Few predicted that the constitutional fate of the Patient Protection and Affordable Care Act would turn on Congress’ power to lay and collect taxes. Yet in NFIB v. Sebelius, the Supreme Court upheld the centerpiece of the Act — the minimum coverage provision (MCP), commonly known as the “individual mandate” — as a tax. The unexpected basis of the Court’s holding has deflected attention from what may prove to be the decision’s more constitutionally consequential feature: that a majority of the Court agreed that Congress lacked authority under the Commerce Clause to penalize people who decline to purchase health insurance. Chief Justice Roberts and the four joint dissenters endorsed the novel limiting principle advanced by the Act’s challengers, distinguishing between economic “activity,” which Congress can regulate, and “inactivity,” which it cannot. Because the commerce power extends only to “existing commercial activity,” and because the uninsured were “inactive” in the market for health care, they reasoned, the MCP was not a regulation of commerce within the meaning of the Constitution. Critically, supporters of the activity/inactivity distinction insisted that it was an intrinsic constraint on congressional authority anchored in the text of Article I and the structural principle of federalism, rather than an “affirmative” prohibition rooted in a constitutional liberty interest. This Article argues that the neat dichotomy drawn by the Chief Justice and joint dissenters between intrinsic and rights-based constraints on legislative authority is illusory, and that it obscures both the underlying logic and broader implications of the activity/inactivity distinction. In fact, that distinction is rooted less in the constitutional enumeration of powers or federalism than in a concern about individual liberty. Even in the absence of a formal constitutional “right” to serve as a doctrinal vehicle, the Justices’ defense of economic liberty operates analogously to the substantive due process right to “liberty of contract” during the Lochner era — as a trigger for heightened scrutiny of legislative means and ends. Current scholarship addressing the role of individual liberty in NFIB v. Sebelius tends to deploy Lochner as a convenient rhetorical touchstone, to lend an air of illicitness or subterfuge to the majority’s Commerce Clause analysis. This Article argues that the Lochner-era substantive due process cases are both more nuanced and more instructive than judges and many scholars have realized. They illustrate, in particular, that constraints on legislative authority that are rooted in individual liberty and constraints on legislative authority that are rooted in enumerated powers and federalism can and do operate in dynamic relationship to one another. Reading NFIB v. Sebelius through this historical lens better equips us to interrogate the role that economic liberty plays in the majority’s Commerce Clause analysis, and provides an important alternati
{"title":"Federalism and Phantom Economic Rights in NFIB v. Sebelius","authors":"M. Lindsay","doi":"10.2139/SSRN.2341685","DOIUrl":"https://doi.org/10.2139/SSRN.2341685","url":null,"abstract":"Few predicted that the constitutional fate of the Patient Protection and Affordable Care Act would turn on Congress’ power to lay and collect taxes. Yet in NFIB v. Sebelius, the Supreme Court upheld the centerpiece of the Act — the minimum coverage provision (MCP), commonly known as the “individual mandate” — as a tax. The unexpected basis of the Court’s holding has deflected attention from what may prove to be the decision’s more constitutionally consequential feature: that a majority of the Court agreed that Congress lacked authority under the Commerce Clause to penalize people who decline to purchase health insurance. Chief Justice Roberts and the four joint dissenters endorsed the novel limiting principle advanced by the Act’s challengers, distinguishing between economic “activity,” which Congress can regulate, and “inactivity,” which it cannot. Because the commerce power extends only to “existing commercial activity,” and because the uninsured were “inactive” in the market for health care, they reasoned, the MCP was not a regulation of commerce within the meaning of the Constitution. Critically, supporters of the activity/inactivity distinction