Faculty Scholarship Digest

June 2009

On a regular basis, Dean Michaels prepares a memorandum summarizing recent scholarship published by members of the Moritz faculty. The College boasts 50+ faculty members with national and international reputations. The range of influential and innovative legal scholarly works produced by our distinguished faculty reflects a variety of perspectives, interests, and areas of expertise.


Douglas A. Berman

Douglas A. Berman, Reorienting Progressive Perspectives for Twenty-First Century Punishment Realities, 3 HARV. L. & POL. REV. ONLINE 1 (2008).

The thrust of this article is Berman’s contention that the well-intentioned efforts of progressives in criminal justice reform have become seriously problematic and perhaps even counter-productive, ignoring and likely exacerbating the overwhelming problem of mass incarceration. The article begins with an overview of mass incarceration: in less than three decades imprisonment rates quadrupled, and the United States imprisons more people than any other nation (more than #2 China) and at the greatest rate (more than #2 Russia and nearly double #3 Cuba).

Berman then turns to his argument that “progressive criminal justice reform efforts concerning innocence issues, abolition of the death penalty, and sentencing disparities may contribute to, and even exacerbate, the forces that have helped propel modern mass incarceration.” The article carefully and respectfully details the way in which advocacy in each of these areas may have contributed to mass incarceration. For example, the article suggests that death penalty opposition has made any other punishment (such as life without parole) more acceptable and focused an extraordinary level of defense resources and judicial attention to the very worst offenders at the expense of others. Similarly, Berman contends that the focus on wrongful convictions, while justified and understandable, also causes a “desensitization to injustices other than wrongful convictions.”

The article’s final section offers prescriptions for “progressive punishment advocacy.” These include embracing originalist perspectives and “our nation’s traditions of seeking to limit governmental power and our nation’s enduring commitment to protecting individual liberty” to “question America’s modern incarceration explosion.” The article also urges greater systematic use of “the ample and ever growing evidence that ‘tough on crime’ imprisonment policies are costly and often ineffectual” in producing community safety.

Douglas A. Berman

Douglas A. Berman, Exploring the Theory, Policy, and Practice of Fixing Broken Sentencing Guidelines, 21 FED. SENT. REP. 182 (2009).

In this brief essay, published in the leading journal on sentencing, Berman discusses priorities for fixing the sentencing guidelines, as part of a symposium taking a “second look” at sentencing reforms. Felicitously paraphrasing Shakespeare, the essay describes, with specific examples, how some of the federal sentencing guidelines are “born broken,” some “achieve brokenness in application,” and some “have brokenness thrust upon them.” What cannot be gainsaid, as Berman points out, is that some guidelines are broken. Given the general decline in crime rates and the remarkable, unprecedented growth in imprisonment rates, Berman argues that priority in repair of the sentencing guidelines should be given to those “which are broken because of their unjust and/or ineffective harshness.”

The essay offers methods both for determining which specific guidelines this would point to and some means for achieving the fixes. Berman’s second prescription in this essay is to give those fixes retroactive effect. As an example of the plausibility and efficacy of such an approach, the essay describes the retroactive application of the “fix” that was finally put in place in 2007 for the famous crack-vs.-cocaine-100-1-ratio sentencing disparity. The base offense level (essentially, the starting point for any federal sentence, before application of various aggravating and mitigating factors) for all crack offenses was reduced by two levels and subsequently the Sentencing Commission gave its amendment retroactive effect — potentially affecting 20,000 federal prisoners. Berman concludes that “[d]espite ‘sky-might-fall’ concerns expressed by the Department of Justice, federal prosecutors in many districts have readily acknowledged how well the federal justice system has handled the process of retroactively fixing past broken sentences.”

Douglas A. Berman

Douglas A. Berman, The Virtues of Offense/Offender Distinctions, in CRIMINAL LAW CONVERSATIONS (Paul H. Robinson et al. eds. Oxford 2009).

