This essay takes as its premise that the widespread and long-term underfunding of indigent criminal defense is, for practical purposes, a permanent fixture of the political and constitutional landscape. From this assumption, it makes two points, one theoretical, the other practical. The theoretical point is that consistent underfunding of constitutional entitlements can be a legitimate legislative response to judicial specification of constitutional rights. Courts define constitutional rights, but many of those entitlements are unfunded mandates to legislatures. Entitlements such as the right to defense counsel, require money to become reality. Legislatures have responded by underfunding those rights, yet have not specified how limited funds should be allocated - that is, how rights should be rationed. The Supreme Court, in fact, has to a large degree barred legislatures from doing so through constitutional criminal procedure rules. This legislative-judicial dynamic implicitly delegates, largely to defense attorneys but also to trial judges, the task of rationing rights that cannot be implemented as fully as formal judicial pronouncement implies. This ongoing interaction between courts, legislatures and the defense bar (aided by trial judges) looks like a species of Dorf and Sabel's "democratic experimentalism," a model that describes a broad array of government actions that define constitutional and sub-constitutional law. Here the twist is that private actors - defense attorneys - have a large hand in constructing the real, working content of constitutional entitlements. Given this weighty task, the essay sketches a set of practical guidelines by which defense counsel and other trial-level actors can most sensibly implement the job of rationing rights that has been delegated to them. This essay proposes a set of default rules grounded on two core principles: priority to factual innocence over other instrumental goals of criminal procedure, and a harm-reduction principle that gives preference to suspects facing greater potential punishments. A set of default rules, drawn largely from the study of wrongful convictions, provides practical guidance for implementing these principles. This practice substantively revises the real meaning of constitutional entitlements and leaves some defendants indisputably with less than judicial pronouncements of constitutional law imply. But when rights are underfunded, that outcome is inevitable, as longstanding practice demonstrates. Explicitly confronting funding limits and allocating rights in light of them yields a more coherent, defensible allocation of entitlements.
{"title":"Rationing Criminal Defense Entitlements: An Argument from Institutional Design","authors":"Darryl K. Brown","doi":"10.2139/SSRN.444000","DOIUrl":"https://doi.org/10.2139/SSRN.444000","url":null,"abstract":"This essay takes as its premise that the widespread and long-term underfunding of indigent criminal defense is, for practical purposes, a permanent fixture of the political and constitutional landscape. From this assumption, it makes two points, one theoretical, the other practical. The theoretical point is that consistent underfunding of constitutional entitlements can be a legitimate legislative response to judicial specification of constitutional rights. Courts define constitutional rights, but many of those entitlements are unfunded mandates to legislatures. Entitlements such as the right to defense counsel, require money to become reality. Legislatures have responded by underfunding those rights, yet have not specified how limited funds should be allocated - that is, how rights should be rationed. The Supreme Court, in fact, has to a large degree barred legislatures from doing so through constitutional criminal procedure rules. This legislative-judicial dynamic implicitly delegates, largely to defense attorneys but also to trial judges, the task of rationing rights that cannot be implemented as fully as formal judicial pronouncement implies. This ongoing interaction between courts, legislatures and the defense bar (aided by trial judges) looks like a species of Dorf and Sabel's \"democratic experimentalism,\" a model that describes a broad array of government actions that define constitutional and sub-constitutional law. Here the twist is that private actors - defense attorneys - have a large hand in constructing the real, working content of constitutional entitlements. Given this weighty task, the essay sketches a set of practical guidelines by which defense counsel and other trial-level actors can most sensibly implement the job of rationing rights that has been delegated to them. This essay proposes a set of default rules grounded on two core principles: priority to factual innocence over other