A Comparison of Criminal Jury Decision Rules in Democratic Countries

This paper furnishes jury system information about the twenty-eight democracies (excluding the United States) that have been consistently democratic since at least the early 1990s and have a population of five million people or more (with allowance for Mexico and South Africa). I describe general rules that do not always apply to every crime in every context. In the United States, for example, we tend to use a randomly-selected jury of twelve people that sits for a single case; laws generally require unanimity to convict and unanimity to acquit. Failure to reach unanimity results in a “hung” jury, with the possibility for retrial at the prosecution\u27s discretion. To be sure, Oregon and Louisiana allow non-unanimous verdicts in certain contexts, not all jurisdictions use twelve jurors for all crimes, and defendants can waive certain aspects of the jury trial. But the general description remains valid and I am only trying to capture broad generalizations. Still, it should be noted that most of the countries surveyed here that have functioning criminal jury systems circumscribe the level of offense that triggers a jury trial; the United States offers the jury trial much more broadly to criminal defendants than other countries, most of which reserve the jury trial only for the most serious crimes. After specifying which countries do not employ juries and then delineating which do and their preferred decision rules, I offer some concluding ruminations about my findings

On Collaboration, Organizations, and Conciliation in the General Theory of Contract

Daniel Markovits\u27s Contract and Collaboration is a thought-provoking and ground-breaking inquiry into the ethics of contract. It argues that the philosophical foundation of contract may be found in what Markovits calls the collaborative view: a principle of forming respectful communities of collaboration where contractors treat each other as ends in themselves and refrain from treating each other as mere instrumentalities. Markovits acknowledges that there are three prototypical forms of contracts: (1) person-to-person; (2) person-to-organization; and (3) organization-to-organization. He is refreshingly honest in arguing that his theory of contract only addresses Type (1) contracts. I wish to argue here that this feature of Markovits\u27s account severely curtails the possibility of treating the collaborative view as a general theory of contract as such. Part I of this Essay summarizes the portion of Markovits\u27s collaborative view upon which I shall focus. Part II argues, pace Markovits, that Type (2) and Type (3) contracts are part of the “conceptual core” of contract for which a general theory of contract must account. And Part III offers some concluding thoughts about conciliation in contract theory

Also, No

Reviewing: Adrian Vermeule, Law’s Abnegation: From Law’s Empire to the Administrative State (Harvard University Press 2016)

Criminal Justice and the Challenge of Family Ties

This Article asks two basic questions: When does, and when should, the state use the criminal justice apparatus to accommodate family ties, responsibilities, and interests? We address these questions by first revealing a variety of laws that together form a string of family ties subsidies and benefits pervading the criminal justice system. Notwithstanding our recognition of the important role family plays in securing the conditions for human flourishing, we then explain the basis for erecting a Spartan presumption against these family ties subsidies and benefits within the criminal justice system. We delineate the scope and rationale for the presumption and under what circumstances it might be overcome. When the presumption is overcome, we urge distributing the benefit on terms that are neutral to family status, if possible, with a focus instead on functions served by established relationships of care-giving responsibility

Legislative Underwrites

This article introduces a widespread but virtually unacknowledged practice in Congress and state legislatures. Not only do legislatures override judicial decisions as part of an interbranch dialogue when they disagree with judicial rulings and doctrine, they also underwrite judicial decisions when they agree with those rulings. For all the literature on the adversarial communication evidenced through legislative overriding, there is not a single paper devoted to legislative underwrites that reflect more collaborative dimensions of the interbranch dialogue. This article begins to fill that void, and in so doing it frames practical and theoretical lessons for legislative, judicial, and scholarly audiences. More specifically, the article defines the contours of an underwrite and identifies the diversity of underwrite initiatives in Congress and state legislatures. It then normatively evaluates costs and benefits that might flow from a more self-conscious approach to underwrites, analyzing these pros and cons as they operate at pragmatic, doctrinal, and conceptual levels. It also examines certain vulnerabilities to the practice that may limit the scope and meaning of underwrites as applied by “downstream” statutory interpreters. Finally, the article explores the interplay between underwrites and key interpretive doctrines that invoke legislative silence—notably, statutory stare decisis and the re-enactment rule. In that connection, it suggests certain doctrinal and institutional settings in which underwrites may be especially valuable

Regleprudence – at OIRA and Beyond

There are significant domains of legality within the administrative state that are mostly immune from judicial review and have mostly escaped the attention of legal theorists. While administrative law generally focuses on the products of agency action as they are reviewed by the judiciary, there are important aspects of regulatory activity that are legal or law-like but rarely interrogated by systematic analysis with reference to accounts about the role and nature of law. In this Article, we introduce a category of analysis we call regleprudence, a sibling of jurisprudence and legisprudence. Once we explore some regleprudential norms, we delve into one case study – the Office of Information and Regulatory Affairs and the legal work it undertakes through regulatory review – and gesture at how more general attention to regleprudence can improve our understanding of important corners of the Executive Branch

Regleprudence – at OIRA and Beyond

There are significant domains of legality within the administrative state that are mostly immune from judicial review and have mostly escaped the attention of legal theorists. While administrative law generally focuses on the products of agency action as they are reviewed by the judiciary, there are important aspects of regulatory activity that are legal or law-like but rarely interrogated by systematic analysis with reference to accounts about the role and nature of law. In this Article, we introduce a category of analysis we call regleprudence, a sibling of jurisprudence and legisprudence. Once we explore some regleprudential norms, we delve into one case study – the Office of Information and Regulatory Affairs and the legal work it undertakes through regulatory review – and gesture at how more general attention to regleprudence can improve our understanding of important corners of the Executive Branch