This is an innovative book created through a process in which criminal law articles were nominated for inclusion and then voted on via offers to comment open to all English speaking criminal law scholars, with the goal of collecting important debates in the criminal law field in a single volume. The result is 31 chapters, each with a “core text” by the selected author followed by comments from interested scholars and a reply by the original author. Berman and Moritz Professor Joshua Dressler both have “core texts” in the book.

Berman’s core text is based on his 2005 article in the Stanford Law Review (an idea later cited in a Supreme Court dissent) offering a solution to the conundrum the Supreme Court has created regarding the role of judges and juries at sentencing, by mandating an important role for juries with regard to certain matters. Berman’s proposal is to divide sentencing considerations between “offense conduct” (e.g., injury suffered by victim, use of weapon, amount of loss, type of drug) and “offender conduct” (e.g., previous record, family history, future dangerousness) and to apply the Apprendi line of cases (which requires that certain facts be found by a jury before they can be considered at sentencing) to “offense conduct” but not to “offender conduct.”

James J. Brudney, The Warp and Woof of Statutory Interpretation: Comparing Supreme Court Approaches in Tax Law and Workplace Law, 58 DUKE L.J. 1231 (2009) (w/Corey Ditslear).

This article is the latest entry in a series of empirical studies Brudney and his co-author have conducted using a database of Supreme Court workplace law decisions. This piece compares the Court’s use of legislative history and of the canons of construction in two very different doctrinal areas: workplace law and tax law. The article establishes significant differences between the Courts’ use of these methodologies in decisions in these areas. The Court has been significantly more likely over the past 30 years to use legislative history in tax law than workplace law and, the authors show, tend to use it in tax law more for “expertise-borrowing,” as opposed to workplace law, where it is more frequently used by the Court to explain legislative compromises. In recent years, in particular with Justice Blackmun (a tax expert and frequent author of tax opinions) departing the Court, the difference in frequency in the use of legislative history across these areas has vanished.

As to canons of construction, Brudney and his co-author find the Court significantly more likely to use language canons in tax cases than workplace cases, though there too the difference in recent years is less than in an earlier period. Beyond the rich and interesting detail of these and other discoveries, the article offers evidence that debates about methods of statutory interpretation require more than a thumbs up or thumbs down. Brudney and his co-author suggest that interpretive techniques may have different values in different areas of the law. The author’s identify a number of reasons why this is so and suggest the Court may have recognized some of these differences.

Martha  Chamallas

Martha Chamallas, Discrimination and Outrage, Exploring the Gap Between Civil Rights and Tort Recoveries, in FAULT LINES, TORT LAW AS CULTURAL PRACTICE (David M. Engel & Michael McCann eds. Stanford 2009).

This book chapter explores, with clarity and insight, the connection between tort law, in particular the tort of “outrage” (more commonly known as intentional infliction of emotional distress) and the civil rights laws, paying particular attention to claims of various forms of sexual harassment. It makes a fascinating tale. Intentional infliction of emotional distress is a relatively recent creation, dating to the 1940s. From the start, the chapter demonstrates, the “tort has been knee-deep in issues relating to gender, sexuality, and personal morality.” Reflecting dominant cultural mores, the tort protected female chastity by allowing recovery for false accusation of immoral sexual conduct. As to what we now think of as sexual harassment, the tort was inhospitable in the precivil rights era. Sexual solicitation cases failed under the view that “there is no harm in asking.”

The tort also offered “little protection against severe emotional distress inflicted by racist behavior.” In time, however, the emergence of sexual harassment law overthrew this premise, at least in some contexts. Thus, feminist activists seeking legal remedies for sexual harassment at first distrusted a torts-based approach, given the historical limitations. Through civil rights laws, however, sexual harassment law “now recognizes how disparities in power and status can produce offers that cannot be refused and can construct unequal working conditions for targeted workers.” As Chamallas summarizes: “The change in vocabulary from ‘solicitation’ to ‘harassment’ effectively conveys the distance traveled, from harmless offer to form of abuse.” Yet civil rights law has bumped up against a variety of limitations canvassed in the chapter. As a result of these limitations, “there has been a turn to tort law,” with its potential as a “vehicle for protecting a new equality-centered conception of dignitary harm.” At this point, however, Chamallas concludes that this result is “only speculative.” Time will tell.