instrumental goals of criminal procedure, and a harm-reduction principle that gives preference to suspects facing greater potential punishments. A set of default rules, drawn largely from the study of wrongful convictions, provides practical guidance for implementing these principles. This practice substantively revises the real meaning of constitutional entitlements and leaves some defendants indisputably with less than judicial pronouncements of constitutional law imply. But when rights are underfunded, that outcome is inevitable, as longstanding practice demonstrates. Explicitly confronting funding limits and allocating rights in light of them yields a more coherent, defensible allocation of entitlements.","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":"104 1","pages":"801"},"PeriodicalIF":2.9,"publicationDate":"2004-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68789438","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Truth and Justice in Sierra Leone: Coordination between Commission and Court","authors":"Elizabeth M. Evenson","doi":"10.2307/4099329","DOIUrl":"https://doi.org/10.2307/4099329","url":null,"abstract":"","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":"104 1","pages":"730"},"PeriodicalIF":2.9,"publicationDate":"2004-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4099329","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68754382","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Diffusion of Local Regulatory Innovations: The San Francisco Cedaw Ordinance and the New York City Human Rights Initiative","authors":"Stacy Laira Lozner","doi":"10.2307/4099330","DOIUrl":"https://doi.org/10.2307/4099330","url":null,"abstract":"","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":"104 1","pages":"768"},"PeriodicalIF":2.9,"publicationDate":"2004-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4099330","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68754575","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Debates over "entitlements" have lacked conceptual clarity because the term has at least six analytically distinct meanings. The psychological "entitlements" that many attack are distinct from the legalistic "entitlements" that others champion. Most importantly, however, entitlements are economic concepts. A benefit provided to all claimants meeting stated eligibility requirements can be termed a "responsive entitlement', its antithesis is a program that arbitrarily caps participation. Similarly, a program whose benefits are defined by the amount required to accomplish some specific purpose is a 'functional entitlement"; it may be juxtaposed with one providing only an arbitrary sum. The market through which public sentiments and claimants' needs govern the generosity of benefits and the number of recipients served can be described in terms offamiliar supply and demand functions. Responsive entitlements allow that market to clear. Artificially capping participation, by contrast, creates the same inefficiencies economists decry in pricecontrolled markets. Benefits lacking functional entitlements also may distort private markets. Moreover, entitlements are crucial to maintaining political transparency. Without them, programs' scope, benefits, and eligibility requirements must be described in arbitrary terms few voters can comprehend. Voters tend to assume programs are entitlements, overestimating the support available to those programs' target populations. Confusion among types of entitlements, and the complexity inherent in nonentitlements, further impedes meaningful debate. Recognizing this, some liberals have sought to avoid debate about costs by creating nonentitlements that they can slowly expand. Conversely, some opponents of means-tested programs have shifted from attacking programs' funding to dismantling responsive and functional entitlements.
{"title":"The Political Economy of Entitlement","authors":"David A. Super","doi":"10.2307/4099328","DOIUrl":"https://doi.org/10.2307/4099328","url":null,"abstract":"Debates over \"entitlements\" have lacked conceptual clarity because the term has at least six analytically distinct meanings. The psychological \"entitlements\" that many attack are distinct from the legalistic \"entitlements\" that others champion. Most importantly, however, entitlements are economic concepts. A benefit provided to all claimants meeting stated eligibility requirements can be termed a \"responsive entitlement', its antithesis is a program that arbitrarily caps participation. Similarly, a program whose benefits are defined by the amount required to accomplish some specific purpose is a 'functional entitlement\"; it may be juxtaposed with one providing only an arbitrary sum. The market through which public sentiments and