The Unconvincing Case Against Private Prisons

In 2009, the Israeli High Court of Justice held that private prisons are unconstitutional. This was more than a domestic constitutional issue. The court anchored its decision in a carefully reasoned opinion arguing that the state has a monopoly on the administration of punishment, and thus private prisons violate basic principles of modern democratic governance. This position was immediately elaborated upon by a number of leading legal philosophers, and the expanded argument has reverberated among legal philosophers, global constitutionalists, and public officials around the world. Private prisons are a global phenomenon, and this argument now stands as the definitive principled statement opposing them. In this Article, I argue that the state monopoly theory against privatization is fundamentally flawed. The Article challenges the historical record and philosophy of the state on which the theory is based, and then explores two other issues the theory wholly ignores: private custodial arrangements in other settings that are widely regarded as acceptable if not exemplary and third-party state arrangements that are universally hailed as exemplary. The Article presents first-of-its-kind empirical data on private prisons in Australia, discusses the implications of readily available information on juvenile facilities, and explores interstate compacts on prisoner transfers. The Article maintains that the state monopoly theory erroneously asserts that privatization is inconsistent with the modern state, and concludes with a call for policymakers and judges to imbue their future privatization decisions with local knowledge and time-honored pragmatism. Presented as the Jerome Hall Lecture at Indiana University Maurer School of Law, Bloomington, Indiana, October 23, 2013

Mdm2 Is Required for Survival and Growth of p53-Deficient Cancer Cells.

p53 deletion prevents the embryonic lethality of normal tissues lacking Mdm2, suggesting that cells can survive without Mdm2 if p53 is also absent. Here we report evidence challenging this view, with implications for therapeutically targeting Mdm2. Deletion of Mdm2 in T-cell lymphomas or sarcomas lacking p53 induced apoptosis and G2 cell-cycle arrest, prolonging survival of mice with these tumors. p53-/- fibroblasts showed similar results, indicating that the effects of Mdm2 loss extend to pre-malignant cells. Mdm2 deletion in p53-/- cells upregulated p53 transcriptional target genes that induce apoptosis and cell-cycle arrest. Mdm2 deletion also increased levels of p73, a p53 family member. RNAi-mediated attenuation of p73 rescued the transcriptional and biological effects of Mdm2 loss, indicating that p73 mediates the consequences of Mdm2 deletion. In addition, Mdm2 deletion differed from blocking Mdm2 interaction with p53 family members, as Nutlin-3 induced G1 arrest but did not activate apoptosis in p53-/- sarcoma cells. Our results indicate that, in contrast to current dogma, Mdm2 expression is required for cell survival even in the absence of p53. Moreover, our results suggest that p73 compensates for loss of p53 and that targeting Mdm2 in p53-deficient cancers has therapeutic potential. ©2017 AACR

Law, Legitimacy, and Symbols: An Expanded View of Law and Society in Transition

A Review of Law and Society in Transition: Toward Responsive Law by Philippe Nonet and Philip Selznic

The Syracuse Conference on a World Rule of Law: American Perspectives An Introduction

The working group was charged with exploring virtually all facets of democracy and the rule of law, as they pertain to established constitutional democracies, societies undergoing transitions to constitutional democracies, and those societies where democracy remains little more than a hopeful wish. Papers and much of the discussion during the two days probed beneath the structural formalities that are obvious and important requisites of democracy, to explore the subtexts of and cultural conditions for democracy and the rule of law, those features that may be so taken-for-granted that they usually go unacknowledged, let alone unexplored in discussion of democratic theory. Much of what was written and discussed concerned the social bases of democracy

East Asian Court Reform on Trial: Comments on the Contributions

I am honored to have my book, Court Reform on Trial: Why Simple Solutions Fail, serve as the organizing framework for this symposium. The enterprise has proven valuable as it provided a reason to assemble a set of articles that focus on important changes in Asian courts in recent decades. Further, it appears that the reforms in three of the countries are loosely related to each other. While Japan had a head start on judicial reforms, both Korea and Taiwan embarked on the same path as soon as they had shed authoritarian rule. China has pursued a more ambitious project. Court reform is part of a massive effort to keep up with massive changes in society and the economy since the 1980s

Double Jeopardy and Dual Sovereignty

This Comment has been prompted by two recent United States Supreme Court decisions, Bartkus v. Illinois, and Abbate v. United States. In the former decision Bartkus, the defendant, was tried in the Federal District Court for the Northern District of Illinois on December 18, 1953, for the robbery of a federally insured savings and loan association of Cicero, Illinois, in violation of a federal statute. There was a jury trial and Bartkus was acquitted. Then on January 8, 1954, Bartkus was indicted by an Illinois grand jury charging a violation of a state robbery statute. This time Bartkus was convicted, and under an habitual criminal statute sentenced to life imprisonment. Between these two trials additional evidence to refute the defendant\u27s alibi was obtained, and either for this reason or some other, the second panel of Illinois jurors came to an opposite conclusion from that of their federal predecessors. The Illinois court rejected the plea of autrefois acquit, and the Supreme Court of the United States upheld in a five-to-four decision the Illinois court, indicating that its rejection of the plea in bar was not a violation of the defendant\u27s right to due process of law under the fourteenth amendment

The Unconvincing Case Against Private Prisons

In 2009, the Israeli High Court of Justice held that private prisons are unconstitutional. This was more than a domestic constitutional issue. The court anchored its decision in a carefully reasoned opinion arguing that the state has a monopoly on the administration of punishment, and thus private prisons violate basic principles of modern democratic governance. This position was immediately elaborated upon by a number of leading legal philosophers, and the expanded argument has reverberated among legal philosophers, global constitutionalists, and public officials around the world. Private prisons are a global phenomenon, and this argument now stands as the definitive principled statement opposing them. In this Article, I argue that the state monopoly theory against privatization is fundamentally flawed. The Article challenges the historical record and philosophy of the state on which the theory is based, and then explores two other issues the theory wholly ignores: private custodial arrangements in other settings that are widely regarded as acceptable if not exemplary and third-party state arrangements that are universally hailed as exemplary. The Article presents first-of-its-kind empirical data on private prisons in Australia, discusses the implications of readily available information on juvenile facilities, and explores interstate compacts on prisoner transfers. The Article maintains that the state monopoly theory erroneously asserts that privatization is inconsistent with the modern state, and concludes with a call for policymakers and judges to imbue their future privatization decisions with local knowledge and time-honored pragmatism. Presented as the Jerome Hall Lecture at Indiana University Maurer School of Law, Bloomington, Indiana, October 23, 2013