Print Issues

Volume 58, Issue 3


Is Capital Punishment Morally Required?

Acts, Omissions, and Life-Life Tradeoffs
by  Cass R. Sunstein & Adrian Vermeule

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…


No, Capital Punishment Is Not Morally Required

Deterrence, Deontology, and the Death Penalty
by  Carol S. Steiker

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…


Uses and Abuses of Empirical Evidence in the Death Penalty Debate

by  John J. Donohue & Justin Wolfers

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…


Deterring Murder

A Reply
by  Cass R. Sunstein & Adrian Vermeule

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…


Hendricks-Robinson as Crowbar

Removing the Certification Bar to Disability-Based Employment-Discrimination Class Actions
by  Nathaniel Garrett

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…


Fixing FACA

The Case for Exempting Presidential Advisory Committees from Judicial Review Under the Federal Advisory Committee Act
by  Michael J. Mongan

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…

Book Review

Thinking About Sexual Consent

by  Mark Kelman

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…