Joshua  Dressler

Joshua Dressler, Provocation: Explaining and Justifying the Defense in Partial Excuse, Loss of Self-Control Terms, in CRIMINAL LAW CONVERSATIONS (Paul H. Robinson et al. eds. Oxford 2009).

This is an innovative book created through a process in which criminal law articles were nominated for inclusion and then voted on via offers to comment open to all English speaking criminal law scholars, with the goal of collecting important debates in the criminal law field in a single volume. The result is 31 chapters, each with a “core text” by the selected author followed by comments from interested scholars and a reply by the original author. Dressler and Moritz Professor Douglas Berman both have “core texts” in the book.

Dressler’s core text, discussing an issue for which his work has long-served as the starting point for discussion, draws on a 1982 article in the Journal of Criminal Law and Criminology and a 2002 article in the Minnesota Law Review. At issue is the many-centuries-old-still-going-strong criminal law doctrine of “provocation” (also known as “heat of passion”) that mitigates homicides from murder to manslaughter. Is the individual who kills under circumstances that led to a loss of self-control that would cause such a loss in some (but almost always not most) people subject to lesser (but still severe) punishment because of partial justification (the victim was partly to blame), partial excuse (the loss of control is somewhat understandable, like insanity — except less so), both, or neither? Dressler has long defended the position of partial excuse and lays out that argument here. He argues that with such a serious offense as homicide, partial excuses are needed to “permit juries to finely tune levels of criminal responsibility on the basis of differential culpability.” As to provocation, he contends that it is wrong “to stigmatize, condemn and punish a person to the extent that we do a murderer simply because that individual only lives up to the standard of the ordinary law-abiding but imperfect person in similar circumstances.”

Katherine Hunt Federle

Katherine Hunt Federle, Righting Wrongs: A Reply to the Uniform Law Commission’s Uniform Representation of Children in Abuse, Neglect, and Custody Proceedings Act, 42 FAMILY L. QUARTERLY 103 (2008).

This article is a vigorous attack on the Uniform Representation of Children in Abuse, Neglect, and Custody Proceedings Act (“URCANCPA”), which the Uniform Law Commission adopted in 2007. Federle argues that the URCANCPA “is a piece of paternalistic legislation that, while ostensibly well-intentioned, undermines the rights of children, violates the Model Rules of Professional Conduct, and sets the law regarding the representation of children back twenty years.” The article explains how URCANCPA departs from a trend among states to appoint “client-directed” lawyers for children in abuse and neglect cases, i.e., lawyers with the traditional role and duties of “client loyalty, client confidentiality, and a duty to advocate for the client’s objectives.”

Under URCANCPA, the article explains, client-directed advocacy is replaced by a best-interests-of-the-child advocate, an approach Federle contends that improperly assumes a severely diminished capacity of all children relative to adults and loses the important values and protections of legal representation, including advocating for a child’s constitutional and statutory rights when those rights match the child’s preferences. The article attributes the negative reaction to client-directed lawyering for children to a misplaced sense of responsibility for the decisions of children and fear of the greater difficulty of adequately counseling juvenile clients. Yet, Federle argues, “it is very clear to those of us who do provide direct legal representation to children that representing children as zealous advocates is not only theoretically and actually plausible but that there is inherent value in ensuring that the child has an advocate for his express preferences.”

