to return to Montana to practice law and someday start my own law firm. The Chief immediately perked up and described his years of private practice in Phoenix in the 1950s and 1960s. He had chosen this unconventional route after completing his clerkship with Justice Jackson in 1952 when he bypassed the big law firms of Washington, D.C., and New York and instead headed west with his wife...

I interviewed for a clerkship with the Chief during the summer after I graduated from law school in 1992, and by that time I was pretty sure I wanted to become a law professor. I was still a bit shy about saying so, not because I thought it a bad job, but because I wasn't sure I was good enough for the job. The Chief asked me during the interview what I wanted to do with my life, and I told him, ready to supplement my response with caveats about not being certain I would get hired or would be any good at it. But as soon as I said I wanted to be a law professor, he asked, with a clear look of puzzlement on his face: "Why?" I was a little taken aback, as no one had asked me that before, or I should say no one had implied, by asking, that teaching law might not be a great choice.

In response I said something fatuous about loving law school and being intrigued by legal puzzles, which did nothing to alter the Chief's puzzled expression. I then said that I hoped some day to have a family and wanted to have a career that would allow me to spend time with them. An academic schedule, it seemed to me, would be flexible enough to afford me time with my children during their waking hours. At this, his face brightened, and he began nodding to signal that I had finally started making sense to him...

Halfway through my clerkship with the Chief Justice, I committed a significant blunder. In an opinion for the Court authored by the Chief and for which I had prepared a draft of the section on procedural history, I had made an error. In describing the lower court's holding (on a matter not at issue when it arrived at the Court), I had described the appellate court as having reversed, when, in fact, it had affirmed the trial court. Because that portion of the procedural history was not significant to the Court's judgment, that portion of the draft opinion received little attention in the subsequent vetting within the Chief's chambers or, I imagine, in any of the other chambers. Thus, the opinion issued with the mistake incorporated, including directions for a remand back to the appellate court for further proceedings. While the error in the procedural history did not matter to the issue the Court was deciding, it was of real concern to the litigants, who feared that the remaining proceedings below could be prejudiced by the error in the Court's description. Thus, they filed a motion for rehearing...

Which two Civil War battles were fought west of the Mississippi River? Chief Justice William Rehnquist knew the answer, as he knew a myriad of often obscure (but never unimportant) historical and geographical facts, salting many of them into his Supreme Court opinions and books and using others in informal wagers with friends, family, and law clerks. The answer, found in the Chief's opinion in Leo Sheep Co. v. United States, is the Battle of Glorieta Pass (at a strategic location near Santa Fe, New Mexico, on March 26-28, 1862) and the subsequent Battle of Picacho Pass (fought on April 15, 1862, near Tucson, Arizona). Both battles, as the Chief emphasized, were more skirmishes than full-drawn engagements, but they helped illustrate the value to the United States of building a transcontinental railroad that could transport troops when needed to protect the western states and territories. The Confederate army hoped to create an outlet to the Pacific but was effectively stopped by the Union victory at the Battle of Glorieta Pass. The Confederates, however, did not give up easily. When the Union forces at the Battle of Glorieta Pass asked the Confederates to surrender, one Southern commander responded memorably (and perhaps apocryphally), "We will fight first and surrender afterwards!"

The Chief loved geographic and historical facts. Part of this love was his enjoyment of fact games (which in turn was part of the Chief's love of games in general). The Chief relished matching his own memory against the knowledge of family, friends, and clerks. Any attempt to describe the Chief without mentioning his enthusiasm for fact games would be like trying to describe Babe Ruth without mentioning his skill at hitting home runs. At the Chief's funeral, his younger daughter, Nancy Rehnquist Spears, recounted how, early one summer, the Chief bet her five dollars that she could not name the year when Queen Elizabeth I had died. Having just finished a biography of the "Virgin Queen," Nancy readily spouted off the answer of 1603. The Chief quietly cursed and spent the rest of the summer trying to win back the five dollars. Every year, the Rehnquist clerks would hold a reunion at which the current clerks had to present a skit, focused on the Chief and the Supreme Court Term, for the benefit of their predecessors. The game show "Jeopardy" provided a thematic structure for a number of these skits, with the Chief cast in the role of Art Fleming, trying to stump his fellow Justices or others with oblique questions about the Supreme Court, United States geography, and history...

Sandra Day O'Connor has often said that, as "a cowgirl from Eastern Arizona," she was as surprised as anyone when President Ronald Reagan nominated her in 1981 as the first woman to serve on the Supreme Court of the United States. Her surprise reflects her unassuming, down-to-earth manner. But O'Connor's experiences as a cowgirl from Arizona and from serving in each branch of its state government - along with her ties to Stanford - were critical factors in her appointment. This same background, I believe, goes far to explain why, by the time of her 2006 retirement, she is regarded as the world's most influential woman lawyer, both for her role on the Court and as a global spokesperson for judicial independence and the rule of law.

O'Connor spent her childhood on her family's Lazy B Ranch, which straddled the border of New Mexico and Arizona. The remote ranch - more than 200 miles southeast of Phoenix and about 200 miles northwest of El Paso - occupied almost 200,000 acres of sparse, arid land in the high Sonoran desert. "It was no country for sissies, then or now. Making a living there takes a great deal of hard work and considerable luck." Much turned on the vagaries of weather and the livestock markets. Life on the cattle ranch was not easy, and when O'Connor was born the ranch house lacked indoor plumbing, electricity, and running water. By the age of eight, O'Connor had learned to mend fences, ride horses, shoot a rifle, and drive a tractor. Her earliest companions were cowboys, a horse named Chico, and various pets, including a tame bobcat aptly named Bob...

They say SO'C is retiring. I don't believe a word of it. Not deciding cases any more - I'll accept that. But not retiring.

This is a woman who packs more activity into her life than anyone I have ever known. My strongest memories from clerking all involve trying to keep up with her. I think it was my second day on the job when she took us whitewater rafting. Then it was the National Gallery, Harpers Ferry, the National Arboretum, a picnic by the cherry blossoms, sailing on the Eastern Shore - somewhere else every few weeks. My favorite was a behind-the-scenes tour of a U.S. Postal Service building where they were testing what were then futuristic mail-sorting machines. If you could get there from the Court within a couple of hours, SO'C got there, and she brought us along...

"Thank you very much for coming," Justice O'Connor said as I entered her chambers to interview for a clerkship. "I'm so sorry to have asked you to make the trip all the way out here from Stanford."

Apparently Justice O'Connor didn't realize that this was the most exciting moment of my life, one for which I would have gladly traveled anywhere. "But it is very important that I meet potential clerks in person, because each of my clerks becomes part of my family." She then asked me as many questions about my family and hobbies as she did about my legal views...

It is 1985. Ronald Reagan is battling the Evil Empire. Joe Gibbs has just taken the Washington Redskins to two Super Bowls. Michael Jackson, resculpted but not yet freakish, leads a huge chorus in "We Are the World." Sandra Day O'Connor has been the First Woman on the U.S. Supreme Court for four years and, in the Washington social milieu of the time, still probably resides on the A-list ahead of any of the aforementioned men.

So, if you clerked for Justice O'Connor in 1985, everyone you met anywhere knew who your employer was once they knew who your employer was. Everyone anywhere would then tend, incomprehensibly, to skip over such important questions as how you got such a great job, or whether you were worried that you might persuade her to adopt a position that law professors would then gleefully tear to pieces for generations to come. Instead, they would invariably ask, "What's she like?"...

Justice O'Connor doesn't like footnotes in her opinions. That was a bracing lesson for a young lawyer fresh from a law review where a legion of footnotes, packed with authorities and afterthoughts, marched halfway up almost every page. Holding my first memo, she started right in on teaching: "If you have something to say, just say it. Don't weasel around down in the brush." There would be many other straightforward lessons from a year working for Sandra Day O'Connor, but the most important were about decisiveness, theory, inclusivity, and religion.

