William and Mary law review最新文献

{"title":"Agencies Running from Agency Discretion","authors":"J. Ruhl, Kyle W. Robisch","doi":"10.2139/SSRN.2736561","DOIUrl":"https://doi.org/10.2139/SSRN.2736561","url":null,"abstract":"Discretion is the root source of administrative agency power and influence, but exercising discretion often requires agencies to undergo costly and time-consuming pre-decision assessment programs, such as under the Endangered Species Act (ESA) and National Environmental Policy Act (NEPA). Many federal agencies thus have argued strenuously, and counter-intuitively, that they do not have discretion over particular actions so as to avoid such pre-decision requirements. Interest group litigation challenging such agency moves has led to a new wave of jurisprudence exploring the dimensions of agency discretion. The emerging body of case law provides one of the most robust, focused judicial examinations of the nature and scope of agency discretion available in modern administrative law, but agency discretion aversion and the concerns it raises have gone largely unaddressed in legal scholarship. And yet the discretion aversion syndrome is primed only to expand as climate change implicates a broadening span of agency programs as having environmental impacts. This Article is the first to comprehensively describe and assess the ESA/NEPA discretion aversion trend to extract what it has to say not only about agencies, courts, and statutes, but also about agency discretion in general. Part I describes the origins and features of the ESA and NEPA assessment programs leading to agency discretion aversion. Part II identifies the strategies agencies use to escape the ESA and NEPA assessment programs by disclaiming discretion. Part III probes institutional concerns for agencies, courts, and the statutes that arise from the discretion aversion syndrome, including agency gaming behavior, judicial conflicts regarding when nondiscretion exists, and compromised statutory purposes. Before turning to solutions, Part IV steps back to assess what questions the ESA and NEPA nondiscretion case law raises for the conceptualization of agency discretion writ large, identifying discretion’s “negative space” as the source of tension between agencies and courts. Part V then circles back to reexamine the ESA and NEPA nondiscretion doctrines, evaluating alternative measures to deflate agencies’ discretion aversion impulse while promoting the statutes’ purposes. We conclude that the most effective reform will be to eliminate discretion as the litmus test for the ESA and NEPA, replacing it with criteria more responsive to the statutes’ twin purposes of improving agency decisions and providing information to other political institutions and the public.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2016-02-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2736561","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68280508","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Judicial Power to Regulate Plea Bargaining","authors":"Darryl K. Brown","doi":"10.2139/SSRN.2719909","DOIUrl":"https://doi.org/10.2139/SSRN.2719909","url":null,"abstract":"Plea bargaining in the United States is in critical respects unregulated, and a key reason is the marginal role to which judges have been relegated. In the wake of Santobello v. New York (1971), lower courts crafted Due Process doctrines through which they supervised the fairness of some aspects of the plea bargaining process. Within a decade, however, U.S. Supreme Court decisions began to shut down any constitutional basis for judicial supervision of plea negotiations or agreements. Those decisions rested primarily on two claims: separation of powers and the practical costs of regulating plea bargaining in busy criminal justice systems. Both rationales proved enormously influential. Legislative rulemaking and state courts both largely followed the Court in excluding judges — and in effect, the law — from any meaningful role.This article challenges these longstanding rationales. Historical practice suggests that separation of powers doctrine does not require the prevailing, exceedingly broad conception of “exclusive” executive control over charging and other components of the plea process. This is especially true in the states, many of which had long traditions of private prosecutors and judicial oversight over certain prosecution decisions, as well as different constitutional structures. By contrast, English courts — based on both common law and legislation — retain some power to review such decisions. Moreover, assertions that legal constraints on plea bargaining would fatally impair the “efficiency” of adjudication is belied by evidence of very high guilty plea rates both in England, where bargaining is more regulated, and in U.S. courts before the Supreme Court closed off meaningful grounds for judicial review.