L. Camille Hébert

L. Camille Hébert, Transforming Transsexual and Transgender Rights, 15 WILLIAM & MARY J. WOMEN AND THE LAW 535 (2009).

In this article, Hébert contends that discrimination against transsexual and transgendered individuals constitutes sex discrimination within the meaning of Title VII. (Transgendered individuals, the broader category, refers to those “who fail to conform to the traditional stereotypes and characteristics associated with the gender that they are assigned at birth”). The article begins with a brief examination of the possibility of protecting these individuals under disability statutes, but concludes that such laws would only potentially cover a small subset of such individuals, while providing inadequate protection even to that subgroup while simultaneously stigmatizing them.

The article next covers the possibility of expressly including transgendered and transsexual individuals in anti-discrimination statutes. Legislative efforts in this regard have succeeded in about ten states, but failed elsewhere. The article then turns to consideration of existing sex discrimination prohibitions, Title VII in particular, and provides a detailed critical analysis of the decided cases. Claims of these individuals have met with some success when they rely on traditional sex discrimination claims, i.e., claims that would have the same content apart from the plaintiff’s transgendered status, though the article shows mixed outcomes.

Ultimately, however, Hébert offers a broader theory. The article develops the argument that the reasons employers and others “react negatively to transsexual and transgendered individuals may be precisely related to sex or gender.” Therefore, discrimination against these groups “should appropriately be considered discrimination on the basis of sex, as sex would have been a ‘motivating factor’ for the challenged employment practice.” After developing this argument, Hébert critically canvasses the almost uniform resistance from courts of such direct inclusion of transgendered individuals within Title VII’s protection.

Steven F. Huefner

Steven F. Huefner, Congressional Searches and Seizures: The Place of Legislative Privilege, 24 J. L. & POLITICS 271 (2008).

The U.S. Constitution provides that “for any Speech or Debate in either House, [Members of Congress] shall not be questioned in any other Place.” The “Speech or Debate Clause” received increased attention recently as a result of the FBI’s unprecedented search of the congressional office of then-Representative William Jefferson as part of an investigation that led to Jefferson’s indictment on bribery and other charges. In this article, Huefner provides a thorough historical, doctrinal and theoretical study of the Speech and Debate Clause to determine the appropriate scope of the privilege it provides to lawmakers – in particular, in addition to the absolute immunity it provides against both civil and criminal liability for representatives’ legislative work, the extent to which the Clause bars executive searches.

Huefner’s conclusion on this ultimate issue holds a middle ground: within the Congressional Office buildings, a presumption of privilege against search should prevail that could only be overcome in certain, limited, circumstances. While not seeking an absolute privilege, the article’s approach would provide more protection in this particular context than lower courts have recognized to date. Huefner uses the Clause’s evident purpose to protect a robust legislative branch and interpretations of the Clause in other contexts to defend this interpretation, while thoroughly exploring alternatives and potential critiques of his argument.

Edward Lee, Guns and Speech Technologies: How the Right to Bear Arms Affects Copyright Regulations of Speech Technologies, 27 WILLIAM & MARY BILL OF RIGHTS J. 1037 (2009).

In 2008, the Supreme Court held that the Second Amendment right to bear arms is an individual right, rather than one applicable only in the militia context, and found a federal gun control law (for Washington, D.C.) unconstitutional. This article makes the surprising claim that “the most far-reaching effect the decision may have is — hard to imagine — in copyright law.”

Specifically, Lee explains how congressional restrictions on “speech technologies” through copyright law may violate the First Amendment in the same way that gun control laws were found to violate the Second Amendment. The Constitution, Lee notes, protects only two “technologies” by name: “arms” (i.e., guns, in the Second Amendment) and the “press” (i.e., the printing press, in the First Amendment), and the article demonstrates that both restrictions grew out of English abuses depriving people of the “technology” and were seen as bulwarks against the tyranny of the state. From this background, the article develops a test for the freedom of the press that tracks the Court’s decision regarding the Second Amendment: If the speech technology falls “within the protection of ‘press,’” then a government restriction is absolutely barred if it violates a “core protection” of the Amendment “as historically or originally understood” and is subject to scrutiny if it falls outside the “core.” The article notes that both cable TV and the internet would count as “press” technologies and shows how certain existing and proposed copyright laws (though certainly not all) would be unconstitutional under such an analysis.

john a. powell, Post-Racialism or Targeted Universalism?, 86 DEN. UNIV. L. REV.785 (2009).

