Everand Logo

Welcome to Everand!

  • Discover millions of ebooks, audiobooks, and so much more with a free trial

    Only $11.99/month after trial. Cancel anytime.

    Yale Law Journal: Volume 123, Number 1 - October 2013
    Yale Law Journal: Volume 123, Number 1 - October 2013
    Yale Law Journal: Volume 123, Number 1 - October 2013
    Ebook519 pages6 hours

    Yale Law Journal: Volume 123, Number 1 - October 2013

    By Yale Law Journal

    ()

    Read preview

    About this ebook

    This issue of The Yale Law Journal (the first of Volume 123, academic year 2013-2014) features new articles and essays on law and legal theory by internationally recognized scholars. Contents include:

    • Article, “Mandatory Sentencing and Racial Disparity: Assessing the Role of Prosecutors and the Effects of Booker,” by Sonja B. Starr & M. Marit Rehavi
    • Article, “Firearm Localism,” by Joseph Blocher
    • Essay, “The Unbundled Union: Politics Without Collective Bargaining,” by Benjamin I. Sachs
    • Note, “Special Juries in the Supreme Court”
    • Comment, “There's No Such Thing as a Political Question of Statutory Interpretation: The Implications of Zivotofsky v. Clinton”

    LanguageEnglish
    PublisherQuid Pro, LLC
    Release dateDec 19, 2013
    ISBN9781610278874
    Yale Law Journal: Volume 123, Number 1 - October 2013
    Author

    Yale Law Journal

    The editors of The Yale Law Journal are a group of Yale Law School students, who also contribute Notes and Comments to the Journal’s content. The principal articles are written by leading legal scholars.

    Read more from Yale Law Journal

    Related to Yale Law Journal

    Related ebooks

    Criminal Law For You

    View More
    View More

    Related podcast episodes

    Related articles

    • Article

      When A Reporter Would Not Betray His Source, Police Came To His Home With Guns And A Sledgehammer

      May 12, 2019

      The banging jolted Bryan Carmody awake. Outside his San Francisco home Friday morning, the longtime journalist saw a throng of police officers with a sledgehammer, trying to break down his front gate. Carmody told the eight to 10 officers he would on

      4 min read

    • Article

      Friday, March 15

      Feb 14, 2019

      I LOVE TO WATCH POLICE procedurals on TV. The analytical methods the detectives use for catching criminals and the dramatic way the stories unfold keeps me glued to the screen. But what intrigues me the most is the use of forensic evidence, such as D

      1 min read

    • Article

      The Recidivism Trap

      Mar 15, 2018

      Any discussion of criminal justice policy inevitably includes the word “recidivism.” Usually more than once. Recidivism is the reoccurrence of crime among people known to have committed crimes before. At all levels of justice, from local probation of

      2 min read

    • Article

      Children First

      Feb 4, 2019

      Children First
      3 min read

    • Article

      Your Home is Your...Snitch?

      May 24, 2018

      In the age of Alexa, new questions arise about how your smart devices could be used by police.

      5 min read

    • Article

      Reimagining Legal Education

      Jun 27, 2019

      Reimagining Legal Education
      3 min read

    • Article

      Where Coronavirus Is Surging—And Electronic Surveillance, Too

      Nov 22, 2020

      In Chicago and elsewhere, the number of people wearing an ankle monitor has jumped in recent months due to the pandemic.

      4 min read

    • Article

      How Religious Liberty Became The Roberts Court’s North Star

      Jun 30, 2023

      During the oral arguments surrounding the religious liberty questions in Groff v. DeJoy late last year, U.S. Chief Justice John Roberts told one of the lawyers that some previous federal cases about religion in American life may no longer be useful a

      7 min read

    • Article

      Commentary: Making Oil Companies Pay For Climate Change Isn't The Right Move For Science Or The Constitution

      Jul 10, 2018

      The federal courts are not meant to provide a remedy for every ill of the world, including climate change. In such matters, we need to rely on the political branches to take charge. That was the primary message out of the U.S. District Court for the

      2 min read

    Related categories

    Reviews for Yale Law Journal

    0 ratings

    0 ratings0 reviews

    What did you think?

    Tap to rate

    Review must be at least 10 words

      Book preview

      Yale Law Journal - Yale Law Journal

      THE YALE LAW JOURNAL

      OCTOBER 2013

      VOLUME 123, NUMBER 1

      Yale Law School

      New Haven, Connecticut

      Smashwords edition. Published in 2013 by Quid Pro Books, at Smashwords.

      Copyright © 2013 by The Yale Law Journal Company, Inc. All rights reserved. This work or parts of it may not be reproduced, copied or transmitted (except as permitted by sections 107 and 108 of the U.S. Copyright Law and except by reviewers for the public press), by any means including voice recordings and the copying of its digital form, without the written permission of the print publisher. Further information on copyright, permissions, and reprints is found at the Responses page.

      The publisher of various formats and ediitons is The Yale Law Journal, who exclusively authorized Quid Pro Books to republish its issues as ebooks: Digitally published in such editions, for The Yale Law Journal, by Quid Pro Books. Available in all major digital formats and at leading eBook retailers and booksellers.