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2016-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68272244","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Second Dimension of the Supreme Court","authors":"J. Fischman, Tonja Jacobi","doi":"10.2139/SSRN.2649427","DOIUrl":"https://doi.org/10.2139/SSRN.2649427","url":null,"abstract":"Describing the justices of the Supreme Court as ‘liberals’ and ‘conservatives’ has become so standard — and the left-right division on the Court is considered so entrenched — that any deviation from that pattern is treated with surprise. Attentive Court watchers know that the justices are not just politicians in robes, deciding each case on a purely ideological basis. Yet the increasingly influential empirical legal studies literature assumes just that — that a left-right ideological dimension fully describes the Supreme Court. We show that there is a second, more legally-focused dimension of judicial decision-making. A continuum between legalism and pragmatism also divides the justices, in ways that cuts against ideological preferences. The second dimension is systematic and significant, occurring in multiple different legal areas, and in consistent patterns. Seen in this way, the justices and their decisions can be understood in more complex terms, not just as ideological flag bearers, but as jurists who regularly have to choose between legal methodology and outcome preferences. In two dimensions, different patterns of coalitions emerge: in the second dimension, it is the Chief Justice and Justice Sotomayor, not Justice Kennedy, who sit at the median of the Court, and decide the balance of power.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2015-08-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2649427","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68239101","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Charging on the Margin","authors":"P. Crane","doi":"10.2139/SSRN.2649229","DOIUrl":"https://doi.org/10.2139/SSRN.2649229","url":null,"abstract":"The American criminal justice system has experienced a significant expansion in the number and severity of penalties triggered by misdemeanor convictions. In particular, legislatures have increasingly attached severe collateral consequences to misdemeanor offenses — penalties such as being required to register as a sex offender, prohibitions on owning or possessing a firearm, and deportation. While there is a wealth of scholarship studying the effect this development has had on defendants and their attorneys, little attention has been paid to the impact collateral consequences have on prosecutorial incentives. This Article starts to remedy that gap by exploring the influence collateral consequences exert on initial charging decisions in low-level prosecutions. Critically, the ability to impose certain collateral consequences through a misdemeanor conviction unlocks an array of additional charging options for prosecutors. As a result, prosecutors are now more likely to engage in a practice I term “strategic undercharging.” A prosecutor engages in strategic undercharging when she charges a lesser offense than she otherwise could, but does so for reasons that advance her own aims — and not as an act of prosecutorial grace or leniency. In other words, prosecutors can sometimes gain more by charging less. By explaining why (and when) prosecutors are likely to engage in strategic undercharging, this Article complicates the conventional wisdom that prosecutors reflexively file the most severe charges available. This Article also proposes that collateral consequences be factored into the determination of what procedural safeguards are afforded a criminal defendant. Under existing law, collateral consequences are generally deemed irrelevant to that inquiry; the degree of procedural protection provided in a given case turns exclusively on the threatened term of incarceration. Changing this approach could have several salutary effects on the administration of collateral consequences. At a minimum, it would honor a basic principle underlying our criminal justice system: the threat of serious penalties warrants serious procedures.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2015-08-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68238987","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Legal Ignorance and Information-Forcing Rules","authors":"J. Verkerke","doi":"10.2139/SSRN.2408120","DOIUrl":"https://doi.org/10.2139/SSRN.2408120","url":null,"abstract":"People are often ignorant about the legal rules that govern the most common transactions in their lives. This Article analyzes one common regulatory response to our widespread legal ignorance. A surprisingly broad range of legal rules have the ostensible purpose of inducing sophisticated parties to draft express contract language that will inform their contractual partners about the legal rules governing a particular transaction. However, this “legal-information-forcing” objective often remains unrealized because people routinely sign contracts without reading and understanding their terms. In theory, courts could design information-forcing rules that would be truly informative. But recognizing the potential futility of attempts to inform many contracting parties about complex legal rules, this Article also develops and critiques several alternative justifications for “clause-forcing” rules that encourage sophisticated parties to draft express contract terms. Such terms could facilitate the activities of avid comparison shoppers, reviewers, and consumer advocates. Comprehensive written terms also may promote ex post legal clarity and thereby reduce the costs of resolving disputes. Finally, exculpatory clauses allow parties to contract out of the comparatively expensive legal system of dispute resolution in favor of a regime governed by informal social norms. On this account, clause-forcing rules encourage sophisticated drafting parties to signal their preference for a norm-governed relationship, and lawmakers then demarcate the boundary between law and norms by deciding whether to enforce exculpatory clauses. The normative desirability of these clause-forcing rules is unclear, but my exploration of these alternative justifications shows the conceptual poverty of accounts that presume express contract terms inform the majority of unsophisticated parties.