Category Archives: TLR Vol. 95-2

Constitutional Archetypes

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Law contends as an empirical matter that constitutional narratives of the state boil down to a combination of three basic archetypes—namely, a liberal archetype, a statist archetype, and a universalist archetype. The liberal archetype is closely identified with the common law tradition and views the state as a potentially oppressive concentration of authority in need of regulation and restraint. The statist archetype, in contrast, is associated with the civil law tradition and hails the state as the embodiment of a distinctive community and the vehicle for the achievement of the community’s goals. The universalist archetype, the newest and most prevalent of the three, is symbiotically intertwined with a post-World War II, post-Westphalian paradigm of international law that rests the legitimacy of the state upon the normative force of a global legal order that encompasses both constitutional law and international law. Law conducts an empirical analysis of constitutional preambles to demonstrate his taxonomy.

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Immigrant Protective Policies in Criminal Justice

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Eagly argues that protective gaps for immigrants in local criminal justice policies have evolved against a backdrop of an incomplete set of organizing principles for advancing such policies. The justifications most often put forth by advocates, scholars, and policymakers in favor of protective criminal justice policies are community policing, immigrant integration, and budgetary constraints. Each of these justifications, while important, has supplied only a partial framework for formulating criminal justice policy that decouples local policing and prosecuting from federal immigration enforcement priorities. To help guide the development of next-generation protective policies, Eagly explores an alternative justification for immigrant protective policies—immigrant equality, which seeks to insulate noncitizens from harsher forms of punishment, racial and ethnic profiling, and other substantive and procedural distortions that immigration enforcement imposes on criminal cases involving noncitizens. To illustrate how adherence to a norm of immigrant equality would further refine and shape next-generation protective policies, Eagly applies the approach to current criminal justice issues facing localities around the country.

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The Invisible Revolution in Plea Bargaining: Managerial Judging and Judicial Participation in Negotiations

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King and Wright, in the most comprehensive study of judicial participation in plea negotiations since the 1970s, reveal a stunning array of new procedures that involve judges routinely in the settlement of criminal cases. Interviewing nearly one hundred judges and attorneys in ten states, they found that what once were informal, disfavored interactions have quietly, without notice, transformed into highly structured best practices for docket management. King and Wright learned of grant-funded problem-solving sessions complete with risk assessments and real-time information on treatment options; multicase conferences where other lawyers chime in; settlement courts located at the jail; settlement dockets with retired judges; full-blown felony mediation with defendant and victims; felony-court judges serving as lower court judges; and more. They detail the reasons these innovations in managerial judging have developed so recently on the criminal side, why they thrive, and why some judges have not joined in.

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The Brave New Path of Energy Federalism

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For much of the past eighty years, courts have fixated on dual sovereignty as the organizing federalism paradigm under New Deal-era energy statutes. Dual sovereignty’s reign emphasized a jurisdictional “bright line,” a fixed and legalistic boundary between federal and state regulators. Rossi explores how three recent Supreme Court decisions limit dual sovereignty’s role as the organizing federalism principle under energy statutes. These recent decisions do not approach federal–state jurisdiction as an either/or proposition, but instead recognize it is concurrent for many energy transactions. Concurrent jurisdiction opens up a brave new path of possibilities for energy federalism but also has been a target of criticism, including in Justice Scalia’s last published dissent. Rossi defends concurrent jurisdiction as consistent with the language, history, structure, and primary purposes of energy statutes.

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Category Archives: TLR Vol. 95-2

Constitutional Archetypes

By | TLR Vol. 95-2 | No Comments
Law contends as an empirical matter that constitutional narratives of the state boil down to a combination of three basic archetypes—namely, a liberal archetype, a statist archetype, and a universalist archetype. The liberal archetype is closely identified with the common law tradition and views the state as a potentially oppressive concentration of authority in need of regulation and restraint. The statist archetype, in contrast, is associated with the civil law tradition and hails the state as the embodiment of a distinctive community and the vehicle for the achievement of the community’s goals. The universalist archetype, the newest and most prevalent of the three, is symbiotically intertwined with a post-World War II, post-Westphalian paradigm of international law that rests the legitimacy of the state upon the normative force of a global legal order that encompasses both constitutional law and international law. Law conducts an empirical analysis of constitutional preambles to demonstrate his taxonomy.

Read More

Immigrant Protective Policies in Criminal Justice

By | TLR Vol. 95-2 | No Comments
Eagly argues that protective gaps for immigrants in local criminal justice policies have evolved against a backdrop of an incomplete set of organizing principles for advancing such policies. The justifications most often put forth by advocates, scholars, and policymakers in favor of protective criminal justice policies are community policing, immigrant integration, and budgetary constraints. Each of these justifications, while important, has supplied only a partial framework for formulating criminal justice policy that decouples local policing and prosecuting from federal immigration enforcement priorities. To help guide the development of next-generation protective policies, Eagly explores an alternative justification for immigrant protective policies—immigrant equality, which seeks to insulate noncitizens from harsher forms of punishment, racial and ethnic profiling, and other substantive and procedural distortions that immigration enforcement imposes on criminal cases involving noncitizens. To illustrate how adherence to a norm of immigrant equality would further refine and shape next-generation protective policies, Eagly applies the approach to current criminal justice issues facing localities around the country.

Read More

The Invisible Revolution in Plea Bargaining: Managerial Judging and Judicial Participation in Negotiations

By | TLR Vol. 95-2 | No Comments
King and Wright, in the most comprehensive study of judicial participation in plea negotiations since the 1970s, reveal a stunning array of new procedures that involve judges routinely in the settlement of criminal cases. Interviewing nearly one hundred judges and attorneys in ten states, they found that what once were informal, disfavored interactions have quietly, without notice, transformed into highly structured best practices for docket management. King and Wright learned of grant-funded problem-solving sessions complete with risk assessments and real-time information on treatment options; multicase conferences where other lawyers chime in; settlement courts located at the jail; settlement dockets with retired judges; full-blown felony mediation with defendant and victims; felony-court judges serving as lower court judges; and more. They detail the reasons these innovations in managerial judging have developed so recently on the criminal side, why they thrive, and why some judges have not joined in.

Read More

The Brave New Path of Energy Federalism

By | TLR Vol. 95-2 | No Comments

For much of the past eighty years, courts have fixated on dual sovereignty as the organizing federalism paradigm under New Deal-era energy statutes. Dual sovereignty’s reign emphasized a jurisdictional “bright line,” a fixed and legalistic boundary between federal and state regulators. Rossi explores how three recent Supreme Court decisions limit dual sovereignty’s role as the organizing federalism principle under energy statutes. These recent decisions do not approach federal–state jurisdiction as an either/or proposition, but instead recognize it is concurrent for many energy transactions. Concurrent jurisdiction opens up a brave new path of possibilities for energy federalism but also has been a target of criticism, including in Justice Scalia’s last published dissent. Rossi defends concurrent jurisdiction as consistent with the language, history, structure, and primary purposes of energy statutes.

Read More