      Quid Pro Books

      Quid Pro, LLC

      5860 Citrus Blvd., suite D-101

      New Orleans, Louisiana 70123

      www.quidprobooks.com

      qp

      Cataloging for Volume 123, Number 1 – October 2013:

      ISBN: 978-1-61027-887-4 (ePUB)

      CONTENTS

      ARTICLES

      Mandatory Sentencing and Racial Disparity:

      Assessing the Role of Prosecutors and the Effects of Booker

      Sonja B. Starr & M. Marit Rehavi          [123 YALE L.J. 2]

      Firearm Localism

      Joseph Blocher          [123 YALE L.J. 82]

      ESSAY

      The Unbundled Union:

      Politics Without Collective Bargaining

      Benjamin I. Sachs          [123 YALE L.J. 148]

      NOTE

      Special Juries in the Supreme Court

      Lochlan F. Shelfer          [123 YALE L.J. 208]

      COMMENT

      There’s No Such Thing as a Political Question of Statutory Interpretation:

      The Implications of Zivotofsky v. Clinton

      Chris Michel          [123 YALE L.J. 253]

      About The Yale Law Journal

      RESPONSES. The Yale Law Journal invites short papers responding to scholarship appearing in the Journal within the last year. Responses should be submitted to the Yale Law Journal Online at http://yalelawjournal.org/submissions.html. We cannot guarantee that submitted responses will be published. Those responses that are selected for publication will be edited with the cooperation of the author.

      The Yale Law Journal is published eight times a year (monthly from October through June, excluding February) by The Yale Law Journal Company, Inc. Editorial and general offices are located in the Sterling Law Building at Yale University. POSTMASTER: Send address changes to Yale Law Journal, P.O. Box 208215, New Haven, Connecticut 06520-8215.

      SUBSCRIPTIONS. A year subscription for Volume 123 is $55.00 payable in advance (please see our website for overseas shipping charges). Remittance must be made by U.S. dollar drafts payable at a U.S. bank. Unfortunately, we are not able to accept payments in cash or by credit card. Subscription requests received after the first issue of a volume has been printed will run for eight consecutive issues unless otherwise indicated by the subscriber. Subscription backstarting is not permitted to include prior volume years. Overseas delivery is not guaranteed.

      CLAIMS. Domestic claims for non-receipt of issues should be made within 90 days of the month of publication, and overseas claims within 180 days. Thereafter, the regular back issue rate will be charged for replacement. All subscriptions will be renewed automatically unless the subscriber provides timely notice of cancellation prior to the start of a new volume year. Address changes must be made at least two months before publication date. Please provide an old mailing label or the entire old address; the new address must include the ZIP code. Address changes or other requests for subscription information should be directed to the Business Administrator.

      SINGLE AND BACK ISSUES. Each issue of Volume 123 of the Journal can be purchased prepaid from The Yale Law Journal Company, Inc., for $25 (check must accompany order). For Connecticut deliveries, add 6% state sales tax. Remittance must be made by U.S. dollar drafts payable to a U.S. bank. Unfortunately, we are not able to accept payments in cash or credit card. To purchase back issues from Volumes 1-122, please contact William S. Hein and Company, Inc., 1285 Main Street, Buffalo, New York 14209, (800) 828-7571. Back issues can also be found in electronic format on HeinOnline (http://heinonline.org) and through Volume 115 on the Yale Law Journal’s website (http://www.yalelawjournal.org).

      MANUSCRIPTS. The Journal invites the submission of unsolicited Articles, Essays, Book Reviews, and online pieces. Manuscripts must be submitted online at http://yalelawjournal.org/submissions.html.

      COPYRIGHT. Copyright © 2013 by The Yale Law Journal Company, Inc. Requests for copyright permissions should be directed to Copyright Clearance Center, 222 Rosewood Drive, Danvers, MA 01923, (978) 750-8400, http://www.copyright.com.

      PRODUCTION. Citations in the Journal conform to The Bluebook: A Uniform System of Citation (19th ed. 2010), copyright by The Columbia Law Review Association, The Harvard Law Review Association, the University of Pennsylvania Law Review, and The Yale Law Journal Company, Inc. The Journal is printed by Joe Christensen, Inc., in Lincoln, Nebraska. Periodicals postage paid at New Haven, Connecticut, and additional mailing offices. Publication number ISSN 0044-0094.

      INTERNET ADDRESS. The Yale Law Journal’s homepage is located at http://www.yalelawjournal.org.

      YALE LAW SCHOOL

      OFFICERS OF ADMINISTRATION

      Peter Salovey, A.B., M.A., Ph.D., President of the University

      Benjamin Polak, B.A., M.A., Ph.D., Provost of the University

      Robert C. Post, J.D., Ph.D., Dean

      Alvin Keith Klevorick, M.A., Ph.D., Deputy Dean

      Michael J. Wishnie, B.A., J.D., Deputy Dean for Experiential Education

      S. Blair Kauffman, J.D., LL.M., M.L.L., Law Librarian

      Megan A. Barnett, B.A., J.D., Associate Dean

      Joseph M. Crosby, B.A., M.B.A., Associate Dean

      Toni Hahn Davis, J.D., LL.M., Associate Dean

      Mary Briese Matheron, B.S., Associate Dean

      Kathleen B. Overly, J.D., Ed.D., Associate Dean

      Asha Rangappa, A.B., J.D., Associate Dean

      Mike K. Thompson, M.B.A., J.D., Associate Dean

      FACULTY EMERITI

      Guido Calabresi, LL.B., Dr.Jur., LL.D., D.Phil., H.Litt.D., D.Poli.Sci., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      Dennis E. Curtis, B.S., LL.B., Clinical Professor Emeritus of Law and Professorial Lecturer in Law

