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Abstract:
Retribution has become increasingly popular, among both legislators and scholars, as a rationale for punishment. The proposed revision of the Model Criminal Code adopts this newly fashionable standard and abandons its previous commitment to rehabilitation. The concept of retribution, however, is too vague to serve as an effective principle of punishment. It is sometimes defined as a requirement that the criminal be "paid back" for the harm he inflicted, but this is a virtually empty metaphor, since prison time has very little to do with repayment. A second definition of retribution involves desert, but the term is both over- and under-inclusive with respect to criminal punishment.

Retribution does have a core meaning, however; it inevitably involves the idea of morally condemning the offender. The difficulty is that moral condemnation is entirely inconsistent with the premises of the modern administrative state. Modern governments are supposed to be instrumental - we want them to meet our needs, not to generate their own moral systems. It might be argued that a retributive standard responds to the people's morality, and more specifically to their anger at the criminal. But modern government is supposed to serve people's needs, not their passions, and our own Constitution is based on this exact ethos. In addition, retributive discourse is likely to exacerbate one of the most serious problems in American criminal justice, which is the over-use of imprisonment, particularly for non-violent offenders.

The principles of punishment that should be adopted in place of retribution are rehabilitation and proportionality. Proportionality involves a relative ranking of crimes and punishments, so that the most severe punishments are imposed for the most serious crimes, and milder ones are used for less serious crimes. It would forbid the two California sentences that the Supreme Court just upheld against an Eighth Amendment challenge, where a person who stole $399 worth of golf clubs, and another who stole $150 worth of videotapes, received sentences of 25 years to life. Retributivists often adopt proportionality as their own means for establishing a punishment scale, but this only illustrates the emptiness of retribution as a concept. If retribution means anything, it is that we have some fixed idea about the amount of punishment a particular criminal deserves or should be paid back with, not that punishments should be determined by their relationship to other punishments. In fact, proportionality is an independent principle. While it is inconsistent with the concept of retribution, it serves as a complementary principle to rehabilitation.

Punishment, retribution, rehabilitation, crimes, jurisprudence

Abstract:
This Article argues that the Administrative Procedure Act needs to be rewritten because it was ill-conceived from its inception. Its central defect is that it fails to comprehend the essential character of the modern administrative state. Instead, the procedures it imposes on administrative action are based on pre-administrative models of governance, and particularly on the model of judicial implementation of law that administrative agencies were specifically intended to replace. This is true not only of the APA's requirements for adjudication, but also of its requirements for rulemaking. Worse still, the APA leaves the remainder of the administrative process, which it implicitly and inaccurately characterizes as informal adjudication, almost entirely unregulated.

The recommendation is that the APA be redrafted in its entirety based on the standard, Weberian concept of bureaucratic governance. The most important feature of this concept is that administrative governance is organized around the principle of instrumental rationality. According to Weber, an action is instrumentally rational when it is based upon the actor's expectations about its consequences, that is, "when the end, the means, and the secondary results are all rationally taken into account and weighed." Applied to administrative agencies, this means: first, that the statute should require that the agency must assess the goals that it defines for itself on the basis of their pragmatic consequences; and second, that the statute should require that the agency assess all other administrative actions, whether rulemaking, adjudication, or the manifold executive actions characterized as informal adjudication (targeting, advising, planning, deploying resources, etc.) on the basis of their ability to achieve goals specified by the agency or the agency's superior. In reviewing administrative action, courts should be guided by this principle. Supplementary principles, for both the agency and the court, can be derived from Weber's conception of the agency as an hierarchical, continuously operating organization with a defined jurisdiction staffed by full-time employees chosen on the basis of their credentials. Based on these ideas, the APA can be redrafted in a manner that recognizes the distinctive character of modern administrative governance.

administrative law, administrative procedure, administrative theory, bureaucracy, legal theory

Abstract:
Everyone believes in democracy these days; although there is a vast and growing literature on the subject, all discussion occurs within the boundaries of this capacious concept. An examination of this literature, however, reveals that the concept has never quite escaped from its association with direct democracy, an association which goes back to the origin of the term, and continued throughout Western history until the nineteenth century. Liberal theory, elite theory, pluralist theory and deliberative democratic theory all bear evidence of this association. As a result, the concept of democracy fails to describe the representative governments that developed over six or seven centuries of Western history, and particularly fails to describe modern administrative government, where most decisions are not made by elected representatives, and certainly not by an assembly of the people. This article suggests that we set the term democracy aside, as a thought experiment, and try to describe our current government in other terms. It presents an image of government as a system engaged in active interaction with various segments of the populace at both the political (legislature or chief executive and legislature) and the administrative level. These interactions involve elections at the political level (whose primary purpose is simply to solve the problem of succession) and lobbying, consultation, and various other activities at all levels. The article suggests that we will not only describe our government more accurately, but also be able to frame better prescriptions for its improvement, if we focus on this interactive image, and free ourselves from the irrelevant or outmoded associations that the concept of democracy inevitably engenders.