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2015-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68185895","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"NCAA and the Rule of Reason: Analyzing Improved Education Quality as a Procompetitive Justification","authors":"Cameron Duane Ginder","doi":"10.2139/SSRN.2531950","DOIUrl":"https://doi.org/10.2139/SSRN.2531950","url":null,"abstract":"This Note analyzes the recent United States District Court for the Northern District of California decision in the O'Bannon v. NCAA case. The Note focuses narrowly on the court's decision to hold that improved education quality is a procompetitive benefit that justifies NCAA rules that restrict student-athlete compensation. The analysis lays out the relevant antitrust framework and compares the court's decision to Supreme Court precedent in National Society of Professional Engineers v. United States, FTC v. Indiana Federation of Dentists, and FTC v. Superior Court Trial Lawyers Association. The Note concludes that improved product quality in this situation does not justify the restraints in question. If compensating student-athletes really does decrease education quality, each university and prospective student-athlete can consider that before offering or accepting financial aid beyond the traditional athletic scholarship.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2015-02-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2531950","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68194014","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Why Plea Bargains are Not Confessions","authors":"Brandon L. Garrett","doi":"10.2139/SSRN.2533985","DOIUrl":"https://doi.org/10.2139/SSRN.2533985","url":null,"abstract":"Is a plea bargain a type of confession? Plea-bargaining is often justified as at its core a process involving in-court confession. The U.S. Supreme Court’s early decisions approved plea bargains as something “more than a confession which admits that the accused did various acts.” I argue in this Article that plea bargains are not confessions — they do not even typically involve detailed admissions of guilt. The defendant generally admits to acts satisfying elements of the crime — a legally sufficient admission to be sure, but often not under oath, and often not supported by an extensive factual record. Because plea bargains typically contain only formulaic admissions, they have limited preclusive impact in future cases. The modern trend is to find issues not precluded by a guilty plea, except perhaps as to elements of the charged offense. The problem with the lack of adjudicated facts arises when other actors later seek to attach collateral consequences on that conviction. More careful development of the factual record could help to prevent at least some guilty pleas by innocent defendants, but also important, it could produce reforms to more narrowly target the collateral consequences that now attach to entire categories of convictions. That is why I view it as particularly important to understand precisely why plea bargains are not “more than” and are in fact much less than confessions.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2014-12-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68194406","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"What's It Worth? Jury Damage Awards as Community Judgments","authors":"V. Hans","doi":"10.31228/osf.io/vjgw3","DOIUrl":"https://doi.org/10.31228/osf.io/vjgw3","url":null,"abstract":"TABLE OF CONTENTS INTRODUCTION I. DO JURY DAMAGE AWARDS REFLECT COMMUNITY NORMS? DIFFERENT PERSPECTIVES II. MODELS OF JURY DAMAGE AWARD DECISION MAKING III. VALUES AND DAMAGE AWARDS A. Individual Jurors' Experiences and Values B. Community Effects C. Judges Versus Juries D. Jury Damage Awards: Admittedly Imperfect Mirrors of Community Sentiment CONCLUSION \"The law wisely leaves the assessment of damages, as a rule, to juries, with the concession that there are no scales in which to weigh human suffering.\" (1) INTRODUCTION In a recent article, The Political Puzzle of the Civil Jury, Jason Solomon questions whether the civil jury operates effectively as a political institution. (2) Civil juries are said to perform multiple political functions. They inject community perspectives and values into legal decision making. (3) They act as a check on government and corporate power. (4) They legitimize the civil justice system. (5) Finally, they promote greater civic engagement among jurors. (6) Solomon concludes, however, that these claims about the civil jury's multiple political functions are overstated and understudied. (7) He calls for more theoretical and empirical study of the civil jury's performance of its political functions. (8) This Article offers a response to Solomon's piece, providing evidence about the political dimensions of jury damage award decision making. (91) argue that the damage award is a key part of the civil jury's political activity. Indeed, in my view, it is just as significant as the political nature of the civil jury's liability judgment, which up to now has been a more frequent topic of scholarly inquiry. (10) This Article focuses on one of the dimensions Solomon identifies: the injection of community perspectives and values into legal decision making. (11) I contend that damage awards and community values are deeply intertwined. The dollars that juries award, from the compensatory amounts they grant to auto accident victims to the punitive damages they deliver against large corporations, are very much products of community views and sentiments. (12) In my view, damage awards constitute powerful