      Harlon Leigh Dalton, B.A., J.D., Professor Emeritus of Law

      Mirjan Radovan Damaška, LL.B., Dr.Jur., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      Drew S. Days, III, B.A., LL.B., Alfred M. Rankin Professor Emeritus of Law and Professorial Lecturer in Law

      Jan Ginter Deutsch, LL.B., Ph.D., Walton Hale Hamilton Professor Emeritus of Law and Professorial Lecturer in Law

      Owen M. Fiss, M.A., LL.B., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      Robert W. Gordon, A.B., J.D., Chancellor Kent Professor Emeritus of Law and Legal History

      Michael J. Graetz, B.B.A., LL.B., LL.D., Justus S. Hotchkiss Professor Emeritus of Law and Professorial Lecturer in Law

      Geoffrey Cornell Hazard, Jr., M.A., LL.B., Sterling Professor Emeritus of Law

      Quintin Johnstone, B.A., J.S.D., Justus S. Hotchkiss Professor Emeritus of Law

      Carroll L. Lucht, M.S.W., J.D., Clinical Professor Emeritus of Law, Supervising Attorney, and Professorial Lecturer in Law

      Carol M. Rose, J.D., Ph.D., Gordon Bradford Tweedy Professor Emeritus of Law and Organization, and Professorial Lecturer in Law

      Peter H. Schuck, M.A., J.D., LL.M., Simeon E. Baldwin Professor Emeritus and Professor (Adjunct) of Law

      John G. Simon, LL.B., LL.D., Augustus E. Lines Professor Emeritus of Law and Professorial Lecturer in Law

      Robert A. Solomon, B.A., J.D., Clinical Professor Emeritus of Law

      Stephen Wizner, A.B., J.D., William O. Douglas Clinical Professor Emeritus of Law, Supervising Attorney, and Professorial Lecturer in Law

      FACULTY

      Bruce Ackerman, B.A., LL.B., Sterling Professor of Law and Political Science

      Muneer I. Ahmad, A.B., J.D., Clinical Professor of Law

      †    Anne L. Alstott, B.A., J.D., Jacquin D. Bierman Professor in Taxation

      Akhil Reed Amar, B.A., J.D., Sterling Professor of Law

      Ian Ayres, J.D., Ph.D., William K. Townsend Professor of Law

      Jack M. Balkin, J.D., Ph.D., Knight Professor of Constitutional Law and the First Amendment

      Aharon Barak, LL.M., Dr.Jur., Visiting Professor of Law and Gruber Global Constitutionalism Fellow (fall term)

      Megan A. Barnett, B.A., J.D., Associate Dean

      Seyla Benhabib, B.A., Ph.D., Professor (Adjunct) of Law (spring term)

      ‡    Lea Brilmayer, J.D., LL.M., Howard M. Holtzmann Professor of International Law

      Richard R.W. Brooks, Ph.D., J.D., Professor (Adjunct) of Law

      Robert Amsterdam Burt, M.A., J.D., Alexander M. Bickel Professor of Law (fall term)

      Guido Calabresi, LL.B., Dr.Jur., LL.D., D.Phil., H.Litt.D., D.Poli.Sci., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      Steven G. Calabresi, B.A., J.D., Visiting Professor of Law (fall term)

      Stephen Lisle Carter, B.A., J.D., William Nelson Cromwell Professor of Law

      Amy Chua, A.B., J.D., John M. Duff, Jr. Professor of Law

      Kristin A. Collins, M.A., J.D., Sidley Austin-Robert D. McLean ’70 Visiting Professor of Law

      Joseph M. Crosby, B.A., M.B.A., Associate Dean

      Dennis E. Curtis, B.S., LL.B., Clinical Professor Emeritus of Law and Professorial Lecturer in Law

      Harlon Leigh Dalton, B.A., J.D., Professor Emeritus of Law

      Mirjan Radovan Damaška, LL.B., Dr.Jur., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      Stephen Darwall, B.A., Ph.D., Professor (Adjunct) of Law (spring term)

      Toni Hahn Davis, J.D., LL.M., Associate Dean

      Drew S. Days, III, B.A., LL.B., Alfred M. Rankin Professor Emeritus of Law and Professorial Lecturer in Law

      Giacinto della Cananea, Ph.D., Visiting Professor of Law (fall term)

      Jan Ginter Deutsch, LL.B., Ph.D., Walton Hale Hamilton Professor Emeritus of Law and Professorial Lecturer in Law

      Aaron Dhir, LL.B., LL.M., Canadian Bicentennial Visiting Professor of Law

      ‡    Fiona M. Doherty, B.A., J.D., Clinical Associate Professor of Law

      Steven Barry Duke, J.D., LL.M., Professor of Law

      Robert C. Ellickson, A.B., LL.B., Walter E. Meyer Professor of Property and Urban Law (spring term)

      Edwin Donald Elliott, B.A., J.D., Professor (Adjunct) of Law

      William N. Eskridge, Jr., M.A., J.D., John A. Garver Professor of Jurisprudence

      *    Daniel C. Esty, M.A., J.D., Hillhouse Professor of Environmental Law and Policy, School of Forestry & Environmental Studies; and Clinical Professor of Environmental Law and Policy, Law School

