Category: Law Rev Forum

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Baze-d and Confused: What’s the Deal with Lethal Injection?

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PENNumbra‘s featured works are now available at www.pennumbra.com.

The Supreme Court recently heard oral arguments in the case of Baze v. Rees, which asks the Justices to examine the constitutionality of Kentucky’s lethal injection methodology. In this latest PENNumbra Debate Professors Alison J. Nathan, of Fordham University, and Douglas A. Berman, of The Ohio State University, tease out the legal, political, and practical issues that the Court faces as it addresses Baze.

In her Opening, Professor Nathan critiques the irrationality of the three-formula lethal injection procedure used by Kentucky and many other states. Professor Nathan writes that “lethal injection as pervasively practiced in the United States today is the result of a historical accident, not scientifically informed deliberation.” She contends that the sort of democratic reform that has been the catalyst for legislative changes in execution procedures in the past has been stymied by “lethal injection’s peculiar history, attendant secrecy, and protocol involving the use of [a] pain-masking paralytic drug.” She concludes by arguing that “[i]n this context of non-transparency, it is distinctly the role and responsibility of the judiciary, led by the Supreme Court, to scrutinize the practice of lethal injection and its history.”

Professor Berman agrees that “the development and administration of lethal injection protocols have been haphazard and sloppy.” However, his concern is principally focused on why the lack of a democratic reform movement has failed to raise the consciousness of the nation. He contends that “three critical practical and political realities” explain the absence of a national backlash: in sum, 1) no human-administered death penalty system can be perfect; 2) few Americans care to make a perfect system; and 3) most Americans are “blissfully ignorant” of any such “imperfections.” Through his “realpolitik” lenses, Professor Berman remains skeptical that the Justices will be able to rise above “the broader practical and political realities that surround the modern administration of capital punishment [and help] ensure that the machinations of death . . . persist.”

As always, please click on the PENNumbra link to read previous Responses and Debates, or to check out pdfs of the Penn Law Review‘s print edition articles.

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See Also Forum Discussion: Medical Autonomy and the Constitution

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See Also Forum Discussion: Medical Autonomy and the Constitution

ARTICLE

The Constitutional Right to Make Medical Treatment Decisions: A Tale of Two Doctrines by B. Jessie Hill

In her article, Professor Hill discusses the fractured state of the Supreme Court’s jurisprudence on whether individuals have a right to make autonomous medical treatment choices. She ultimately concludes “that a constitutional right to protect one’s health should be consistently recognized; that the recognition of this right should not be artificially limited by excessive deference to legislative findings of medical fact; and that this right will have to be carefully balanced against the state’s real and legitimate interest in regulating the practice of medicine to protect the public.”

RESPONSES

Necessity, Not Autonomy by Mark S. Stein

In his response to the article, Mark Stein argues for a somewhat different framing of the substantive-due-process right advocated by Professor Hill.

A View from the Trenches by J. Scott Ballenger

In his response, Scott Ballenger discusses issues of medical autonomy in light of his experience as counsel for the Abigail Alliance.

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Responses to Property Outlaws

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Lee Anne Fennell, Nicole Stelle Garnett, and Laura S. Underkuffler each respond to Eduardo Moisés Peñalver and Sonia K. Katyal’s Property Outlaws, 155 U. Pa. L. Rev. 1095 (2007).  In their article, Professors Peñalver and Katyal argue that the violation of property laws (by actors they call “property outlaws”) can enhance the social order. In their view, “the apparent stability and order that property law provides owe much to the destabilizing role of the lawbreaker, who occasionally forces shifts of entitlements and laws.”

Professor Fennell, in her Response, Order with Outlaws?, notes that “most property violations destabilize the social order without producing any significant offsetting benefits.” She argues that in order to maximize the “informational signal that [a property] violation sends,” liability rules, injunctive relief, and supercompensatory penalties can help to “harness the information generated by lawbreakers.”