claimants' needs govern the generosity of benefits and the number of recipients served can be described in terms offamiliar supply and demand functions. Responsive entitlements allow that market to clear. Artificially capping participation, by contrast, creates the same inefficiencies economists decry in pricecontrolled markets. Benefits lacking functional entitlements also may distort private markets. Moreover, entitlements are crucial to maintaining political transparency. Without them, programs' scope, benefits, and eligibility requirements must be described in arbitrary terms few voters can comprehend. Voters tend to assume programs are entitlements, overestimating the support available to those programs' target populations. Confusion among types of entitlements, and the complexity inherent in nonentitlements, further impedes meaningful debate. Recognizing this, some liberals have sought to avoid debate about costs by creating nonentitlements that they can slowly expand. Conversely, some opponents of means-tested programs have shifted from attacking programs' funding to dismantling responsive and functional entitlements.","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":"104 1","pages":"633"},"PeriodicalIF":2.9,"publicationDate":"2004-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4099328","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68754725","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Corporate Criminal Liability: Patchwork Verdicts and the Problem of Locating a Guilty Agent","authors":"Stacey Neumann Vu","doi":"10.2307/4099301","DOIUrl":"https://doi.org/10.2307/4099301","url":null,"abstract":"","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":"104 1","pages":"459"},"PeriodicalIF":2.9,"publicationDate":"2004-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4099301","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68754215","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Capital Punishment Exception: A Case for Constitutionalizing the Substantive Criminal Law","authors":"Daniel Suleiman","doi":"10.2307/4099300","DOIUrl":"https://doi.org/10.2307/4099300","url":null,"abstract":"","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":"104 1","pages":"426"},"PeriodicalIF":2.9,"publicationDate":"2004-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4099300","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68754040","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The paper examines a question of general interpretive significance about the relationship between enumerated powers within the particular context of intellectual property. Specifically, the paper asks whether Congress can avoid the restrictions on its intellectual property power (such as the "limited times" requirement or the prohibition against protecting facts and consequently electronic databases) by resorting instead to other Article I powers, most notably the Commerce Clause. It is my position that the Intellectual Property Clause stands as no barrier to legislation passed pursuant to another Section 8 power. Because of the nature of a government of enumerated powers, it is impossible as a matter of text or structure to determine whether limits on one Article I power apply to the others. A review of precedent confronting overlapping Section 8 powers in other contexts leads one to a more nuanced approach: to identify the values underlying the different Section 8 restrictions and whether they are worthy of general application - whether they represent constitutional norms. What follows is an attempt to identify such a norm in the Intellectual Property Clause, as reflected by the First Amendment, present in Supreme Court precedent, or demonstrated by the history surrounding the Intellectual Property Clause's inclusion in the Constitution. Once one closely examines the history of intellectual property and American trade regulation, it becomes clear that no such generally applicable norm is at work in the limits on Congress's intellectual property power. The economics of trade regulation, demonstrate that, far from unique, the intellectual property power is economically indistinguishable from other forms of trade regulation - any benefit conferred by means of an exclusive right could be conferred in some other way, such as through taxation or industry regulation. Furthermore, finding such a limit would require a rejection of our modern understanding of the commerce power and would turn the concept of enumerated powers on its head. In the end, "exclusive rights" are merely another form of regulation that Congress may, and frequently does, use to confer economic rents on favored special interests. The Constitution, it will come as no surprise, offers very little protection against rent-seeking.
