Article III grants confers the judicial power of the United States over controversies between "citizens" of different states. In Section 1332(c) of Title 28 of the United States Code, Congress has provided that for the purposes of diversity jurisdiction, corporations are citizens of the state in which they are incorporated and the state in which their principal place of business is located. This raises the question whether corporations are citizens within the original public meaning of Article III of the Constitution. This Article demonstrates that in 1787 the word "citizen" referred only to natural persons and therefore that corporations cannot be considered "citizens" within the original public meaning of Article III. As a consequence, Section 1332(c) is unconstitutional from an originalist perspective. (This is the most current version as of August 9, 2020.)
{"title":"Corporations and the Original Meaning of 'Citizens' in Article III","authors":"M. Moller, Lawrence B. Solum","doi":"10.2139/SSRN.3548143","DOIUrl":"https://doi.org/10.2139/SSRN.3548143","url":null,"abstract":"Article III grants confers the judicial power of the United States over controversies between \"citizens\" of different states. In Section 1332(c) of Title 28 of the United States Code, Congress has provided that for the purposes of diversity jurisdiction, corporations are citizens of the state in which they are incorporated and the state in which their principal place of business is located. This raises the question whether corporations are citizens within the original public meaning of Article III of the Constitution. This Article demonstrates that in 1787 the word \"citizen\" referred only to natural persons and therefore that corporations cannot be considered \"citizens\" within the original public meaning of Article III. As a consequence, Section 1332(c) is unconstitutional from an originalist perspective. (This is the most current version as of August 9, 2020.)","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":"72 1","pages":"169"},"PeriodicalIF":0.5,"publicationDate":"2020-03-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44939236","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}
Pub Date : 2019-12-31DOI: 10.1525/9780520929685-019
G. Vecchio
{"title":"Law of the State and Politics","authors":"G. Vecchio","doi":"10.1525/9780520929685-019","DOIUrl":"https://doi.org/10.1525/9780520929685-019","url":null,"abstract":"","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":"17 1","pages":"669"},"PeriodicalIF":0.5,"publicationDate":"2019-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42584816","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 problem of local-government barriers to housing supply is finally enjoying its moment in the sun. For decades, the states did little to remedy this problem and arguably they made it worse. But spurred by a rising Yes in My Backyard (YIMBY) movement, state legislatures are now trying to make local governments plan for more housing, allow greater density in existing residential zones, and follow their own rules when reviewing development applications. This Article describes and takes stock of the new state housing initiatives, relating them to preexisting Northeastern and West Coast approaches to the housing-supply problem; to the legal-academic literature on land use; and, going a bit further afield, to the federal government’s efforts to protect the voting rights of African Americans in the Jim Crow South. Of particular interest, we will see that in California, ground zero for the housing crisis, the general plan is evolving into something that resembles less a traditional land-use plan than a preemptive and self-executing intergovernmental compact for development permitting, one which supersedes other local law until the local government has produced its quota of housing for the planning cycle. The parties to the compact are the state, acting through its housing agency, and the local government in whose territory the housing would be built. I argue that this general approach holds real promise as a way of overcoming local barriers to housing supply, particularly in a world—our world—where there is little political consensus about the appropriate balance between local and state control over land use, or about what constitutes an illegitimate local barrier. The main weakness of the emerging California model is that the state framework does little to change the local political dynamics that caused the housing crisis in the first place. To remedy this shortcoming, I propose some modest extensions of the model, which would give relatively pro-housing factions in city politics more political leverage and policymaking discretion and also facilitate regional housing deals.