insisted that it was an intrinsic constraint on congressional authority anchored in the text of Article I and the structural principle of federalism, rather than an “affirmative” prohibition rooted in a constitutional liberty interest. This Article argues that the neat dichotomy drawn by the Chief Justice and joint dissenters between intrinsic and rights-based constraints on legislative authority is illusory, and that it obscures both the underlying logic and broader implications of the activity/inactivity distinction. In fact, that distinction is rooted less in the constitutional enumeration of powers or federalism than in a concern about individual liberty. Even in the absence of a formal constitutional “right” to serve as a doctrinal vehicle, the Justices’ defense of economic liberty operates analogously to the substantive due process right to “liberty of contract” during the Lochner era — as a trigger for heightened scrutiny of legislative means and ends. Current scholarship addressing the role of individual liberty in NFIB v. Sebelius tends to deploy Lochner as a convenient rhetorical touchstone, to lend an air of illicitness or subterfuge to the majority’s Commerce Clause analysis. This Article argues that the Lochner-era substantive due process cases are both more nuanced and more instructive than judges and many scholars have realized. They illustrate, in particular, that constraints on legislative authority that are rooted in individual liberty and constraints on legislative authority that are rooted in enumerated powers and federalism can and do operate in dynamic relationship to one another. Reading NFIB v. Sebelius through this historical lens better equips us to interrogate the role that economic liberty plays in the majority’s Commerce Clause analysis, and provides an important alternati","PeriodicalId":45537,"journal":{"name":"University of Cincinnati Law Review","volume":"82 1","pages":"687"},"PeriodicalIF":0.4,"publicationDate":"2013-10-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68120196","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Imagine if you were held accountable the rest of your life for something you did as a child? This is the Child Scarlet Letter in force: kids who commit criminal sexual acts and who pay the price with the burdens and stigma of sex offender registration. And in a game of “how low can you go?,” states have forced children as young as nine and ten years old onto sex offender registries, some with registration requirements that extend the rest of their lives. No matter the constitutionality of adult sex offender registration – and on that point, there is debate – this article argues that child sex offender registration violates the Eighth Amendment’s prohibition against cruel and unusual punishment. Once a sex offender, always a sex offender is not an apt adage when dealing with children who commit sexual offenses. Low recidivism rates and varied reasons for their misconduct demonstrate that a child’s criminal sexual act does not necessarily portend future predatory behavior. And with a net cast so wide it ensnares equally the child who rapes and the child who engages in sex with an underage partner, juvenile sex offender registration schemes are not moored to their civil regulatory intent. Compounding the problem is mandatory lifetime registration for child offenders. This paper analogizes this practice to juvenile sentences of life imprisonment without the possibility of parole, which the Supreme Court declared unconstitutional in Miller v. Alabama and Graham v. Florida. This article argues that mandatory lifetime registration applied to children in the same manner as adult offenders is cruel and unusual punishment because it violates fundamental principles that require sentencing practices to distinguish between adult and child offenders. Scrutiny of child sex offender registration laws places front and center the issue of what it means to judge our children. And on that issue, we are failing. The public’s desire to punish children appears fixed despite our understanding that child offenders pose little danger of recidivism, possess diminished culpability, and have the capacity for rehabilitation. In a debate clouded by emotion, it is increasingly clear that juvenile sex offender registration is cruel and unusual punishment.
