Copyright (c) 2007 University of San Diego School of Law All rights reserved. http://law.bepress.com/sandiegolwps Recent documents in University of San Diego Legal Working Paper Series en-us Thu, 04 Jan 2007 16:15:16 PST 3600 http://law.bepress.com/sandiegolwps/pllt/art37 http://law.bepress.com/sandiegolwps/pllt/art37 Thu, 02 Jun 2005 11:50:21 PDT In the modern debate over statutory interpretation, scholars frequently talk past one another, arguing for one or another interpretive approach on the basis of competing, and frequently undertheorized, conceptions of legislative supremacy and political theory. For example, so-called new textualists insist that the plain meaning approach is compelled by the U.S. Constitution and rule of law values; by contrast, theorists counseling a more dynamic approach often reject the premise of legislative supremacy that is supposed by the textualist view. A key element missing, therefore, from the modern statutory interpretation debate is a conspicuous articulation of the positive and empirical premises underlying the normative theory of interpretation; and, in particular, an unclear portrait of the theory of lawmaking supporting the theory of interpretation. In this paper, we consider statutory interpretation from the perspective of positive political theory (PPT) looking, first, at the best framework for understanding the relationship between duly authorized lawmakers and the judge/interpreters. We build upon the modern literature of communication theory to support the familiar view that a statute is best understood as an act of communication by the legislature to an audience. PPT helps us to draw various lessons for modern interpretation debates from this assumption. We consider several of these lessons in our paper, and we focus especially on the hoary debate over the use and utility of legislative history in construing ambiguous statutory language. Daniel B. Rodriguez Administrative Law General Law Judges Jurisdiction Jurisprudence Legislation Public Law and Legal Theory http://law.bepress.com/sandiegolwps/pllt/art36 http://law.bepress.com/sandiegolwps/pllt/art36 Thu, 02 Jun 2005 11:39:33 PDT In both the constitutional law of American criminal justice and the scholarly literature that law has generated, substance and procedure receive radically different treatment. The Supreme Court, even in this conservative political period, continues to require costly procedural safeguards that go beyond what elected legislatures have provided by statute. The Court, however, has shown great deference to the choices these same legislatures have made about what conduct may be made criminal and how severely it may be punished. The distinction between substance and procedure pervades academic thinking all the way down to its foundations. Substantive criminal law still holds its place in the sacred precincts of the first year curriculum. Criminal Law's cognate discipline is philosophy; the standard method of analysis is to measure general principles according to how well they track intuition's response to hypothetical cases. Criminal Procedure's cognate discipline is Constitutional Law; the standard method of analysis is to subject the operation of the criminal justice system to the same rhetoric of text, history, and precedent that frames the issues in separation of powers or freedom of speech cases. The philosophy mediated by doctrine is political, rather than moral theory. In trial level courthouses, however, the distinction fades, as the defendant trades his procedural rights for reductions in his substantive liability. The substantive law endows the prosecution with the ability to charge the same conduct at many different levels of potential punishment. The procedural law also endows the defense with its stock in trade - the rights to suppression motions, discovery, elaborate jury selection procedures, confrontation of the victim, and so on. These endowments are dynamic rather than static. A legislature that adopts a three-strikes law increases the prosecution's bargaining power. A court that reads the confrontation clause to bar excited utterances from the government's proof increases the defendant's bargaining power. In the trenches of criminal justice, these entitlements may well be traded off, erasing the distinction between substance and process. Admirable scholarship has exposed this basic dynamic. Debate continues about two great issues. First, is this state of affairs normatively defensible or not? Second, if the present relationship between substance and procedure is undesirable, what, if anything, can be done about it? In this paper I take up the second question, which seems to me to have drawn too little systematic attention (perhaps because it is so daunting). The literature has devoted considerable debate to alternatives to plea bargaining. But these discussions have been self-contained; they do not take account of the substance/procedure feedback loop already in place. The principal point against proposals to ban bargaining is not that we should not but that we cannot; self-interested, repeat-playing actors in the criminal justice process will find ways to bargain. The debate, naturally enough, has not gotten to the point of "what if we succeeded in banning plea bargaining?" As things stand, the prohibition of bargaining would leave prosecutors with unregulated discretion to select charges from overbroad and draconian criminal codes. Prohibiting bargaining would mean that defendants could not trade their