Faculty Scholarship Series

From Indictment to Information -- Implications of the Shift

George H. Dession — Thu, 16 May 2013 10:55:25 PDT

RECALLING Bentham's assertion that the grand jury had been per-forming no useful function since the beginning of modern prosecu-tion, and remarking the unanimity of modern expert studies to the same effect, the Report on Prosecution by the National Commission on Law Observance and Enforcement concludes:

"that under modern conditions the grand jury is seldom better than a rubber stamp of the prosecuting attorney and has ceased to perform or be needed for the function for which it was established and for which it was retained throughout the centuries; that .... an unnecessary work burden upon the administration of justice .... should be lightened by eliminating the necessity of indictment and permitting prosecution to be instituted and accusation to be made through the simpler processes of information."

Experience and Experiment in the Legal Control of Competition in the United Kingdom

Robert B. Stevens — Wed, 08 May 2013 08:50:48 PDT

NOVEMBER 3, 1958, was a memorable day in twentieth century English legal history. In the Royal Courts of Justice in London in a court customarily occupied by Her Majesty's Judges sat a collection of prominent men from various walks of life comprising the newly-constituted Restrictive Practices Court. Two of these men were English High Court Judges and one was a member of the Outer House of the Scottish Court of Session, but even they sat informally, without the customary judicial paraphernalia of robes and wigs. With them sat two industrialists, an accountant, and a trade union official. They held unlawful a long-standing arrangement among the manufacturers of proprietary medicines whieh prevented such goods from being sold through any retail outlet other than a pharmacy.

Medicaid: Anatomy of a Dilemma

Robert B. Stevens — Wed, 08 May 2013 08:50:45 PDT

The Medicaid program-title XIX of the Social Security Act-was passed amid great hope on the part of the liberals as the so-called "sleeper" of the Social Security Act of 1965. The optimistic saw Medicare (title XVIII) as a step towards a Swedish form of social insurance and title XIX as a step towards something like the British National Health Service. They could not have been more wrong. While title XVIII has achieved general acceptance, title XIX has lived up to almost none of the expectations of its proponents; it has served only to confirm many of the doubts about government programs of medical care on the part of professional critics and fiscal conservatives.

Law Schools and Law Students

Robert B. Stevens — Wed, 08 May 2013 08:50:43 PDT

ONLY a few years ago, some commentators seriously predicted the end of law schools as we now know them. Yet the traditional law school is still with us and in some ways seems stronger than ever. Meanwhile student demands for poverty law and other "relevant" courses have come and gone, and the clinical movement has flooded and is now ebbing. Hysterical outcries against the socratic method and praise for law schools as places where affluent middle-class children might "relate" seem strangely dated now, although the leading articles supporting these positions are at most four years old.

It would be wrong, however, to lapse into· a complacent assumption that the reform movement is dead. The demands of the late 60's_ and the early 70's were more strident than their predecessors, but the notion that something is wrong with legal education is scarcely of recent origin. The strident students and faculty members of recent years are successors to fifty years of dissatisfaction with both the structure and the process of legal education as enshrined in the Harvard of Langdell.

Unexplored Avenues in Comparative Anglo-American Legal History

Robert B. Stevens — Wed, 08 May 2013 08:50:40 PDT

I assume Harry Lawson has always had the ability to stimulate. Certainly in the Oxford of the early 1950's, he stood almost alone. With the exception of linguistic philosophy and Roman law, the Honour School of Jurisprudence was committed to traditional legal scholarship. For those who cared about the common law and its institutions, and were anxious to see what lay "out there" in related disciplines, or even in what we naively believed to be the real world, the Lawson seminars at Brasenose became a "must." In different ways, through these seminars and his other teaching, Lawson must have inspired generations of undergraduates and graduates to begin asking the difficult questions: to think in an informal way about the law in context, and, in a more formal sense, to explore the boundaries of law and history and law and social sciences. Insofar as I have found myself able to ask questions about these relationships, I know I owe a great deal to the Professor of Comparative Law.