Making Decisions. In my first month on the job, the Supreme Court wrestled with a difficult capital case. Justice O'Connor and my co-clerk worked late into the night on an emergency petition, and by a close vote the petition was denied. There was an execution after midnight. The next morning, Justice O'Connor was in the office early and was cheerful. She told me of her "fabulous" plans for an event later that day. ("Fabulous" is Justice O'Connor's most-often-used word.) Her cheerfulness that day seemed callous, and I confronted her about it. Even from a distance I had been torn up about both the substance and procedure of the decision, so how could she get over it so quickly? She wasn't "over it," she told me. She had been torn up too, but she had done the best job she could. The time to worry about a decision, she said, is before it is made. You work, read, and listen as hard as you can, and then when you have to decide - and no earlier - you choose. If you do that, your judgment is a good one, even if your decision later turns out to be mistaken, because you made sure it was the best you could do under the circumstances. Moreover, if you agonize over past decisions, you neglect the present ones, and judges always have many other people - and life-and-death decisions - waiting. Justice O'Connor taught that lawyers ought to go at a job full tilt, do the best job possible, and then move on...

William Rehnquist's tenure on the Supreme Court presents a Sphinx-like riddle for students of the separation of powers: "What animal is that which in  the morning goes on four, at noon on two, and in the evening on three feet?" One might well answer: "Rehnquist's separation of powers jurisprudence, as it is a difficult creature to characterize, arguably evolving over time." In adolescence, it appeared an originalist on all fours, in manhood it walked erect, a Byron White functionalist, and in old age ... well, perhaps the Sphinx might just devour one after all! Indeed, it is difficult to identify a principle unifying the late Chief Justice's separation of powers cases.

And how does one explain the absence of any separation of powers revolution to accompany federalism's rebirth? No separation of powers opinion ever announced, "We start with first principles." Unlike federalism, well-favored and judicially policed by the Federalism Five, the separation of powers has arguably been neglected (salutarily, some might say). But that neglect, salutary or not, has been inconsistent. Rehnquist did police (or attempt to police) the horizontal "parchment barriers" of separation from time to time. What principle explains Rehnquist's philosophy of the separation of powers?...

When historians look back at the Rehnquist Court, without a doubt they will say that its greatest changes in constitutional law were in the area of federalism. Over the past decade, the Supreme Court has limited the scope of Congress's powers and has greatly expanded the protection of state sovereign immunity. In 1995, for the first time in sixty years, the Supreme Court declared a federal law unconstitutional as exceeding the scope of Congress's Commerce Clause power. For only the second and third times in sixty years - and the first time, the case was expressly overruled - the Court invalidated a federal law for violating the Tenth Amendment. At the same time, the Court has used federalism to enlarge the states' sovereign immunity in federal court for violations of federal statutes. These decisions have spawned hundreds of lower court decisions concerning federalism and have ensured that federalism will be a constant issue before the Supreme Court for years to come.

Virtually all of the decisions protecting federalism were by a 5-4 margin, with the majority comprised of Chief Justice William Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy, and Clarence Thomas. In the last few years of the Rehnquist Court, however, the federalism revolution waned as the Court consistently ruled in favor of federal power. While the Court did not overrule or undercut its earlier decisions, the pendulum did not swing any further in the direction of the federalism revolution. Strikingly, some of its decisions in favor of federal power - such as Tennessee v. Lane and Central Virginia Community College v. Katz - were 5-4 decisions with Justice O'Connor in the majority. Nevada Department of Human Resources v. Hibbs was a 6-3 decision, with both Chief Justice Rehnquist and Justice O'Connor in the majority...

In many ways the basic structure of constitutional law circa 2006 - which features a strong national government of unlimited authority and weak protection of economic liberties and property rights - derives from the New Deal synthesis circa 1937. That synthesis insists that an extensive national role in the regulation of economic affairs is an indispensable tool for social progress. For the better part of fifty years that synthesis dominated both judicial and academic writing on American federalism. One of the great transformations that took place during the critical Chief Justiceship of William H. Rehnquist involved a systematic and prolonged challenge of that worldview. I have little doubt that many contributors to this Symposium will be critical of the efforts of Chief Justice Rehnquist and Justice O'Connor to "turn back the clock" on this critical question of federalism. My thesis is the precise opposite. I praise the two Justices for breaking the intellectual logjam on so critical an issue. Yet, at the same time, I take the view that on many key questions of federalism they should have pushed harder and moved farther than they ultimately did. I defend that thesis with respect to three critical areas of law: the scope of the Commerce Clause, dual sovereignty and the Tenth Amendment, and the doctrine of sovereign immunity...

William Rehnquist had so long and effectively played the role of fair-minded Chief Justice - his ideological opposite William Brennan calling him "the best chief under whom [he] served" - that sometimes his substantive legacy is overlooked. It should not be. Coming to the Court in 1972 from the Office of Legal Counsel, he began as a lone dissenter, but by the time of his death in 2005, he had brought at least a slim majority of the Court around to his own thinking. His jurisprudential perspective emphasized a government of enumerated and separated power, where state and local authority was respected, and the judiciary reserved its authority to a historically faithful understanding of the Bill of Rights and the Fourteenth Amendment.

The Chief was a gracious and unassuming man who hid beneath a shy, quiet demeanor, an ironic sense of humor, and wit. He enjoyed history, and during the last dozen years of his life, he authored four volumes which achieved wide readership in the legal community and beyond. The point of reference of this Article, however, begins much earlier, with the twenty-four-year-old Bill Rehnquist pursuing a master of arts degree in political science at Stanford. In a previously unpublished, but truly gifted study, Rehnquist works out an elaborate theory of political right, which would significantly shape his subsequent law study and his extended thirty-three-year tenure on the Supreme Court. More detail of his theory is below, but it will be quickly perceived that Rehnquist, the philosopher, unlike his later judicial self, was neither a positivist nor a moral relativist...

Over the years I have written more in criticism of Chief Justice Rehnquist's Fourteenth Amendment opinions than in praise of them. This Article marks a departure. It offers an appreciation of Rehnquist's last sex discrimination opinion, Nevada Department of Human Resources v. Hibbs. In titling the Article "You've Come a Long Way, Baby," I refer not to the big beat album, nor to the cigarette advertising slogan, but instead to a frequent refrain of the 1970s women's movement. William Rehnquist was an opponent of the Equal Rights Amendment (ERA) while serving in the Nixon Justice Department - and, more than any other Nixon appointee, a vocal critic of the Court's sex discrimination jurisprudence in his first decade on the Court. Any reader of these early Rehnquist sex discrimination opinions, or Rehnquist's more recent opinions restricting Congress's power to enforce the Fourteenth Amendment, surely would not have predicted that he would conclude his time on the bench writing a pathbreaking opinion upholding provisions of the Family and Medical Leave Act (FMLA) as a valid exercise of Congress's Section 5 power. Hibbs held that Congress could enact provisions of the FMLA entitling eligible employees to take up to twelve weeks of unpaid leave annually for certain enumerated family care reasons as a congruent and proportional remedy for a pattern of state action violating the Equal Protection Clause...

Much of Justice Sandra Day O'Connor's work on the Supreme Court embodies a commitment to judicial minimalism, understood as a preference for narrow rulings, closely attuned to particular facts. In many contexts, however, that commitment is hard to justify, simply because it imposes severe decisionmaking burdens on others and may well create more, rather than fewer, errors. For this reason, a general preference for minimalism is no more defensible than a general preference for rules. The choice between narrow and wide rulings cannot itself be made by rules or even presumptions; it requires a case-by-case inquiry. The argument is illustrated throughout this Article with reference to the problem of affirmative action, where Justice O'Connor's preference for particularity resulted in the imposition of a constitutional mandate on admissions offices that is not simple to defend in principle. In some contexts, however, narrow rulings are indeed preferable, in large part because they give flexibility to politically accountable officials. Justice O'Connor's minimalism is best understood as reflecting a belief that in difficult cases at the frontiers of constitutional law, judges would do best to avoid firm rules that they might come to regret.

The government provides vast subsidies to expressive associations. Universities and cities let groups use government property. Universities fund student groups' meetings and publications. The federal and state governments provide tax exemptions, which are tantamount to a matching grant. Many of these programs are available to a broad range of groups that meet certain objective criteria (e.g., student groups, nonprofit groups, and veterans' groups).

May the government limit these programs to groups that don't discriminate based on religion, sexual orientation, sex, race, ethnicity, and similar factors? Such discrimination is often a constitutional right - a right that's one of Chief Justice Rehnquist's and Justice O'Connor's important contributions to First Amendment jurisprudence. And many groups exercise this right...

