Faculty Scholarship Digest

February 2010

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.


Article

Peter M. Shane

Peter Shane, Legislative Delegation, the Unitary Executive, and the Legitimacy of the Administrative State, 33 HARV. J. OF L. & PUB. POL. 103 (2010).

In this article, part of a symposium on separation of powers, Peter draws on arguments developed in his recent book Madison’s Nightmare to contend that current doctrine on the two most hotly contested contemporary issues in the field is optimal. Those two issues are: (i) the scope of Congress’ ability to delegate policy-making authority to the Executive Branch (broad or narrow), and (ii) the ability of Congress to structure how that authority is allocated within the Executive Branch (i.e., whether Congress can restrict presidential prerogatives with regard to delegated power).

Current doctrine allows broad delegation and ample Congressional authority to set the terms of its delegation. Some federalist scholars argue that both answers should come out the other way, narrow delegation and limited ability to dictate exercise of delegated authority, and Peter acknowledges that narrow delegation would temper some of the problems with the “unitary executive.” The article contends, however, that the delegation issue has been settled, and settled wisely, on the broad side for many decades, and that there is no reasonable possibility of reversal on this point.

The article argues, though, that a change which is conceivable—movement to limited Congressional ability to restrict presidential prerogatives with regard to delegated authority—would bring disaster: an unaccountable executive branch that would be prone to “shallow, defensive, ideologically driven, and sometimes lawless decision making.” Peter contends that current doctrine plausibly leads to democratic and competent (albeit imperfect) governance, and therefore well comports with the Framers’ original vision.


Ric  Simmons

Ric Simmons, Searching for Terrorists: Why Public Safety Is Not a Special Need, 59 DUKE L.J. 843 (2010).

In this ambitious article, Ric undertakes a comprehensive review of the constitutional status of “suspicionless searches,” those situations in which the government conducts searches of individuals without any individualized suspicion. While forty-five years ago the constitutionally approved group of such searches was a null set, recent decades have made many such searches commonplace: examples run the gamut from screening at airports and courthouses, to drug testing in schools, to drunk driving checkpoints. The landscape of judicial decisions examining such searches under the Fourth Amendment is a rocky one, to put it mildly, but the article brings fresh understanding to the cases by dividing the territory into three parts.

The first was the era of hijackings and bombings associated with “sixties,” the last the era since 9/11, and the other the period in between. The article’s careful attention to the historical context of these decisions helps make sense of this very jumbled case law. Sense, yes, but constitutional justification, no. Ric concludes that suspicionless searches, particularly under the “special needs” exception to the Fourth Amendment where they are currently parked, cannot be justified.

This argument has many facets, but a key point is Ric’s rejection of the argument that these searches are not for crime control purposes, the legal fiction on which their justification has largely depended. After critically surveying and rejecting some other theories commentators have offered to justify suspicionless searches (a generalized reasonableness test, deference to democratic processes, consent, and a special “terrorism” exception), Ric offers an elegant solution of taking the special needs doctrine seriously. The article proposes not allowing the results of suspicionless searches to be used in criminal proceedings, thereby forcing such searches to “comport[] with the [original] legitimate justification for special needs searches,” which would render them constitutional (and hence protect them from attack by civil suits).

The final section of the article examines the ramifications of such an approach and responds to potential criticisms.


Book Review

Douglas A. Berman

Douglas A. Berman, Digging Deeper Into, and Thinking Better About, the Interplay of Families and Criminal Justice (reviewing Dan Markel et al., PRIVILEGE OR PUNISH: CRIMINAL JUSTICE AND THE CHALLENGE OF FAMILY TIES), 13 NEW CRIM. L. REV. 119 (2010).

While Doug lauds the authors for recognizing that family issues in criminal justice have not been adequately analyzed and assessed, he takes strong issue in this review with the authors’ “lack of engagement with some basic realties concerning the interplay of family ties, gender dynamics and crime and justice.”

The review describes the book as “flush with speculations about how criminal justice doctrines that benefit or burden family ties might possibly affect criminal justice accuracy and crime control” and as concluding that, as a general matter, family matters should not “count” one way or the other in criminal law rules. Doug finds this discussion fatally flawed by the authors’ failure to examine the extensive real-world evidence regarding the interaction of family, gender, and crime. The review notes the authors’ claim that “‘having a family’ is morally comparable to ‘being of a certain race or religion’” and suggests that rather than being primarily concerned with the criminal justice values of punishing the guilty and protecting the innocent, the authors are “fundamentally dedicated to assailing a ‘traditional conception of the family’ in favor of promoting ‘voluntary relationships of care.’”

While not necessarily averse to the authors’ normative concerns, Doug contends that the realities of criminal justice in practice “have a much more profound impact on inequality, gender bias, heteronormitivity, and repronormativity than . . . [the] formal criminal law doctrines” the book exclusively examines. Doug suggests that an evidentiary approach would reveal that, in fact, “supporting healthy, wholesome, and happy family ties [in criminal law doctrine and elsewhere] may be the best way to reduce serious criminal offending by men directed toward women” as well as other criminal pathologies.


John B. Quigley

John Quigley, Holy and Contested City (reviewing JERUSALEM: IDEA AND REALITY, Tamar Mayer and Suleiman Ali Mourad eds.), 11 GLOBAL DIALOGUE 121 (2009).

In this review, John discusses a collection of eighteen essays by different authors that look at the great city of Jerusalem from the perspective of different ethnicities, while examining religion, geography and political struggles. John’s review describes a handful of the contributions, and offers his own critical take on their contentions. John lauds the book for the different perspectives it brings and the enhanced understanding of Jerusalem those perspectives provide but concludes that the book underscores a less happy point: “[T]he strong focus on Jerusalem, the importance given to it, may condemn Israelis and Arabs to even more years of conflict, of death, of destruction.”