This article, part of a symposium on the election of President Barack Obama, offers a critical examination of the claims that Obama’s election signals a “colorblind” or a “post-racial” society. In discussing these questions and their policy implications, the article provides an overview of a great deal of powell’s recent scholarship. powell uses the term “racialization” — the practices, norms and institutional arrangements that reflect, create and maintain race-related outcomes in society — rather than “racism” in this analysis as a reminder of the broader and fluid context that leads to racialized outcomes.

With this understanding, the article asks “what are we to do with our existing racialized conditions and arrangements, from schools, to housing, to the criminal justice system?” The answer, the article contends, is that reliance on facially “colorblind” policies — what powell calls “false universalism” — and a clear improvement in conscious racial attitudes (reflected in Obama’s election) are inadequate. powell makes these arguments with detailed explanation and examples from a myriad of federal policies and their history.

The article describes “two emerging sites for the practice of racialization today:” structural racialization and implicit bias. The latter term is becoming widely understood, the former refers to institutional arrangements that “continue to distribute racialized outcomes in part because of our different situatedness.” powell concludes the article with a discussion of means of combating these challenges.

John B. Quigley

John Quigley, Genocide: A Useful Legal Category?, 19 INT’L CRIM. JUST. REV. 115 (2009).

In the aftermath of the atrocities of the Third Reich, the nations of the world framed a Genocide Convention creating rules not only to punish, but also “to stop incipient atrocities.” As Quigley explains, the crime of genocide was therefore defined based on an “intent to destroy, in whole or in part, a national, ethnic, racial, or religious group” and to take certain acts with that intent, but one killing or attack can suffice, provided the necessary intent can be proven. Reviewing the history of both domestic and international prosecutions of individuals for the crime of genocide, the article argues that political considerations or the appearance of political considerations, as well as the availability of other charges such as crimes against humanity and traditional assault and homicide crimes, often make the crime of genocide an unfortunate alternative.

The article then identifies a series of issues Quigley contends limit the Genocide Convention’s effectiveness against state sponsored genocide, including states’ refusal to submit to International Court of Justice (“ICJ”) jurisdiction, doubt over whether the Genocide Convention prohibits genocide for states as opposed to individuals and the length of time ICJ cases take. Yet, because the crime of genocide is one of the rare legal categories that allow any state to potentially gain jurisdiction over another state, the article concludes, based on its comprehensive survey of cases over the decades, that genocide “may be of greater utility in the state-to-state context than in criminal prosecutions.”

John B. Quigley

John Quigley, “If You Are Not a United States Citizen...”, International Requirements in the Arrest of Foreigners, 6 OHIO ST. J. CRIM. L. 661 (2009).

Quigley is the leading authority on the law of consular relations, and in this commentary he returns to the subject as it regards obligations under international law regarding consular access for a citizen of one country arrested in another country. In the past decade, the U.S. Supreme Court has heard four cases of foreign nationals challenging their criminal convictions on the grounds of violation of consular access law and ruled against the foreign national each time.

After reviewing consular access law, the commentary turns to the most frequent issue: failure to inform an arrested person of their right to consular access. The article canvasses the sources of these difficulties, the resulting litigation, and the potential consequences. Quigley describes the United States as alone among states in its opposition to rights and remedies regarding consular access and continues his argument that the United States should apply the remedy of exclusion for incriminating statements when an arrestee is not informed of this right.

John B. Quigley

John Quigley, The Palestine Declaration to the International Criminal Court: The Statehood Issue, 35 RUTGERS LAW RECORD 1 (2009).

