The Commerce Power and Criminal Punishment: Presumption of Constitutionality or Presumption of Innocence?

The Constitution requires that the facts that expose an individual to criminal punishment be proved to a jury beyond a reasonable doubt. In recent years, the Supreme Court has taken pains to ensure that legislatures cannot evade the requirements of proof beyond a reasonable doubt and jury presentation through artful statutory drafting. Yet current Commerce Clause jurisprudence permits Congress to do just that. Congress can avoid application of the reasonable-doubt and jury-trial rules with respect to certain critical facts-the facts that establish the basis for federal action by linking the prohibited conduct to interstate commerce-by finding those facts itself rather than providing for case-by-case proof to a jury. As the Court\u27s decision last Term in Gonzales v. Raich illustrates, such findings-based statutes are subject to a presumption of constitutionality and will be sustained so long as the underlying legislative judgment was rational. The conflict between legislative findings and the constitutional requirements for criminal prosecutions is ignored in the vast literature on the commerce power, which focuses overwhelmingly on whether Congress can reach certain activities (and whether courts can or should impose meaningful limits on Congress\u27s legislative authority) but pays scant attention to how Congress legislates. Commentators assume that since Congress\u27s power to act on the basis of its own findings regarding the connection between the regulated conduct and interstate commerce is well established in the civil sphere, it must be equally clear in the criminal context. As this Article demonstrates, however, findings-based statutes generate unique costs in criminal prosecutions by depriving defendants of procedural protections designed to make it harder for the government to send an individual to jail than to regulate her conduct by civil means. The common justifications for leaving questions of commerce largely to Congress\u27s discretion, moreover, ring hollow when considered in the context of criminal law. Given the considerable costs offindings-based criminal prohibitions and the absence of any countervailing benefits, I argue that legislative findings should not serve as the basis for criminal punishment. Instead, courts should require case-by-case proof of the facts that demonstrate the necessary connection between the defendant\u27s conduct and interstate commerce

Civil Challenges to the Use of Low-Bid Contracts for Indigent Defense

In recent years, increasing attention has been directed to the problem of adequate representation for indigent criminal defendants. While overwhelming caseloads and inadequate funding plague indigent defense systems of all types, there is a growing consensus in the legal community that low-bid contract systems-under which the state or locality\u27s indigent defense work is assigned to the attorney willing to accept the lowest fee-pose particularly serious obstacles to effective representation. In this Note, Margaret Lemos argues that the problems typical of indigent defense programs in general-and low-bid contract systems in particular-can and should be addressed through § 1983 civil actions alleging that systemic defects in the state or locality\u27s chosen method for providing indigent defense services constitute a violation of indigent defendants\u27 constitutional right to effective assistance of counsel Lemos concludes that, by addressing the causes of ineffective assistance, such an approach can achieve positive change in a way that case-by-case adjudication of postconviction claims of ineffective assistance cannot

Privatizing Public Litigation

Government litigators increasingly use private resources—human and financial—to support their efforts in court. In some cases, government entities hire private lawyers to perform legal work on behalf of the government; in others, they draw on private donations to fund litigation; and in some cases they do both, relying on privately funded private lawyers to litigate cases in the government’s name. These mergers of public and private can be understood as part of broader trends toward the privatization of government services. This Article uses lessons from the privatization debates to illuminate the likely costs and benefits of bringing private actors into government litigation. It shows that privatization, often touted as a means of improving the efficiency of government services, may have the opposite effect in the context of litigation. Contracting with private lawyers may be more expensive than keeping the work in-house, and accepting private financing may encourage excessive, duplicative government litigation. Even where the advantages of privatization are most pronounced, significant costs remain. Private attorneys and financiers inject private interests and incentives into government litigation, transforming both the ends sought and the means used to achieve them. One cost of privatization, then, is that it can skew government litigation away from the public interest. That consequence is important in its own right, but it also suggests some of the longer-term risks of privatizing government litigation. Our law reflects the view that government litigation is—and should be—different from private litigation. In various ways, some subtle and others more overt, we privilege government litigation over equivalent suits by private parties. Privatization subverts those practices, allowing private attorneys and interest groups to take advantage of benefits typically reserved for government. While it empowers private interests, privatization simultaneously weakens government litigation, dulling its distinctive features and undermining the justifications for treating it differently. The stronger the resemblance between public and private actions, the harder it becomes to defend preferential treatment for government