Australia: An Anti-Trust Law or a Monopolies and Restrictive Practices Act?

Robert b. Stevens — Wed, 08 May 2013 08:50:38 PDT

If the intentions of the Federal Government are carried into effect, the Commonwealth of Australia will shortly have new legislation designed to strengthen the competitive nature of the economy. Although there have been previous federal Acts, and experiments at the State level, the possibility of a new Act will bring into issue the basic assumptions involved in legislation intended to stimulate competition. The earlier federal Acts strongly reflected the influence of the American Sherman Act, which is traditionally categorized as comprehensive in its provisions since it purported to strike down all contracts in restraint of trade and all attempts a~ monopolization. Contrasted with this, the most recent legislation in the United Kingdom has been selective in its approach. Only in isolated instances has behaviour been forbidden outright, and the problem has been approached primarily through registration of the allegedly anti-competitive practices, coupled with an investigation into their individual desirability.

The public regulation of land use decisions: Criteria for evaluating alternative procedures

Tom R. Tyler — Tue, 07 May 2013 07:52:08 PDT

In this article we argue for an empirical governance approach—the use of public evaluations—as one basis for deciding whether and how to regulate decisions with public consequences. We propose a conceptual framework for evaluating public acceptability, notably that public judgments should be evaluated against five criteria: overall acceptability ex ante; robustness; consensus; procedurality; and their ranking on nonfairness issues such as cost and convenience. In the article we also move beyond theory to implementation by modeling our framework to evaluate public judgments concerning acceptability in the contentious area of land-use decisions in Florida.

Mechanisms for eliciting cooperation in counter-terrorism policing: Evidence from the United Kingdom

Tom R. Tyler — Tue, 07 May 2013 07:52:06 PDT

This study examines the effects of counterterrorism policing tactics on public cooperation among Muslim communities in London, U.K. The study reports results of a randomsample survey of 300 closed and fixed response telephone interviews conducted in Greater London’s Muslim community in February and March 2010. It tests predictors of cooperation with police acting against terrorism. Specifically, the study provides a quantitative analysis of how perceptions of police efficacy, greater terrorism threat, and the perceived fairness of policing tactics (“procedural justice”) predict the willingness to cooperate voluntarily in law enforcement efforts against terrorism. Cooperation is defined to have two elements: a willingness to work with the police in anti-terror efforts, and the willingness to alert police upon becoming aware of a terror-related risk in a community. We find that among British Muslims, both measures of cooperation are better predicted by procedural justice concerns than by perceptions of police efficacy or judgments about the severity of the terrorism threat. Unlike previous studies of policing in the United States, however, we find no correlation between cooperation and judgments about the legitimacy of police; rather, procedural justice judgments influence cooperation directly.

Moore on Causing, Acting, and Complicity

Gideon Yaffe — Tue, 07 May 2013 07:52:04 PDT

Michael Moore’s sweeping, insightful and startlingly learned book, Causation and Responsibility, concerns, as the title suggests, a large number of questions—one might even say every question—that might be asked about the relation between causation and responsibility and the relevance of that relation to legal practices and their justification. One set of questions that Moore discusses in many different places in the book concerns the relationship between doing, or being active, and causing. The notion of activity is crucial to ordinary moral thought. Consider an example: In the November 1976 issue, then Governor Jimmy Carter told Playboy magazine that although he had never been unfaithful to his wife, Rosalind, he had sinned in his heart in that respect. Rosalind Carter and the American public, who elected him President not long after, not to mention the readers of Playboy, seem to have had little trouble forgiving him. Sins of the heart just aren’t the same as sins of the body. But why not? What justifies the moral line we routinely draw between what we think and what we do? On one appealing view, the distinction in responsibility between thoughts and actions is an instance of the more general distinction in responsibility between things with respect to which we are passive—things that just happen to us—and things with respect to which we are active—things we do. Carter’s lustful musings, on this view, are not something for which he is to be held responsible precisely because they just happened to him, as they do to many a faithful, but aching, spouse. Had he acted on them, that would have been a different matter. This view has the added advantage of explaining why some thoughts, such as choices and plans, are less clearly, if at all, things for which we are not rightly held responsible. Those thoughts, in contrast to many, are, we might say, things that we do. We choose; our choices do not merely come upon us in the way that our desires do. And that is why choices, in contrast to our feelings of lust, are things for which we are rightly held responsible.