In January, 2009, the Palestinian National Authority submitted a declaration “accepting” International Criminal Court (“ICC”) jurisdiction in “the territory of Palestine.” When a state accepts ICC jurisdiction, it gives the ICC jurisdiction over various crimes, such as aggression, committed in its territory. Thus, by this declaration, the Palestinian National Authority presumably seeks to challenge recent Israeli actions in Gaza. A key element of this challenge would be a determination of whether Palestine qualifies as a “state” under the ICC statute, since only a sovereign state can confer territorial jurisdiction to the ICC.

In this essay, Quigley argues that Palestine does so qualify. In support of this view, Quigley points to the Palestine National Council’s 1988 declaration of statehood, the reaction of other states at that time and subsequently, the absence of competing claims to title (Quigley argues that, although Israel controlled Gaza in 1988 “as a belligerent occupant,” it “did not claim sovereignty”), a right to self-determination, and a history of Palestinian statehood.

Jeffrey S. Sutton, San Antonio Independent School District v. Rodriguez and Its Aftermath, 94 VA. L. REV. 1963 (2009).

This article grew from the Ola B. Smith Lecture that Judge Sutton, an adjunct professor at Moritz, gave at the University of Virginia Law School. In San Antonio School District, the Supreme Court faced a challenge to the Texas public school system which, by its heavy dependence on property taxes, created gross differences in funding on a per pupil basis across the state. In its 5-4 ruling for the defendants, the Court found that education was not a fundamental right, that wealth was not a suspect classification and, as Justice Stewart wrote in his concurrence, though the challenged system was “chaotic and unjust,” it did not violate the federal constitution.

In this article, Judge Sutton examines the history of school funding in the 35 years since Rodriguez, noting that by now every state has adopted a school-financing equalization scheme of some kind, which tended to increase the minimum spent by each school district, and that lawsuits under state constitutional provisions have brought further funding improvements (45 states have faced state-constitutional challenges, with plaintiffs prevailing in 28 of the cases). The article asserts that, “[r]ight or wrong, Rodriguez unleashed school-funding innovation throughout the country that exists to this day.” As a result, Judge Sutton suggests, perhaps advocates of progressive reform for public schools have achieved more through losing Rodriguez than they would have by winning.

While recognizing that severe inequities in school funding remain, the article offers half a dozen reasons why the piecemeal state legislation/state lawsuit approach may have been better than a win in Rodriguez, including the difficulty of imposing a single remedy across the country, the Court’s questionable competence in providing a remedy for such complex policy issues, and the difficulty the Supreme Court would have had in “trying to compel legislatures to raise money” for what is, at bottom, a monetary issue. Indeed, Judge Sutton notes, a similar reaction of “if the Court will not regulate we will have to,” has arisen with regard to the power of eminent domain following the Court’s decision in Kelo v. City of New London, declining to find a Takings Clause violation in the presence of a public use.

Judge Sutton concludes that “[i]n the final analysis, the policy issues implicated by Rodriguez seem more amenable to fifty imperfect solutions than one imperfect solution, particularly if . . . a one-solution approach would have faced so many remedy-limiting constraints.”


Dan Tokaji, Commentary, The Justiciability of Eligibility: May Courts Decide Who Can Be President?, 107 MICH. L. REV. FIRST IMPRESSIONS 31 (2008).

In this article, Tokaji tackled the question whether lawsuits seeking to challenge the eligibility of John McCain (because he was born in the Panama Canal Zone), Barack Obama (on the allegation that he was born in Kenya rather than Hawaii), or any other candidate could be heard in federal court in the first instance. Tokaji concluded that they could not. The article carefully describes how both rules of standing and the political question doctrine would likely bar adjudication.