{"title":"Against Juvenile Sex Offender Registration","authors":"C. Carpenter","doi":"10.2139/SSRN.2319139","DOIUrl":"https://doi.org/10.2139/SSRN.2319139","url":null,"abstract":"Imagine if you were held accountable the rest of your life for something you did as a child? This is the Child Scarlet Letter in force: kids who commit criminal sexual acts and who pay the price with the burdens and stigma of sex offender registration. And in a game of “how low can you go?,” states have forced children as young as nine and ten years old onto sex offender registries, some with registration requirements that extend the rest of their lives. No matter the constitutionality of adult sex offender registration – and on that point, there is debate – this article argues that child sex offender registration violates the Eighth Amendment’s prohibition against cruel and unusual punishment. Once a sex offender, always a sex offender is not an apt adage when dealing with children who commit sexual offenses. Low recidivism rates and varied reasons for their misconduct demonstrate that a child’s criminal sexual act does not necessarily portend future predatory behavior. And with a net cast so wide it ensnares equally the child who rapes and the child who engages in sex with an underage partner, juvenile sex offender registration schemes are not moored to their civil regulatory intent. Compounding the problem is mandatory lifetime registration for child offenders. This paper analogizes this practice to juvenile sentences of life imprisonment without the possibility of parole, which the Supreme Court declared unconstitutional in Miller v. Alabama and Graham v. Florida. This article argues that mandatory lifetime registration applied to children in the same manner as adult offenders is cruel and unusual punishment because it violates fundamental principles that require sentencing practices to distinguish between adult and child offenders. Scrutiny of child sex offender registration laws places front and center the issue of what it means to judge our children. And on that issue, we are failing. The public’s desire to punish children appears fixed despite our understanding that child offenders pose little danger of recidivism, possess diminished culpability, and have the capacity for rehabilitation. In a debate clouded by emotion, it is increasingly clear that juvenile sex offender registration is cruel and unusual punishment.","PeriodicalId":45537,"journal":{"name":"University of Cincinnati Law Review","volume":"82 1","pages":"747"},"PeriodicalIF":0.4,"publicationDate":"2013-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68098384","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article begins the much needed research on law students’ time famine. Time management complaints begin early in students’ legal education and generally go unresolved. As a result, practicing attorneys identify time famine as a leading cause of job dissatisfaction. To better arm graduating students, law schools must treat time as an essential component of practice-readiness. Unfortunately, most law schools ignore their students’ time management concerns, despite growing calls for greater “skills” training in legal education. To date, legal scholarship has overlooked psychological research on time management. Yet, this research is an essential starting point to effective instruction. Rather than viewing time management as a singular concept, this research shows it is actually multi-dimensional, compromised of multiple time structure skills and behaviors. This more nuanced understanding of time management means each dimension can be isolated, measured, and remediated. Rather than a shotgun approach, law schools can tailor instruction to law students’ specific deficiencies.To help identify these deficiencies, this Article presents a psychometric study of 1Ls – the first study to ever quantify law students’ time management problems. The study identifies five specific dimensions 1Ls lack: perceived control, present orientation, structured routine, goal setting, and mechanics. Using this information, the Article offers tailored advice on incorporating skills across the curriculum to help remedy these deficiencies. By learning foundational time management skills during law school, students have at least a fighting chance of managing time famine in practice.
{"title":"Time: An Empirical Analysis of Law Student Time Management Deficiencies","authors":"Christine P. Bartholomew","doi":"10.2139/SSRN.2136575","DOIUrl":"https://doi.org/10.2139/SSRN.2136575","url":null,"abstract":"This Article begins the much needed research on law students’ time famine. Time management complaints begin early in students’ legal education and generally go unresolved. As a result, practicing attorneys identify time famine as a leading cause of job dissatisfaction. To better arm graduating students, law schools must treat time as an essential component of practice-readiness. Unfortunately, most law schools ignore their students’ time management concerns, despite growing calls for greater “skills” training in legal education. To date, legal scholarship has overlooked psychological research on time management. Yet, this research is an essential starting point to effective instruction. Rather than viewing time management as a singular concept, this research shows it is actually multi-dimensional, compromised of multiple time structure skills and behaviors. This more nuanced understanding of time management means each dimension can be isolated, measured, and remediated. Rather than a shotgun approach, law schools can tailor instruction to law students’ specific deficiencies.To help identify these deficiencies, this Article presents a psychometric study of 1Ls – the first study to ever quantify law students’ time management problems. The study identifies five specific dimensions 1Ls lack: perceived control, present orientation, structured routine, goal setting, and mechanics. Using this information, the Article offers tailored advice on incorporating skills across the curriculum to help remedy these deficiencies. By learning foundational time management skills during law school, students have at least a fighting chance of managing time famine in practice.","PeriodicalId":45537,"journal":{"name":"University of Cincinnati Law Review","volume":"81 1","pages":"897-952"},"PeriodicalIF":0.4,"publicationDate":"2012-08-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2136575","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67937909","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Early in the days of attorney-client email, David Hricik wrote a soothing law review article, Lawyers Worry Too Much About Transmitting Client Confidences By Internet E-mail, arguing that email had risks but could be assumed private for the purpose of professional ethics. The ABA agreed in 1999, issuing a formal opinion that encrypting email was not required by ethical standards, and most jurisdictions followed suit. The 1999 ABA opinion persists today, despite being dangerously technology-specific, focused on almost obsolete technology, and over ten years later its legal foundation remains unsettled. I present three reasons why attorneys should be concerned about the risks to confidentiality in attorney-client email: legal uncertainty about general privacy expectations for email, broad waivers of email privacy through provider policies, and unrelated disclosure by third parties. Case-specific issues have become more important to determine ethical duties in confidential emails: manifold local privacy laws, local ethical standards, and provider policies. At least one type of email, employer-provided email, is no longer considered confidential in this context, a known ethical hazard for attorneys. In the context of Fourth Amendment law, email privacy remains unsettled, even after the landmark Sixth Circuit decision in Warshak. Legal, authorized third-party access now poses a serious risk to confidentiality in attorney-client email. Attorneys and clients need to understand these risks before informed consent is possible. Technology-based solutions may be part of broader best practices to protect confidentiality. Attorneys and clients must understand the technology at issue, rather than blindly risking clients’ confidences and their ethical duties on technologies they do not understand.