In Memoriam: A Tribute to Professor Daniel J. Freed

Kate Stith — Tue, 07 May 2013 07:52:01 PDT

Yale Law Professor Daniel J. Freed, a cofounder of Federal Sentencing Reporter and a Vera trustee for nearly forty years, is a legendary figure in the worlds of sentencing, bail, and criminal justice generally. With his gentle but incisive approach, Dan was—and still is—a moral and intellectual North Star for generations of lawyers, judges, professors, and criminal justice policymakers. No collection of articles or stories about Vera and sentencing would be complete without a discussion of Dan. Thus, it is fitting to conclude this special issue of FSR with a tribute to Dan Freed the reformer, the scholar, the colleague, the teacher, and the cherished friend.

Weinstein on Sentencing

Kate Stith — Tue, 07 May 2013 07:51:59 PDT

I shall talk about an area of the law of great significance to any society’s measure of justice, criminal sentencing. I call my remarks “Weinstein on Sentencing.” Has Judge Weinstein over the course of decades fundamentally changed the contours of law and practice in this area? I think he would say “not enough.” But that’s not for lack of trying. In addition to many law review articles and speeches, he has written scores of sentencing opinions that exceed the standards of the most exacting academic—thorough, analytically impregnable, and heavily footnoted—attempting to get the Second Circuit, the Supreme Court, and Congress to remake sentencing law. He has not waged these battles alone—but more than any judge I can think of, he has waged them continually and on every front, with powerful intelligence and humanity. In these ways he is one of the creators of today’s new sentencing landscape, in which judges are allowed to consider not just what the Sentencing Commission proclaims, but what justice requires.

Reply to Commentators

Jed Rubenfeld — Tue, 07 May 2013 00:09:06 PDT

I do not know Michael Stokes Paulsen or his writings, but I will do my best to reply to his gracious and elegantly impartial review. His absolute refusal to engage in sycophancy should be a model to us all. I cannot imagine why he likens himself to "a skunk."

A Dialogue

Jed Rubenfeld — Tue, 07 May 2013 00:09:04 PDT

Jed Rubenfeld: Akhil, you and I have a great deal in common, but also some fundamental differences, at least in principle. Equal protection doctrine might provide a good backdrop to make these differences clear. When it comes to Brown v. Board of Education, our disagreements are not of a fundamental nature. You're inclined to be much more accepting than I of the claim that the Fourteenth Amendment was originally understood to bar racial segregation (at least of some kinds), so you don't see Brown as the revolutionary case that many of us do. I take Brown to be a clear case of the rejection of an original No Application Understanding; you don't. But this is not a fundamental disagreement because, if I understand you correctly, you do not object to my central thesis: Original No Application Understandings may be rejected when doing so does justice to the text and the original paradigm cases.

A Reply to Posner

Jed Rubenfeld — Tue, 07 May 2013 00:09:02 PDT

In The First Amendment's Purpose, I criticized the cost-benefit approach to free speech, of which Richard Posner has been a leading advocate. On the cost-benefit view (or at least Posner's view of that view), speech can be prohibited when "in American society its harmful consequences are thought to outweigh its expressive value." Or, in another formulation: "[S]peech should be allowed if but only if its benefits equal or exceed its costs."