{"title":"Beyond the Double Veto: Housing Plans as Preemptive Intergovernmental Compacts","authors":"Christopher S. Elmendorf","doi":"10.2139/SSRN.3256857","DOIUrl":"https://doi.org/10.2139/SSRN.3256857","url":null,"abstract":"The problem of local-government barriers to housing supply is finally enjoying its moment in the sun. For decades, the states did little to remedy this problem and arguably they made it worse. But spurred by a rising Yes in My Backyard (YIMBY) movement, state legislatures are now trying to make local governments plan for more housing, allow greater density in existing residential zones, and follow their own rules when reviewing development applications. This Article describes and takes stock of the new state housing initiatives, relating them to preexisting Northeastern and West Coast approaches to the housing-supply problem; to the legal-academic literature on land use; and, going a bit further afield, to the federal government’s efforts to protect the voting rights of African Americans in the Jim Crow South. Of particular interest, we will see that in California, ground zero for the housing crisis, the general plan is evolving into something that resembles less a traditional land-use plan than a preemptive and self-executing intergovernmental compact for development permitting, one which supersedes other local law until the local government has produced its quota of housing for the planning cycle. The parties to the compact are the state, acting through its housing agency, and the local government in whose territory the housing would be built. I argue that this general approach holds real promise as a way of overcoming local barriers to housing supply, particularly in a world—our world—where there is little political consensus about the appropriate balance between local and state control over land use, or about what constitutes an illegitimate local barrier. The main weakness of the emerging California model is that the state framework does little to change the local political dynamics that caused the housing crisis in the first place. To remedy this shortcoming, I propose some modest extensions of the model, which would give relatively pro-housing factions in city politics more political leverage and policymaking discretion and also facilitate regional housing deals.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":"71 1","pages":"79"},"PeriodicalIF":0.5,"publicationDate":"2019-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46577047","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 the landmark 1953 case of Haelan Laboratories v. Topps Chewing Gum, Judge Jerome Frank first articulated the modern right of publicity—a transferable intellectual property right. The right has since been seen to protect the commercial value of one’s “persona”—the Latin-derived word meaning the mask of an actor. Among other frequent criticisms, the right of publicity is accused of lacking a coherent justification, permitting only economic redress against public harms to the persona, and stripping away individual identity by allowing for a proprietary right in one’s personality. Why might Judge Frank have been motivated to fashion a transferable right in the monetary value of one’s public persona distinct from the psychic harm to feelings, emotions, and dignity rooted in the individual and protected under the rubric of privacy? Judge Frank was a leading figure in the American legal realist movement known for his unique and controversial “psychoanalysis of certain legal positions” through influential books including Law and the Modern Mind and Courts on Trial. His work drew heavily on the ideas of psychoanalytic thinkers, like Sigmund Freud and Carl Jung, to describe the distorting effects of unconscious wishes and fantasies on the decision-making process of legal actors and judges. For Judge Frank, the psychoanalytic interplay between public and private aspects of the personality supported his realist interpretation of lawmaking as a subjective and indeterminate activity. Indeed, though Frank provided little rationale for articulating a personality right separate from privacy in Haelan, he had given a tremendous amount of attention to the personality in his scholarly works. This Article suggests that the modern right of publicity’s aim, as perhaps intended by Judge Frank in considering his psychoanalytic jurisprudence, may be usefully understood through the psychoanalytic conception of the personality—one divided into public and private subparts. In the psychoanalytic sense, the term persona, or “false self,” is used to indicate the public face of an individual, i.e., the image one presents to others for social or economic advantage, as contrasted with their feelings, emotions and subjective interpretations of reality anchored in their private shadow, or “true self.” Yet, the law’s continued reliance on this dualistic metaphor of the personality appears misguided, particularly as technology, internet, and new media increasingly blur the traditional distinctions between public and private. The Article thus concludes by examining intersubjective personality theory. Intersubjectivity could provide publicity law with a useful conceptual update given its view of the self and personality as a relational, contextual, and social construct, rather than a public-private dichotomy.