The departures of Chief Justice William H. Rehnquist and Justice Sandra Day O'Connor from the Supreme Court constitute an event of singular importance for that institution. Rehnquist and O'Connor were by any reckoning highly consequential Justices. Although differing in important respects, each Justice was a public servant of the highest integrity and dedication; each was a patriot to the core; and each at the end reflected credit on the Court, the profession, and, it should be acknowledged, on Stanford Law School. Some of the criticism in this Article is pointed. But it is written in a spirit of respect for all that these two fine people contributed to America and for the Court they so proudly and ably served.

The Rehnquist Court left multiple legacies. One was certainly a commitment to our federal system and to the doctrine of dual sovereignty. Another was the renewal of emphasis on the structural features of the Constitution, after a long period of relative neglect. Yet a third legacy was that of judicial supremacy, in which the Court asserted its own role at the expense of the executive, the Congress, and the states. A final legacy was probably that of pragmatic centrism, in which the Court sought to shape constitutional doctrine to the temper of the times. These legacies are in some tension with each other. Which of them will prove most durable will remain a subject of debate. It is beyond dispute, however, that the course of the Rehnquist Court was not constant. It shifted significantly over time...

We often experience disappointment upon reaching the conclusion of a treatise on political philosophy. Too frequently the vigorous, forthright style and logic which an author employs during the first chapters in criticizing the "fatal errors" of preceding doctrines on his subject give way in the conclusion of the book to exactly the same type of errors when he attempts to build, however eclectically, a theory of his own. If the author has honestly attempted to meet his problem, we may well find that his approach, in attempting to be fair and to accord with common sense as well as logic, loses its vigor and becomes mincing and apologetic. On the other hand, if the author has made no attempt to carry over his ideas into the realm of actualities, we may feel that a tenable approach to the problems of morals and politics has been sacrificed to a too rigid exercise in logic...

In this Article, we suggest that litigation can be analyzed as though it is a competitive research and development project. Developing this analogy, we present a two-stage real option model of the litigation process that involves sequential information revelation and bargaining over the surplus generated by early settlement. Litigants are risk-neutral and have no private information. The model generates results that, we believe, have analytic and normative significance for the economic analysis of litigation.

From an analytic perspective, we demonstrate that negative expected value (NEV) lawsuits are analogous to out of the money call options held by plaintiffs and that every NEV lawsuit is credible if the variance of the information revealed during the course of the litigation is sufficiently large. This finding helps explain the prevalence of a class of lawsuits that has proved puzzling to traditional, expected value-based modes of litigation analysis. The model also suggests that risk-neutral defendants can act as though they are risk-averse and that risk-neutral plaintiffs can act as though they are risk-seeking because increases in variance can increase a lawsuit's settlement option value just as it increases a call option's value without regard to the holder's degree of risk aversion. Models that presume defendants' relative risk aversion may therefore rely on an unnecessary assumption. Our model also suggests that a lawsuit's option settlement value is not a monotonically increasing function of the variance of the information revealed during the litigation. In particular, at low levels of variance a lawsuit's option settlement value may equal its traditional expected value, but as variance increases its option settlement value can display a discontinuity after which its option settlement value becomes a monotonically increasing function of variance. NEV lawsuits can also display "dead zones" - regions of variance over which the claim is not credible even though it is credible over higher or lower levels of variance. Comparative statics analysis also quantifies the extent to which a lawsuit's settlement value increases as plaintiff's litigation expenses occur later in the litigation process, as the ratio of defendant-to-plaintiff litigation expense increases and as plaintiff bargaining power increases.

From a normative perspective, we offer an "impossibility conjecture" suggesting that the mere presence of an irreducible degree of uncertainty endemic to the litigation process can be sufficient to prevent private litigation incentives from equating to socially optimal incentives, even if one adopts all other assumptions necessary to equate private and social incentives. It follows that it may be impossible to articulate normative principles of law through substantive standards that ignore the uncertainty inherent in the litigation process and the procedural environment in which the litigation occurs.

Two recent decisions, one by the Supreme Court and one by the Ninth Circuit, have occasioned an ink spill of Exxon Valdez proportions and no little contention. The question, broadly stated, is when the First Amendment should protect speech alleged to constitute a threat by the speaker to kill or seriously injure someone. Given the level of discord, a notable feature of the debate is the acceptance, by judges and commentators alike, of the general proposition that a threat is not protected by the First Amendment, as the Supreme Court told us as early as 1969. In Watts v. United States, where the Court held that no "true threat" had been issued by the speaker, it also took the occasion to announce the "threats exception."

Because the Supreme Court offered little direction for more than two decades, the state supreme courts and federal circuit courts were left to their own devices in fashioning mediating principles to define the contours of the category. On their own, these courts have achieved a considerable consensus around a general formula, even though claims about threats are made in widely diverse factual settings. As this Article shows, the prevailing formula is a set of abstractions offering minimal predictability of results from one case to the next. Remarkably, however, judges typically recite one version of the formula or another as if it were determining the outcome. The result is a collection of opinions that are long on assertion and short on evaluation of anything that matters. In the discussion that follows, we shall see the doctrinal weakness of such an approach. The threats exception, as a First Amendment category, has largely been shaped to fit the very facts it is supposed to govern.

This Article considers the arguments regarding the choice between an ideal income tax and an ideal consumption tax, focusing on an argument first made by Atkinson and Stiglitz regarding neutral taxation of commodities. This argument shows that, under its assumptions, a properly designed consumption tax is Pareto superior to an income tax: it is either more efficient, more redistributive, or both. The Article illustrates the Atkinson-Stiglitz argument using the simple case in which investments produce risk-free returns, and individuals vary by their ability. It then considers more complex cases, such as risky returns, inherited wealth, heterogeneous savings rates, and the possibility of additional returns to savings, such as power, prestige, and security. Finally, it examines qualifications to the argument and circumstances under which an optimal tax might provide for some taxation of interest income.

For the last fifteen years or so, Justice Antonin Scalia and his sympathizers within and outside the academy have dominated discussion and debate over how best to interpret the Constitution. Their preferred methodology,  "originalism," shorn for the moment of complications, essentially requires courts to follow the original meaning of constitutional text. Courts should accordingly determine how the provisions were understood at the time they were ratified, and that understanding should guide decisions. The justification for this approach appears, at first glance, as simple and sensible as the methodology itself: applying the text as originally understood is the only method by which courts can claim to be applying the law, rather than the individual preferences of those sitting as judges.

Most champions of originalism, though not all, currently reside on the right side of the political spectrum, and thus originalism has become inextricably associated with politically conservative judges and commentators. The claim that originalism is the only "lawful" way to interpret and apply the Constitution, moreover, readily translates into the ubiquitous accusation from the right that nonoriginalists tend to be unprincipled and activist, happy to enshrine their personal views into the Constitution. This charge is repeated in various forms in the political arena by those who claim that only conservative judges can be trusted to follow the law and refrain from legislating from the bench.

It is a basic axiom of American jurisprudence that legal issues are classified as either "jurisdictional" or "nonjurisdictional." If a rule or requirement is classified as jurisdictional, then "courts will interpret and apply it rigidly, literally, and mercilessly." Jurisdictional defects are absolutely fatal to a claim. Moreover, parties neither waive jurisdictional requirements nor consent to noncompliance with them. Parties can raise jurisdictional defects at any time in the litigation, including for the first time on appeal, and courts are obliged to raise such defects sua sponte, even after litigation on the merits. Finally, courts may not consider using equitable doctrines to bend jurisdictional rules under any circumstances.

But how are courts to know when a rule is jurisdictional? How are they to know when to apply a rule with jurisdictional rigidity? One answer is that a rule's jurisdictional status (its "jurisdictionality") should follow from the consequences of a rule: a court decides first that the rule should be applied rigidly and then labels the rule jurisdictional. The problem with this approach is that it turns the word "jurisdiction" into a legal "trope" - that is, a word that courts invoke as a convenient way of reaching certain consequences that have come to be associated with it. The word becomes "a hook that judges use when they want to achieve certain ends, like construing a rule strictly and literally, or raising a legal issue sua sponte, or engaging in collateral review of another court's judgment." The jurisdictional label thus becomes "only a conclusory label for a judicial refusal to act." This in turn leads to two problematic results. First, it leads to opaque court decisions. If jurisdiction is a trope, then courts can declare, essentially in a word ("jurisdictional!"), that a rule should be applied rigidly, without ever explaining why the rule should be applied rigidly. Moreover, and perhaps more problematically, when the jurisdictional label is an expedient tool of reaching harsh consequences, it allows courts to apply rules rigidly even where such consequences seem unfair and unnecessary. For example, the Sixth Circuit used the jurisdictional label to deny an appeal to a pro se litigant who submitted an otherwise timely and complete notice of appeal, but who signed the notice by typewriter instead of by hand. The Supreme Court used the jurisdictional label to deny certiorari to a litigant's petition that arrived at the courthouse two days late because a massive snow storm delayed the mail...

