Prosecutorial Constitutionalism – Article by Eric S. Fish

From Volume 90, Number 2 (January 2017)
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As adversary lawyers, prosecutors seek to convict defendants. But as government officials who take an oath of office, prosecutors must interpret and apply the Constitution in good faith. These two roles are at odds. The first pushes prosecutors to argue for narrow readings of defendants’ constitutional rights, while the second pushes prosecutors to enforce the Constitution evenhandedly. The crucial question is: when should prosecutors be adversary advocates, and when should they be quasi-judicial implementers of constitutional protections? This Article argues that prosecutors should adopt the latter role in situations where the adversary system fails to fully protect constitutional rights. This happens when judges are unable to effectively control prosecutors’ actions (for example, with regard to the duty to reveal exculpatory evidence), and also when judges underenforce constitutional rights out of concern for the separation of powers or the limitations of judicial doctrine (for example, with regard to charging decisions and plea bargains). In such situations, prosecutors should preserve defendants’ constitutional rights even if judicial doctrine does not require it, and even if doing so lowers the chance of obtaining a conviction.

But individual prosecutors should not be expected to decide by themselves when to switch between these two roles. Rather, prosecutors’ offices should, and in some cases already do, establish constitutional protections through internal policies that govern prosecutorial decisionmaking. Such policies can be found in places like the American Bar Association’s Rules of Professional Conduct, the United States Attorneys’ Manual, and the State of Washington’s Recommended Prosecution Standards. Indeed, although these documents are not presently understood as tools of constitutional enforcement, they protect defendants’ constitutional rights above the baseline set by judges in a wide variety of areas: charging decisions, plea bargaining, grand jury proceedings, the disclosure of exculpatory evidence, exonerations, and more. Consequently, these systems of regulation for prosecutors function as important (and understudied) sites of constitutional norm articulation.


 

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The Stamp Act and the Political Origins of American Legal and Economic Institutions – Article by Justin DuRivage & Claire Priest

From Volume 88, Number 4 (May 2015)
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The American colonial protest against Parliament’s Stamp Act was a landmark event in the history of the Founding Era, propelling the colonies toward independence. To date, scholars have focused on colonists’ constitutional objections to the Stamp Act. Yet, the Stamp Act taxed legal and institutional services and, as this Article describes, the opposition to the Stamp Act also focused on defending low-cost institutions that served local communities. It examines the arguments for and against the Stamp Act as revealing two distinct visions of the role for institutions in economic growth. It suggests that American independence affirmed colonists’ commitment to low-cost locally managed institutions within their developing economy.


 

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A Theory of Republican Perogative – Article by Julian Davis Mortenson

From Volume 88, Number 1 (November 2014)
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It was a dark time for the United States. Hopelessly outnumbered and outgunned, the federal troops at Fort Sumter surrendered to Confederate forces on April 13, 1861. Four days later, Virginia politicians voted to secede, and the Commonwealth militia mobilized to seize federal positions throughout the state. Terror swept through Washington, D.C., which suddenly found itself “on a military frontier.” Then things got worse. The Maryland state legislature announced a special session to decide whether to follow Virginia’s example. Riots by Confederate sympathizers exploded across Baltimore as word got out that the federal government was trying to bring in reinforcements by train. Mobs in Maryland blocked Massachusetts’s troops from reinforcing the pathetically under-defended capital. Authorities in Baltimore burned the city’s main railroad bridges—an act that “looked like plain treason” and left the government in Washington “defenseless and cut off from the rest of the North.”


 

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The Partisan Foundations of Judicial Campaign Finance – Article by Michael S. Kang & Joanna M. Shepherd

From Volume 86, Number 6 (September 2013)
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Money buys things. This is the worry about money in judicial elections. As campaign spending in judicial elections has rapidly ramped up, there is increasing concern that judicial elections now have become “floating auctions” in which contributors purchase favorable judicial treatment in exchange for campaign financing. For sitting judges, the prospective need for money to finance their re-election looms over judicial decisionmaking and tempts them to decide cases in ways that attract, or at worst would not alienate, prospective contributors. Even the Supreme Court, which has hardly demonstrated great concern about campaign finance, recognized for the first time the potential for actual bias from big-money campaign spending in state judicial elections in Caperton v. A.T. Massey Coal Co.

What is regularly missed in this story of modern judicial campaign finance, however, is that the Republican and Democratic Parties play an indispensable role in the influence of money on judicial decisionmaking. The intuitive understanding of judicial campaign finance as a direct exchange of money for influence between individual contributors and candidates is too simplistic to capture the larger realities of modern judicial elections. Of course, there is a very real relationship between contributions to judges and judicial decisions by those judges favorable to their contributors that we ourselves have helped document. However, in the modern world of judicial campaign finance, the Republican and Democratic Parties broker the powerful relationships between contributors and candidates, particularly in partisan elections where their involvement is greatest.


 

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Essay: Official Obedience and the Politics of Defining “Law” – Article by Frederick Schauer

From Volume 86, Number 6 (September 2013)
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Fawn Hall must not have been reading her Dworkin.

Her name has dissolved into history, but Fawn Hall was front-page news in 1987. Until 1986, she had served as personal secretary to Colonel Oliver North, the man at the center of the Iran-Contra scandal and its unlawful sale of arms to Iran and equally unlawful use of the proceeds to aid the Contra guerillas in Nicaragua. When the scandal broke, Hall was granted immunity and called before a congressional committee to testify about her role in the transactions and the ensuing cover-up. After it became apparent that Hall fully supported Colonel North and more than willingly participated in the alteration and shredding of incriminating documents, Representative Thomas Foley pointedly asked her how she felt about the multiple illegalities in which she and North had been involved. “[S]ometimes you have to go above the written law, I believe,” she answered. And with those eleven words, Hall became a historical footnote and target for the mockery and wrath of countless pundits and political opponents.