Laying It on the Line: A Dialogue on Line Item Vetoes and Separation of Powers

Jed Rubenfeld — Tue, 07 May 2013 00:09:00 PDT

In this Dialogue, constitutional pundits Confident and Doubtful debate the Line Item Veto Act of 1996. They wrangle about the application of the Article I, § 7 process to the Act, the relevance of the legislative bargaining process to its constitutionality, and the merits of formalism and functionalism. As Confident becomes No-Longer-So- Confident, Doubtful proposes a way to reconcile the seemingly irreconcilable "formalist" and "functionalist" Supreme Court decisions. Marshalling the constitutional text for support, Doubtful argues that the Court should take a checks and balances approach to congressional delegations of power to the executive, while maintaining a rigorous separation of powers review of Article I powers.

At the time of the writing of this Dialogue, the Line Item Veto Act was, as the prologue indicates, awaiting a pronouncement from the Supreme Court. In Clinton v. City of New York, the Act was invalidated. However, the Dialogue stands not only as a strong dissent to the majority's opinion in that case, but as a powerful argument for a new conception of formalism and functionalism.

State Takeover Legislation and the Commerce Clause: The "Foreign" Corporations Problem

Jed Rubenfeld — Tue, 07 May 2013 00:08:57 PDT

That a corporation should be "incorporated" in, or "chartered" by, a particular state is a peculiar and vexing circumstance. It is by no means immutable. A federal corporations code has been mooted about, multi-state-chartered corporations occasionally appear, and murmurs of doing away with the entire concept of "chartering" a corporation have been heard from time to time. But state incorporation is the ruling corporate form, and the problem it creates is a serious and thorny one: the problem, that is, of regulating "foreign" corporations. How far may one state go in regulating another state's corporations?

The Moment and the Millennium

Jed Rubenfeld — Tue, 07 May 2013 00:08:55 PDT

Every age, it is said, gets the savior it deserves. Who then would be recognized as a deliverer for our millennium? The answer is pretty clear. Our redeemer would have been a programmer, a cyber-savior, walking forth upon the worldwide web with a cheap fix for the so-called Year 2000 problem.

On the Legal Status of the Proposition That "Life Begins at Conception"

Jed Rubenfeld — Tue, 07 May 2013 00:08:52 PDT

For eighteen years, a majority of the Supreme Court has upheld abortion rights without deciding whether or when a fetus may be regarded as an independent person. Today, another set of Justices would deny those rights on the ground that the fetus's status is an issue for state legislators to resolve. These mirror-image strategies share a common aim: Each allows the Court to evade the single question that, in every discourse but the judicial one, is by now synonymous with the abortion debate itself–the question of when human life begins.

Punishing Collective Entities

Tom R. Tyler — Mon, 06 May 2013 22:49:54 PDT

This Article argues that, while the legal world treats corporate entities as "people" for legal purposes, this legal framing does not fit well with na've models of assessing responsibility and blame. These difficulties raise questions about the value of treating entities as "people" for legal purposes just at a time when the United States Supreme Court seems to be moving actively to increase this "entity as a person" legal metaphor.

The Article first reviews the literature on the psychology of responsibility and then presents both survey and experimental data that compares reactions to individual and organizational level wrongdoing. We argue that the data suggests that people have greater trouble holding entities responsible for wrongdoing and punishing them than they do making judgments of responsibility and endorsing punitive actions for individuals. In an era of corporate scandal and wrongdoing, this difficulty points to a problem within the law–the process of punishing corporate misconduct is more problematic than the process of punishing individual misconduct.

Diversity and Corporate Performance: A Review of the Psychological Literature

Tom R. Tyler — Mon, 06 May 2013 22:49:52 PDT

This Article examines two approaches to diversity management in the context of procedural justice theory: 1) maximizing the benefit of diversity in the workplace and 2) minimizing any potential harm. With regard to the former, this Article argues that the application of procedural justice theory will create conditions under which employees of all backgrounds feel comfortable contributing their unique perspectives, thus maximizing the benefits of diversity. Applying procedural justice theory may also reduce potential conflicts arising from a diverse workforce by encouraging non-prejudiced, respectful behavior and strengthening organizational identity. As a test of these principles, a data set of 2,366 employees is examined. These data show that procedural justice principles promote better productivity among both white and black employees. Thus, procedural justice may be an important tool in diversity management.