Professor Garnett, in her Response, Property In-Laws, is skeptical of Peñalver and Katyal’s claim that property outlaws provide beneficial and necessary “shocks” to a system that “has a . . . tendency to become ossified and out of date.” Instead, her intuition is that “outlaws usually respond to instability in a property regime, not the ossified hyper-stability that Peñalver and Katyal fear.” Thus, she suspects that “the evolutionary sequence [of property law] generally proceeds from instability to stability, not from bad stability to instability to good stability as [Peñalver and Katyal] suggest.”

Finally, Professor Underkuffler, in her Response, Lessons from Outlaws, agrees with Peñalver and Katyal that, in a system which disfavors property violations, it is critical to “distinguish positive or desirable property lawbreaking from that which is not.” However, Professor Underkuffler does not believe that relying on efficiency and rectification analyses always provides the correct answer. She wonders whether the true reason for our tolerance of property outlaws is “because the lawbreakers are the losers under the existing regime of property and entitlements, while the targeted owners are winners under the same regime.”

As always, please click on the PENNumbra link to read previous Responses and Debates, or to check out pdfs of the Penn Law Review‘s print edition articles.

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Debate: Collaberative Environmental Law

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PENNumbra‘s featured works are now available at www.pennumbra.com.

Professors Eric W. Orts, of Penn’s Wharton School, and Cary Coglianese, of Penn’s Law School, discuss the benefits and disadvantages of collaborative public policy decision making in the environmental context.

Professor Orts argues that it is time to embrace a different policymaking approach—that of collaborative environmental lawmaking. Professor Orts’s skepticism of the independence of political and other governmental actors in a world in which “lobbyists and campaign financiers . . . play large and often decisive roles in th[e public policymaking] process” leads him to conclude that “in many situations, it makes better sense to trust less in the traditional centralized process of environmental lawmaking and to consider more frequently the alternative of engaging in collaborative environmental law.”

Professor Coglianese responds that collaborative environmental law is “not at all feasible for making real-world decisions about major environmental problems,” and that this policymaking approach “introduces new types of predictable and serious problems.” Professor Coglianese contends that, by making agreement the primary aim of policymaking, collaborative environmental law actually conveys a willingness to give in to interested parties in pursuit of the “holy grail” of consensus. Instead, Professor Coglianese urges that public “engagement should be used with another goal in mind . . . mak[ing] the best possible decision [to] . . . best advance[] the overall public interest.”

As always, please click on the PENNumbra link to read previous Responses and Debates, or to check out pdfs of the Penn Law Review‘s print edition articles.

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Yale Law Journal Pocket Part: The New Voting Rights Act

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This week The Pocket Part is publishing the first of two issues discussing Nathaniel Persily’s article, The Promise and Pitfalls of the New Voting Rights Act. In this issue, we present Professor Persily’s summary of his article with responses by Ellen Katz and Richard Pildes.

A forthcoming issue will feature additional responses to Professor Persily’s article. In addition, Professor Persily will respond to the comments on his article and discuss issues raised in a pending constitutional challenge to section 5 of the VRA.

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Yale Law Journal Pocket Part: A Toast to Free Flow of Liquor Across State Borders

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This week, the Yale Law Journal Pocket Part published a Commentary on the purposes and interpretation of the Twenty-First Amendment. In Uncorking a Seventy-Four-Year-Old Bottle: A Toast to the Free Flow of Liquor Across State Borders, Ethan Davis argues that state laws designed to shield in-state producers, wholesalers, and retailers from out-of-state competition conflict with the original intent of the Twenty-First Amendment.

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Responses: Plea bargaining

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PENNumbra‘s featured November responses are now available at www.pennumbra.com.

