Muscle Memory and the Local Concentration of Capital Punishment

The modern death penalty is not just concentrating in a handful of practicing states; it is disappearing in all but a few capitally active localities. Capital-punishment concentration, however, still surfaces more as the subject of casual observation than as the object of sophisticated academic inquiry. Normative and doctrinal analyses of the phenomenon are virtually nonexistent, in part because the current ability to measure and report concentration is so limited. This Article is the first attempt to measure capital-punishment concentration rigorously, by combining different sources of county-level data and by borrowing quantitative tools that economists use to study market competition. The analysis yields three major findings: (1) capital sentencing is concentrating dramatically; (2) executions are concentrating more gradually; and (3) both trends persist within most capitally active states. Certain normative and doctrinal conclusions follow from the empirical findings. The causes of concentration are likely to be more bureaucratic and path dependent than they are democratic and pragmatic, reflecting what I call the “muscle memory” of local institutional practice. If local muscle memory indeed explains concentration, such concentration violates basic punishment norms requiring equal treatment of similar offenders. This problem notwithstanding, existing death penalty jurisprudence does not account for local concentration. For concentration to have any influence on the outcome of constitutional inquiry, the Supreme Court would have to revise its working definition of “arbitrariness.

Outcome Sensitivity and the Constitutional Law of Criminal Procedure

Iconic criminal procedure doctrines that perform the same function go by different names. When constitutionally disfavored conduct taints a criminal proceeding, courts must determine how much the taint affected an outcome—and whether the damage requires judicial relief. These doctrinal constructs calibrate judicial responses to, among other things, deficient defense lawyering (prejudice), wrongful State suppression (materiality), unlawful policing (attenuation), and an assortment of trial-court mistakes (harmless error). I refer to these constructs, which tightly orbit the constitutional law of criminal procedure, as rules of “outcome sensitivity.” Formal differences in sensitivity rules remain enduring puzzles subject to only the most superficial inspection. In this Article, I surface the parallel functions that these rules perform, explain why they should be banished from substantive constitutional law, and advance my preferred view of their legal status: as subconstitutional limits on judicial remedies. At stake are basic behavioral incentives for defense lawyers, police, prosecutors, and judges. I proceed in three parts. In Part I, I map the universe of sensitivity rules. They can be internal pieces of substantive constitutional law (like materiality and prejudice elements), or they can be external limits on remedies for completed constitutional wrongs (like harmless error rules). They can also define downstream constitutional errors distinct from upstream constitutional violations (like certain rules against in-court identification). In Part II, I reject internal sensitivity rules, which unwisely transmit mixed signals to criminal justice actors engaged in disfavored conduct. Such rules undermine crucial professional norms, and they degrade constitutional enforcement that takes place outside the criminal process. In Part III, I argue that external sensitivity rules should be conceptualized as subconstitutonal limits on judicial remedies. That status neatly explains why sensitivity rules apply in state court, it avoids standard criticism of federal common law, and it is less doctrinally disruptive than the external alternatives

Structural Change in State Postconviction Review

This Article\u27s ultimate objectives are to diagnose, predict, and evaluate structural change in State PCR. Because claims and evidence necessary to enforce constitutional rights increasingly require a meaningful collateral forum, and because the federal collateral forum is so limited, State PCR is, for lack of a better term, the Last Man Standing. That status is not lost on the Supreme Court and lower federal judges, who are adapting available legal rules to try to improve the efficacy of collateral process in state court. And such adaptation does add to the bite of criminal-process rights, the underenforcement of which is perceived as a major blemish on American penal practice. What remains lacking, however, is a more satisfying theoretical explanation for the changes

Unfair Labor Practices, Individual Rights and Section 301

On December 10, 1962, the United States Supreme Court, in Smith v. Evening News Ass\u27n, established several principles of law which may rival the well-known decision of Textile Workers Union v. Lincoln Mills in importance. The purpose of this comment is to examine the far-reaching implications of Evening News and related Supreme Court decisions

Prisoners and Habeas Privileges Under the Fourteenth Amendment

The U.S. Reports contain no answer to a million-dollar question: are state prisoners constitutionally entitled to a federal habeas forum? The Supreme Court has consistently ducked the basic constitutional issue, and academic work on the question idles on familiar themes. The strongest existing argument that state prisoners are constitutionally entitled to a federal habeas forum involves a theory of incorporation under the Fourteenth Amendment\u27s Due Process Clause. I provide a new and different account: specifically, that the Fourteenth Amendment\u27s Privileges and Immunities Clause ( PI Clause ) guarantees a habeas privilege as a feature of national citizenship, and that the corresponding habeas power reaches state custody. We now know that the common-law habeas writ did not evolve primarily as a security for individual liberty, but in service of judicial power. In Boumediene v. Bush, the Supreme Court blessed this revised writ history

Civil Rights and Arbitration

One area of arbitration in need of close scrutiny today is the civil rights arena. For the purposes of this Article, the meaning of “civil rights” is limited to situations involving employer or union discrimination on the basis of race, religion, nationality, sex, or age. While employers and unions generally respect and abide by arbitration awards in civil rights disputes, do employee grievants find—and should they find—equal comfort? Although I believe the need for reform is much more extensive, this Article is primarily devoted to civil rights issues brought to arbitration. Specifically, it addresses the question of whether arbitration is a just means of adjudicating civil rights disputes. State and federal legislation require “fair employment” by employers and unions; yet, arbitrators resolving civil rights disputes function under controls which retard, or at least hinder, advancement toward “fair employment.” To support the argument for reform, I will review the legal regulation of arbitration and examine the arbitration process itself. I will also present empirical evidence which points to the shortcomings of arbitration in civil rights disputes and suggest reforms