Northwestern University Law Review最新文献

{"title":"The Death Penalty and the Fifth Amendment","authors":"Joseph Blocher","doi":"10.2139/SSRN.2682657","DOIUrl":"https://doi.org/10.2139/SSRN.2682657","url":null,"abstract":"Can the Supreme Court find unconstitutional something that the text of the Constitution “contemplates”? If the Bill of Rights mentions a punishment, does that make it a “permissible legislative choice” immune to independent constitutional challenges?Recent developments have given new hope to those seeking constitutional abolition of the death penalty. But some supporters of the death penalty continue to argue, as they have since Furman v. Georgia, that the death penalty must be constitutional because the Fifth Amendment explicitly contemplates it. The appeal of this argument is obvious, but its strength is largely superficial, and is also mostly irrelevant to the claims being made against the constitutionality of capital punishment. At most, the references to the death penalty in the Fifth Amendment may reflect a founding era assumption that it was constitutionally permissible at that time. But they do not amount to a constitutional authorization; if capital punishment violates another constitutional provision, it is unconstitutional. And once that point is conceded, the Fifth Amendment Argument does very little work. There might be good arguments for the constitutionality of the death penalty, but the Fifth Amendment is not among them.","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":"111 1","pages":"275-294"},"PeriodicalIF":1.9,"publicationDate":"2016-08-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2682657","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68254518","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"What Lurks Below Beckles","authors":"Leah M. Litman, Shakeer Rahman","doi":"10.2139/SSRN.2830324","DOIUrl":"https://doi.org/10.2139/SSRN.2830324","url":null,"abstract":"The Supreme Court will soon decide if Travis Beckles’s prison sentence is illegal. Mr. Beckles was sentenced years ago, and his appeal to the Supreme Court is on post-conviction review. Normally when the Supreme Court invalidates a prison sentence in a post-conviction case, the Court’s holding applies to all other post-conviction cases as well. But the way Mr. Beckles’s lawyers are arguing his case, relief for Mr. Beckles will do nothing for prisoners in certain circuits whose sentences would be illegal for the same reason as Mr. Beckles’s. And if the Supreme Court doesn’t preemptively address these potential circuit splits in the Beckles case then it may never have a chance to do so, because of the Anti-Terrorism and Effective Death Penalty Act’s (AEDPA) restrictions on the Supreme Court’s jurisdiction over post-conviction cases. The Court should both be aware of these lurking issues and use Beckles as the vehicle to weigh in on them. Doing so may be the only way to ensure that any right announced in Beckles applies uniformly across the country. Two decades ago, when the Supreme Court upheld AEDPA's restrictions on the Supreme Court’s jurisdiction in post-conviction cases, three Justices warned that circuit splits related to successive post-conviction motions might re-open whether those restrictions are constitutional. As we show below, the aftermath of the Supreme Court's recent Johnson and Welch rulings what those Justices warned about. These constitutional concerns are a reason for the Court to depart from its usual reluctance to analyze questions not directly raised in a petition for certiorari and frame the analysis in Beckles in a way that avoids a repeat of the mess that ensued after Johnson and Welch.","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":"111 1","pages":"555-582"},"PeriodicalIF":1.9,"publicationDate":"2016-08-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68364548","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Punishing on a Curve","authors":"Adi Leibovitch","doi":"10.2139/SSRN.2820197","DOIUrl":"https://doi.org/10.2139/SSRN.2820197","url":null,"abstract":"Does the punishment of one defendant change because of how she fares in comparison to the other defendants on the judge’s docket? This article demonstrates that the troubling answer is yes. Judges sentence the same case more harshly when their caseloads contain relatively milder offenses, and more leniently when their caseloads contain more serious crimes. I call this problem “punishing on a curve.”Consequently, the article shows how such relative sentencing patterns put into question the prevailing practice of establishing specialized courts or courts of limited jurisdiction. Because judges are punishing on a curve, the court’s jurisdiction systematically shapes sentencing outcomes. Courts of limited jurisdiction usually specialize in relatively less serious crimes (such as misdemeanors, drug offenses, or juvenile cases). They treat the mild offenses on their docket more harshly than generalist courts, that also see severe crimes, would have treated them. This leads to the disturbing effect of increasing punitive outcomes vis-a-vis these offenses, wholly contradictory to the missions of these courts. Such sentencing patterns undermine notions of justice and equitable treatment. They also undermine retributive principles and marginal deterrence across crimes of increasing severity.In light of the profound normative and practical