{"title":"Risky Mail: Concerns in Confidential Attorney-Client Email","authors":"R. Bolin","doi":"10.2139/SSRN.2013502","DOIUrl":"https://doi.org/10.2139/SSRN.2013502","url":null,"abstract":"Early in the days of attorney-client email, David Hricik wrote a soothing law review article, Lawyers Worry Too Much About Transmitting Client Confidences By Internet E-mail, arguing that email had risks but could be assumed private for the purpose of professional ethics. The ABA agreed in 1999, issuing a formal opinion that encrypting email was not required by ethical standards, and most jurisdictions followed suit. The 1999 ABA opinion persists today, despite being dangerously technology-specific, focused on almost obsolete technology, and over ten years later its legal foundation remains unsettled. I present three reasons why attorneys should be concerned about the risks to confidentiality in attorney-client email: legal uncertainty about general privacy expectations for email, broad waivers of email privacy through provider policies, and unrelated disclosure by third parties. Case-specific issues have become more important to determine ethical duties in confidential emails: manifold local privacy laws, local ethical standards, and provider policies. At least one type of email, employer-provided email, is no longer considered confidential in this context, a known ethical hazard for attorneys. In the context of Fourth Amendment law, email privacy remains unsettled, even after the landmark Sixth Circuit decision in Warshak. Legal, authorized third-party access now poses a serious risk to confidentiality in attorney-client email. Attorneys and clients need to understand these risks before informed consent is possible. Technology-based solutions may be part of broader best practices to protect confidentiality. Attorneys and clients must understand the technology at issue, rather than blindly risking clients’ confidences and their ethical duties on technologies they do not understand.","PeriodicalId":45537,"journal":{"name":"University of Cincinnati Law Review","volume":"81 1","pages":"7"},"PeriodicalIF":0.4,"publicationDate":"2012-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2013502","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67852586","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article seeks to answer the question whether earnouts really serve to respond to adverse selection, as commonly believed, or if alternatively, do they better address problems created by symmetric uncertainty. To answer this question I conduct difference of means tests for fair value estimates of earnouts at the time of acquisition and during the post-closing period. To the extent sellers rely on earnouts during the pre-contractual period to signal unobservable information about their own quality to an acquirer then post-closing fair value estimates should increase as acquirers confirm seller pre-signing statements. In fact, I do not find significant differences in the fair value disclosures at the time of acquisition and during the post-closing period, which suggests that parties rely on earnouts primarily to resolve the problem of uncertainty rather than adverse selection.