{"title":"Intellectual Property and Constitutional Norms","authors":"Thomas B. Nachbar","doi":"10.2139/SSRN.453261","DOIUrl":"https://doi.org/10.2139/SSRN.453261","url":null,"abstract":"The paper examines a question of general interpretive significance about the relationship between enumerated powers within the particular context of intellectual property. Specifically, the paper asks whether Congress can avoid the restrictions on its intellectual property power (such as the \"limited times\" requirement or the prohibition against protecting facts and consequently electronic databases) by resorting instead to other Article I powers, most notably the Commerce Clause. It is my position that the Intellectual Property Clause stands as no barrier to legislation passed pursuant to another Section 8 power. Because of the nature of a government of enumerated powers, it is impossible as a matter of text or structure to determine whether limits on one Article I power apply to the others. A review of precedent confronting overlapping Section 8 powers in other contexts leads one to a more nuanced approach: to identify the values underlying the different Section 8 restrictions and whether they are worthy of general application - whether they represent constitutional norms. What follows is an attempt to identify such a norm in the Intellectual Property Clause, as reflected by the First Amendment, present in Supreme Court precedent, or demonstrated by the history surrounding the Intellectual Property Clause's inclusion in the Constitution. Once one closely examines the history of intellectual property and American trade regulation, it becomes clear that no such generally applicable norm is at work in the limits on Congress's intellectual property power. The economics of trade regulation, demonstrate that, far from unique, the intellectual property power is economically indistinguishable from other forms of trade regulation - any benefit conferred by means of an exclusive right could be conferred in some other way, such as through taxation or industry regulation. Furthermore, finding such a limit would require a rejection of our modern understanding of the commerce power and would turn the concept of enumerated powers on its head. In the end, \"exclusive rights\" are merely another form of regulation that Congress may, and frequently does, use to confer economic rents on favored special interests. The Constitution, it will come as no surprise, offers very little protection against rent-seeking.","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":"104 1","pages":"272"},"PeriodicalIF":2.9,"publicationDate":"2004-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.453261","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67736082","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Trademark Dilution on the Constitutional Edge","authors":"B. Jacobs","doi":"10.2307/4099351","DOIUrl":"https://doi.org/10.2307/4099351","url":null,"abstract":"","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":"104 1","pages":"161"},"PeriodicalIF":2.9,"publicationDate":"2004-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4099351","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68755498","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Two timeless women embody the ideals of our nation. In New York Harbor, the Statue of Liberty proclaims: "Give me your tired, your poor, / Your huddled masses yearning to breathe free ... ."1 In Washington, D.C., the statue Contemplation of Justice sits solemnly before the main entrance to the Supreme Court of the United States.2 Above her head, on the building's architrave, appear the words "Equal Justice Under Law." These two promises, of opportunity and equality, have marked our nation's vision since its founding. The pledge of "equal justice under law" is a profound one, positing a judicial system free of corruption and favoritism as well as one that disdains distinctions of class and caste. The true achievement of our country has been not merely the original expression of this idea, but our willingness to expand our commitment, gradually, to include propertyless white men, former male slaves, other men of color, women of all races, people with disabilities, gay and lesbian citizens, and others within the circle originally reserved for the propertied white men who founded our nation. We began with a transcendent principle, but we have also had the humility to recognize our failings and to revise our behavior to draw closer to our ideal.
{"title":"Ruth Bader Ginsburg's Jurisprudence of Opportunity and Equality","authors":"D. J. Merritt, D. Lieberman","doi":"10.2307/4099346","DOIUrl":"https://doi.org/10.2307/4099346","url":null,"abstract":"Two timeless women embody the ideals of our nation. In New York Harbor, the Statue of Liberty proclaims: \"Give me your tired, your poor, / Your huddled masses yearning to breathe free ... .\"1 In Washington, D.C., the statue Contemplation of Justice sits solemnly before the main entrance to the Supreme Court of the United States.2 Above her head, on the building's architrave, appear the words \"Equal Justice Under Law.\" These two promises, of opportunity and equality, have marked our nation's vision since its founding. The pledge of \"equal justice under law\" is a profound one, positing a judicial system free of corruption and favoritism as well as one that disdains distinctions of class and caste. The true achievement of our country has been not merely the original expression of this idea, but our willingness to expand our commitment, gradually, to include propertyless white men, former male slaves, other men of color, women of all races, people with disabilities, gay and lesbian citizens, and others within the circle originally reserved for the propertied white men who founded our nation. We began with a transcendent principle, but we have also had the humility to recognize our failings and to revise our behavior to draw closer to our ideal.","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":"29 1","pages":"39"},"PeriodicalIF":2.9,"publicationDate":"2004-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4099346","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68755548","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Ruth Bader Ginsburg, Professor of Law","authors":"H. Kay","doi":"10.2307/4099343","DOIUrl":"https://doi.org/10.2307/4099343","url":null,"abstract":"","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":"37 1","pages":"2"},"PeriodicalIF":2.9,"publicationDate":"2004-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4099343","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68754777","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"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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