Monthly Archives: February 2010

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The Intuition of Retribution

Paul H. Robinson & Robert Kurzban, Concordance and Conflict in Intuitions of Justice, 91 Minn. L. Rev. 1829 (2007).
Orin Kerr

Orin Kerr

I am a big fan of the criminal law scholarship of Paul Robinson. This article in particular is a valuable work of scholarship that should be helpful to any professor or student of criminal law.

To understand the value of the article, consider the beginning of first-year classes in criminal law.  The standard way to teach criminal law is to begin with the two basic reasons why we punish criminal conduct: Utilitarian reasons, such as deterrence, and retributive reasons, such as to achieve “just deserts.”  Utilitarian theories are easy to explain and are intuitive to most students.  On the other hand, criminal law professors generally struggle to teach retributive theory.  The topic seems impossibly vague: Different academic theorists have different theories as to what they personally think retribution should mean, but those academic theories often seem quite apart from what most citizens actually feel.  The result is an uncomfortable gap in which professors teach retribution without offering a clear sense of exactly what retribution actually is or how retributive theories should play into arguments about criminal punishment. Continue reading "The Intuition of Retribution"


Why is Criminal Justice Only Partially Privatized?

Ric Simmons, Private Criminal Justice, 42 Wake Forest L. Rev. 911 (2007).
Ron Wright

Ron Wright

Ric Simmons has written an article that makes sense of two long-term trends in the privatizing of criminal justice.  He links a growing body of legal scholarship about private policing to an enormous academic literature on restorative justice, and reframes them both as part of a long-term trend toward co-existing public and private systems for delivery of criminal justice.

Simmons begins this enterprise by describing the enormous growth of private law enforcement in the United States over the last few decades.  It is an exceptionally timely topic.  Much of our criminal procedure framework builds on the assumption that law enforcement is a public function, performed by state actors, but that vision is increasingly removed from reality.  By some estimates, private security and investigative workers outnumber public police officers by more than a three-to-one ratio.  Simmons capably summarizes here the groundbreaking work of David Sklansky and Elizabeth Joh, who brought these developments to light for the legal academy over the last ten years.  Simmons then observes that the relative lack of legal regulations that apply to private police actors may not matter as much as we once thought.  Many users of private policing do not bother to invoke the public adjudicative system, so the admissibility of the evidence that private police collect is not relevant in many cases. Continue reading "Why is Criminal Justice Only Partially Privatized?"


A Good Time to Die: Family-Based Objections to Inheritance Taxation

Anne Alstott, Family Values, Inheritance Law, and Inheritance Taxation, 87 Tax L. Rev. (forthcoming 2009), available at SSRN.
Bridget Crawford

Bridget Crawford

Now is a good time to die.  Congress’s failure to take action on the extension of the estate tax caused it to “expire” on December 31, 2009.   This repeal is scheduled to last for only one year, and Congress likely will enact some form of estate tax before then.  So only those who die soon will be able to transmit wealth entirely tax-free.  In the meantime, questions about the economics, fairness, morality of inheritance taxation–broadly defined–will figure prominently in political and social debates.  Anne Alstott’s essay, Family Values, Inheritance Law, and Inheritance Taxation, forthcoming in the Tax Law Review, will help ground these discussions.

Alstott’s argument is that taxing inheritance can be consistent with valuing families; it all depends on what view of the “family” one takes.  Alstott begins by locating her work in the academic debate about inheritance tax (the umbrella term she uses to refer to wealth transfer taxation generally, acknowledging that there is no federal inheritance tax per se).  She launches her analysis on the springboard of Tom Nagel’s argument that “the right to use one’s resources to benefit one’s family” [1] is at odds with inheritance taxation.  Alstott evaluates this claim using three perspectives on the family – she calls them the liberal, conventional, and functional views.   She synthesizes these from a careful reading of Jens Beckert’s historical study, Inherited Wealth (2008).  Roughly characterized, the liberal view approaches the family as a private sphere within which individuals should have freedom to choose their beneficiaries.  The conventional view construes the family as a privileged unit of economic and social organization that transmits identity and values from generation to generation.  A functional view emphasizes the family’s socio-economic welfare role–i.e., providing needed financial and other assistance to its members. Continue reading "A Good Time to Die: Family-Based Objections to Inheritance Taxation"


New Jotwell Section: Trusts & Estates

Today we inaugurate a new Jotwell section on Trusts & Estates, edited by Prof. Bridget J. Crawford of Pace Law School and Prof. William LaPiana of New York Law School. Together they have recruited a great team of Contributing Editors.

This is the first section to join Jotwell since we started publishing in November, but it is only the first of many. Expect Jurisprudence and Work Law soon, with several others already planned to follow in the coming months. Please get in touch if you have suggestions for a new section, or if you have a review you would like to contribute to Jotwell.


Everything but the Agency

Philip J. Weiser, Institutional Design, FCC Reform, and the Hidden Side of the Administrative State, 61 Admin. L. Rev. 675 (2009), available at BePress and SSRN.

Every so often, an article captures a persistent problem in a particular field.  Phil Weiser has done just that.  “In studying the modern administrative state,” Weiser writes, “legal scholars have failed to do their part in examining the questions related to institutional competence and institutional structure that determine whether administrative regulation can be effective.” Weiser, supra, at 676. He focuses on the institutional failings at the Federal Communication Commission (FCC).  The situation at the FCC is serious, leading Larry Lessig to recommend that Congress abolish the agency. See id. at 677 (citing Lawrence Lessig, Rebooting the FCC,, Dec. 23, 2008).

Weiser describes the main failing of the FCC as a tendency “toward ad hoc judgments and away from any principled framework for evaluating alternative courses of action.” See id. at 681. The agency has neither articulated general standards for key issues such as spectrum allocation nor engaged in proactive, strategic planning.  To make matters worse, the agency also lacks a capacity for independent research and analysis and relies “’almost exclusively upon information and analysis supplied by’ the parties that appear before it.” See id. at 681-82 (quoting Nicholas Johnson, Towers of Babel: The Chaos in Radio Spectrum Utilization and Allocation, 34 Law & Contemp. Probs. 505, 530 (1969)). As a result, the FCC is easily captured—not so much in the sense that the regulated interests populate its ranks or drive its decisions but in the sense that it is beholden to its own institutional limitations.  In Weiser’s words, the agency suffers from “a failure to approach issues strategically, to develop independent solutions, and anticipate issues ahead of particular crises.” See id. at 684. Weiser’s solution is not to abolish the agency but to repair its institutional processes.  He has a number of concrete suggestions, among them encouraging strategic agenda setting, better use of notice-and-comment rulemaking, upgraded data collection and dissemination, and increased public participation in decisionmaking.  Continue reading "Everything but the Agency"