      Owen M. Fiss, M.A., LL.B., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      ‡    James Forman, Jr., A.B., J.D., Clinical Professor of Law

      Emmanuel Gaillard, Ph.D., Visiting Professor of Law (spring term)

      Lech Garlicki, Doctorate in Legal Sciences, Habil. in Legal Sciences, Visiting Professor of Law and Peter and Patricia Gruber Fellow in Global Justice (spring term)

      Heather K. Gerken, B.A., J.D., J. Skelly Wright Professor of Law

      Paul Gewirtz, B.A., J.D., Potter Stewart Professor of Constitutional Law

      †    Abbe R. Gluck, B.A., J.D., Associate Professor of Law

      Robert W. Gordon, A.B., J.D., Chancellor Kent Professor Emeritus of Law and Legal History

      Michael J. Graetz, B.B.A., LL.B., LL.D., Justus S. Hotchkiss Professor Emeritus of Law and Professorial Lecturer in Law (fall term)

      David Singh Grewal, J.D., Ph.D., Associate Professor of Law

      Dieter Grimm, LL.M., Dr.Jur., Visiting Professor of Law and Peter and Patricia Gruber Fellow in Global Justice (spring term)

      Henry B. Hansmann, J.D., Ph.D., Oscar M. Ruebhausen Professor of Law

      Robert D. Harrison, J.D., Ph.D., Lecturer in Legal Method

      †    Oona Hathaway, B.A., J.D., Gerard C. and Bernice Latrobe Smith Professor of International Law

      Quintin Johnstone, LL.M., J.S.D., Justus S. Hotchkiss Professor Emeritus of Law

      Christine Jolls, J.D., Ph.D., Gordon Bradford Tweedy Professor of Law and Organization

      ‡    Dan M. Kahan, B.A., J.D., Elizabeth K. Dollard Professor of Law and Professor of Psychology

      Paul W. Kahn, J.D., Ph.D., Robert W. Winner Professor of Law and the Humanities

      †    Amy Kapczynski, M.A., J.D., Associate Professor of Law

      S. Blair Kauffman, J.D., LL.M., M.L.L., Law Librarian and Professor of Law

      Gregory C. Keating, J.D., Ph.D., Florence Rogatz Visiting Professor of Law (fall term)

      Daniel Kevles, B.A., Ph.D., Professor (Adjunct) of Law (spring term)

      Alvin Keith Klevorick, M.A., Ph.D., Deputy Dean, John Thomas Smith Professor of Law, and Professor of Economics

      Jonathan Klick, Ph.D., J.D., Maurice R. Greenberg Visiting Professor of Law (fall term)

      Harold Hongju Koh, A.B., J.D., Sterling Professor of International Law

      †    Anthony Townsend Kronman, J.D., Ph.D., Sterling Professor of Law

      ‡    Douglas Kysar, B.A., J.D., Joseph M. Field ’55 Professor of Law

      Alexandra D. Lahav, B.A., J.D., Visiting Professor of Law (fall term)

      ‡    John H. Langbein, LL.B., Ph.D., Sterling Professor of Law and Legal History

      Anika Singh Lemar, B.A., J.D., Visiting Clinical Associate Professor of Law

      Yair Listokin, Ph.D., J.D., Professor of Law

      Carroll L. Lucht, M.S.W., J.D., Clinical Professor Emeritus of Law, Supervising Attorney, and Professorial Lecturer in Law

      Jonathan R. Macey, A.B., J.D., Sam Harris Professor of Corporate Law, Corporate Finance, and Securities Law

      *    Daniel Markovits, D.Phil., J.D., Guido Calabresi Professor of Law

      Jerry Louis Mashaw, LL.B., Ph.D., Sterling Professor of Law (fall term)

      Mary Briese Matheron, B.S., Associate Dean

      Tracey L. Meares, B.S., J.D., Walton Hale Hamilton Professor of Law

      Noah Messing, B.A., J.D., Lecturer in the Practice of Law and Legal Writing

      Jeffrey A. Meyer, B.A., J.D., Visiting Professor of Law

      Jon D. Michaels, M.A., J.D., Anne Urowsky Visiting Professor of Law

      Alice Miller, B.A., J.D., Associate Professor (Adjunct) of Law (spring term)

      John D. Morley, B.S., J.D., Associate Professor of Law

      Angela Onwuachi-Willig, B.A., J.D., Visiting Professor of Law (spring term)

      Kathleen B. Overly, B.A., J.D., Associate Dean

      Andrew Papachristos, M.A., Ph.D., Associate Professor (Adjunct) of Law (fall term)

      †    Nicholas R. Parrillo, M.A., J.D., Associate Professor of Law

      Jean Koh Peters, A.B., J.D., Sol Goldman Clinical Professor of Law and Supervising Attorney

      Thomas Pogge, Dipl. in Soziologie, Ph.D., Professor (Adjunct) of Law (spring term)

      Robert C. Post, J.D., Ph.D., Dean and Sol & Lillian Goldman Professor of Law

      J.L. Pottenger, Jr., A.B., J.D., Nathan Baker Clinical Professor of Law and Supervising Attorney