During the 2004 election cycle, Americans went online in unprecedented numbers to obtain and exchange information about candidates and campaign issues. In addition to facilitating political debate, this explosion of online political activity has galvanized substantial expenditures of money - over $ 27 million was spent on online advertisements, e-mail list services, and other Internet activities during the 2004 elections alone. Because the pervasiveness of online campaign activity and related expenditures is only expected to increase in the coming years, the question of how campaign finance law should regard such activity is of both immediate and increasing importance.

The Internet is distinct from other media in that the low cost of entry and continued use makes speech possible for a broad cross-section of the general public. The medium's low-cost character is central to the campaign finance question insofar as it permits a broader pool of participants. Whereas the opportunity to be heard in television, radio, or print news must generally be purchased at substantial cost, anyone with access to a computer and a phone line can express her views online. "Marginalized voices [and] dissenting viewpoints ... flourish in the weblog universe" and can have a meaningful presence in that forum without expending substantial funds. The sheer volume of online political actors makes it less likely that monied parties will be able to dominate political debate on the Internet, as they can in other media...

The abstract global ideas of sustainable development and of the rule of law meet in the forests of the tropics, where the absence of viable community forest management institutions is driving deforestation and, therefore, the larger legal and ecological stability of the region. This interaction needs to be better understood by rule of law theorists seeking to discover and implement proper legal structures for development.

The rule of law effort can be seen either narrowly, as a "thin" program focused on improving the mechanics of courts as well as legislative and administrative bodies, or as a "thick" conception rooted in the belief that such improvements will lead toward a stronger civil society and democracies rooted  in the human rights tradition. Such improvements are assumed to be integral to sustainable development - the process of improving the welfare of poor nations without damaging their long-term ecological sustainability. The tools developed for use in the international rule of law effort can be usefully applied to problems of sustainability inherent in the deforestation crisis...

 In light of the Supreme Court's decision this Term in Schaffer v. Weast, this Note analyzes the current state of special education law and argues that parents, attorneys, and advocates should look beyond the Individuals with Disabilities Education Act (IDEA) to Section 504 in the post-Schaffer public school. This Note shows how these two standards operate in the context of state special schools for the blind and deaf. A state-by-state survey of thirty states' special school admission policies and practices reveals the IDEA's limitations and Section 504's potentially complementary role.

Although other works have briefly compared the IDEA and Section 504, this Note is the first post-Schaffer comparison and also the first to use a specific policy context to demonstrate how the two statutes interact and complement each other; it is also the first published study on the exclusion of multi-disabled students from state special schools. As the state special school context illustrates, Section 504 is a powerful, yet oft-neglected, complement to the IDEA. Whereas the IDEA focuses on adequate access to a free appropriate public education (FAPE), Section 504 emphasizes equal treatment within federally funded programs. This Note advocates that policymakers and special education attorneys understand how to utilize both Section 504 and the IDEA in order to make sure that no child is left behind or otherwise excluded from educational opportunities solely on the basis of a disability. This understanding is particularly important in the post-Schaffer public school.

Scholars have written volumes about the separation of powers, but they have focused on the administrative state and have wholly ignored the criminal state. Judges, too, have failed to distinguish criminal from administrative matters. So, the conventional wisdom has been that whatever theory works for the administrative state should work for anything else, including criminal matters. Because most scholars and judges have supported a flexible or functional approach to separation of powers in the regulatory sphere, they have failed to see a problem with the functional approach in criminal cases. Indeed, the Supreme Court has been even more permissive of the blending of powers in the criminal context than it has in cases involving nonpenal laws.

This Article shows why the existing functional approach to separation of powers in criminal matters cannot be squared with constitutional theory or sound institutional design. It explains that there are crucial differences between administrative and criminal matters when it comes to the separation of powers. Maintaining the separation of powers in criminal matters has strong roots in the Constitution's text and structure. Moreover, unlike the administrative law context, where agencies must adhere to the structural and procedural protections of the Administrative Procedure Act and their decisions are subject to judicial review and political oversight, the government faces almost no institutional checks when it proceeds in criminal matters. The only safeguards come from the individual rights provisions of the Constitution, but those act as poor safeguards against structural abuses and inequities. The current arrangement therefore takes the worst possible approach to separation of powers in the criminal context. The protection provided by the separation of powers is weakened, but nothing takes its place. As a result, the potential for government abuse is, perversely, greater in criminal proceedings than in regulatory matters. This Article therefore advocates more stringent enforcement of the separation of powers in criminal cases, where it is most needed. This approach would lead to different outcomes in the Court's major separation of powers cases dealing with criminal matters and would result in a rethinking of its acceptance of unreviewable prosecutorial discretion over charging and plea bargaining.

This Article analyzes the degree to which outside directors of public companies are exposed to out-of-pocket liability risk--the risk of paying legal expenses or damages pursuant to a judgment or settlement agreement that are not fully paid by the company or another source, or covered by directors' and officers' (D&O) liability insurance. Recent settlements in securities class actions involving WorldCom and Enron, in which lead plaintiffs succeeded in extracting out-of-pocket payments from outside directors, have led to predictions that such payments will become common. We analyze the out-of-pocket liability risk facing outside directors empirically, legally, and conceptually and show that this risk is very low, far lower than many commentators and board members believe, notwithstanding the WorldCom and Enron settlements. Our extensive search for instances in which outside directors of public companies have made out-of-pocket payments turned up thirteen cases in the last twenty-five years. Most involve fact patterns that should not recur today for a company with a state-of-the-art D&O insurance policy.

We offer a detailed assessment of the liability risk outside directors face in trials under corporate and securities law, including settlement dynamics. We argue that, going forward, if a company has a D&O policy with appropriate coverage and sensible limits, outside directors will be potentially vulnerable to out-of-pocket liability only when (1) the company is insolvent and the expected damage award exceeds those limits, (2) the case includes a substantial claim under section 11 of the Securities Act or an unusually strong section 10(b) claim, and (3) there is an alignment between outside directors' or other defendants' culpability and their wealth. Absent facts that fit or approach this "perfect-storm" scenario, directors with state-of-the-art insurance policies face little out-of-pocket liability risk, and even in a perfect storm they may not face out-of-pocket liability. The principal threats to outside directors who perform poorly are the time, aggravation, and potential harm to reputation that a lawsuit can entail, not direct financial loss.

The right of publicity gives people the right to control the use of their names and likenesses for commercial purposes. For years, courts have struggled to make sense of two dimensions of this right--what it means to use a name or likeness "commercially," and what aspects of a person's "likeness" are protected against appropriation. In the absence of any clear theoretical foundation for the right of publicity, the meanings of these terms have steadily swelled, to the point at which virtually any reference to an individual that brings financial benefit to someone else qualifies as a violation of the right of publicity. At the same time, the courts have developed no meaningful counterweight to this ever-expanding right. Instead, they have created a few ad hoc exceptions in cases where the sweeping logic of the right of publicity seems to lead to results they consider unfair...

Patent law and drug regulation traditionally function within distinct, and largely adversarial, domains. That is, patent law's aim to encourage invention counteracts the costs and uncertainty associated with drug regulation's efforts to ensure the safety and efficacy of drugs. But this traditional view needs revision. In fact, their domains are merging, and their relationship is more the reverse: drug regulation's costs and its growing number of market-exclusivity provisions protect drug manufacturers against their weakening patent rights.

This counterintuitive twist on tradition derives from the logic of the public goods problem. Because ideas cost more to create than to copy, unregulated markets are thought to be incapable of sufficiently rewarding innovation. Yet creation costs alone do not trigger the public goods problem; rather, its extent is determined by the ratio of the cost of creating to the cost of copying. Thus, goods that are expensive to make but equally costly to copy, such as handmade furniture, evade these problems entirely. In fact, with a ratio close to one, copying becomes a socially desirable mechanism for generating competition. Accordingly, patents, and intellectual property in general, strive to adjust the public goods ratio so that it approaches one and thereby ensure fair competition between creators and copiers...

