Principles, Pragmatism, and Politics: The Evolution of Washington State’s Sentencing Guidelines

Although the U.S. Federal Sentencing Guidelines have received much attention (and criticism), we do well to remember that the United States is a federal system, and that each of the fifty states has its own sentencing rules and procedures. Today, roughly half of the states have sentencing commissions that issue guidelines -which are generally similar to the federal guidelines in form but different in structure and content. This article examines the history and operation of sentencing in Washington state, an early leader in the development of sentencing guidelines in the United States

The Risk of Legal Error in Criminal Cases: Some Consequences of the Asymmetry in the Right to Appeal

The government bears most of the risk of error in a criminal trial: factual error because of the requirement of proof beyond a reasonable doubt and legal error because of the prohibition on government appeal of acquittals. Neither of these procedural mechanisms has a counterpart in civil procedure

Labor Law - Arbitration - Duty to Arbitrate Severance Pay Survives Termination of Collective Bargaining Agreement Before Closing of Plant

On July 28, 1970, the Bakery Workers and Nolde Brothers entered into a collective bargaining agreement covering employees at the company\u27s Norfolk, Virginia bakery. The agreement was to remain in effect until July 21, 1973 and thereafter until a new agreement was reached or until either party gave seven days\u27 notice of termination. It included a broad arbitration clause, a no-strike clause, and a provision for severance pay, upon the permanent closing of the bakery, for each employee who had worked full-time for at least three years immediately prior to his layoff due to the closing.\u27 After several months of negotiations, the union on August 21, 1973 gave notice of its intent to terminate the agreement. On August 31, 1973, the union threatened to strike, whereupon the company immediately shut down the bakery. After the company refused to give severance pay or to arbitrate whether it had a duty to do so, the union sued in federal district court under section 301 (a) of the Labor Management Relations Act. The district court held that the union had no contractual entitlement to severance pay because it had voluntarily terminated the agreement prior to the bakery closing. The court further stated that the company had no duty to arbitrate the dispute, since it had arisen after expiration of the agreement

Rewriting the Fiscal Constitution: The Case of Gramm-Rudman-Hollings

Because the Constitution\u27s fiscal provisions are not self-executing, federal budget processes have been shaped largely by an implicit \u27fiscal constitution composed of framework statutes and legislative and administrative practice. This Article contends that the ambition of the Gramm-Rudman- Hollings Act (GRH) was radically to redesign this constitution by creating an extralegislative mechanism ( sequestration ) to enforce statutorily prescribed deficit limits. Professor Stith demonstrates how GRH alters several aspects of traditionalp ractice: It makes the annual budget deficit the driving concern of the legislative budget process, it makes the timing of outlays critically important to appropriations decisions, and it encourages greater participation by Congress in line-item allocation of appropriations. GRH does not, however, directly constrain spending in over half of the budget, which it exempts from sequestration. Moreover, there is an inherent limit to the effectiveness of sequestration as a deficit-reduction strategy. As the threat of sequestration becomes greater, the plausibility of the threat decreases because Congress can always repeal, amend, or suspend GRI. Professor Stith concludes that GRH is a constitutionally permissible way to constrain deficit growth, but it is neither a fundamental reordering of our fiscal processes nor a solution to the persistent deficit problem

Congress\u27 Power of the Purse

In view of the significance of Congress\u27 power of the purse, it is surprising that there has been so little scholarly exploration of its contours. In this Article, Professor Stith draws upon constitutional structure, history, and practice to develop a general theory of Congress\u27 appropriations power. She concludes that the appropriations clause of the Constitution imposes an obligation upon Congress as well as a limitation upon the executive branch: The Executive may not raise or spend funds not appropriated by explicit legislative action, and Congress has a constitutional duty to limit the amount and duration of each grant of spending authority. Professor Stith examines forms of spending authority that are constitutionally troubling, especially gift authority, through which Congress permits federal agencies to receive and spend private contributions without further legislative review. Other types of backdoor spending authority, including statutory entitlements and revolving funds, may also be inconsistent with Congress\u27 duty to exercise control over the size and duration of appropriations. Finally, Professor Stith proposes that nonjudicial institutions such as the General Accounting Office play a larger role in enforcing and vindicating Congress\u27 power of the purse

No Entrenchment: Thomas on the Hobbs Act, the Ocasio Mess, and the Vagueness Doctrine

Time and again, we have seen that neither precedent nor a perceived need to achieve consensus on the Court can hold Justice Clarence Thomas back from pronouncing what he has found to be the best understanding of the Constitution and federal statutes. His decisions scrape away at what Ralph Rossum has called the excrescence of flawed precedent,\u27 no matter how deeply entrenched. He looks beyond the entrenchment to the Constitution and history. Not surprisingly, his administrative law decisions and his decisions directly interpreting the Constitution receive the most attention. But the Justice\u27s deep commitment to not only thinking, but rethinking is also on display in the more prosaic criminal-law opinions I will discuss