      Claire Priest, J.D., Ph.D., Professor of Law

      George L. Priest, B.A., J.D., Edward J. Phelps Professor of Law and Economics and Kauffman Distinguished Research Scholar in Law, Economics, and Entrepreneurship

      Asha Rangappa, A.B., J.D., Associate Dean

      William Michael Reisman, B.A., J.S.D., Myres S. McDougal Professor of International Law

      Judith Resnik, B.A., J.D., Arthur Liman Professor of Law

      Deborah L. Rhode, B.A., J.D., Florence Rogatz Visiting Professor of Law (fall term)

      Cristina Rodríguez, M.Litt., J.D., Professor of Law

      Roberta Romano, M.A., J.D., Sterling Professor of Law

      Carol M. Rose, J.D., Ph.D., Gordon Bradford Tweedy Professor Emeritus of Law and Organization, and Professorial Lecturer in Law (fall term)

      Susan Rose-Ackerman, B.A., Ph.D., Henry R. Luce Professor of Jurisprudence (Law School and Department of Political Science)

      ‡    Jed Rubenfeld, A.B., J.D., Robert R. Slaughter Professor of Law

      Albie Sachs, Law, Ph.D., Visiting Professor of Law and Gruber Global Constitutionalism Fellow (fall term)

      David Schleicher, M.Sc., J.D., Irving S. Ribicoff Visiting Associate Professor of Law (spring term)

      Peter H. Schuck, M.A., J.D., LL.M., Simeon E. Baldwin Professor Emeritus and Professor (Adjunct) of Law (fall term)

      ‡    Vicki Schultz, B.A., J.D., Ford Foundation Professor of Law and Social Sciences

      Alan Schwartz, M.A., LL.B., Sterling Professor of Law

      Ian Shapiro, J.D., Ph.D., Professor (Adjunct) of Law (fall term)

      Scott J. Shapiro, J.D., Ph.D., Charles F. Southmayd Professor of Law and Professor of Philosophy

      Reva Siegel, M.Phil., J.D., Nicholas deB. Katzenbach Professor of Law

      †    James J. Silk, M.A., J.D., Clinical Professor of Law

      John G. Simon, LL.B., LL.D., Augustus E. Lines Professor Emeritus of Law and Professorial Lecturer in Law

      Robert D. Sloane, Dipl., J.D., Visiting Professor of Law (spring term)

      Robert A. Solomon, B.A., J.D., Clinical Professor Emeritus of Law

      Kate Stith, M.P.P., J.D., Lafayette S. Foster Professor of Law

      Alec Stone Sweet, M.A., Ph.D., Leitner Professor of International Law, Politics, and International Studies

      Mike K. Thompson, M.B.A., J.D., Associate Dean

      Tom R. Tyler, M.A., Ph.D., Macklin Fleming Professor of Law and Professor of Psychology

      Patrick Weil, M.B.A., Ph.D., Visiting Professor of Law and Oscar M. Ruebhausen Distinguished Fellow in Law (fall term)

      James Q. Whitman, J.D., Ph.D., Ford Foundation Professor of Comparative and Foreign Law

      Ralph Karl Winter, Jr., M.A.H., LL.B., Professor (Adjunct) of Law (spring term)

      Michael J. Wishnie, B.A., J.D., Deputy Dean for Experiential Education, William O. Douglas Clinical Professor of Law, and Director, Jerome N. Frank Legal Services Organization

      John Fabian Witt, J.D., Ph.D., Allen H. Duffy Class of 1960 Professor of Law

      Stephen Wizner, A.B., J.D., William O. Douglas Clinical Professor Emeritus of Law, Supervising Attorney, and Professorial Lecturer in Law

      Gideon Yaffe, A.B., Ph.D., Professor of Law and Professor of Philosophy

      Noah D. Zatz, M.A., J.D., Florence Rogatz Visiting Professor of Law

      Howard V. Zonana, B.A., M.D., Professor of Psychiatry and Clinical Professor (Adjunct) of Law

      Peer Zumbansen, LL.M., Ph.D., Visiting Professor of Law (spring term)

      *    On leave of absence, 2013–2014.

      †    On leave of absence, fall term, 2013.

      ‡    On leave of absence, spring term, 2014.

      LECTURERS IN LAW

      Emily Bazelon, B.A., J.D.

      Gregg Gonsalves, B.S.

      Linda Greenhouse, B.A., M.S.L., Joseph Goldstein Lecturer in Law

      Lucas Guttentag, A.B., J.D.

      Su Lin Han, M.A., J.D.

      Jamie P. Horsley, M.A., J.D.

      Margot E. Kaminski, B.A., J.D.

      Hope R. Metcalf, B.A., J.D.

      James E. Ponet, M.A., D.D.

      Yael Shavit, B.A., J.D.

      Robert D. Williams, B.A., J.D.

      VISITING LECTURERS IN LAW

      Guillermo Aguilar-Alvarez, Lic. en Derecho (J.D.)

      Yas Banifatemi, Ph.D., LL.M.

      Richard Baxter, M.A., J.D., John R. Raben/Sullivan & Cromwell Visiting Lecturer in Accounting

      Stephen B. Bright, B.A., J.D., Harvey Karp Visiting Lecturer in Law

      Lincoln Caplan, A.B., J.D.

      Susan L. Carney, B.A., J.D.