 

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How Lawyers’ Intuitions Prolong Litigation – Article by Andrew J. Wistrich & Jeffrey J. Rachlinski

From Volume 86, Number 3 (March 2013)
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Most lawsuits settle, but some settle later than they should. Too many compromises occur only after protracted discovery and expensive motion practice. Sometimes the delay precludes settlement altogether. Why does this happen? Several possibilities—such as the alleged greed of lawyers paid on an hourly basis—have been suggested, but they are insufficient to explain why so many cases do not settle until the eve of trial. We offer a novel account of the phenomenon of settling on the courthouse steps that is based upon empirical research concerning judgment and choice. Several cognitive illusions—the framing effect, the confirmation bias, nonconsequentialist reasoning, and the sunk-cost fallacy—produce intuitions in lawyers that can induce them to postpone serious settlement negotiations or to reject settlement proposals that should be accepted. Lawyers’ tendency to rely excessively on intuition exacerbate the impact of those cognitive illusions. The experiments presented in this Article indicate that the vulnerability of experienced lawyers to these cognitive errors can prolong litigation.


 

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Concepts of Law – Article by Mathew D. McCubbins & Mark Turner

From Volume 86, Number 3 (March 2013)
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All of law depends on vast concepts that stretch across time, space, causation, and agency. Far-reaching concepts make law possible from legislation and interpretation to enforcement and adjudication; from weighing evidence to establishing motive and intent; and from imposing fines or sentences to awarding compensation. But all of human thought and memory is just here and now. The vast dependencies of time, space, causation, and agency must exist in individual brains. How we manage to use here-and-now mental processes to produce legal concepts that stretch very broadly over vast expanses of our lives, institutions, and worlds is the point of this Article. We will discuss how human beings transform vast dependencies that stretch across time, space, causation, and agency into tractable, much smaller, and more compact concepts that we can hold onto, manipulate, and develop. We will explain how these compact concepts are “blends” for thinking about much larger mental webs of ideas that are too large to hold in mind themselves. We will also suggest a research agenda that may allow us to better understand what sorts of blends work, and which ones we discard and when. Examples of blends are everywhere in law. A “decedent” in law, for example, is a kind of agent who exists (but does not live) in the present, who is imbued with some of the intentionality of a person who once existed, and for whom there are documentary records expressing this past intentionality.


 

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Cheap, Easy, or Connected: The Conditions for Creating Group Coordination – Article by Mathew D. McCubbins, Daniel Rodriguez & Nicholas Weller

From Volume 86, Number 3 (March 2013)
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In both legal and political settings there has been a push toward adopting institutions that encourage consensus. The key feature of these institutions is that they bring interested parties together to communicate with each other. Existing research about the success or failure of particular institutions is ambiguous. Therefore, we turn our attention to understanding the general conditions when consensus is achievable, and we test experimentally three crucial factors that affect a group’s ability to achieve consensus: (1) the difficulty of the problem, (2) the costs of communication, and (3) the structure of communication. Using multiple experimental approaches, we find that difficult problems impede consensus, costs make consensus less likely (even relatively very small costs), and the structure of communication has significant effects and interacts with both problem difficulty and costs. In particular, the structure of communication can reduce the negative effect of costs and facilitate consensus. Together these results imply that consensus is only likely to occur if problems are easy, costs to communicate are low, or the communication structure helps overcome the other two problems. These findings can provide insight about the institutional designs that can be utilized to promote consensual outcomes.


 

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Beyond Facts and Norms: How Psychological Transparency Threatens and Restores Deliberation’s Legitimating Potential – Article by Arthur Lupia, Yanna Krupnikov & Adam Seth Levine

From Volume 86, Number 3 (March 2013)
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In Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, Jürgen Habermas describes a challenge to modern democracies and a procedure for adapting to this challenge. The challenge is that in the absence of natural law, or any other universally accepted moral or ethical code, no common framework informs people about what kinds of laws are, and are not, legitimate. Hence, if laws are to be accepted by, and hence binding on, the populations for whom they are intended to apply, an alternate legitimating mechanism is required.

Habermas describes communicative procedures that have the potential to provide legitimacy to collective decisions. In this ideal discourse (“ID”), as we describe it, all citizens have an equal right to speak and an obligation to listen. If deliberations culminate in agreement on the validity of socially relevant moral, ethical, or technical propositions, then the propositions serve as substantive foundations for subsequent legislative decisions and bureaucratic actions.


 

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Can Legal Actors Play Equilibrium Strategies? Two Dubious Assumptions in the Game-Theoretic Analysis of the Law – Article by Daniel Enemark

From Volume 86, Number 3 (March 2013)
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Strategic actors often require a great deal of informational and computational resources to calculate game-theoretic equilibria, and scholars need a precise accounting of incentives in order to model the decisions faced by these actors. Rarely are both of these conditions—player rationality and payoff quantifiability—met when scholars attempt to model the behavior of individual actors in the law (especially the behavior of lay people such as jurors, litigants, or criminals). Behavioral economists have proposed posthoc adjustments to account for the failure of player rationality, but these adjustments—if they are indeed correct—make the pursuit of equilibrium impossible for any actor with realistic informational and cognitive resources. This Article discusses the necessary conditions for the emergence of equilibrium strategies, and identifies examples of legal scholarship in which the use of equilibrium solution concepts is problematic because of the improbability that these conditions are met.


 

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