{"title":"Putting Your Money Where Your Mouth Is: The Performance of Earnouts in Corporate Acquisitions","authors":"B. Quinn","doi":"10.2139/SSRN.1958617","DOIUrl":"https://doi.org/10.2139/SSRN.1958617","url":null,"abstract":"This Article seeks to answer the question whether earnouts really serve to respond to adverse selection, as commonly believed, or if alternatively, do they better address problems created by symmetric uncertainty. To answer this question I conduct difference of means tests for fair value estimates of earnouts at the time of acquisition and during the post-closing period. To the extent sellers rely on earnouts during the pre-contractual period to signal unobservable information about their own quality to an acquirer then post-closing fair value estimates should increase as acquirers confirm seller pre-signing statements. In fact, I do not find significant differences in the fair value disclosures at the time of acquisition and during the post-closing period, which suggests that parties rely on earnouts primarily to resolve the problem of uncertainty rather than adverse selection.","PeriodicalId":45537,"journal":{"name":"University of Cincinnati Law Review","volume":"81 1","pages":"127"},"PeriodicalIF":0.4,"publicationDate":"2012-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67813287","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In a significant break with traditional evidence rules and policies, Federal Rules of Evidence 413-414 allow jurors to use the accused's prior sexual misconduct as evidence of character and propensity to commit the sex crime charged. As reflected in their legislative history, these propensity rules rest on the assumption that sexual predators represent a small number of highly deviant and recidivistic offenders. This view of who commits sex crimes justified the passage of the sex-crime propensity rules and continues to influence their continuing adoption among the states and the way courts assess such evidence under Rule 403. In depending on this image of sex crime perpetrators, legislators and judges have ignored the contrary psychological and criminological evidence. Most critiques of the sex-propensity Rules concentrate on the unfairness part of the Rule 403 equation, but we approach them in a novel way, focusing instead on the absence of empirical support for their so-called probative value. This article examines the empirical support for the probative value of such evidence, revealing that current policy rests on bogus psychology and false empirical assertions. Rules 413-414 typify the regrettable seat-of-the-pants psychologizing on which evidence rule drafters rely too often; the approach eschews a nuanced approach to questions of recidivism and the different types of sex offenders. We argue that rulemakers should look to the disciplines engaged in the empirical study of perpetrator behavior before asserting notions of deviance and recidivism to justify radical changes to evidence law. Finally, we offer specific guidance to judges about how to conceptualize the probative value of evidence of prior sexual misconduct and how to incorporate this knowledge in applying their discretion in admitting sex-crime propensity evidence.
{"title":"Empirical Fallacies of Evidence Law: A Critical Look at the Admission of Prior Sex Crimes","authors":"T. Lave, Aviva A. Orenstein","doi":"10.2139/SSRN.2143174","DOIUrl":"https://doi.org/10.2139/SSRN.2143174","url":null,"abstract":"In a significant break with traditional evidence rules and policies, Federal Rules of Evidence 413-414 allow jurors to use the accused's prior sexual misconduct as evidence of character and propensity to commit the sex crime charged. As reflected in their legislative history, these propensity rules rest on the assumption that sexual predators represent a small number of highly deviant and recidivistic offenders. This view of who commits sex crimes justified the passage of the sex-crime propensity rules and continues to influence their continuing adoption among the states and the way courts assess such evidence under Rule 403. In depending on this image of sex crime perpetrators, legislators and judges have ignored the contrary psychological and criminological evidence. Most critiques of the sex-propensity Rules concentrate on the unfairness part of the Rule 403 equation, but we approach them in a novel way, focusing instead on the absence of empirical support for their so-called probative value. This article examines the empirical support for the probative value of such evidence, revealing that current policy rests on bogus psychology and false empirical assertions. Rules 413-414 typify the regrettable seat-of-the-pants psychologizing on which evidence rule drafters rely too often; the approach eschews a nuanced approach to questions of recidivism and the different types of sex offenders. We argue that rulemakers should look to the disciplines engaged in the empirical study of perpetrator behavior before asserting notions of deviance and recidivism to justify radical changes to evidence law. Finally, we offer specific guidance to judges about how to conceptualize the probative value of evidence of prior sexual misconduct and how to incorporate this knowledge in applying their discretion in admitting sex-crime propensity evidence.","PeriodicalId":45537,"journal":{"name":"University of Cincinnati Law Review","volume":"81 1","pages":"795-837"},"PeriodicalIF":0.4,"publicationDate":"2012-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67943854","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Over the past forty years, the United States Congress has passed legislation expanding the federal criminal code intruding into an area typically reserved to