implications, the article offers a remedy to standardize sentences through “statistical curving.” In addition to consulting the sentencing range recommended by the sentencing guidelines for a particular offense, a judge should see the distribution of sentences for the same offense across different courts. The article illustrates the feasibility of the proposal empirically using sentencing data from neighboring judicial districts in Pennsylvania. It also explains how this proposal fits within the Supreme Court’s jurisprudence following United States v. Booker, which rendered the sentencing guidelines advisory, and its potential advantage in improving appellate review.","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":"111 1","pages":"1205-1280"},"PeriodicalIF":1.9,"publicationDate":"2016-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68354525","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Promising the Constitution","authors":"Richard M. Re","doi":"10.2139/SSRN.2619896","DOIUrl":"https://doi.org/10.2139/SSRN.2619896","url":null,"abstract":"The Constitution requires that all legislators, judges, and executive officers swear or affirm their fidelity to it. The resulting practice, often called “the oath,” has had a pervasive role in constitutional law, giving rise to an underappreciated tradition of promissory constitutionalism. For example, the Supreme Court has cited the oath as a reason to invalidate statutes, or sustain them; to respect state courts, or override them; and to follow precedents, or overrule them. Meanwhile, commentators contend that the oath demands particular interpretive methods, such as originalism, or particular distributions of interpretive authority, such as departmentalism. This Article provides a new framework for understanding the oath, its moral content, and its implications for legal practice. Because it engenders a promise, the oath gives rise to personal moral obligations. Further, the content of each oath, like the content of everyday promises, is linked to its meaning at the time it is made. The oath accordingly provides a normative basis for officials to adhere to interpretive methods and substantive principles that are contemporaneously associated with “the Constitution.” So understood, the oath provides a solution to the “dead hand problem” and explains how the people can legitimately bind their elected representatives: with each vote cast, the people today choose to be governed by oathbound officials tomorrow. Constitutional duty thus flows from a rolling series of promises undertaken by individual officials at different times. As old officials give way to new ones, the overall constitutional order gradually evolves, with each official bound to a distinctive promise from the recent past. This process of gradual change is normally invisible because the oath also incorporates publicly recognized rules for legal change, or “change rules,” such as the Article V amendment process. As a result, the timing of an official’s oath becomes morally relevant only when a legal change has not complied with previously recognized change rules, such as in the case of a revolution. Finally, because promises, even constitutional promises, should sometimes be broken, the oath can illuminate the bounds of constitutional duty, including the role of stare decisis, and shed light on instances when the Constitution itself should be set aside.","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":"110 1","pages":"299-356"},"PeriodicalIF":1.9,"publicationDate":"2015-10-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68227637","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Curious Case of Cell Phone Location Data: Fourth Amendment Doctrine Mash-Up","authors":"M. Bedi","doi":"10.2139/SSRN.2641115","DOIUrl":"https://doi.org/10.2139/SSRN.2641115","url":null,"abstract":"Police surveillance ability and information gathering capacity have a dynamic relationship with technology. Greater advancements in technology make it easier for the police to surveil individuals and collect information. This state of affairs leads to heightened concerns over Fourth Amendment protection. This issue has most recently played out in the context of police collecting cell phone location data. Courts disagree on whether and to what extent this data garners Fourth Amendment protection. Underlying this disagreement rests a hitherto overlooked tension between two interrelated Fourth Amendment doctrines — the third-party and the public disclosure doctrines. While both vitiate privacy protection and are commonly associated together, they rely on very different triggers. This Essay provides a detailed analysis of these distinct features in an effort to harmonize the doctrines in the cell phone location data context.","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":"110 1","pages":"507-524"},"PeriodicalIF":1.9,"publicationDate":"2015-08-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68236842","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Inventing Around Copyright","authors":"D. Burk","doi":"10.31235/osf.io/cey2n","DOIUrl":"https://doi.org/10.31235/osf.io/cey2n","url":null,"abstract":"Patent law has long harbored the concept of “inventing around,” under which competitors to a patent holder may be expected, and even encouraged, to design their technologies so as to skirt the boundaries defined by patent claims. It has become