For over fifty years, workers at the Paducah Gaseous Diffusion Plant (PGDP) in western Kentucky were exposed to dangerous amounts of toxic radiation--largely without their knowledge. Since the news of the exposure exploded onto the national press in the late 1990s, over six thousand compensation claims have been filed with the Department of Labor, and more than $175 million has been paid out. Other workers--joined by the Department of Justice--have opted to file separate lawsuits, claiming that the *1252 PGDP's operators fraudulently withheld information from them. Individuals with property adjacent to the PGDP have also filed suit. The legal fallout from the PGDP contamination is destined to keep federal courts busy for years to come.

This Comment focuses on just one group of PGDP workers and their families. This group consists of about thirty individuals who, over the course of the last quarter century, were exposed in various degrees to the dangerous toxins present at the PGDP. But, unlike the other workers filing compensation claims and lawsuits, these individuals have experienced no physical symptoms associated with their exposure. To the contrary, they are all healthy men and women. They are not sick, nor do they claim to be sick. This group of PGDP affiliates instead sued the plant's operators under a completely novel theory-- that they have suffered asymptomatic damage to their DNA. Their claim was rejected by the Sixth Circuit Court of Appeals in Rainer v. Union Carbide Corp., a case of first impression for the federal appellate courts...

Many people believe that the death penalty should be abolished even if, as recent evidence seems to suggest, it has a significant deterrent effect. But if such an effect can be established, capital punishment requires a life-life tradeoff, and a serious commitment to the sanctity of human life may well compel, rather than forbid, that form of punishment. The familiar problems with capital punishment--potential error, irreversibility, arbitrariness, and racial skew--do not require abolition because the realm of homicide suffers from those same problems in even more acute form. Moral objections to the death penalty frequently depend on a sharp distinction between acts and omissions, but that distinction is misleading in this context because government is a special kind of moral agent. The widespread failure to appreciate the life-life tradeoffs potentially involved in capital punishment may depend in part on cognitive processes that fail to treat “statistical lives” with the seriousness that they deserve. The objection to the act/omission distinction, as applied to government, has implications for many questions in civil and criminal law.

Cass Sunstein and Adrian Vermeule argue that, if recent empirical studies finding that capital punishment has a substantial deterrent effect are valid, consequentialists and deontologists alike should conclude that capital punishment is not merely morally permissible but actually morally required. While the empirical studies are highly suspect (as John Donohue and Justin Wolfers elaborate in a separate article in this Issue), this Article directly critiques Sunstein and Vermeule's moral argument. Acknowledging that the government has special moral duties does not render inadequately deterred private murders the moral equivalent of government executions. Rather, executions constitute a distinctive moral wrong (purposeful as opposed to nonpurposeful killing) and a distinctive kind of injustice (unjustified punishment). Moreover, acceptance of "threshold" deontology in no way requires a commitment to capital punishment even if substantial deterrence is proven. Rather, arguments about catastrophic "thresholds" face special challenges in the context of criminal punishment. This Article also explains how Sunstein and Vermeule's argument necessarily commits us to accepting other brutal or disproportionate punishments and concludes by suggesting that even consequentialists should not be convinced by the argument...

Over much of the last half-century, the legal and political history of the death penalty in the United States has closely paralleled the debate within social science about its efficacy as a deterrent. Sociologist Thorsten Sellin's careful comparisons of the evolution of homicide rates in contiguous states from 1920 to 1963 led to doubts about the existence of a deterrent effect caused by the imposition of the death penalty. This work likely contributed to the waning reliance on capital punishment, and executions virtually ceased in the late 1960s. In the 1972 Furman decision, the Supreme Court ruled that existing death penalty statutes were unconstitutional. In 1975, Isaac Ehrlich's analysis of national time-series data led him to claim that each execution saved eight lives. Solicitor General Robert Bork cited Ehrlich's work to the Supreme Court a year later, and the Court, while claiming not to have relied on the empirical evidence, ended the death penalty moratorium when it upheld various capital punishment statutes in Gregg v. Georgia and related cases. The injection of Ehrlich's conclusions into the legal and public policy arenas, coupled with the academic debate over Ehrlich's methods, led the National Academy of Sciences to issue a 1978 report which argued that the existing evidence in support of a deterrent effect of capital punishment was unpersuasive. Over the next two decades, as a series of academic papers continued to debate the deterrence question, the number of executions gradually increased, albeit to levels much lower than those seen in the first half of the twentieth century...

We are most grateful to John Donohue, Justin Wolfers, and Carol Steiker for their valuable and illuminating responses to our article. Donohue and Wolfers explore empirical questions, on which we have little to say. Steiker investigates the moral issues, and here our Reply must be more extensive.

Donohue and Wolfers believe that, with respect to the death penalty, "existing evidence for deterrence is surprisingly fragile." They attack the peer-reviewed empirical work of a number of social scientists, including Hashem Dezhbakhsh, Paul Rubin, Joanna Shepherd, H. Naci Mocan, R. Kaj Gittings, and Paul Zimmerman. They highlight theoretical claims by Lawrence Katz, Steven Levitt, and Ellen Shustorovich, who emphasize the infrequency of capital punishment and who thus doubt the claim of deterrence. (Interestingly, Katz, Levitt, and Shusterovich do find that prison deaths have massive effects in deterring murders and other crimes.) Most importantly, their own work, using existing data, suggests that deterrence has not been shown...

Reading Alan Wertheimer's work is always richly rewarding. He is never the least bit trivial or esoteric; his books invariably tackle vital conceptual issues with direct relevance to legal and social practice. He has for instance, in the past, provided us a cogent account of how to think about coercion and illustrated clearly how distinct conceptions of what coercion is, how being coerced might be distinct from being constrained, or how coercion may not excuse the coerced party of responsibility, play out in a host of legal domains. He has analyzed what has long been (outside the unduly limited, and rather unpersuasive, Marxist tradition) the rather vague concept of exploitation and demonstrated with extraordinary clarity how we can bring these analytical insights about exploitation to bear on questions about unconstitutional conditions, unconscionable contracts, or the propriety of sexual relationships between psychotherapists and their patients. In his most recent book, Consent to Sexual Relations, Wertheimer once more addresses a set of unquestionably significant problems. Why should we legally prohibit or (merely) morally condemn sexual contacts between men and women in cases where the woman has not given any token (in words or deeds) that she consents to the sexual contact? More significantly, when is the "morally transformative" capacity of the consent-token to legitimize the sexual contact compromised by the circumstances in which it is given? That is, when is she (unduly) coerced, deceived, or incompetent (most interestingly because of age, cognitive dysfunction, false beliefs, or intoxication)?

Compared to their nondisabled counterparts, Americans with disabilities face significant discriminatory hurdles in finding and keeping employment. Today it is estimated that only one-third of Americans with disabilities who are qualified to work can find jobs. Although the employment rate for persons without disabilities fluctuates around 80.5%, the rate is just 20.6% for those who require personal assistance to perform a life activity.

The effects of employment discrimination against Americans with disabilities hardly constitute groundbreaking news. Indeed, prejudice in the workplace was one of the central motivating factors behind Congress's passage of America's two foremost disability rights laws: § 504 of the Rehabilitation Act of 1973 (§ 504) and the Americans with Disabilities Act of 1990 (ADA). The ADA, which was regarded by its promoters as a civil rights bill for disabled persons, dedicated an entire section, Title I, to protecting qualifying Americans from discrimination by their employers...

The D.C. Circuit's In re Cheney decision, announced this May, was popularly viewed as the capstone on a bitter, five-year political catfight over government secrecy and the Bush Administration's energy policy. But the decision also revealed something else: a federal open-government law that is broken and badly needs fixing.