the states. The “tough on crime” rhetoric of the 1980s and 1990s brought with it the enactment of various legislative initiatives: harsh mandatory minimum sentences for non-violent federal offenders, “truth in sentencing” laws that restricted or abolished parole and early release, and strict liability disqualifications from employment and federal benefits based solely on the fact of conviction. The effect of this legislation was the creation of a new criminal class: a federal prison population. However, unlike the states the federal government does not have a legal mechanism in place adequately reintegrating federal offenders back into the American polity. This has contributed to soaring federal incarceration rates, rising government costs for corrections, and a historically high rate of criminal recidivism. This is a price tag the United States can no longer afford to pay. This Article argues that individuals who have served their sentences and abided by the law for some period afterward should be given the opportunity to rid their slates of their criminal histories. Such expungement of criminal convictions for individuals who demonstrate that they will abide by the law are likely to reduce the costs of the criminal justice system and improve the lives of ex-offenders. First, this Article examines post-conviction penalties and contemporary recidivism trends. Second, this Article investigates the law governing federal pardons and judicial expungements, finding that the doctrines and their applications lack consistency, making it difficult for nonviolent offenders to re-enter mainstream society. This Article argues that simply eliminating post-conviction disabilities would be extremely complex and perhaps not practically or politically feasible. Moreover, the two existing federal post-conviction remedies — pardons and judicial expungements — are not designed to, and cannot as a practical matter, provide systematic relief from post-conviction disabilities. Using state post-conviction mechanisms as examples, this Article argues that congressionally sanctioned expungements are an attractive alternative to relieve non-violent offenders of the effects of post-conviction disabilities. I propose that the United States Sentencing Commission (U.S.S.C.) create a Second Chance Advisory Group to determine how best to ameliorate the collateral consequences of federal convictions. With a Second Chance Advisory group, the U.S.S.C. could be used as a vehicle for researching and recommending legislative policy initiatives that will effectively slash incarceration, recidivism, and opportunity costs.
{"title":"Clean Slate: Expanding Expungements and Pardons for Non-Violent Federal Offenders","authors":"Lahny R. Silva","doi":"10.2139/SSRN.2773773","DOIUrl":"https://doi.org/10.2139/SSRN.2773773","url":null,"abstract":"Over the past forty years, the United States Congress has passed legislation expanding the federal criminal code intruding into an area typically reserved to the states. The “tough on crime” rhetoric of the 1980s and 1990s brought with it the enactment of various legislative initiatives: harsh mandatory minimum sentences for non-violent federal offenders, “truth in sentencing” laws that restricted or abolished parole and early release, and strict liability disqualifications from employment and federal benefits based solely on the fact of conviction. The effect of this legislation was the creation of a new criminal class: a federal prison population. However, unlike the states the federal government does not have a legal mechanism in place adequately reintegrating federal offenders back into the American polity. This has contributed to soaring federal incarceration rates, rising government costs for corrections, and a historically high rate of criminal recidivism. This is a price tag the United States can no longer afford to pay. This Article argues that individuals who have served their sentences and abided by the law for some period afterward should be given the opportunity to rid their slates of their criminal histories. Such expungement of criminal convictions for individuals who demonstrate that they will abide by the law are likely to reduce the costs of the criminal justice system and improve the lives of ex-offenders. First, this Article examines post-conviction penalties and contemporary recidivism trends. Second, this Article investigates the law governing federal pardons and judicial expungements, finding that the doctrines and their applications lack consistency, making it difficult for nonviolent offenders to re-enter mainstream society. This Article argues that simply eliminating post-conviction disabilities would be extremely complex and perhaps not practically or politically feasible. Moreover, the two existing federal post-conviction remedies — pardons and judicial expungements — are not designed to, and cannot as a practical matter, provide systematic relief from post-conviction disabilities. Using state post-conviction mechanisms as examples, this Article argues that congressionally sanctioned expungements are an attractive alternative to relieve non-violent offenders of the effects of post-conviction disabilities. I propose that the United States Sentencing Commission (U.S.S.C.) create a Second Chance Advisory Group to determine how best to ameliorate the collateral consequences of federal convictions. With a Second Chance Advisory group, the U.S.S.C. could be used as a vehicle for researching and recommending legislative policy initiatives that will effectively slash incarceration, recidivism, and opportunity costs.","PeriodicalId":45537,"journal":{"name":"University of Cincinnati Law Review","volume":"79 