      Robert N. Chatigny, A.B., J.D.

      Timothy C. Collins, B.A., M.B.A.

      Victoria A. Cundiff, B.A., J.D.

      Brian T. Daly, M.A., J.D.

      Karl (Tom) Dannenbaum, M.A., J.D.

      Eugene R. Fidell, B.A., LL.B., Florence Rogatz Visiting Lecturer in Law

      Gregory Fleming, B.A., J.D.

      Lawrence J. Fox, B.A., J.D., George W. and Sadella D. Crawford Visiting Lecturer in Law

      Stephen Fraidin, A.B., LL.B.

      Peter T. Grossi, Jr., M.A., J.D.

      Benjamin W. Heineman, Jr., B.Litt., J.D.

      Frank Iacobucci, LL.B., LL.M., Gruber Global Constitutionalism Fellow

      Andrew J. Pincus, B.A., J.D.

      Megan Quattlebaum, B.A., J.D.

      Eric S. Robinson, M.B.A., J.D.

      Charles A. Rothfeld, A.B., J.D.

      Sarah Russell, B.A., J.D.

      John M. Samuels, J.D., LL.M.

      Paul Schwaber, M.A., Ph.D.

      Michael S. Solender, B.A., J.D.

      Sidney H. Stein, A.B., J.D.

      Stefan R. Underhill, B.A., J.D.

      John M. Walker, Jr., B.A., J.D.

      Ashbel T. Wall II, B.A., J.D.

      Mandatory Sentencing and Racial Disparity: Assessing the Role of Prosecutors and the Effects of Booker

      SONJA B. STARR & M. MARIT REHAVI

      [cite as 123 YALE L.J. 2 (2013)]

      ABSTRACT. This Article presents new empirical evidence concerning the effects of United States v. Booker, which loosened the formerly mandatory U.S. Sentencing Guidelines, on racial disparities in federal criminal cases. Two serious limitations pervade existing empirical literature on sentencing disparities. First, studies focus on sentencing in isolation, controlling for the presumptive sentence or similar measures that themselves result from discretionary charging, plea-bargaining, and fact-finding processes. Any disparities in these earlier processes are excluded from the resulting sentence-disparity estimates. Our research has shown that this exclusion matters: pre-sentencing decision-making can have substantial sentence-disparity consequences. Second, existing studies have used loose causal inference methods that fail to disentangle the effects of sentencing-law changes, such as Booker, from surrounding events and trends.

      In contrast, we use a dataset that traces cases from arrest to sentencing, allowing us to assess Booker’s effects on disparities in charging, plea-bargaining, and fact-finding, as well as sentencing. We disentangle background trends by using a rigorous regression discontinuity-style design. Contrary to other studies (and in particular, the dramatic recent claims of the U.S. Sentencing Commission), we find no evidence that racial disparity has increased since Booker, much less because of Booker. Unexplained racial disparity remains persistent, but does not appear to have increased following the expansion of judicial discretion.

      AUTHORS. Sonja B. Starr is a Professor at the University of Michigan Law School. M. Marit Rehavi is an Assistant Professor of Economics at the University of British Columbia and a Fellow of the Canadian Institute for Advanced Research. For helpful comments and conversations, we thank David Abrams, Daron Acemoglu, Alberto Alesina, Joe Altonji, Alan Auerbach, Nick Bagley, John Bronsteen, Ing-Haw Cheng, Kristina Daugirdas, John DiNardo, Avlana Eisenberg, Leonid Feller, Nicole Fortin, Nancy Gallini, Nancy Gertner, David Green, Sam Gross, Don Herzog, Jim Hines, Jill Horwitz, Thomas Lemieux, Justin McCrary, Julian Mortenson, Brendan Nyhan, J.J. Prescott, Eve Brensike Primus, Adam Pritchard, Jeff Smith, Sara Sun Beale, and participants at the Ninth Circuit Judicial Conference, the National Sentencing Policy Institute, the NBER Summer Institute, the annual meetings of the American Law and Economics Association and the American Society of Criminology, workshops at the University of Michigan, UBC, Duke, and Loyola-Chicago, and the CIFAR-IOG Workshop. Sharon Brett, Michael Chi, Michael Farrell, Ryan Gersovitz, Seth Kingery, Matthew Lee, Midas Panikkar, Art Robiso, Sabrina Speianu, and Adam Teitelbaum provided able research assistance.

      ARTICLE CONTENTS

      INTRODUCTION

      In the United States, one of every nine black men between the ages of twenty and thirty-four is behind bars,¹ and, in 2003, the Bureau of Justice Statistics projected that one in every three young black men could expect to be incarcerated at some point in his life.² These rates far exceed those of any other demographic group—for instance, black males are incarcerated at nearly seven times the rate of white males.³ The impact of demographically concentrated incarceration rates on offenders, families, and communities is a critical social concern.⁴ But why do these gaps exist? Can they be explained by differences in criminal behavior, or by differences in how the criminal justice system treats offenders? If it is the latter, can the process be improved by reforms, such as changes to sentencing law?