Congress passed the Federal Advisory Committee Act (FACA) in 1972 to regulate the ad hoc commissions and panels that periodically issue advice and recommendations to our federal government. The Act's goals were admirable enough. Prior to FACA, the advisory committee system was horribly inefficient, and the committees themselves were largely unaccountable to the public. The Act included a handful of commonsense regulations, intended to instill a modicum of economy, ideological balance, and openness into the advisory committee process. But unlike most open-government laws, which exempt the President, Congress drafted FACA to apply to the President in full force. This legislative choice was made prior to the dénouement of the Watergate scandal--and, thus, prior to the Supreme Court's watershed separation-of-powers decisions in United States v. Nixon and Nixon v. Administrator of General Services, which instructed that Congress may violate the Constitution by disrupting the President's constitutionally assigned functions...

In 2004, securities fraud class action settlements produced $5.45 billion in cash to be distributed to defrauded investors. Institutional investors own the lion's share of the publicly traded equity securities in this country and therefore were entitled to collect most of that money by simply filing relatively simple claims forms documenting their trading during the class period. Those institutions that chose to do so recouped large sums of money for their beneficiaries.

However, in a pilot study we published two years ago, we reported that nearly two-thirds of the institutional investors with financial losses in fifty-three settled securities class actions failed to submit claims. As a consequence of this failure, substantial sums that they were entitled to receive were given to others. Using some back-of-the-envelope calculations, one commentator analyzing our results suggested that each year slightly more than $1 billion is left on the settlement table by nonfiling financial institutions. Because we had a small sample of settlements in our study, we could only reach tentative conclusions about the extent of the problem. The pilot study nonetheless portended several disturbing policy implications for securities class actions.

While scholars have long probed the original understanding of judicial review and the early judicial review case law, this Article presents a study of the judicial review case law in the United States before Marbury v. Madison that is dramatically more complete than prior work and that challenges previous scholarship on the original understanding of judicial review on the two most critical dimensions: how well judicial review was established at the time of the Founding and when it was exercised. Where prior work argues that judicial review was rarely exercised before Marbury (or that it was created in Marbury), this Article shows that it was far more common than previously recognized: there are more than six times as many cases from the early Republic as the leading historical account found. This Article further shows that all the cases in which statutes were invalidated fell into one of three categories: courts invalidated statutes affecting the powers of courts or juries, even when the legislation could plausibly be squared with constitutional text and prior practice; state courts invalidated state statutes for inconsistency with the Federal Constitution; and federal courts invalidated state statutes-- again, even when they could plausibly be defended as constitutional. Scholars have missed this structural pattern, and the dominant view has been that only clearly unconstitutional statutes were invalidated. This Article shows, instead, that the early case law reflects a structural approach to judicial review in which the level of scrutiny was closely linked to the nature of the challenged statute, and that courts aggressively protected their power, the power of juries, and the power of the national government.

The world of securities trading is changing. Advances in technology, combined with the dramatic decrease in the cost of information processing, have conspired to change the way that securities transactions occur. While broker-dealers, specialists, and market makers still ply their trades, they are now joined by a host of new market participants such as robot traders and electronic limit order providers. And while exchanges and the Nasdaq continue to operate, they are confronted by a wide range of competitors including the trading desks of the large broker-dealer firms as well as Alternative Trading Systems (ATSs), the best known of which are Electronic Communications Networks (ECNs) such as Brut ECN, Instinet, and Inet ATS. Trades in equities also are executed on the "third market," which simply refers to firms like Madoff Investment Securities, Knight Trading Group, Jefferies Group, and ITG, all of which arrange trades in exchange-listed stocks on venues other than an exchange. Trading has become a commodity, a standard process whose measure of success is increasingly captured by the simple metric of cost of transacting.

Universities and companies are rushing to the patent office in record numbers to patent nanotechnology inventions. This rush to the patent office is so significant that many law firms have established nanotechnology practice groups and the U.S. Patent and Trademark Office has now created a new technology class designed to track nanotechnology products. Three big differences between the emerging science of nanotechnology and other inventions make the role of patents more significant in this arena than elsewhere. First, this is almost the first new field in a century in which the basic ideas are being patented at the outset. In many of the most important fields of invention over the past century--computer hardware, software, the Internet, even biotechnology--the basic building blocks of the field were either unpatented or the patents were made available to all users by government regulation. In others, patents were delayed by interferences for so long that the industry developed free from their influence. In nanotechnology, by contrast, companies and universities alike are patenting early and often. A second factor distinguishing nanotechnology is its unique cross-industry structure. Unlike other new industries, in which the patentees are largely actual or at least potential participants in the market, a significant number of nanotechnology patentees will own rights not just in the industry in which they participate, but in other industries as well. This overlap may significantly affect their incentives to license the patents. Finally, a large number of the basic nanotechnology patents have been issued to universities, which have become far more active in patenting in the last twenty-five years. While universities have no direct incentive to restrict competition, their interests may or may not align with the optimal implementation of building-block nanotechnology inventions. The result is a nascent market in which a patent thicket is in theory a serious risk. Whether it will prove a problem in practice depends in large part on how efficient the licensing market turns out to be.

In this Article, we consider preliminary injunctions from a radically different perspective than that articulated in judicial opinions and prior legal scholarship. By conventional accounts, when confronted with uncertain legal entitlements, courts should consider preliminary awards only if adequate compensatory remedies are unavailable. The trouble with this "compensatory" view is that it is unresponsive to the ex ante behavioral consequences of legal uncertainty. When rights are uncertain, parties appreciate the full benefits of their conduct, but they discount harm to others of this conduct by the likelihood that they possess a legal entitlement to so act. Hence, individual incentives to behave efficiently are distorted by uncertain legal entitlements. Preliminary injunctions correct this distortion by wielding a stick and providing a carrot for a defendant who would otherwise discount damages given some positive probability that she may not have to pay them. The powerful stick in this example is the in terrorem damages that defendant will be required to pay if an injunction is granted and she violates it. The carrot is the reimbursement of compliance costs if defendant prevails at the end of the litigation. These penalties and rewards come into play only if the plaintiff decides to pursue the injunction, which is to say that the preliminary injunction doctrine takes the conduct decision out of the hands of the biased defendant and places it in the hands of plaintiff who, by design, faces the proper marginal costs and benefits of the decision. Interestingly, although courts do not claim that they are promoting efficient behavior when granting preliminary injunctions, that characterization represents a good account for much of what courts are doing...

In 1982, a New York court ordered the force-feeding of a prisoner who was attempting starvation to draw attention to the hungry children of the world. Two years later, the Supreme Court of New Hampshire held that, despite inflicting great pain and discomfort, prison officials could continue to feed an inmate with a nasogastric tube. In 1995, the Supreme Court of North Dakota determined that a sixty-four-year-old diabetic prisoner protesting the conditions of his confinement could be forced to undergo treatment after a hunger strike. Soon after, the Second Circuit allowed the unwanted feeding of a civil contemnor in custody for refusing to testify before a grand jury. In all, nearly fifteen state and federal courts have found that prison officials may force-feed a hunger-striking prisoner through highly invasive means...

Once labeled the "highest-ranking Iraqi terrorist ever to defect to the West," and still considered "one of the true heroes in the international battle against terrorism," Adnan Awad risked his life and sacrificed his past to help the United States in its fight against terrorism. Backing out of a terrorist mission, Awad turned himself in at an American embassy, joined the Witness Protection Program (WPP), and assisted U.S. government officials in thwarting terrorist plots, identifying Iraqi terrorists, and securing a verdict against a prominent terrorist. Despite all of this assistance, the government did not give Awad a hero's welcome. Instead, it repaid him with mistreatment and broken promises for which, Awad discovered, there would be no legal remedy.

Already a victim of injustice at the hands of government officials charged with his well-being, Awad also became a victim of sovereign immunity--the age-old doctrine stating that the United States, as "the sovereign," cannot be sued without its consent. When Congress passed the Tucker Act and the Federal Tort Claims Act (FTCA), it arguably gave Awad the green light he needed to bring his case against the government. Nevertheless, decades of judicial interpretation have eroded these congressional acts in ways that precluded Awad from enforcing his rights against the United States. Moreover, even though the Supreme Court has held that, in some instances, potential plaintiffs can bypass the restraints of sovereign immunity by bringing actions against individual government officials through a "Bivens claim," Awad could not meet the stringent standards for stating a cognizable Bivens claim...