1","pages":"4"},"PeriodicalIF":0.4,"publicationDate":"2010-05-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68310657","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The way in which families resolve disputes has undergone dramatic change over the last decade. Scholars have focused much attention on a number of substantive law changes that have contributed to this transformation. These include the changing definitions of marriage, parenthood, and families. But less attention has been paid to the enormous changes that have taken place in the processes surrounding family dispute resolution. These changes have been even more comprehensive and have fundamentally altered the way in which disputing families interact with the legal system. Both the methods and goals of legal intervention for families in conflict have changed, altering the roles of judges and lawyers and moving much of dispute resolution out of the courtroom. These developments have profound implications for the family justice system. They also reflect a broader jurisprudential shift away from the traditional values of the adversary system in both the civil and, to a lesser extent, the criminal justice system. The impact of this shift in this context has not been fully explored, particularly the direct and harmful impact of such changes on low income litigants. Part One of this Article describes the changes that have contributed to this paradigm shift. Part Two explores the fundamental ways in which the shift alters the traditional adversary system and the risks presented by these shifts. Finally, the Article offers proposals to assist in weighing the relative benefits of the therapeutic and adversarial approaches. Countering the trend in recent reform efforts, the Article argues for a reinvestment in the adversary system to design a justice system that serves all families.
{"title":"Revitalizing the Adversary System in Family Law","authors":"Jane C. Murphy","doi":"10.2139/SSRN.1376782","DOIUrl":"https://doi.org/10.2139/SSRN.1376782","url":null,"abstract":"The way in which families resolve disputes has undergone dramatic change over the last decade. Scholars have focused much attention on a number of substantive law changes that have contributed to this transformation. These include the changing definitions of marriage, parenthood, and families. But less attention has been paid to the enormous changes that have taken place in the processes surrounding family dispute resolution. These changes have been even more comprehensive and have fundamentally altered the way in which disputing families interact with the legal system. Both the methods and goals of legal intervention for families in conflict have changed, altering the roles of judges and lawyers and moving much of dispute resolution out of the courtroom. These developments have profound implications for the family justice system. They also reflect a broader jurisprudential shift away from the traditional values of the adversary system in both the civil and, to a lesser extent, the criminal justice system. The impact of this shift in this context has not been fully explored, particularly the direct and harmful impact of such changes on low income litigants. Part One of this Article describes the changes that have contributed to this paradigm shift. Part Two explores the fundamental ways in which the shift alters the traditional adversary system and the risks presented by these shifts. Finally, the Article offers proposals to assist in weighing the relative benefits of the therapeutic and adversarial approaches. Countering the trend in recent reform efforts, the Article argues for a reinvestment in the adversary system to design a justice system that serves all families.","PeriodicalId":45537,"journal":{"name":"University of Cincinnati Law Review","volume":"78 1","pages":"2"},"PeriodicalIF":0.4,"publicationDate":"2009-03-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68172746","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article challenges the myth that the government cannot protect the public interest because its access to appellate review is circumscribed. In fact, careful examination reveals that government access to appellate review in criminal cases is more extensive today that at most times in the history of the country. Since 1971, in federal cases, the government has been able to challenge a wide range of trial court ruling on appeal. The government can challenge other rulings through petitions for writ of mandamus. These two avenues to appellate review permit the government to raise many and diverse legal questions. Some questions nevertheless remain insulated from appellate review either because they arise in a trial that ends in acquittal or an improvidently ordered mistrial or because they simply never ripen into appealable issues. The article argues that, to the extent a problem of asymmetry thus remains, the courts and the government should take steps to reduce the impact of that residual asymmetry. First, both the court and the government should adopt procedural approaches that support the government's access to appellate review; wherever possible, issues should be resolved before trial or after verdict, thus allowing the government to appeal the ruling. Second, when the trial court engages in bad faith manipulation, granting the defendant an acquittal calculated to preclude government appeal, the appellate courts should entertain government arguments to recharacterize the trial court's ruling, permitting government appeal. Finally, recognizing that some questions can only be reached through the use of mandamus, the government should pursue that avenue more often, and the appellate courts should be more receptive to challenges brought through petitions for writs of mandamus.