political actions by the civil jury. Civil jury damage awards serve to check or endorse private power, whether it is power over one's own neighbors or over business corporations. To support my argument, I draw on theoretical accounts of jury decision making about damages, including the story model, (13) insights from cultural cognition research, (14) and a new gist model that cognitive psychologist Valerie Reyna and I have developed to explain the process of jury damage award decision making. (15) Jurors' values constitute an important component of these and other models. (16) I also describe the empirical research that documents and establishes the pervasive influence and content of community values in jury damage award judgments. (17) I. DO JURY DAMAGE AWARDS REFLECT COMMUNITY NORMS? DIFFERENT PERSPECTIVES The dollar amount of a jur","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2014-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69640831","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Real Constitutional Problem with State Judicial Selection: Due Process Judicial Retention and the Dangers of Popular Constitutionalism","authors":"Martin H. Redish, Jennifer Aronoff","doi":"10.2139/SSRN.2402021","DOIUrl":"https://doi.org/10.2139/SSRN.2402021","url":null,"abstract":"In Caperton v. A.T. Massey Coal Co., decided in 2009, the Supreme Court held for the first time that conduct related to a judicial election campaign violated a litigant’s right to procedural due process because the opposing litigant had contributed an inordinate amount of money to the campaign of one of the justices ruling on the case. The due process danger recognized in Caperton rests on a fear of retrospective gratitude — i.e., the fear that the Justice would decide his contributor’s case differently because he was grateful for the litigant’s generous support. The Court’s focus on retrospective gratitude is simultaneously overinclusive and underinclusive. It is overinclusive because it proves far too much: All judges — even federal judges protected by Article III — owe their selection to someone, whether it is a president or a senator, and that has never been deemed to threaten their independence. Yet the due process rule that derives from the decision is also underinclusive, because it makes no reference to the real due process danger of state court elections. This Article argues that the key constitutional problem with the selection of state court judges is for the most part not the initial selection process, but rather the use of majoritarian processes (either retention elections or gubernatorial appointment) to determine judicial retention. It is in this context that all of the constitutional concerns about judicial independence converge, because it is in this context that the very real threat to decisional independence arises. Judicial fears that deciding a particular case in a particular manner could threaten her continued employment could easily skew the decision from a neutral decision grounded in the judge’s independent assessment of the facts and law. The Article argues that life tenure or at the very least some form of formal term limit is required by the Due Process Clause to assure constitutionally required judicial independence. As radical as this recommendation may be, we argue that there is no other way to assure the appearance or reality of fairness which lie at the core of the due process guarantee.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2014-02-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68182841","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Partisanship Spectrum","authors":"Justin Levitt","doi":"10.2139/SSRN.2239491","DOIUrl":"https://doi.org/10.2139/SSRN.2239491","url":null,"abstract":"In a polarized political environment, allegations of excessive partisanship by public actors are ubiquitous. Commentators, courts, and activists levy and process these allegations daily. But with remarkable consistency, they do so as if “partisanship” described a single phenomenon. This piece recognizes, for the first time, that the default mode of understanding is a descriptive and diagnostic failure, with meaningful consequences. Partisanship is not an “it,” but a “those.”Without a robust conceptualization of partisanship, it is difficult to treat pathologies of partisan governance. Indeed, it is difficult to distinguish the features from the bugs in our political system. Moreover, the failure to understand the multifarious nature of partisanship impairs our ability to assess how to best confront the partisanship we care about most, particularly in electoral regulation.In particular, most observers attempt to further or constrain partisanship through substantive rules and structural design. But parsing the spectrum of partisanship shows that these tools are neither necessary nor sufficient to address partisanship in its most disparaged forms. Conversely, analysts have failed to appreciate the power of strong situational norms to accomplish these ends. Because norms are socially constructed, our discourse about partisanship matters — and we are likely getting the discourse very wrong.This piece attempts to flesh out the distinctions that have been heretofore elided. It develops a typology of partisanship, and then engages that conceptual structure to assess the various tools by which forms of partisanship — including the most pernicious portions of the partisan structure — may be addressed.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2014-01-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68020726","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}