Towards the Second Founding of Federal Sentencing

In 1987, the Nation’s first attempt to standardize federal sentencing came in the form of the United States Sentencing Guidelines. Following United States v. Booker, however, the Guidelines project began bending, and today it is now all but broken, besieged by complexity, undue severity, and the very disparities that it was designed to limit. This Article responds to this crisis by establishing the blueprint for an alternative federal sentencing model. Under this proposal, sentencing determinations would be based on statutory grades and unweighted aggravating and mitigating factors. This approach brings coherence to the purposes of punishment and, by deemphasizing quantitative determinations, promises increased judicial discretion and greater opportunities for counsel to influence sentencing. To demonstrate this system’s simplicity and workability, this Article applies the system to actual federal cases

Judicial Modesty in the Wartime Context

“The most important thing we do is not doing,” Justice Louis D. Brandeis noted of the Supreme Court. At the height of the Civil War, the Supreme Court in Roosevelt v. Meyer claimed that it could not review, and therefore let stand, a state court decision upholding the Legal Tender Act (“Act”), a critical wartime measure designed to stabilize the Union economy and fund the Union’s war efforts. In this essay, I suggest that this oft-overlooked case warrants the legal community’s consideration because it implicates a question fundamental to our constitutional system: should the courts decline judicial review—or, “not do”—in order to facilitate government responses to wartime challenges

A Critical Look at the ‘Critical Mass\u27 Argument

The Supreme Court\u27s pending ruling in Fisher v. University of Texas at Austin is expected to largely decide how or even whether affirmative action can be used in college admissions. The university\u27s argument for why minority enrollments need to reach a certain threshold, however, is problematic because it is inconsistent with previous court rulings involving race

Judicial Review as Soft Power: How the Courts Can Help Us Win the Post-9/11 Conflict

This Article seeks to answer these questions. In this Article, I will argue that the American response to Islamic terrorist factions must move outside the military sphere in which battles are fought between arms and men to a more conceptual contest for hearts and minds, where the ammunition in this abstract war will be fundamental American principles, particularly a constitutional commitment to the rule of law, and where advancements in the war will be based on incrementally increased attraction to America. This approach will speak to one’s will and conscience in an effort to secure a more lasting respite from the ongoing struggles that have no foreseeable end in sight, have been attended by suffering and sorrow, and have claimed a growing number of victims on all sides

Racial Mirroring

“Racial mirroring” refers to efforts by one group to match the primary racial composition of another group. In contrast to racial balancing, which takes place when two groups are adjusted simultaneously to achieve a desired degree of racial equilibrium between them, racial mirroring occurs when the racial makeup of one group is adjusted so as to reflect the predominant racial identity of the second group. Employers and even federal courts engage in racial mirroring. For example, in order to generate trust among customers, employers have hired or promoted individuals of the same race as the employers’ primary customer base. Further, in order to ensure that attorneys can fairly and adequately represent the interests of their clients, a federal district court judge required counsel in class action cases to staff attorneys that reflect the racial diversity of the clients. Federal appellate courts have approved these twin forms of racial mirroring. This Article challenges employer and judicial attempts to match the racial identity of one group to the primary racial identity of another. It argues that these practices, however intuitive and well intentioned, violate the Equal Protection Clause, embody harmful racial stereotypes, and generate significant social costs

Wartime America and The Wire: A Response to Posner’s Post-9/11 Constitutional Framework

This article challenges Not a Suicide Pact by using a single component of practical experience that has factored into legal reasoning: television. In particular, it will invoke various themes from The Wire—an HBO series that explores the relationship between the drug trade and law enforcement in Baltimore, Maryland—to demonstrate the problematic nature of the aforementioned arguments set forth in Posner’s book