In 1984 the Sentencing Reform Act (SRA) was adopted after years of proposed legislation and hearings in both houses. The SRA established Congress as a national leader in modern sentencing reform--one of the great criminal justice reform movements of the past century. At a time when both liberals and conservatives believed the classic American indeterminate sentencing model had failed, Congress constructively undertook, and, after a long and dogged effort, made great progress in meeting, the challenge of developing a new model of more principled sentencing.

Such a statement of praise will, of course, sound surprising to many criminal justice leaders, since the years have not been kind to the Federal Sentencing Guidelines. They have been the subject of sustained criticism from judges, lawyers, scholars, and members of Congress, and a wide consensus has emerged that the Federal Guidelines have in many ways failed. But some historical perspective reminds us that the new system created by the SRA was a dramatic step toward achieving the goals that both liberals and conservatives continue to invoke: proportionality between crime and sanction, a reasonable balance between uniformity and individualization, due process protections and appellate review, attention to the informed wisdom of sentencing experts, and balanced allocation of power and responsibility among the branches and agencies of government...

Sentencing reform is in the eye of the beholder. When most federal district court judges, assistant U.S. Attorneys, and sentencing policy analysts recently would have said that the Federal Guidelines should be made less prescriptive, less severe, and less rigid, Congressman Tom Feeney introduced and won passage of a bill meant to make the Guidelines more prescriptive, more severe, and more rigid.

"Sentencing reform" means very different things depending on whether the proponent wants sentencing made softer, tougher, fairer, more consistent, more efficient, more economical, more transparent, or more effective at preventing crime. Whether a proposed change counts in the eyes of others as a reform depends on what the proponent wants to accomplish and whether others think that a good thing...

The reform goal of promoting reasonable consistency and reducing disparity in sentencing is meaningless without a frame of reference--consistency or disparity relative to what underlying principles? In order to decide that two offenders are similarly situated and thus should receive similar sentences (or that they are dissimilar and should receive different sentences) we must first define the relevant sentencing factors (the offense and offender characteristics that judges should consider in determining appropriate sentences) and the weight to be given to each of these factors. The choice and weighting of sentencing factors depends, in turn, on the punishment purposes which the sentence is supposed to serve.

Sentences can serve many purposes, and these purposes are often in conflict. Some of the most difficult conflicts are between proportionality principles, on the one hand, and case-specific crime-control or restorative-justice purposes, on the other. Proportionality serves both retributive (just deserts) and practical (utilitarian) sentencing purposes. Under a retributive theory, sanctions should be scaled in proportion to each offender's blameworthiness, and equally culpable offenders should receive equally severe sanctions. Sentencing proportionality and uniformity also have practical benefits, such as reinforcing public views of relative crime seriousness and maintaining public respect for criminal laws and the criminal justice system...

When viewed from any coherent normative perspective, the Federal Sentencing Guidelines have failed to reduce disparity and probably have increased it. Even on paper, these Guidelines often fail to treat like offenders alike, and the Guidelines are worse in practice than on paper. The luck of the judicial draw appears to determine the sentences offenders serve as much as or more than it did before the Guidelines; the region of the country in which an offender is sentenced now makes a greater difference than it did before the Guidelines; and racial and gender disparities have increased...

The federal system of the United States is based on the bedrock premise that the states bear the primary responsibility for criminal justice policy. States are better able to ensure that local communities can define crimes and set sentences according to the preferences of their residents. Indeed, it has long been recognized that criminal justice is at the core of state, not national, responsibility.

In recent decades, however, the importance of federalism has often been overshadowed by shortsighted political concerns. In particular, there has been an unprecedented expansion of federal criminal law into areas traditionally left to the states. The federal government has intervened in many local crimes--from carjacking to crimes committed with a firearm or involving drugs--without any showing that federal intervention is necessary or appropriate. While there are important areas that require federal intervention, many federal crimes of the past few decades fall outside this category...

While federalism justifies variations among state laws, federal criminal law is supposed to be a uniform national response to crimes of national import. On paper, a single set of federal criminal statutes and Federal Sentencing Guidelines applies uniformly throughout the United States. But in practice, federal criminal charges and sentences vary greatly from state to state and from district to district. For example, some districts regularly prosecute low-level drug offenders. Others set high drug-quantity thresholds for charging and refer less significant cases to state authorities. In some districts, defendants must go to great lengths to earn cooperation discounts at sentencing. In others, much less cooperation will suffice.

Some of these variations reflect legitimate local responses to local crime patterns, needs, knowledge, and concerns. Other variations reflect local hostility to national policy choices, methods, and values. The law must accord some weight to local needs, concerns, and limitations, while still ensuring horizontal equity and consistency with national policy. This problem exemplifies the enduring tensions between ex ante rules and ex post discretion, between equality and individualization, and between a synoptic bird's-eye perspective and localized knowledge...

The pre-Booker Federal Sentencing Guidelines were, by far, the most vigorously enforced sentencing guidelines in the nation. That is to say, under pre-Booker federal law, judicial sentencing discretion was hemmed in--by a combination of statutory and administrative rules--to a much greater extent than under the laws of any state. As compared with eighteen state guidelines systems in operation in early 2005, the federal system was a stark outlier in its emphasis on rule over discretion.

Booker has reduced the mandatory character of the Federal Guidelines, but the degree of change should not be overstated. The Court has not made the Federal Guidelines toothless, nor has it reinstituted the kind of sentencing discretion held by district court judges in the days of indeterminate sentencing. It is true that, for purposes of constitutional discourse, the post-Booker (or Booker-ized) Guidelines are now dubbed "advisory" by the Supreme Court. This is little more than legal jargon, however--and part of the distorted terminology that has cropped up in the Court's new Sixth Amendment jurisprudence. The word "advisory," when attached to sentencing prescriptions, holds talismanic power for some Justices and therefore must be used strategically by other members of the Court. Policymakers should not credit the use of language stretched out of shape by the internal debates of the Justices. There is reason to think that the post-Booker Federal Sentencing Guidelines still pack as much wallop as any sentencing guidelines in the country...

Criminal sentencing does not just happen in the courtroom. Some key sentencing decisions happen long before court convenes, while other critical sentencing decisions take place long after court adjourns. Although the public focuses primarily on the black-robed figure wielding the gavel, sentencing reflects decisions by a veritable parade of actors, including legislators, sentencing commissioners, police officers, prosecutors, juries, trial judges, appellate judges, and executive branch officials. All of these people guide and constrain the sentencing process. Through their official actions, they inform each other about what is happening in their corners of the sentencing drama and prod their counterparts to respond appropriately. As the Supreme Court has written, the federal constitutional design assumes that the branches of government "converse with each other on matters of vital common interest."

Many of the points of communication, leverage, and decision that operate before the trial judge imposes the sentence--including the congressionally set maximum for the offense, mandatory minimums, and the Federal Sentencing Guidelines-- have played a central role in the policy and scholarly debate following the Sentencing Reform Act of 1984. Less discussed over the past two decades--but just as vital--are several devices that can provide important postsentencing guidance, communication, and action. These mechanisms can enhance a sentencing system's vitality by providing guidance from "above and beyond."...

The Supreme Court has a remarkable history of blunders and retreats when it comes to the relationship between the Constitution and substantive criminal law, and it is in the process of committing another one, in our view. There are at least eight instances in which the Court has handed down a case with dramatic potential to subvert substantial parts of the criminal law, only to later more or less withdraw from the field...

By declaring that the Federal Sentencing Guidelines are no longer fully binding "law" and thereby shifting some discretionary authority back to individual judges, United States v. Booker creates the opportunity to finally vindicate the holding in United States v. Mistretta. Congress can establish a new sentencing agency that is truly located in the judicial branch and that provides independent and expert sentencing guidance to judges. In urging that a new sentencing agency be structurally and functionally located "in the judicial branch," we mean that the judicial nature of the agency should be reflected in its composition, method of appointment, and work product. The last of these would be focused not on lawmaking, but on giving guidance--guidance to judges regarding the exercise of sentencing discretion, and guidance to Congress as to which factors relevant to punishment are best treated as elements of the crime and which are best treated as discretionary sentencing factors. Perhaps most importantly, we urge that the new agency's sentencing guidelines be subject to judicial review equivalent to that provided by the Administrative Procedure Act (APA) in order to ensure legitimacy and credibility with Congress, judges, and the public...