{"title":"Unmasking the Right of Publicity","authors":"Dustin Marlan","doi":"10.2139/SSRN.3300959","DOIUrl":"https://doi.org/10.2139/SSRN.3300959","url":null,"abstract":"In the landmark 1953 case of Haelan Laboratories v. Topps Chewing Gum, Judge Jerome Frank first articulated the modern right of publicity—a transferable intellectual property right. The right has since been seen to protect the commercial value of one’s “persona”—the Latin-derived word meaning the mask of an actor. Among other frequent criticisms, the right of publicity is accused of lacking a coherent justification, permitting only economic redress against public harms to the persona, and stripping away individual identity by allowing for a proprietary right in one’s personality. Why might Judge Frank have been motivated to fashion a transferable right in the monetary value of one’s public persona distinct from the psychic harm to feelings, emotions, and dignity rooted in the individual and protected under the rubric of privacy? \u0000 \u0000Judge Frank was a leading figure in the American legal realist movement known for his unique and controversial “psychoanalysis of certain legal positions” through influential books including Law and the Modern Mind and Courts on Trial. His work drew heavily on the ideas of psychoanalytic thinkers, like Sigmund Freud and Carl Jung, to describe the distorting effects of unconscious wishes and fantasies on the decision-making process of legal actors and judges. For Judge Frank, the psychoanalytic interplay between public and private aspects of the personality supported his realist interpretation of lawmaking as a subjective and indeterminate activity. Indeed, though Frank provided little rationale for articulating a personality right separate from privacy in Haelan, he had given a tremendous amount of attention to the personality in his scholarly works. \u0000 \u0000This Article suggests that the modern right of publicity’s aim, as perhaps intended by Judge Frank in considering his psychoanalytic jurisprudence, may be usefully understood through the psychoanalytic conception of the personality—one divided into public and private subparts. In the psychoanalytic sense, the term persona, or “false self,” is used to indicate the public face of an individual, i.e., the image one presents to others for social or economic advantage, as contrasted with their feelings, emotions and subjective interpretations of reality anchored in their private shadow, or “true self.” Yet, the law’s continued reliance on this dualistic metaphor of the personality appears misguided, particularly as technology, internet, and new media increasingly blur the traditional distinctions between public and private. The Article thus concludes by examining intersubjective personality theory. Intersubjectivity could provide publicity law with a useful conceptual update given its view of the self and personality as a relational, contextual, and social construct, rather than a public-private dichotomy.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":"71 1","pages":"419"},"PeriodicalIF":0.5,"publicationDate":"2019-04-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.3300959","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43039717","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}
{"title":"History, Tradition, the Supreme Court, and the First Amendment","authors":"Erwin Chemerinsky *","doi":"10.4324/9781315053615-2","DOIUrl":"https://doi.org/10.4324/9781315053615-2","url":null,"abstract":"","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":"1 1","pages":""},"PeriodicalIF":0.5,"publicationDate":"2018-12-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70625342","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}
Perhaps the most fundamental role of a business tax advisor is to recommend the optimal entity choice for nascent business enterprises. Nevertheless, even in 2018, the choice-of-entity analysis remains highly muddled. Most tax practitioners across the United States consistently recommend flow-through entities, such as LLCs and S corporations, to their clients. In contrast, a discrete group of highly sophisticated tax professionals, those who advise start-ups in Silicon Valley and other hotbeds of start-up activity, prefer C corporations. Prior commentary has described and tried to explain this paradox without finding an adequate explanation. These commentators have noted a host of superficially plausible explanations, all of which they ultimately conclude are not wholly persuasive. The puzzle therefore remains. This article attempts to finally solve the puzzle by examining two factors that have been either vastly underappreciated or completely ignored in the existing literature. First, while previous commentators have briefly noted that flow-through structures are more complex and administratively burdensome, they did not fully appreciate the source, nature, and extent of these problems. In the unique start-up context, the complications of flow-through structures are exponentially more problematic, to the point where widespread adoption of flow-throughs is practically infeasible. Second, the literature has not appreciated the effect of perplexing, yet pervasive, tax asset valuation problems in the public company context. The conventional wisdom is that tax assets are ignored or severely undervalued in public company stock valuations. In theory, the most significant theoretical benefit of flow-through status for start-ups is that it can result in the creation of valuable tax assets upon exit. However, the conventional wisdom makes this moot when the exit is through an initial public offering or sale to a public company, which are the desired types of exits for Silicon Valley start-ups. Thus, the most significant benefit of using a flow-through (at least in theory) is eliminated because of the tax asset pricing problem. Accordingly, while the costs of flow-through structures are far larger than have been appreciated, the benefits of these structures are much smaller than they appear.