      These questions are not new. For decades, racial and other legally unwarranted disparities in sentencing have been the subject of considerable empirical research, which has in turn helped to shape major policy changes. Most importantly, the U.S. Sentencing Guidelines and their state counterparts were adopted with the goal of reducing such disparities. In 2005, when the Supreme Court’s decision in United States v. Booker rendered the formerly mandatory Guidelines merely advisory, Justice Stevens’s dissent predicted that [t]he result is certain to be a return to the same type of sentencing disparities Congress sought to eliminate in 1984.⁵ Whether this prediction was accurate is perhaps the foremost empirical question in sentencing policy today. The most prominent study to date, a 2010 report of the U.S. Sentencing Commission, gave an alarming answer: Booker and its judicial progeny had quadrupled the black-white sentencing gap among otherwise-similar cases, from 5.5% to 23.3%.⁶ In January 2013, the Commission issued an update with similar figures (revising the latter figure slightly downward, to 19.5%), this time combined with explicit calls for legislation in effect returning the Guidelines to something fairly close to their prior binding status.⁷

      This Article introduces a new empirical approach and gives a very different answer. The Commission’s methods are hobbled by two serious limitations that also pervade the broader empirical literature on sentencing disparity.⁸ First, these studies consider the judge’s final sentencing decision in isolation, ignoring crucial earlier stages of the justice process. Those earlier stages have important sentencing consequences, and yet these studies exclude the portions of the ultimate sentence gap that result from earlier-stage decision-making from their estimates. Second, studies of changes in disparity after legal changes (like Booker) have failed to disentangle the effects of the legal change from surrounding events and background trends.

      This Article develops these two critiques and discusses our own research on racial disparities among federal arrestees, which uses a method that avoids these problems. We first highlight some findings from our recent study showing that while a black-white gap appears to be introduced during the criminal justice process, it appears to stem largely from prosecutors’ charging choices, especially decisions to charge defendants with mandatory minimum offenses. These findings highlight the importance of taking into account the early parts of the justice process. With that in mind, we then present our new findings on Booker, estimating its effects not only on sentencing, but also on charging, plea-bargaining, and sentencing fact-finding, an analysis no prior studies have performed. Far from finding evidence that judges’ use of expanded discretion worsens disparity, we fail to find an increase in disparity and find suggestive evidence cutting in the opposite direction.⁹

      Our research seeks to close a surprisingly wide gap that separates two bodies of scholarship: the theoretical and qualitative literature on how the criminal justice system functions (which uniformly recognizes the critical role of prosecutors) and empirical research on sentencing disparities (which effectively ignores that role). The modern criminal justice process is prosecutor-dominated. Prosecutors have broad charging and plea-bargaining discretion, and their choices have a huge impact on sentences. A central claim made by critics of mandatory sentencing is that restricting judicial discretion further empowers prosecutors, who tend to exercise that power in ways that perpetuate or worsen disparity. This hydraulic discretion theory has been described as a near-consensus view of sentencing scholars.¹⁰

      Yet the empirical research on sentencing disparity has not tested these claims and fails to account for the role of prosecutorial discretion. Researchers typically estimate sentencing disparities in federal and other courts subject to sentencing guidelines after controlling for (among other things) the recommended guidelines sentence. But the guidelines recommendation is itself the end product of charging, plea-bargaining, and sentencing fact-finding. Controlling for it filters disparities in those processes out of the sentencing-disparity estimates and gives an incomplete view of the scope and sources of sentencing disparity.¹¹ In effect, the existing literature focuses on disparities in compliance with the sentencing guidelines. While this is an important piece of the sentence-disparity picture, it is far from the only piece, because decisions made throughout the process ultimately affect the sentence. Moreover, sentencing-stage disparities might either offset or exacerbate disparities arising earlier, making it hard to interpret them in isolation.

      We accordingly take a broader, process-wide approach, constructing a dataset that links records from four different federal agencies and allows us to trace criminal cases from arrest through sentencing. We focus on the gap between black men and white men in non-immigration cases. Instead of controlling for the Guidelines sentence, we control for the arrest offense and other characteristics that are fixed at the beginning of the justice process. The arrest offense is an imperfect proxy for underlying criminal behavior, but we believe it is the best proxy available for this purpose. Our method allows us to assess aggregate disparities introduced throughout the post-arrest justice process, from charging through sentencing. Further, it also allows us to analyze the contribution of each procedural stage (as well as underlying case differences) to the total black-white gap.

      The problem with the prevailing method is not merely an academic concern. In Part II of this Article, we highlight and discuss key findings of our analyses of charging and sentencing in federal criminal cases from 2007 to 2009.¹² That research shows that after controlling for the arrest offense, criminal history, and other prior characteristics, there remains a black-white sentence-length gap of about 10%. But judges’ choices do not appear to be principally responsible. Instead, between half and the entire gap can be explained by the prosecutor’s initial charging decision—specifically, the decision to bring a charge carrying a mandatory minimum. After controlling for pre-charge case characteristics, prosecutors in our sample were nearly twice as likely to bring such a charge against black defendants.¹³ In other words, studies that focus only on the judicial sentencing decision exclude what appears to be the most important procedural source of disparity in sentences.

      A proper analysis of Booker’s effects on disparity, then, should take the whole justice process into account, to the extent possible. In Part III, we present the results of such an analysis. We begin that inquiry with a simple linear time-trend analysis, which shows that, when one measures sentence disparity in the broader way that we recommend, unexplained black-white disparity did not grow between 2003 and 2009, the period in which the Sentencing Commission found that it quadrupled. Indeed, our estimate of the disparity trend is negative, although imprecise. That is, the gap in sentences for similar black and white arrestees was, if anything, slightly smaller by the end of 2009 than it was just before Booker. The Commission’s claim that disparity grew over that same period is an artifact of its flawed way of measuring disparity.