Careful analysis of the twenty-year-old federal experiment with structured sentencing suggests one overriding conclusion about the design of sentencing systems: a sentencing system that sensibly distributes power--both the power to make sentencing rules and the power to determine sentences in particular cases--among the institutional sentencing actors is likely to work pretty well. Conversely, a system that concentrates sentencing power disproportionately in the hands of one or even two institutional sentencing actors is headed for trouble. The federal sentencing experience of the past three decades is a case study in Madisonian political theory. It demonstrates that a governmental system that fails to erect a properly conceived set of checks and balances against the inevitable tendency of political actors toward personal and institutional self-aggrandizement is prone to degenerate into a despotism of the most powerful branch or, as Madison particularly feared, into an alliance of two branches against the third.

The current federal sentencing regime, with its Sentencing Commission and complex Guidelines, was intended to insulate the process of making sentencing rules from the passions of politics. But as we will see, the architects of the system miscalculated and created a sentencing structure almost perfectly designed for capture and manipulation by the political branches. The existence of this structure in combination with a variety of other factors has produced a time machine. Not an H.G. Wells time machine that travels in the fourth dimension, but a machine whose only product is incarcerative time, a machine controlled by a so-far indissoluble alliance between Congress and the Justice Department...

All sentencing systems make use of information beyond the elements of the offense of conviction. This practice, known generally as "real-offense sentencing," is necessary because of the complexity and variety of criminal behavior and the need to keep criminal statutes relatively simple. Two defendants convicted of violating the same statute may be very different in terms of amount of harm caused, levels of personal culpability, and degrees of dangerousness to the community.

One of the enduring challenges in sentencing policymaking is the need to identify the appropriate structure and scope of real-offense sentencing. What facts beyond the elements of the offense of conviction should have an impact on the defendant's sentence? Should consideration of such additional facts be *268 systematized or left to the discretion of individual judges? Should certain types of information be excluded from sentencing decisionmaking, even if they are logically relevant? What process and burden of proof should apply to such fact-finding?... 

The universe of sentencing considerations can be divided between offense conduct and offender characteristics. Historically, offense conduct (e.g., harms to victims, whether a weapon was used, the amount of money stolen or drugs trafficked) and offender characteristics (e.g., an offender's prior criminal history, employment record, family circumstances) have both played a significant role in sentencing decisionmaking, and both types of considerations remain central in modern sentencing systems. But the distinctive import and impact of offense conduct and offender characteristics at sentencing have not often been carefully and systematically examined.

This Article will explore, both historically and normatively, the consideration of offense conduct and offender characteristics at sentencing. Part I outlines the shifts in sentencing theory and offense/offender focus, while Part II analyzes the Supreme Court's recent sentencing jurisprudence. These Parts spotlight numerous important and illuminating connections between the offense/offender distinction and sentencing theory, constitutional jurisprudence, and modern sentencing reforms. They also highlight that federal sentencing reforms, when examined with a particular focus on offense/offender issues, exhibit some disconcerting attributes. Part III offers a few basic recommendations that would enable the federal sentencing system to strike a sounder balance, as have many state sentencing systems, in the consideration of offense conduct and offender characteristics at sentencing...

For over two hundred years our nation's legislatures have, for the most part, rejected mandatory penalties in favor of judicial discretion to sentence within a designated range. This policy has endured, despite shifts in punishment philosophy, for two reasons. First, any offense definition is necessarily inexact, sweeping in less culpable offenders who just barely violate its terms along with hardened criminals who cause far more harm than its drafters envisioned. A sentencing range allows the judge to adjust the sentence to address these individual cases. Second, as negotiation increasingly dominates criminal justice, judicial discretion in sentencing has helped to iron out the very different punishments that like offenders might have otherwise received as a result of bargains--bargains sometimes based on considerations that the legislature has not endorsed as valid reasons to reduce or increase punishment. The judge's final authority to select an appropriate sentence from within a range of punishment is thus an essential part of any sentencing policy that simultaneously values both efficiency through negotiated dispositions and consistent application of systemwide sentencing norms...

Stark theoretical and ideological differences abound regarding the purpose of punishment, the circumstances under which it can be imposed, and who holds the ultimate authority to impose it. Because these age-old debates are not likely to be resolved in the near future, should Congress decide to address the issue of federal sentencing again, it ought to begin its inquiry from a point of consensus. Are there "first principles" of punishment and sentencing on which most Americans can agree? What lessons have we learned from the last thirty years of sentencing reform and the past hundred years of criminal justice reform? One critical lesson has been that the connection between substance and procedure is quite formidable in virtually every aspect of criminal law. Procedural and substantive law ought to function together to create a justice system that is fair and reliable. Unfortunately, this lesson has gone virtually unheeded in the arena of criminal sentencing. The lack of attention to sentencing procedures has been one of the greatest failings of the last century's sentencing reform movement and is the cause of much of the current upheaval in federal sentencing. Any revisions to the federal sentencing scheme should attend to the procedural and evidentiary law of sentencing as painstakingly as prior reform efforts did to the substantive law of sentencing. Most notably, the inattention--whether by design or neglect--to basic procedural safeguards threatens one of our most fundamental components of due process: the adversarial system of justice...

The last quarter of the twentieth century stands out as the most remarkable period of change in American penal policy even when the entire history of the United States is considered. Nothing in the two centuries before 1975 would prepare observers to expect that a long run of stable rates of incarceration would shift to a fourfold expansion of rates of imprisonment in less than three decades. This Article will consider the origins and careers of proposals for penal legislation in a time of radical change. How, when, and why were legislative acts involved in the massive shift of policy after the early 1970s? What institutional controls were implicated in penal policy changes after 1975, and how did they function? To what extent was legislation a driving force in changes in penal policy during the 1970s, the 1980s, and the 1990s? What does a review of the recent history of American criminal justice tell us about what comes next?

In this Article, Part I presents introductory descriptions of where penal policy is made in the American governmental system and outlines national-level measurements of punishment trends over the period since 1975. Part II addresses issues of quality control in shaping, passing, implementing, and reviewing penal legislation in recent U.S. experience. Part III then addresses the role of penal legislation in changing penal practices in the past generation. The final Part discusses two questions about the future of imprisonment...

Federal sentencing increasingly differs from sentencing in the states. While both systems have shared rising imprisonment rates throughout the last two decades, the federal rate has grown more sharply and continues to increase. States have developed some strategies to combat the growing costs of prisons, which have been fueled by the imprisonment of nonviolent drug offenders, lengthened sentences for violent offenders, and the return to prison of those who violated parole and supervised release conditions. Increasingly, some states have diverted offenders who pose a low risk to public safety to nonprison sanctions. The federal regime, however, currently permits and offers only a few nonprison options.

In 2003, 83.3% of all defendants sentenced in federal court were sent to prison. More than half of those receiving nonprison terms were sentenced to probation, while almost 5% received a split probation/confinement sentence and 3% received a prison/community split sentence. The small number of nonprison-bound offenders may explain the relative inattention that has been paid to nonprison sentences in the federal system. However, as judges may be able to use their increased discretion in a post-Booker world, the use of nonprison sentences could increase. The danger of unguided discretion in this area coupled with the budget cutbacks in the federal prison system should provide an incentive for the judiciary and Congress to explore greater use of nonprison sentencing options. The expansion of nonprison punishments and guidelines regarding their imposition would allow judges to individualize sanctions while protecting public safety...

In the Sentencing Reform Act of 1984 (SRA) Congress envisioned federal sentencing with a technocratic cast, with policies designed and revised based on "advancement in knowledge of human behavior as it relates to the criminal justice process." The value of data and expertise in the sentencing enterprise jumps off the pages of the statute. Congress directed the U.S. Sentencing Commission to "establish a research and development [R&D] program" and to serve as a "clearinghouse and information center for the collection, preparation, and dissemination of information on Federal sentencing practices." One key activity of this sentencing R&D program was to "collect systematically" various forms of sentencing data and to publish those data.

Who would use all of this sentencing information? Most of the statutory provisions and the relevant legislative history point towards one primary user: the Sentencing Commission. Congress did not envision the Commission as the only user of the information, for the statute labeled the Commission as a "clearinghouse" and an "information center" and gave it data publication duties. Nevertheless, the statute includes specific directives to the Commission--and only to the Commission--about how it should use sentencing data. The external uses of the data stored in the "clearinghouse" remain unspecified, and the potential users of the data remain unnamed in the statute.