{"title":"Explaining Choice-of-Entity Decisions by Silicon Valley Start-Ups","authors":"Gregg D. Polsky","doi":"10.2139/SSRN.3123793","DOIUrl":"https://doi.org/10.2139/SSRN.3123793","url":null,"abstract":"Perhaps the most fundamental role of a business tax advisor is to recommend the optimal entity choice for nascent business enterprises. Nevertheless, even in 2018, the choice-of-entity analysis remains highly muddled. Most tax practitioners across the United States consistently recommend flow-through entities, such as LLCs and S corporations, to their clients. In contrast, a discrete group of highly sophisticated tax professionals, those who advise start-ups in Silicon Valley and other hotbeds of start-up activity, prefer C corporations. \u0000 \u0000Prior commentary has described and tried to explain this paradox without finding an adequate explanation. These commentators have noted a host of superficially plausible explanations, all of which they ultimately conclude are not wholly persuasive. The puzzle therefore remains. \u0000 \u0000This article attempts to finally solve the puzzle by examining two factors that have been either vastly underappreciated or completely ignored in the existing literature. First, while previous commentators have briefly noted that flow-through structures are more complex and administratively burdensome, they did not fully appreciate the source, nature, and extent of these problems. In the unique start-up context, the complications of flow-through structures are exponentially more problematic, to the point where widespread adoption of flow-throughs is practically infeasible. Second, the literature has not appreciated the effect of perplexing, yet pervasive, tax asset valuation problems in the public company context. The conventional wisdom is that tax assets are ignored or severely undervalued in public company stock valuations. In theory, the most significant theoretical benefit of flow-through status for start-ups is that it can result in the creation of valuable tax assets upon exit. However, the conventional wisdom makes this moot when the exit is through an initial public offering or sale to a public company, which are the desired types of exits for Silicon Valley start-ups. Thus, the most significant benefit of using a flow-through (at least in theory) is eliminated because of the tax asset pricing problem. Accordingly, while the costs of flow-through structures are far larger than have been appreciated, the benefits of these structures are much smaller than they appear.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":"70 1","pages":"409"},"PeriodicalIF":0.5,"publicationDate":"2018-02-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47126263","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}
Arguments are sometimes made most recently in a paper commissioned by the State of Utah, and by a lawyer for a defendant facing charges for the armed takeover of a National Wildlife Refuge in Oregon in 2016 that U.S. public lands are unconstitutional. This article disputes that position. It digs deeply into the history of the public lands, going back to the very founding of the nation. It seeks to show that the arguments for unconstitutionality reflect an incomplete, defective understanding of U.S. legal and political history; an extremely selective, skewed reading of numerous Supreme Court decisions and federal statutes; a misleading assertion that states have very limited governing authority over activities taking place on U.S. public lands; and even a misuse of the dictionary. At bottom, the arguments rest on the premise that the U.S. Supreme Court should use the U.S. Constitution to determine how much if any land the U.S. may own in any state. For the Court to assume that responsibility would be a breathtaking departure from more than 225 years of practice during which Congress has made that determination through the political process, and from a century and a half of Supreme Court precedent deferring to Congress. It would also be contrary to the Court’s often expressed reluctance to revisit settled public land law, upon which so many property transactions depend.