Civil Challenges to the Use of Low-Bid Contracts for Indigent Defense

In recent years, increasing attention has been directed to the problem of adequate representation for indigent criminal defendants. While overwhelming caseloads and inadequate funding plague indigent defense systems of all types, there is a growing consensus in the legal community that low-bid contract systems-under which the state or locality\u27s indigent defense work is assigned to the attorney willing to accept the lowest fee-pose particularly serious obstacles to effective representation. In this Note, Margaret Lemos argues that the problems typical of indigent defense programs in general-and low-bid contract systems in particular-can and should be addressed through § 1983 civil actions alleging that systemic defects in the state or locality\u27s chosen method for providing indigent defense services constitute a violation of indigent defendants\u27 constitutional right to effective assistance of counsel Lemos concludes that, by addressing the causes of ineffective assistance, such an approach can achieve positive change in a way that case-by-case adjudication of postconviction claims of ineffective assistance cannot

Special Incentives to Sue

In an effort to strengthen private enforcement of federal law, Congress regularly employs plaintiff-side attorneys’ fee shifts, damage enhancements, and other mechanisms that promote litigation. Standard economic theory predicts that these devices will increase the volume of suit by private actors, which in turn will bolster enforcement and encourage more voluntary compliance with the law. This Article challenges the conventional wisdom. I use empirical evidence to demonstrate that special incentives to sue do not dependably generate more litigation. More crucially, when such incentives do work, they often trigger a judicial backlash against the very rights that Congress sought to promote. This dynamic has been neglected in the academic commentary to date, which has focused on litigant behavior alone while ignoring the role that judges play in any enforcement regime that depends on litigation. I show that caseload pressures and concerns about excessive litigation have driven judges to adopt procedural rules that dampen the effects of fee shifts and damage enhancements. Furthermore, judges have offset incentives to sue by narrowly interpreting the relevant substantive provisions of federal law

Interpretive Methodology and Delegations to Courts: Are ‘Common-Law Statutes’ Different?

It is hard to find consensus on questions of statutory interpretation. Debates rage on about the appropriate goals of interpretation and the best means of achieving those ends. Yet there is widespread agreement, even among traditional combatants on the statutory interpretation field, when it comes to so-called “common-law statutes.” Textualists concede that text is not controlling; originalists admit that judicial construction of common-law statutes need not be keyed to the specific intent of the enacting Congress; and staunch defenders of strict statutory stare decisis allow frequent departures from precedent. So what are common-law statutes? It is easy enough to name a few, and courts and commentators often do. The list always begins with the Sherman Act, and typically includes Section 1983, the Taft-Hartley Act, and statutory provisions on securities fraud. In the realm of intellectual property, scholars have argued that many of the major enactments make the cut. What is missing is any clear conception of what defines this special category, uniting common-law statutes and distinguishing them from the rest. The relevant case law and commentary reveal two features that are thought to qualify statutes like the Sherman Act for special treatment: Such statutes are written in broad terms and build on a tradition of common-lawmaking. In this Chapter, I argue that neither of the proposed distinctions is persuasive, as the relevant features are shared by many other statutes that do not appear on the privileged list. Any differences are in degree, not in kind. Of course, it is hardly uncommon for the law to mistake points on a continuum for separate categories, and the “common-law” label may serve as an easy — if mildly inaccurate — shorthand for the group of statutes that actively embrace lawmaking by courts. I hope to show, however, that the label is not so benign. Instead, the continuing fiction that there is a categorical difference between common-law statutes and “normal” statutes like, say, Title VII of the Civil Rights Act of 1964, works to obscure the difficult line-drawing problems that interpreters otherwise would have to confront. If statutes like the Sherman Act and Title VII coexist on a scale of statutory vagueness, it is a mistake to suggest that questions of interpretive methodology switch on and off in an automatic fashion depending on whether the statute at hand is a common-law statute. An additional problem with the “common-law” label is that it diverts attention away from significant questions concerning delegations of lawmaking power to the judiciary. How should the legal system identify such delegations? When are they a good idea, and when should Congress rely on agencies instead? The notion that delegations to courts can be identified, and justified, simply by drawing an analogy to the Sherman Act conceals those issues from view. But once the label is peeled back, it becomes clear that our current treatment of common-law statutes raises more questions than it answers about delegations to courts

A systematic approach to training: A training needs assessment

In an effort to determine the gap between the actual performance and the necessary performance of employees for the effective and efficient accomplishment of an organization's mission and goals, an organization-wide Training Needs Assessment must be conducted. The purpose of this work was to conduct a training needs analysis and prepare a NASA Langley Catalog of On-Site Training programs. The work included developing a Training Needs Assessment Survey, implementing the survey, analyzing and researching the training needs, identifying the courses to meet the needs, and preparing and designing an On-Site Training Catalog. This needs analysis attempted to identify performance weaknesses and deficits; seek out and provide opportunities for improved performance; anticipate and avoid future problems; enhance and create new strengths. The end product is a user-friendly catalog of on-site training available. The results include: top-down approach to needs assessment; improved communication with training coordinators; 98 percent return rate of the Training Needs Assessment survey; complete, newly designed, user-friendly catalog; 167 catalog descriptions advertised; 82 new courses advertised; training logo; and request for the training application form