increasingly clear that, for better or for worse, copyright also fosters inventing around. Copyright is not based on written claims, but because copyright links exclusive rights to technological actions such as reproduction, distribution, or transmission, the language of the copyright statute, and judicial readings of the statute, create boundaries around which potential infringers may technologically navigate. For example, the Aereo case recently decided by the Supreme Court involves technology that was explicitly designed to conform to non-infringing definitions of private transmission found in previous court decisions. But in copyright, unlike patent, there has been little analysis of the tendency to foster alternative technological development. In this paper I draw upon previous analyses of inventing around in patent law to assess the benefits and detriments of inventing around in copyright.","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":"109 1","pages":"547-562"},"PeriodicalIF":1.9,"publicationDate":"2014-07-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69652428","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Moonscape of Tax Equality: Windsor and Beyond","authors":"Anthony C. Infanti","doi":"10.31228/osf.io/usrqc","DOIUrl":"https://doi.org/10.31228/osf.io/usrqc","url":null,"abstract":"108 Northwestern University Law Review Colloquy 110 (2013)This essay takes a critical look at the tax fallout from the U.S. Supreme Court's decision in United States v. Windsor, which declared section three of the federal Defense of Marriage Act (DOMA) unconstitutional. The essay is important because, while other federal laws will apply to some same-sex couples some of the time, the federal tax laws are a concern for all same-sex couples all of the time. The essay is timely because it addresses the recently issued IRS guidance regarding the tax treatment of same-sex couples. In this essay, I first describe the path that led to the decision in Windsor. Then, I turn to describing the ways in which the post-Windsor tax terrain may actually be worse for same-sex couples than the bleak tax landscape that they faced before that decision. Under DOMA, same-sex couples already faced a debilitating level of uncertainty in determining how the federal tax laws applied to their relationships. Post-Windsor, same-sex couples will see this uncertainty multiply -- even after receiving guidance from the IRS on the implementation of the Windsor decision in the federal tax context. They will have to grapple not only with lingering questions surrounding the federal tax treatment of relationships that are not recognized, but also with new questions regarding whether and how their relationships will be recognized for federal tax purposes. Moreover, it seems that dispatching discrimination designed to erode the progress of same-sex couples toward formal equality has served only to entrench the privileged status of marriage in our federal tax laws rather than fostering the recognition of a broader array of human relationships.","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":"108 1","pages":"1115-1136"},"PeriodicalIF":1.9,"publicationDate":"2013-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69640522","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"How Congress Should Fix Personal Jurisdiction","authors":"Stephen E. Sachs","doi":"10.2139/SSRN.2203248","DOIUrl":"https://doi.org/10.2139/SSRN.2203248","url":null,"abstract":"Personal jurisdiction is a mess, and only Congress can fix it. Courts have sought a single doctrine that simultaneously guarantees convenience for plaintiffs, fairness for defendants, and legitimate authority for the tribunal. With these goals in conflict, each new fact pattern has pulled precedent in a different direction, robbing litigants of certainty and blunting the force of our substantive law. Solving the problem starts with reframing it. Rather than ask where a case may be heard, we should ask who may hear it. If the parties are from the same state, that state's courts are open. If not, the federal courts are. But today's law, thinking about places instead of persons, sows unnecessary confusion by obliging federal courts to follow state jurisdictional rules. This is a mistake, and something we can change. Following the invitation of a recent Supreme Court plurality, this Article suggests a system of nationwide federal personal jurisdiction, relieving federal courts of their jurisdictional dependence on state borders. In a federal forum, the court usually has undoubted authority over the parties--whose convenience can be addressed through well-crafted venue rules, backstopped by due process guarantees. Because our procedural rules have grown up in dependence on state jurisdiction, the Article goes on to draft legislative language addressing the new system's consequences for venue, choice of law, appeal rights, and other related issues. The Article's goal isn't to defend one specific proposal, but to encourage a variety of new proposals and, eventually, to change the direction of the debate. Scholars should spend more time thinking about the jurisdictional rules we would write for ourselves--which the Constitution actually lets us do, at least for federal courts. Only Congress can fix personal jurisdiction; we should start telling it how.","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":"108 