{"title":"Are U.S. Public Lands Unconstitutional","authors":"John D. Leshy","doi":"10.2139/SSRN.3123176","DOIUrl":"https://doi.org/10.2139/SSRN.3123176","url":null,"abstract":"Arguments are sometimes made most recently in a paper commissioned by the State of Utah, and by a lawyer for a defendant facing charges for the armed takeover of a National Wildlife Refuge in Oregon in 2016 that U.S. public lands are unconstitutional. This article disputes that position. It digs deeply into the history of the public lands, going back to the very founding of the nation. It seeks to show that the arguments for unconstitutionality reflect an incomplete, defective understanding of U.S. legal and political history; an extremely selective, skewed reading of numerous Supreme Court decisions and federal statutes; a misleading assertion that states have very limited governing authority over activities taking place on U.S. public lands; and even a misuse of the dictionary. At bottom, the arguments rest on the premise that the U.S. Supreme Court should use the U.S. Constitution to determine how much if any land the U.S. may own in any state. For the Court to assume that responsibility would be a breathtaking departure from more than 225 years of practice during which Congress has made that determination through the political process, and from a century and a half of Supreme Court precedent deferring to Congress. It would also be contrary to the Court’s often expressed reluctance to revisit settled public land law, upon which so many property transactions depend.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":"69 1","pages":"499"},"PeriodicalIF":0.5,"publicationDate":"2018-02-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45787287","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 November 2016, a federal court struck as unconstitutional Wisconsin’s redistricting map under both the First Amendment and the Equal Protection Clause. The court’s decision in Whitford v. Gill marks the first time a federal court invalidated a redistricting map as unconstitutional for partisan gerrymandering in over thirty years. Wisconsin has appealed the decision to the United States Supreme Court, which recently granted review. The Supreme Court has long held that extreme partisan gerrymandering violates equal protection but has simultaneously refused to determine the merits of gerrymandering disputes, instead labeling them as non-justiciable political questions. In particular, the Court has maintained that no manageable standard yet exists by which the Court could implement the promise of equal protection to partisan redistricting. This Article analyzes the manageable standard requirement, revealing the Court’s failure to define the term and that the Court has applied the manageability requirement haphazardly. Scores of court-made standards either over- or under-enforce the constitutional norm they purport to implement. Why is “fairness” a workable standard in one context but not another? How are standards that measure one’s shocked conscious, or weigh the totality of the circumstances judicially manageable? Importantly, a common thread connects the Court’s use of the manageability requirement to its insecurity in exercising judicial review, indicating that the Court often applies the manageability requirement when particularly insecure in exercising the judicial function. Recast in this light, the question of Court engagement in gerrymandering disputes turns on the propriety of Court intervention to address artificial obstacles that disrupt democratic functionality. The Court should no longer hide behind the manageability barrier because court intervention to ensure democracy’s proper functioning was (1) anticipated by the Framers, (2) memorialized in the Constitution’s form and structure, and (3) exercised by the Court without loss of judicial legitimacy in analogous contexts. This Article posits that judicial intervention to unblock the avenues of political change is one of the Court’s central responsibilities, that in similar contexts the Court has recognized as much, and that it should do so again in Whitford.
{"title":"Gerrymandering and Conceit: The Supreme Court's Conflict With Itself","authors":"McKay Cunningham","doi":"10.2139/SSRN.2989985","DOIUrl":"https://doi.org/10.2139/SSRN.2989985","url":null,"abstract":"In November 2016, a federal court struck as unconstitutional Wisconsin’s redistricting map under both the First Amendment and the Equal Protection Clause. The court’s decision in Whitford v. Gill marks the first time a federal court invalidated a redistricting map as unconstitutional for partisan gerrymandering in over thirty years. Wisconsin has appealed the decision to the United States Supreme Court, which recently granted review. The Supreme Court has long held that extreme partisan gerrymandering violates equal protection but has simultaneously refused to determine the merits of gerrymandering disputes, instead labeling them as non-justiciable political questions. In particular, the Court has maintained that no manageable standard yet exists by which the Court could implement the promise of equal protection to partisan redistricting. This Article analyzes the manageable standard requirement, revealing the Court’s failure to define the term and that the Court has applied the manageability requirement haphazardly. Scores of court-made standards either over- or under-enforce the constitutional norm they purport to implement. Why is “fairness” a workable standard in one context but not another? How are standards that measure one’s shocked conscious, or weigh the totality of the circumstances judicially manageable? Importantly, a common thread connects the Court’s use of the manageability requirement to its insecurity in exercising judicial review, indicating that the Court often applies the manageability requirement when particularly insecure in exercising the judicial function. Recast in this light, the question of Court engagement in gerrymandering disputes turns on the propriety of Court intervention to address artificial obstacles that disrupt democratic functionality. The Court should no longer hide behind the manageability barrier because court intervention to ensure democracy’s proper functioning was (1) anticipated by the Framers, (2) memorialized in the Constitution’s form and structure, and (3) exercised by the Court without loss of judicial legitimacy in analogous contexts. This Article posits that judicial intervention to unblock the avenues of political change is one of the Court’s central responsibilities, that in similar contexts the Court has recognized as much, and that it should do so again in Whitford.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":"69 1","pages":"1509"},"PeriodicalIF":0.5,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68462160","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}
