Columbia Law Review

Online ISSN: 0010-1958
Publications
Article
Plaintiffs seeking to avoid prosecution under an allegedly unconstitutional statute can ask a court to do one of two things: award facial relief, in which case any enforcement of the offending statutory provision is enjoined, or award as-applied relief, in which case enforcement of the provision against the plaintiff is enjoined, but officials may attempt to apply the statute to others. As-applied relief might also take the form of partial facial invalidation: The provision may not be applied to others similarly situated to the plaintiff. In United States v. Salerno, the Court ruled that judges should only provide total facial invalidation if there is "no set of circumstances" under which the statute could be applied consistent with the Constitution. This general rule, however, has had a historical exception for First Amendment jurisprudence, known as the overbreadth doctrine, and more recently Planned Parenthood v. Casey extended a similar exception to abortion jurisprudence. Most literature has been supportive of this extension, and some have suggested replacing the Salerno rule with the Casey rule as a general matter. This Note argues that the reasons given for the Casey exception are unpersuasive, that Salerno as a matter of history and doctrine is the correct rule to apply to facial challenges, and for that reason that Salerno should remain the general rule and Casey's "large fraction" test should be eliminated.
 
Article
Much disability based discrimination occurs because of fears that hiring or serving people with disabilities will pose a safety risk. Disability rights laws such as the ADA strictly regulate such risk-motivated discrimination. Many disability rights advocates and academic defenders of the ADA laud such laws as applying a "scientific" approach to risk rather than the "irrational" approach generally adopted by the public at large. That position is doubly strange: It stands in remarkable tension with disability rights advocates' general suspicion of "experts," and applies a technocratic approach to risk regulation-an approach that usually has politically conservative implications-to achieve the distinctly nonconservative goal of promoting the full integration of people with disabilities into our nation's economic and civic life. In this essay, Professor Bagenstos uses the problem of risk-motivated disability discrimination as a lens through which to examine the politics of risk regulation scholarship. He argues that the easy association of technocratic approaches with political conservatism-and of democratic approaches with political liberalism or progressivism-ignores the complex ways in which technocratic and democratic institutions may serve or disserve particular political interests.
 
Article
This Note discusses the potential for genetic discrimination, current views as to whether genetic conditions will be covered by the Americans with Disabilities Act ("ADA"), and the specific issue of whether presymptomatic persons who test positive for Huntington's disease should be classified as persons with a "disability" within the meaning of the ADA. In considering whether presymptomatic Huntington's individuals have a disability under the ADA, an analogy is made between Huntington's disease and HIV-positive status. Inter alia, Huntington's disease and HIV-positive status are analogous in that, at the time of diagnosis, victims of both diseases may have no symptoms and may remain healthy for a number of years; but even though the exact time of onset of both diseases is unascertainable, death of both victims within a given range of years is highly likely. Further, both Huntington's disease and HIV are transmitted to offspring at a relatively high rate. Given these similarities, the author argues that Huntington's individuals should be afforded the protections of the ADA for the same reasons that HIV-positive persons are protected.
 
Article
The current status of the minor's right of privacy is examined, and the possible interests of parents and the state in controlling the minor's childbearing decisions is evaluated. Attention is directed to the development of an adult right of privacy and the potential barriers blocking its full extension to minors. The impact of the Danforth and Carey decisions extended the right of privacy to protect a minor's childbearing decisions from unwarranted state interference, and the constitutionality of statues that predicate a minor's abortion or contraceptive decision on either prior parental notification or parental judicial approval. The scope and vitality of the protection afforded by the Danforth and Carey decisions will be largely undermined if a minor's fundamental decisions are held to be constitutionally subject to parental or judicial review. State-mandated involvement of 3rd parties, aside from the minor's attending physician, in the decision to prevent or terminate pregnancy serves no significant state interest. Rather such restrictions impermissibly subject minors to the dangers of pregnancy and childbirth. Additionally, by selectively burdening only those childbearing decisions which result in the prevention or termination of pregnancy, parental consent, consultation, and notification requirements violate the Roe decision's insistence on a neutral state policy towards the outcome of fundamental personal choices. In sum, state-assisted parental or judicial intervention in the minor's childbearing decisions unconstitutionally limits the protection granted by the right of privacy.
 
Article
Recent scientific experimentation has revealed that fetal tissue yielded from abortions has remarkable therapeutic value. This Note posits that the demand for fetal tissue likely will expand to the point where the current supply no longer satisfies it. Therefore, in order to obtain tissue from women who would not otherwise donate their abortuses, should research organizations, pharmaceutical companies, and doctors be allowed to offer women a "financial incentive" for their fetal tissue? That is, should women be allowed to sell their fetal tissue? This Note explores the question from a Critical Race Theory perspective. It analyzes the impact that a market in fetal tissue will have on Black women, who are more likely to participate in such a market due to their precarious economic situation, their higher abortion rate, and the effects of internalized oppression. The Note concludes that because Black women will be disproportionately exploited, as well as disenfranchised from the benefits produced by a market in fetal tissue, fetal tissue should not be made market alienable.
 