{"title":"Government Appeals in Criminal Cases: The Myth of Asymmetry","authors":"A. Poulin","doi":"10.2139/SSRN.1118402","DOIUrl":"https://doi.org/10.2139/SSRN.1118402","url":null,"abstract":"This article challenges the myth that the government cannot protect the public interest because its access to appellate review is circumscribed. In fact, careful examination reveals that government access to appellate review in criminal cases is more extensive today that at most times in the history of the country. Since 1971, in federal cases, the government has been able to challenge a wide range of trial court ruling on appeal. The government can challenge other rulings through petitions for writ of mandamus. These two avenues to appellate review permit the government to raise many and diverse legal questions. Some questions nevertheless remain insulated from appellate review either because they arise in a trial that ends in acquittal or an improvidently ordered mistrial or because they simply never ripen into appealable issues. The article argues that, to the extent a problem of asymmetry thus remains, the courts and the government should take steps to reduce the impact of that residual asymmetry. First, both the court and the government should adopt procedural approaches that support the government's access to appellate review; wherever possible, issues should be resolved before trial or after verdict, thus allowing the government to appeal the ruling. Second, when the trial court engages in bad faith manipulation, granting the defendant an acquittal calculated to preclude government appeal, the appellate courts should entertain government arguments to recharacterize the trial court's ruling, permitting government appeal. Finally, recognizing that some questions can only be reached through the use of mandamus, the government should pursue that avenue more often, and the appellate courts should be more receptive to challenges brought through petitions for writs of mandamus.","PeriodicalId":45537,"journal":{"name":"University of Cincinnati Law Review","volume":"77 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2008-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68143206","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Many participants in the music industry consider unauthorized transmissions of music files over the Internet to be theft of their property. Many Internet users who exchange music files reject this characterization. Prompted by the dispute over unauthorized music distribution, this Article explores how those who create and distribute music first came to look upon music as their property and when in Western history the law first supported this view. By analyzing the economic and legal structures governing music making in Western Europe from the classical period in Greece through the Renaissance, the Article shows that the law first granted some exclusive rights in the Middle Ages, when musicians' guilds enjoyed the exclusive right to perform music in medieval cities, but that the concept of music as a form of property was not established until early music publishers received exclusive rights in their publications during the Renaissance. The Article concludes with thoughts about how this history should influence the way we address the current controversy concerning uses of music on the Internet.
{"title":"Whose Music is it Anyway? How we Came to View Musical Expression as a Form of Property","authors":"Michael W. Carroll","doi":"10.2139/SSRN.477162","DOIUrl":"https://doi.org/10.2139/SSRN.477162","url":null,"abstract":"Many participants in the music industry consider unauthorized transmissions of music files over the Internet to be theft of their property. Many Internet users who exchange music files reject this characterization. Prompted by the dispute over unauthorized music distribution, this Article explores how those who create and distribute music first came to look upon music as their property and when in Western history the law first supported this view. By analyzing the economic and legal structures governing music making in Western Europe from the classical period in Greece through the Renaissance, the Article shows that the law first granted some exclusive rights in the Middle Ages, when musicians' guilds enjoyed the exclusive right to perform music in medieval cities, but that the concept of music as a form of property was not established until early music publishers received exclusive rights in their publications during the Renaissance. The Article concludes with thoughts about how this history should influence the way we address the current controversy concerning uses of music on the Internet.","PeriodicalId":45537,"journal":{"name":"University of Cincinnati Law Review","volume":"29 2 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2003-12-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67745143","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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