This month, Frank O. Bowman, III, Michael M. O’Hear, and Daniel Richman each respond to Ronald F. Wright’s article, Trial Distortion and the End of Innocence in Federal Criminal Justice, 154 U. Pa. L. Rev. 79 (2005). In his article, Professor Wright addresses the challenges to the judicial system from the rise of plea bargaining rates in the United States. He argues that reform is best accomplished through a “mid-level” regulatory strategy—what he calls the “trial distortion theory”—that neither condemns nor endorses the plea bargaining process, but asks if pleas are distorting the pattern of outcomes that would result from a “healthy” system in which trials were the norm.

Professor Bowman, in his Response, American Buffalo: Vanishing Acquittals and the Gradual Extinction of the Federal Criminal Trial Lawyer, picks up on one of Professor Wright’s key findings: “the curious fact that the rate of acquittals in federal criminal cases has declined even faster than the rate of guilty pleas has increased.” Professor Bowman goes on to suggest that “acquittals may be vanishing in part because a once-common courtroom denizen—the true trial lawyer—is becoming an endangered species,” and worries that the system has created “ever-greater disincentives to trying the kind of cases in which acquittal is a live possibility.”

Professor O’Hear, in his response, What’s Good About Trials?, questions whether trial distortion represents a significant problem. Professor O’Hear

believes our main focus should be on “mak[ing] plea bargaining processes look more like trial processes.” According to Professor O’Hear, “The trick is to find ways of injecting the values of voice, neutrality, and respect into the plea bargaining process without robbing plea bargaining of its efficiency advantages over the trial process.”

Finally, Professor Richman, in his Response, Judging Untried Cases, applauds Professor Wright for attempting to determine whether “the inexorable reduction in trials actually reflects an impairment of the federal criminal system’s truth-finding function.” However, he notes that Professor Wright overlooked one important factor in his analysis: the extent to which “the vanishing acquittal rate reflects an increase in the [federal] adoption of well-established ‘local’ cases.” Without more information, Professor Richman concludes, “aggregrate caseload statistics are . . . hard to interpret.”

As always, please click on the PENNumbra link to read previous Responses and Debates, or to check out pdfs of the Penn Law Review’s print edition articles.

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Debate: Voter ID: What’s at Stake?

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PENNumbra‘s featured works of November are now available at www.pennumbra.com.

As Lyle Denniston wrote earlier this fall on SCOTUSblog.com, “[f]ew cases the [Supreme] Court might have agreed to hear w[ill] be likely to have as much real-world political impact as the newly granted case[] of Crawford v. Marion County Election Board . . . , involving an Indiana voting requirement law that is said to be among the most demanding in the nation.” (see Analysis: An Election Issue for an Election Year.) Before the Justices themselves have an opportunity to delve into the case, Professors Bradley A. Smith, of Capital University Law School, and Edward B. Foley, of The Ohio State University, debate the major legal, political, and philosophical

issues behind the controversial matter of voter ID in Voter ID: What’s at Stake?

As always, please click on the PENNumbra link to read previous Responses and Debates, or to check out pdfs of the Penn Law Review’s print edition articles.

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Pay-to-Stay Programs in Correctional Facilities

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The Michigan Law Review’s companion journal First Impressions today published an online symposium on Pay-to-Stay Programs in Correctional Facilities.

Approximately fifteen California jails have implemented pay-to-stay programs. These programs allow some offenders to pay a daily fee in order to serve their sentences in a city-run or privately-managed correctional facility rather than in a county jail. In some programs, benefits include assignment to a private cell with a regular door, separation from violent offenders, access to the jail’s movie collection, and the ability to carry an iPod or cell phone. The symposium contributors consider the implications of these pay-to-stay programs.

The extended post contains a more complete description of the symposium as well as links to the essays.

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Yale Law Journal Pocket Part: The Supreme Court and Comedy

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This week, the Yale Law Journal Pocket Part published an update to Professor Wexler’s study on the funniness of Supreme Court Justices. Two years ago, Professor Wexler analyzed the frequency with which each Justice caused courtroom laughter. In Laugh Track II: Still Laughin’!, Professor Wexler examines how recent changes in personnel have altered the comedic balance of the Court.