For decades, the “guilty mind” requirement in federal criminal law has been understood as precluding punishment for “morally blameless” (or “innocent”) conduct, thereby ensuring that only offenders with adequate notice of the wrongfulness of their conduct face conviction. The Supreme Court’s recent decision in Elonis v. United States portends a significant, and novel, shift in mens rea doctrine by treating the potential for disproportionately severe punishment as an independent justification for heightened mens rea requirements. This long-overdue doctrinal move makes perfect sense because punishment without culpability and excessive punishment involve the same objectionable feature: the imposition of morally undeserved punishment. This Article uses Elonis as a vehicle for reexamining the effectiveness of current mens rea doctrine. Even after Elonis, mens rea doctrine remains hobbled by several methodological flaws which prevent it from making moral culpability a necessary precondition for punishment. These flaws, I argue, are traceable to the doctrine’s simultaneous embrace of two irreconcilable views of the separation of powers in criminal law. The project of reading implied mens rea requirements into statutes and fleshing out incomplete legislative crime definitions necessarily assumes that courts have a lawmaking role on par with Congress. The mens rea selection methodology, however, reflects standard faithful-agent textualism. This turns out to be the doctrine’s Achilles heel because the risk of morally undeserved punishment stems primarily from poor legislative crime definition. To be truly effective, mens rea doctrine must operate outside the statutory definition of the offense. All mens rea options not clearly foreclosed by Congress -- even knowledge of criminality -- must be available wherever needed to prevent morally undeserved punishment. Until this occurs, mens rea doctrine will continue to default on its promise of preventing conviction for morally blameless conduct, not to mention the broader promise, suggested both by Elonis and criminal law tradition and theory, of precluding disproportionately severe punishment.
{"title":"'Innocence' and the Guilty Mind","authors":"Stephen F. Smith","doi":"10.2139/SSRN.3019450","DOIUrl":"https://doi.org/10.2139/SSRN.3019450","url":null,"abstract":"For decades, the “guilty mind” requirement in federal criminal law has been understood as precluding punishment for “morally blameless” (or “innocent”) conduct, thereby ensuring that only offenders with adequate notice of the wrongfulness of their conduct face conviction. The Supreme Court’s recent decision in Elonis v. United States portends a significant, and novel, shift in mens rea doctrine by treating the potential for disproportionately severe punishment as an independent justification for heightened mens rea requirements. This long-overdue doctrinal move makes perfect sense because punishment without culpability and excessive punishment involve the same objectionable feature: the imposition of morally undeserved punishment. This Article uses Elonis as a vehicle for reexamining the effectiveness of current mens rea doctrine. Even after Elonis, mens rea doctrine remains hobbled by several methodological flaws which prevent it from making moral culpability a necessary precondition for punishment. These flaws, I argue, are traceable to the doctrine’s simultaneous embrace of two irreconcilable views of the separation of powers in criminal law. The project of reading implied mens rea requirements into statutes and fleshing out incomplete legislative crime definitions necessarily assumes that courts have a lawmaking role on par with Congress. The mens rea selection methodology, however, reflects standard faithful-agent textualism. This turns out to be the doctrine’s Achilles heel because the risk of morally undeserved punishment stems primarily from poor legislative crime definition. To be truly effective, mens rea doctrine must operate outside the statutory definition of the offense. All mens rea options not clearly foreclosed by Congress -- even knowledge of criminality -- must be available wherever needed to prevent morally undeserved punishment. Until this occurs, mens rea doctrine will continue to default on its promise of preventing conviction for morally blameless conduct, not to mention the broader promise, suggested both by Elonis and criminal law tradition and theory, of precluding disproportionately severe punishment.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":"69 1","pages":"1609"},"PeriodicalIF":0.5,"publicationDate":"2017-08-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.3019450","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49614376","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}
{"title":"Sexual Autonomy and the Constitutional Right to Privacy: A Case Study in Human Rights and the Unwritten Constitution","authors":"D. A. Richards","doi":"10.4324/9781315243375-2","DOIUrl":"https://doi.org/10.4324/9781315243375-2","url":null,"abstract":"","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":"30 1","pages":"71-132"},"PeriodicalIF":0.5,"publicationDate":"2017-05-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46098912","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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