constitutional procedural entitlements off against the state's substantive criminal law entitlements. The new model would be one in which defendants, facing decades in prison for relatively modest crimes, would stand trials they have little chance of winning. The discussions on plea bargaining have the same isolated quality as the discussions on individual bodies of criminal procedure doctrine. Of course they matter, in some cases; but the bigger picture is the relationship between substantive criminal law sentencing and the procedural rights of the defendant. So serious are the difficulties that I shall not - yet - defend any doctrinal reform on the ground that the relation between substance and procedure would be harmonized thereby. My task is one more modest, but I hope still useful. I aim to survey the possible strategies by which the system might escape the current impasse. The possible strategies fall into five basic categories. First, we might continue what we seem to be doing now: increasing constitutional procedural entitlements in the hope of mitigating the excesses of the substantive criminal law. Second, we might give up on the constitutional distinction between substance and process by deconstitutionalizing procedure altogether, or at least to a dramatic degree. Responsible then for both substance and process, legislatures might strike a better balance than is produced by the current division of labor. Third, we might achieve the same sort of unification by constitutionalizing substance. Robust judicial review of substantive criminal legislation might curb overcriminalization, which might in turn lead the courts to develop a more rational body of procedural rights. Fourth, we might look for more rigorous restrictions on prosecutorial discretion, building on administrative law and experience with sentencing guidelines. Fifth, we might look for more rigorous restrictions on the defendants' right to waive procedural rights for substantive advantage. What I hope to add to the scholarly conversation is a brief assessment of the promise and pitfalls that attend each of these strategies. Donald A. Dripps Criminal Law and Procedure Public Law and Legal Theory http://law.bepress.com/sandiegolwps/pllt/art35 http://law.bepress.com/sandiegolwps/pllt/art35 Thu, 02 Jun 2005 11:35:06 PDT Sovereigns, like individuals, must sometimes make commitments that limit their own freedom of action in order to accomplish their goals. Social scientists have observed that constitutional arrangements can, by restricting a sovereign's power, enable the sovereign to make such commitments. This paper advances several claims about the commitment problems that sovereigns face. First, constitutions do not necessarily solve such problems but can instead aggravate them, by entrenching inalienable governmental powers and immunities. Second, sovereigns and other actors face two distinct varieties of commitment problems - undercommitment and overcommitment - between which they must steer: an actor that can bind itself has surmounted the problem of undercommitment but must then face the risk of hobbling itself to an unforeseen or undesirable extent, or overcommitting itself. Third, courts are well positioned to navigate a course between these matching perils and to optimize the extent of the sovereign's commitments, even in the face of constitutional barriers to commitment by the sovereign. In performing these functions, however, courts risk damage to the basis of their own power - namely, their reputation for rendering fair and efficacious judgments. David S. Law Constitutional Law General Law International Law Public Law and Legal Theory http://law.bepress.com/sandiegolwps/pllt/art34 http://law.bepress.com/sandiegolwps/pllt/art34 Thu, 02 Jun 2005 11:26:38 PDT Justice William O. Douglas's majority opinion in Zorach v. Clauson famously asserted that "[w]e are a religious people whose institutions presuppose a Supreme Being." What did Douglas mean, and was he right? More recently, in cases involving the Ten Commandments, the Pledge of Allegiance and other public expressions and symbols, the Supreme Court has said that the Constitution prohibits government from endorsing religion. Can Douglas's "Supreme Being" assertion be reconciled with the "no endorsement" prohibition? And does the more modern doctrine demand that we forget, falsify, or forswear our pervasively religious political heritage? This essay, presented as the William O. Douglas lecture at Gonzaga Law School, addresses those questions. Steven D. Smith Constitutional Law Public Law and Legal Theory Religion http://law.bepress.com/sandiegolwps/pllt/art33 http://law.bepress.com/sandiegolwps/pllt/art33 Thu, 02 Jun 2005 11:23:07 PDT It is difficult, if not impossible, to discuss Dickerson v. United States intelligently without discussing Miranda, whose constitutional status Dickerson reaffirmed (or, one might say, resuscitated). It is also difficult, if not impossible, to discuss the Dickerson case intelligently without discussing cases the Court has handed down in the five years since Dickerson was decided. The hard truth is that in those five years the reaffirmation of Miranda's constitutional status has become less and less meaningful. In this paper I want to focus on the Court's characterization of statements elicited in violation of the Miranda warnings as not actually "coerced" or "compelled" but obtained merely in violation of Miranda's "prophylactic rules." This terminology has plagued the Miranda doctrine and