Standing issues come in two flavors: Article III standing (the constitutional limits on federal courts) and prudential standing (“judicially self-imposed limits on the exercise of federal jurisdiction”). The article contends that both doctrines would likely block such lawsuits. Article III standing would be lacking because its injury-in-fact requirement, which requires a “personal stake,” likely could not be met. For example, Tokaji notes, the Supreme Court found the “‘generalized interest of all citizens in constitutional governance” insufficient in a lawsuit based on the constitutional bar to members of Congress serving in the executive branch. Even were this barrier overcome, say by the democratic party nominee suing the republican party nominee claiming he or she did have a personal stake, Tokaji argues that prudential standing would present “formidable difficulties” for such a lawsuit because of the generalized interest at stake and perhaps because of a lack of institutional competence. Moreover, the claim might not be justiciable because of the political question doctrine, under the argument that determination of presidential eligibility is constitutionally committed to “a coordinate political department.” Tokaji explores the possibility of two such alternatives: a state court claim (since Article II, Section I gives state legislatures authority to choose the manner of picking electors) or a congressional decision as a part of the electoral vote-counting process.


Daniel C.K. Chow


This remarkable volume updates Chow’s original book published in 2002, which had grown from Chow’s experience, while on leave from the College, living in China and serving as in-house counsel for a major multinational enterprise seeking to expand its business in China. Much has changed in China in the seven years between editions, and the new volume covers these changes with the same inside-but-accessible expertise. The book covers both the basics of Chinese law in civil, criminal and administrative matters, as well as intellectual property and foreign investment, and the structure of the legal system as a whole, including the legislative and judicial branches and the communist party. New material covers everything from the 2008 Olympics, to economic growth, to the “Lawyers Law of 2007” which governs the legal profession in China.

Peter M. Shane

Peter M. Shane (with Jerry L. Mashaw and Richard A. Merrill), ADMINISTRATIVE LAW: THE AMERICAN PUBLIC LAW SYSTEM (West 6th Ed. 2009).

The latest edition of this leading casebook in Administrative Law runs 1,370 pages, not counting the seven appendices. Of course, as the authors note, administrative law “is a vital field subject to rapid change.” As this edition comes to press, “demands for re-regulation of financial intermediation are ascendant, and presidential control of agency decision-making has been subjected to increasingly harsh criticism.” Yet anyone over 40 can remember several swings of the many pendulums in administrative law, and Shane and his co-authors have risen to the task of keeping this foundational text (soon to celebrate its 35th birthday) current and useful to instruction of the next generation, thoughtfully integrating the new material in this dynamic field, rather than simply adding stratified layer upon layer.

Peter M. Shane


In this book, Shane contends that over the last thirty years the American constitutional structure of checks and balances has been devastated by a variety of forces producing increasing and increasingly effective claims of unilateral presidential power, what the book calls “presidentialism”—“a theory of government and a pattern of government practice that treat our Constitution as vesting in the President a fixed and expansive category of executive authority largely immune to legislative control or judicial review.” The book attends to the contrast between presidentialism and the vision of the framers, deconstructs the recent political events that have furthered presidentialism, disputes on their own turf both the empirical claim that presidentialism is good government practice (particularly in the modern era) and the legal claim that the Constitution, properly understood, supports presidentialism, and, finally, sets out proposed prescriptive steps to find the way back to constitutional pluralism. A theme throughout the book are examples and evidence for Shane’s view that a successful separation-of-powers system is as much a matter of norms as a matter of legal rules: “[W]here powers are allocated to each branch precisely with the purpose of rendering each branch vulnerable to the discretion of the others, some degree of institutional self-restraint is imperative.”

The book discusses presidentialism in the context of both inherent and delegated powers. The former debate considers the President’s ability to use presidential authority over military and foreign affairs to act unilaterally, or, indeed, in opposition to specific direction from Congress in such spheres. The latter debate concerns the President’s authority over powers that come from Congressional delegation — which includes most domestic policy. In this context, the question is whether the president is “the overseer” or “the decider” for the federal bureaucracy. As developed by Shane, each of these issues emerges as multi-faceted, distinct, and important. As an empirical matter, the book argues that “presidentialism” has reduced the quality of presidential decision-making — as a result of the insularity and defensiveness it fosters — and undermines the independent values of the rule of law and respect for alternative ideological perspectives. Shane supports these arguments with brief but trenchant reviews of particular executive actions.

