Impeachment as Congressional Constitutional Interpretation

Katyal argues that one can adhere to originalism in the context of judicial interpretation and, nevertheless, believe in a broader style of interpretation for the legislature. He illustrates the point with three examples--the roles of history, precedent, and moral philosophy--in discussing the case of Pres Bill Clinton\u27s impeachment

Legislative Constitutional Interpretation

This is an Essay about the how of constitutional interpretation. Much attention has been devoted to the question of how the Constitution is interpreted in courts. Rather little attention has been devoted to the question of how the Constitution is interpreted elsewhere in the government. The Constitution tells us that Congress, the President, and state legislators and courts must adhere to its terms, but it does not tell us how much interpretive power each actor should have, nor does it prescribe rules for each actor to use when interpreting the text. I argue that constitutional interpretation by Congress is, and should be, quite different from constitutional interpretation by courts. In so doing, I combine insights from political scientists about the ways Congress operates with insights from constitutionalists who fear open-ended interpretation

The Promise and Preconditon of Education Autonomy

In this article, Professor Katyal, who filed the educational autonomy amicus brief in Grutter on behalf of Deans at the nation\u27s leading private law schools, defends the view that universities have a zone of freedom to pursue Bakke-style affirmative action but outlines some strong limits on such autonomy. The Court\u27s principle of educational autonomy is anchored in judicial precedent and common sense, but, like all forms of judicial deference, such autonomy must be carefully circumscribed. In particular, Professor Katyal argues that if a law school seeks to use educational autonomy as part of its defense of its admissions process, its admissions office cannot keep its admissions data and policies completely secret. One attractive solution, building on another tradition derived from academic freedom, is to use peer review over admissions policies. Without some process to disseminate to outsiders who the university is admitting and rejecting and why, educational autonomy cannot and should not be used to defend a program

Deterrence\u27s Difficulty

We all crave simple elegance. Physicists since Einstein have been searching for a grand unified theory that will tie everything together in a simple model. Law professors have their own grand theories - law and economics\u27s Coase Theorem and constitutional law\u27s Originalism immediately spring to mind. Criminal law is no different, for the analogue is our faith in deterrence - the belief that increasing the penalty on an activity will mean that fewer people will perform it. This theory has much to commend it. After all, economists and shoppers have known for ages that a price increase in a good means that people will consume less of it. But sometimes the consumption picture is more complicated than this simple economic account. Indeed, the leap from ordinary goods to criminal behavior is a large one, and one that presents complications of its own. This article sketches out several possible outcomes that arise from the criminalization of behavior. Incorporating recent work in economics, sociology, and psychology, it explains the ways in which the deterrence question is more difficult than many of us have assumed and illustrates how criminalization can create unintended, and sometimes perverse, incentives

Books, Debate, Specificity

Foreword to Volume 117, Issue 6 of the Michigan Law Review

Deterrence\u27s Difficulty

We all crave simple elegance. Physicists since Einstein have been searching for a grand unified theory that will tie everything together in a simple model. Law professors have their own grand theories - law and economics\u27s Coase Theorem and constitutional law\u27s Originalism immediately spring to mind. Criminal law is no different, for the analogue is our faith in deterrence - the belief that increasing the penalty on an activity will mean that fewer people will perform it. This theory has much to commend it. After all, economists and shoppers have known for ages that a price increase in a good means that people will consume less of it. But sometimes the consumption picture is more complicated than this simple economic account. Indeed, the leap from ordinary goods to criminal behavior is a large one, and one that presents complications of its own. This article sketches out several possible outcomes that arise from the criminalization of behavior. Incorporating recent work in economics, sociology, and psychology, it explains the ways in which the deterrence question is more difficult than many of us have assumed and illustrates how criminalization can create unintended, and sometimes perverse, incentives