Abstract:
Law schools are predominantly financed by student tuition payments, yet a significant proportion of their expenditures do not directly benefit students, but rather support faculty research. Moreover, faculty research increasingly tends to be remote from law schools' pedagogic role. Thus that great bete noir of economists the cross-subsidy seems to be operating in force - students are paying for something that does not benefit them, and they are being compelled to do so by means of an intra-institutional transfer that they cannot control. This would appear to correspond to most people's notion of unfairness.

This article has two purposes. The first is to identify the nature of the cross-subsidy with more precision, and the second is to explore the question of its possiblejustification or correction. It turns out that the cross-subsidy is a good deal more complex than it initially appears, and, as a result, a good deal less unfair. There is nonetheless a residual unfairness toward students that should be remedied. The remedy, however, does not involve reducing research costs or altering research to relate more closely to the curriculum, but rather lies in altering the curriculum to correspond more closely to existing faculty research.

Law Schools, Research, Curriculum

Abstract:
Law schools are predominantly financed by student tuition payments, yet a significant proportion of their expenditures do not directly benefit the students, but rather support faculty research. Moreover, as Judge Harry Edwards has argued, the research that faculty members are conducting is increasingly remote from their pedagogic role. Thus, that great bete noir of economists, the cross-subsidy, seems to be operating in force - students are paying for something that does not benefit them, and they are being compelled to do so by means of an intra-institutional transfer that they cannot control. Without venturing into the complexities of moral theory, one can say that this appears to correspond to most people's notion of unfairness. This article has two purposes. The first is to identify the nature of the cross-subsidy with more precision, and the second is to explore the question of its possible justification or correction. The article is also divided into two main parts, but rather than addressing these two questions in turn, each part attempts to serve both purposes, although in different ways. The first part of the article concludes that the cross-subsidy is a good deal more complex than it initially appears, and, as a result, a good deal less unfair. The second argues that there is nonetheless a residual unfairness toward students that should be remedied. The remedy, however, does not involve reducing research costs, or altering research to relate more closely to the curriculum, but rather lies in altering the curriculum to correspond more closely to existing faculty research.

faculty research, faculty members, students, tuition

Abstract:
When we, the inhabitants of the United States, want to resolve a legal dispute, we have a trial. Each party to the dispute hires a trained professional who presents arguments in favor of his principal's claim to a neutral judge or jury. The judge or jury is then required to reach a decision based on the arguments presented and the prevailing legal rules. This article attempts to obtain some perspective on trials by comparing them to their immediate predecessor, that is, the way legal disputes were resolved before trials, as we know them, came into existence. During the Middle Ages people also resolved legal disputes by what they called a trial, but it was trial by battle, an armed conflict between two opponents. Juxtaposing these two practices illuminates several serious problems with contemporary trials: their inherent inaccuracy, their reliance on professional champions to represent the parties, and their conscious antiquarianism. These features of contemporary trials have produced an excessively litigious society, led to the under-enforcement of social policy, and discouraged the development of alternative methods of resolving disputes. If we stand back from our own practice, and ask whether it is truly achieving its stated purposes, we may be able to achieve what people in the Middle Ages did when they dispensed with trial by battle and developed the mode of trial that we inherited from them. That is, we may be able to devise a distinctly new mode of resolving legal disputes that is appropriate to our own society, and that functions effectively for the next several hundred years.

Legal Rights, Legal Theory, Litigation, Legal History

Abstract:
Judicial review has been a fixture of American government for two hundred years, but our anxiety about it only seems to deepen over time. Recently, two new assaults by leading scholars Larry Kramer and Jeremy Waldron have articulated further political and conceptual criticisms of this practice. That is not necessarily a bad thing, of course; an important role of scholarship is to challenge institutions that that might otherwise be taken for granted. As the Supreme Court, due to recent changes in personnel, begins to adopt positions that many legal scholars find legally or ethically questionable, such challenges to judicial review are likely to seem increasingly attractive.

judicial review

Abstract:
This paper explores the relationship between government actions and innovation in an environmental control technology - sulfur dioxide (SO2) control technologies for power plants - through the use of complementary research methods. Its findings include the importance of regulation and the anticipation of regulation in stimulating invention; the greater role of regulation, as opposed to public R&D expenditures, in inducing invention; the importance of regulatory stringency in determining technical pathways and stimulating collaboration; and the importance of regulatory-driven technological diffusion in contributing to operating experience and post-adoption innovation in cost and performance. A number of policy implications are drawn from this work.

Abstract:
We offer a theoretical approach to federalism by defining a theoretical approach as a general account of the subject. It is general in that it applies in any political situation, at any time in history when political entities that are recognizable as nations existed. It is an account in being a systematic examination of the subject that is connected to the overall structure of analysis in one or more academic disciplines, in this case law and political science. Following this approach, we reach the conclusion that federalism must be understood as a matter of political identity. People's individual commitments in the political realm, their sense of who they are and where they belong, will determine the descriptive reality and the prescriptive necessity of federal arrangements.