1","pages":"1301-1354"},"PeriodicalIF":1.9,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67984725","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Irony of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC","authors":"C. M. Corbin","doi":"10.4324/9781315088945-16","DOIUrl":"https://doi.org/10.4324/9781315088945-16","url":null,"abstract":"In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, a schoolteacher sued her employer for retaliating against her in violation of the American with Disabilities Act (ADA). The success of her ADA claim turned on whether the Supreme Court thought that she was a minister. If she was not a minister, she would have probably won. After all, the school stated in writing that a main reason for her termination was her threatened lawsuit. But because the Supreme Court decided that she was a minister, and that ministers may not sue their religious employers for discrimination under the ministerial exception, she lost. In fact, neither the Free Exercise Clause nor the Establishment Clause necessitated the ministerial exception. Under Employment Division v. Smith, neutral laws of general applicability do not violate the Free Exercise Clause, and no one disputes that the ADA is a neutral law of general applicability. In attempting to distinguish Smith, the Supreme Court not only created an incoherent free exercise jurisprudence but also ignored Jones v. Wolf, which explicitly rejected blanket deference to religious institutions in matters of internal governance. Jones further recognized that a deference approach may cause more establishment problems than a neutral principles of law approach. Indeed, the irony of the Hosanna-Tabor case is that trying to discern whether the schoolteacher was a minister entangled the Court in religious doctrine more than simply adjudicating her retaliation claim would have.","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":"106 1","pages":"951-972"},"PeriodicalIF":1.9,"publicationDate":"2012-07-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70628076","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Citizens United and the Scope of Professor Teachout’s Anti-Corruption Principle","authors":"S. Tillman","doi":"10.2139/SSRN.2012800","DOIUrl":"https://doi.org/10.2139/SSRN.2012800","url":null,"abstract":"This is my opening statement in a 4-part exchange between Professor Teachout and me. The test of great scholarship is that it changes the way people think and the way people live. That is also true for legal academic scholarship. But, for legal academics, perhaps, the greatest sign of scholarly achievement is judicial reliance upon our craftsmanship. By any of these measures, Professor Teachout’s 2009 Cornell Law Review publication, The Anti-Corruption Principle, is a success. One short year after publication, in 2010, Anti-Corruption Principle was relied upon by Justice Stevens in his Citizens United v. Federal Elections Committee dissent, just as it was cited, disapprovingly, by Justice Scalia in his concurrence. If that were not enough of an accomplishment, Anti-Corruption Principle has also been cited in practitioners’ Supreme Court briefs, in other federal and state appellate and trial court briefs, and in some thirty academic articles. Finally, Anti-Corruption Principle has entered the public discourse: George Will excoriated Teachout’s article in his nationally syndicated column. Now, that is an achievement. Teachout’s Anti-Corruption Principle is part-and-parcel of the originalist project. It is an attempt to understand the Constitution in light of its text, drafting records, ratification debates, and general late eighteenth century history. Specifically, Teachout makes three related historical and interpretive claims. First, the Framers were “obsessed” with corruption. In other words, preventing or, at least, minimizing corruption was among the Framers’ primary goals, and absent an appreciation of this purpose, one cannot understand either the Constitution’s global architecture or several of its key structural provisions. Second, these separate individual anti-corruption constitutional provisions, working together, give rise to a separate or free-standing structural anti-corruption principle (“ACP”). And, third, the ACP can compete against other constitutional provisions and doctrines, thereby providing originalist foundations for upholding congressional enactments which would otherwise be struck down under competing principles. For example, Teachout points to the Foreign Emoluments Clause (“FEC”), which provides: [N]o Person holding any Office of Profit or Trust under them [i.e., the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State. Teachout suggests that foreign governments which lack loyalties running to the United States, may be analogized to “wealthy corporations,” whose “legal loyalties necessarily exclude patriotism.” Just as Congress, under the FEC, may proscribe (at least certain) federal officers from accepting gifts from foreign governments, Congress, Teachout suggests, may also have a concomitant power under the ACP to proscribe corporate election campaign contributions and spending. The stakes here are","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":"107 1","pages":"399-422"},"PeriodicalIF":1.9,"publicationDate":"2012-03-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67849856","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}