      Beyond the question of whether disparity has changed during the period surrounding Booker, we must further ask whether it has changed because of Booker. The two questions are not the same, but they are too often confused. In addition to the disparity-measurement question, a second serious flaw pervades the empirical literature on sentencing-law changes: the failure to provide a sound basis for causal inferences. This second problem is exemplified by the Sentencing Commission’s analysis. The Commission found that disparities after Booker (averaged over a period of years) were larger than disparities before it. Even assuming that were true, it would still be a huge logical leap to conclude that Booker caused this increase—a classic confusion of correlation and causation. Many things change over time—for instance, the mix of cases, the composition of the bench and of U.S. Attorneys’ and public defenders’ offices, substantive criminal legislation and case law, and the Department of Justice’s (DOJ’s) enforcement priorities and internal policies—and any of these changes could have racially disparate impacts on sentences. The greater disparity in the post-Booker period, therefore, could easily have nothing to do with Booker. Indeed, even if Booker had slowed an underlying trend of increasing disparity, the Commission’s methods would incorrectly imply that Booker led to greater disparity.

      Accordingly, we employ a different approach that can disentangle the effect of Booker from underlying trends: a regression discontinuity-style estimator. Specifically, we assess whether, in the immediate aftermath of Booker, there is a sharp break in an otherwise continuous trend, which would provide a much stronger basis for inferring causality. Our method focuses on Booker’s immediate effects, not its long-term effects, which admittedly is both a strength and a weakness. The long-term effects are presumably what policymakers care most about, but there is no good way to identify Booker’s relationship to longer-term trends in disparity—the causal inference problem is too serious. The immediate effects can be more rigorously assessed. Fortunately, there is good reason to believe that if Booker had substantially changed racial disparity patterns in judicial decision-making, we would have seen at least part of the effect right away. Booker’s effects on Guidelines compliance were not slow or subtle—departure rates immediately and dramatically spiked. That is, Booker was a sudden shock to the scope of judicial discretion, and, if judges were inclined to exercise their discretion in ways that widen the black-white gap, one would expect to see disparity jump in response to that shock, right after Booker.

      We do not see such a jump. Right after Booker, sentencing disparity did not increase, and may have modestly dropped. If Booker did have any adverse effects on black defendants relative to white defendants, it was probably a second-order result of charging changes: the use of mandatory minimum charges increased for black defendants immediately after Booker, but this effect appears to have been quite short-term.

      We are very cautious about these findings. Even with our approach, identifying Booker’s effects is hard. While Booker has been described as a natural experiment,¹⁴ as an experiment it leaves much to be desired—it changed the legal regime for every non-petty federal offense at once, leaving no plausible control group. Our method does not require a control group and filters out longer-term trends effectively, but it could be tricked by month-to-month fluctuations. Moreover, Booker was not a clean break in settled law; it came on the heels of a period of serious lower-court confusion, further complicating causal inference. We conduct tests to evaluate these problems, but we cannot erase the noise in the data or the complexity of the history. Still, what we can say is that nothing in these data suggests that judges’ use of their post-Booker discretion exacerbated racial disparity.

      Understanding the relative role of prosecutors and judges in producing disparities is important. The specter of increased disparity after Booker has been prominently cited to support new constraints on judicial discretion. For instance, the Department of Justice in the George W. Bush Administration advocated mandatory topless guidelines—effectively, mandatory minimums but no maximums.¹⁵ The Sentencing Commission has recently advanced a multi-pronged proposal to strengthen legislative and appellate court constraints on judicial sentencing discretion—a proposal that in effect would restore the Guidelines very nearly to the legal status they enjoyed before Booker.¹⁶

      Such solutions could be counterproductive. Constraints on judges generally empower prosecutors by making their choices more conclusive determinants of the sentence. Our research suggests that prosecutorial decisions are important sources of disparity—especially the decision to file mandatory minimum charges, which are prosecutors’ most powerful tools for constraining judges. Note that we do not claim our findings prove discrimination by prosecutors or anyone else. We are limited to what our data can capture, and unobserved differences between cases could justify different charging decisions or sentencing outcomes. Still, we have rich controls, including detailed arrest offense information; criminal history; and other demographic, geographic, and socioeconomic fields, yet substantial unexplained racial differences remain.

      In Part I, we briefly introduce the federal sentencing framework and review the legal scholarship on prosecutorial and judicial discretion. In Part II, we present our critique of the sentencing only approach used by the current empirical literature and discuss our preferred process-wide approach, its strengths and limitations, and some insights that can be gleaned from it. In Part III, we present our critique of the causal inference methods used by existing sentencing-reform research. We then pair our process-wide approach to estimating disparity with our regression discontinuity-style approach to causal inference in order to estimate Booker’s effects on racial disparity. We conclude with possible policy implications.

      I. PROSECUTORS, SENTENCING, AND THE HYDRAULIC DISCRETION THEORY

      Federal prosecutors, like their counterparts in the states, have always possessed very broad discretion. Prosecutors choose what charges to bring,

      Enjoying the preview?
      Page 1 of 1