The book’s final chapter offers prescriptions for a return to Madison’s pluralist vision. This includes, first, many suggestions for changes within government, such as a more consultive process for presidential appointments, more consultive legislative agenda-building from the executive, and a statement by the Supreme Court that “presidential signing statements have no jurisprudential weight.” Second, the chapter prescribes multiple democracy-promoting initiatives (e.g., election reforms). Such efforts are essential, Shane argues, because of “democracy’s foundational aim — legitimating government decision making through processes that respect the value of both political freedom and political equality.”

Book Review

Katherine Hunt Federle

Katherine Hunt Federle, Rights, Not Wrongs, 17 INT’l J. CHILDREN’S RIGHTS 321 (2009).

In this essay, Federle reviews Professor Martin Guggenheim’s book, What’s Wrong with Children’s Rights. As the review describes, the book “sets out to prove that giving children rights is bad: for children, their parents, and society.” The essay describes Guggenheim’s view that parental rights and parental authority should be paramount and that children’s rights are problematic because, due to children’s incapacity, such rights ultimately are vehicles for adult claims that only interfere with the core value of parental autonomy. In particular, Guggenheim attacks the “best interest of the child” standard, Federle explains, for “erod[ing] parental rights by permitting state over-intrusiveness.”

The essay finds some area of agreement with Guggenheim’s critique of existing practices. The best interest standard, Federle agrees, “does not provide a coherent way to resolve disputes because it is unknowable.” Unlike, Guggenheim, however, the essay sees the problem not as “too much” children’s rights, but too little. The essay argues that “providing children with client-centered and client-directed lawyers furthers a more coherent rights agenda in which we may speak about rights that remedy the essential powerlessness of children.” The essay explores Guggenheim’s core theory and contests its application in a number of specific legal contexts. “The real problem,” Federle contends, “is not [as Guggenheim suggests] that adults may use children’s rights claims to their own advantage but that the rights claims made on behalf of children are incoherent. . . . It therefore is critical to articulate rights claims on behalf of children that promote children’s legal interests without reference to capacity, protection, or dependence.”

Peter P. Swire, Proportionality for High-Tech Searches, 6 OHIO ST. J. CRIM. L.751 (2009).

In this essay, Swire reviews Professor Christopher Slobogin’s book, Privacy at Risk: The New Government Surveillance and the Future of the Fourth Amendment. The essay brings a privacy scholar’s perspective to a capstone work by a Fourth Amendment expert. Drawing on his previous work, Professor Slobogin, as the essay describes it, “hopes to re-organize Fourth Amendment doctrine for high-technology searches around the Proportionality Principle, which focuses on the degree of intrusiveness of the government action.” This contrasts with many circumstances of current Fourth Amendment doctrine which has a more binary, protected/unprotected approach.

Swire finds much to like in Slobogin’s thesis. For example, as detailed by Slobogin, the Proportionality Principle would bring scrutiny to the increasingly widespread use of closed-circuit television surveillance of public places. Swire thinks this would generally amount to commendable protection, noting that some of it is provided for by statute in the case of federal action (though he questions whether courts will be willing to constitutionalize such a detail-oriented analysis). As an additional example of the principle’s usefulness, the essay suggests its application to laptop searches at the border (currently, such searches may be conducted without reasonable suspicion).

At the same time, the essay notes two elements missing from the book’s coverage. First, Swire notes that the book omits discussion of the growing area of national security searches and seizures, in which federal law allows the government to access many kinds of records without recourse to a judge. Since September 11, such searches occur more than thirty-thousand times per year, and, Swire reports, the trend will continue with the 2008 update of the Foreign Intelligence Surveillance Act. Second, Swire notes the extensive international literature on the Proportionality Principle that Slobogin advocates, a broader debate that Slobogin could take part in.