puzzled and provoked many commentators since then-Justice Rehnquist utilized this label to describe and to diminish Miranda - and he was the first Justice ever to do so - thirty-one years ago Yale Kamisar Civil Rights Constitutional Law Courts Criminal Law and Procedure Evidence Public Law and Legal Theory http://law.bepress.com/sandiegolwps/pllt/art32 http://law.bepress.com/sandiegolwps/pllt/art32 Thu, 02 Jun 2005 11:14:36 PDT Why do law professors continue to produce scholarship even after achieving tenure? This essay, presented as part of a AALS panel discussing "Why We Write?", considers some common and less common responses, and suggests that for at least a few professors, legal scholarship can serve as a way of resisting the overbearing dominance of the "scientific" worldview evident in so much modern thought in favor of a perspective more attentive to the value of persons. Steven D. Smith General Law Legal Education Legal Profession Public Law and Legal Theory http://law.bepress.com/sandiegolwps/pllt/art31 http://law.bepress.com/sandiegolwps/pllt/art31 Thu, 02 Jun 2005 11:14:33 PDT This article considers whether lawyers act as zealous advocates when they represent mentally disordered, involuntarily committed patients who wish to assert their right to refuse treatment with psychotropic medication. After discussing a study that clearly demonstrates that lawyers do not do so, the article explores the reasons for this inappropriate behavior. Michael Perlin characterizes the problem as "sanism," which he describes as an irrational prejudice against mentally disabled persons of the same quality and character as other irrational prejudices that cause and are reflected in prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry. The article critiques Perlin's characterization of the problem and suggests other reasons for the phenomenon, including a belief that the civil commitment decision "proved" that the person was incompetent to make treatment decisions, and a belief that the decision on what treatment should be administered is a medical judgment to be made by the patient's doctor and should trump any patients' rights claim. The article concludes by considering whether aggressive advocacy would substantially improve the situation. Most patients accept-or are coerced into accepting-medication that their doctor prescribes. Because competency hearings are only conducted for those patients who assert a right to refuse medication, few patients would be affected by more aggressive attorney advocacy. Those patients who are successful in resisting coerced treatment are likely to be released from the hospital without an improvement in their mental condition and processed through the criminal justice system when they are detained in the future. Grant H. Morris Civil Rights Constitutional Law Criminal Law and Procedure Health Law and Policy Human Rights Law Medical Jurisprudence Professional Ethics Psychology and Psychiatry Public Law and Legal Theory http://law.bepress.com/sandiegolwps/pllt/art30 http://law.bepress.com/sandiegolwps/pllt/art30 Thu, 02 Jun 2005 11:09:06 PDT Since Watergate, legal scholars have participated in a larger debate about the President's constitutional relationship to prosecutions. In particular, many legal scholars sought to debunk the received wisdom that prosecution was an executive function subject to presidential control. Revisionist scholars cited early statutes and practices meant to demonstrate that early presidents lacked control over prosecution. Among other things, scholars asserted that early presidents could not control either the federal district attorneys or the popular prosecutors who brought qui tam suits to enforce federal law. In fact, many of the revisionist claims are wrong and others are beside the point. Despite the lack of statutory authority over the district attorneys, early presidents directed the district attorneys in all sorts of prosecutorial matters. As authority for their superintendence, presidents cited their constitutional power over law execution. Moreover, there is no evidence that the statutes authorizing qui tams were meant to preclude presidential control over the qui tam suits. If English practice is any indication, the chief executive was understood to enjoy a great deal of control over popular prosecutors. Though there are many reasons to divorce the president from prosecution, this scheme does not have the imprimatur of early constitutional history. As a matter of the Constitution's original understanding, constitutional text, structure, and history establish that the President is the constitutional prosecutor of all federal offenses whether prosecuted by official or popular prosecutors. Sai Prakash Constitutional Law Jurisprudence Politics Public Law and Legal Theory http://law.bepress.com/sandiegolwps/le/art13 http://law.bepress.com/sandiegolwps/le/art13 Tue, 24 May 2005 15:28:11 PDT Consider three examples of problematic corporate decision making: first, in 2002, employees were less likely to have employer-provided insurance than thirty years ago and the price of health care for those who do receive it is ever increasing. Second, while many employees are without health insurance, the compensation for chief executive officers and other executive officers has increased dramatically. Third, consider the well-publicized examples of corporate decisions to engage in fraudulent and unethical business practices. These problems will not be solved by glib references to market ideology that