Legal Studies Research Paper Series

(From Legal Scholarship Network: Legal Studies Research Paper Series, University of North Carolina RSS)

The President's Immigration Courts

Catherine Y. Kim
Scholars have long documented the expansion of White House influence over agency decision making; for at least the past quarter-century, presidential control has become the central feature of federal regulatory governance. Until recently, such influence was understood to target the performance of purely executive and legislative functions by agencies; commentators generally assumed that political operatives refrained from interfering in agencies’ performance of adjudicative functions. The Trump Administration has cast doubt on that assumption, deploying a series of reforms designed to reshape administrative adjudication in our nation’s immigration courts. This Essay evaluates these emerging tools of political influence and their implications for the ongoing debate over the legitimacy of presidential administration.

-March 22, 2018

The Myth of Common Law Crimes

Carissa Byrne Hessick
Conventional wisdom tells us that, after the United States was founded, we replaced our system of common law crimes with criminal statutes and that this shift from common law to codification vindicated important rule-of-law values. But this origin story is false on both counts. The common law continues to play an important role in modern American criminal law, and to the extent that it has been displaced by statutes, our justice system has not improved. Criminal statutes regularly delegate to prosecutors questions about the scope of criminal law, and judges have failed to serve as a check on that power. As a consequence, the current system provides less notice, less accountability, less separation of powers, and more potential for abuse than the common law system. Thus, to the extent the statute has displaced common law, the shift is not a story of the triumph of the rule of law; it is instead a story of legislative excess, prosecutorial supremacy, and judicial abdication. The conventional wisdom of criminal common law is not only false, but it also conceals the failings of our current criminal justice system.

-March 22, 2018

Sixth Amendment Sentencing after Hurst

Carissa Byrne Hessick and William W. Berry
The Supreme Court’s 2016 decision in Hurst v. Florida, which struck down Florida’s capital sentencing scheme, altered the Court’s Sixth Amendment sentencing doctrine. That doctrine has undergone several important changes since it was first recognized. At times the doctrine has expanded—invalidating sentencing practices across the country—and at times it has contracted—allowing restrictions on judicial sentencing discretion based on findings that are not submitted to a jury. Hurst represents another expansion of the doctrine. Although the precise scope of the decision is unclear, the most sensible reading of Hurst suggests that any finding required before a judge may impose a higher sentence must be submitted to a jury and proven beyond a reasonable doubt. This reading invalidates several state capital sentencing systems and several non-capital systems, and it would require dramatic changes to federal sentencing as well.

-March 22, 2018

Fidelity, Accountability and Trust: Tensions at the Heart of the Rule of Law

Gerald J. Postema
From the notions of fidelity, accountability, and trust springs a robust and attractive understanding of the rule of law. Yet, frequently it has been argued that accountability drives out trust, that it is from distrust that the demand for accountability stems. We should not look to law and its ethos of accountability to hold human communities together or even to underwrite a robust program of controlling the exercise of ruling power. I call this the “trust challenge.” If the trust challenge is sound, the rule of law looks to be self-defeating, at least on the understanding of the rule of law that I have sought to defend in recent years. In this essay I answer this challenge. I argue that, in fact, accountability and trust are close allies in interpersonal morality and civic life.

-March 22, 2018

Meaning, Analysis, and Exposition: Bentham on the Technology of Thought

Gerald J. Postema
First and foremost a social and legal reformer, Bentham undertook philosophical reflection on language—its nature, use and abuse—in an effort to understand and improve the world. His intellectual energy was trained primarily on law and political ordering, but he looked to every mode of inquiry (“science”) available for analytic and normative tools with which to “rear the fabric of felicity.” The most important of his theoretical innovations, in his view, was his theory of meaning, the heart of which was his analysis of language in terms of “real” and “fictitious” entities. This theory mapped the relations between the domain of thought and physical reality and devised a method of analysis—definition by “paraphrasis”—that enabled systematic ordering of thought. Late in his life, Bentham set out the metaphysical and epistemological foundations of his life’s work, articulating and grounding the philosophical principles that had governed his thinking from the beginning of his career. Reflecting on language and its relation to thought and reality, he produced sophisticated theories of meaning and of the technology of thought—the techniques and principles by which the active mind populates and orders the domain of thought. With this technology, Bentham sought to discipline potentially wayward language and thereby to deprive arbitrary power of one of its favorite weapons.

-March 22, 2018

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