claims markets alone adequately regulate corporate behavior. Nor will these problems be solved by assuming that a few bad apples were responsible. Indeed, only by examining the environmental context in which decision making occurs will corporate ethics in the health care marketplace be furthered.This article is a brief overview of the importance of an organization's structure, policies and practices in the establishment of an ethical climate. An organization's climate affects whether individual employees, as well as the leaders of the organization, make ethical or unethical decisions. Part II of this article begins by defining ethical climates and describes how they are ascertained. Part III discusses two contextual factors in more detail: workplace leadership and reward structures. Finally, this article concludes with some basic recommendations for motivating organizations to work toward creating ethical climates. Lynne Dallas Professional Ethics http://law.bepress.com/sandiegolwps/le/art12 http://law.bepress.com/sandiegolwps/le/art12 Tue, 24 May 2005 15:05:38 PDT "Procedural Justice" offers a theory of procedural fairness for civil dispute resolution. The core idea behind the theory is the procedural legitimacy thesis: participation rights are essential for the legitimacy of adjudicatory procedures. The theory yields two principles of procedural justice: the accuracy principle and the participation principle. The two principles require a system of procedure to aim at accuracy and to afford reasonable rights of participation qualified by a practicability constraint. The Article begins in Part I, Introduction, with two observations. First, the function of procedure is to particularize general substantive norms so that they can guide action. Second, the hard problem of procedural justice corresponds to the following question: How can we regard ourselves as obligated by legitimate authority to comply with a judgment that we believe (or even know) to be in error with respect to the substantive merits? The theory of procedural justice is developed in several stages, beginning with some preliminary questions and problems. The first question - what is procedure? - is the most difficult and requires an extensive answer: Part II, Substance and Procedure, defines the subject of the inquiry by offering a new theory of the distinction between substance and procedure that acknowledges the entanglement of the action-guiding roles of substantive and procedural rules while preserving the distinction between two ideal types of rules. The key to the development of this account of the nature of procedure is a thought experiment, in which we imagine a world with the maximum possible acoustic separation between substance and procedure. Part III, The Foundations of Procedural Justice, lays out the premises of general jurisprudence that ground the theory and answers a series of objections to the notion that the search for a theory of procedural justice is a worthwhile enterprise. Sections II and III set the stage for the more difficult work of constructing a theory of procedural legitimacy. Part IV, Views of Procedural Justice, investigates the theories of procedural fairness found explicitly or implicitly in case law and commentary. After a preliminary inquiry that distinguishes procedural justice from other forms of justice, Part IV focuses on three models or theories. The first, the accuracy model, assumes that the aim of civil dispute resolution is correct application of the law to the facts. The second, the balancing model, assumes that the aim of civil procedure is to strike a fair balance between the costs and benefits of adjudication. The third, the participation model, assumes that the very idea of a correct outcome must be understood as a function of process that guarantees fair and equal participation. Part IV demonstrates that none of these models provides the basis for a fully adequate theory of procedural justice. In Part V, The Value of Participation, the lessons learned from analysis and critique of the three models are then applied to the question whether a right of participation can be justified for reasons that are not reducible to either its effect on the accuracy or its effect on the cost of adjudication. The most important result of Part V is the Participatory Legitimacy Thesis: it is (usually) a condition for the fairness of a procedure that those who are to be finally bound shall have a reasonable opportunity to participate in the proceedings. The central normative thrust of Procedural Justice is developed in Part VI, Principles of Procedural Justice. The first principle, the Participation Principle, stipulates a minimum (and minimal) right of participation, in the form of notice and an opportunity to be heard, that must be satisfied (if feasible) in order for a procedure to be considered fair. The second principle, the Accuracy Principle, specifies the achievement of legally correct outcomes as the criterion for measuring procedural fairness, subject to four provisos, each of which sets out circumstances under which a departure from the goal of accuracy is justified by procedural fairness itself. In Part VII, The Problem of Aggregation, the Participation Principle and the Accuracy Principle are applied to the central problem of contemporary civil procedure - the aggregation of claims in mass litigation. Part VIII offers some concluding observations about the point and significance of Procedural Justice. Lawrence B. Solum Law and Economics