Article
Efforts to reform the American health care system through direct government action have failed repeatedly. Nonetheless, an alternative strategy has emerged from these experiences: requiring insurance organizations and health care providers to disclose information to the public. In this Article, Professor Sage assesses the justifications for this type of regulation and its prospects. In particular, he identifies and analyzes four distinct rationales for disclosure. He finds that the most commonly articulated goal of mandatory disclosure laws--improving the efficiency of private purchasing decisions by giving purchasers complete information about price and quality--is the most complicated operationally. The other justifications--which he respectively terms the agency, performance, and democratic rationales--hold greater promise, but make different, sometimes conflicting assumptions about the sources and uses of information. These insights have implications not only for health care, but also for other regulated practices and industries.
 
Article
Antitrust law represents the principal legal tool that the United States employs to police private markets, yet it often relegates quality and nonprice considerations to a secondary position. While antitrust law espouses the belief that vigorous competition will enhance quality as well as price, little evidence exists of the practical ability of courts to deliver on that promise. In this Article, Professors Hammer and Sage examine American health care as a vehicle for advancing understanding of the nexus among competition, quality, and antitrust law. The Article reports results of a comprehensive empirical review of judicial opinions in health care antitrust litigation between 1985 and 1999, with specific attention to courts' handling of quality and other nonprice concerns. Professors Hammer and Sage conclude that, although antitrust law cannot be expected to serve as the sole oversight mechanism for industries as complex and quality dependent as health care, courts have been successful incorporating some nonprice factors into antitrust analysis.
 
Article
In the last decade, cumulative trauma disorders have become a significant percentage of reported workplace injuries and litigated workers' compensation claims. Arising from the accumulated impact of daily work activities on the body, these injuries do not fall neatly within either the "accident" or "disease" categories which comprise workers' compensation laws. As a result, courts and legislatures have struggled to properly evaluate workers' compensation claims for these injuries. This Note looks at the legal treatment of cumulative trauma injuries in light of the "original bargain" of workers' compensation, where workers give up a tort remedy against their employers in exchange for guaranteed, but limited, compensation for work-related injuries. In doing so, this Note undertakes a comprehensive comparison of litigated cumulative trauma cases in the tort and workers' compensation systems. Ultimately, this Note argues that judges must use the original bargain as an interpretive less when deciding cumulative trauma cases, and points to ergonomics--the science of the workplace--as a significant new tool for determining whether such injuries are work-related.
 
Article
The loss of human life resulting from environmental contaminants generally does not occur contemporaneously with the exposure to those contaminants. Some environmental problems produce harms with a latency period whereas others affect future generations. One of the most vexing questions raised by the cost-benefit analysis of environmental regulation is whether discounting, to reflect the passage of time between the exposure and the harm, is appropriate in these two scenarios. The valuations of human life used in regulatory analyses are from threats of instantaneous death in workplace settings. Discounting, to reflect that in the case of latent harms the years lost occur later in a person's lifetime, is appropriate in these circumstances. Upward adjustments of the value of life need to be undertaken, however, to account for the dread and involuntary nature of environmental carcinogens as well as for higher income levels of the victims. By not performing these adjustments, the regulatory process may be undervaluing lives by as much as a factor of six. In contrast, in the case of harms to future generations, discounting is ethically unjustified. It is simply a means of privileging the interests of the current generation. Discounting raises analytically distinct issues in the cases of latent harms and harms to future generations. In the case of latent harms, one needs to make intra-personal, intertemporal comparisons of utility, whereas in the case of harms to future generations one needs to define a metric against which to compare the utilities of individuals living in different generations. Thus, the appropriateness of discounting should be resolved differently in the two contexts.
 
Article
This note considers the implications of a recent Supreme Court decision, Pegram v. Herdrich, for preemption of state laws under the Employee Retirement Income Security Act (ERISA). Though Pegram dealt with a fiduciary liability question, and not preemption specifically, the Court in arriving at its decision laid out a definition of the word "loan"--a word that is used in both the fiduciary liability section of ERISA and the preemption section. The Court's definition focuses upon the relationship between the managed care organization and the employer that hires it. The definition, however, excludes from the meaning of "plan" the relationship between the managed care organization and the health care providers it hires. Thus, this Note argues that according to Pegram, state laws that regulate the relationship between managed care organizations and health care providers, such as "any willing provider" laws, should not be preempted by ERISA.
 
Article
The tort claim of medical monitoring has produced a disarrayed set of state and federal court opinions. The procedural dimensions of this claim are as vexing as the related substantive issues with which courts and commentators have long been grappling. Ordinarily, mass tort actions, typically involving claims for money damages, are certified under Rule 23(b)(3), which class category requires the right to notice and to opt out of a proceeding, and the fulfillment of "predominance" and "superiority" requirements. Such features are absent in Rule 23's mandatory classes. Nevertheless, this Note argues that it is appropriate for claims exclusively for medical monitoring to be certified as a mandatory class action under Rule 23(b)(2) of the Federal Rules of Civil Procedure or its state law counterparts. Given that a medical monitoring fund is an equitable remedy, nonpreclusive of a future damages claim, and groupwide in nature, the (b)(2) class category adequately protects the due process rights of class plaintiffs.
 
Article
This Note argues that married couples possess a fundamental right to procreate through the use of cloning technology, and that any categorical ban on its use must withstand strict scrutiny. The Note analyzes the cases on procreative liberty jurisprudence and argues that the right to procreate protects procreative acts, and that this protection should extend to assisted reproductive technologies (ARTs), such as human cloning. Reasons for materially differentiating ARTs from coital reproduction are considered, and the primary focus is on the various ethical concerns that critics have raised regarding cloning. This Note argues that these ethical concerns are immaterial, because they overstate the concerns, are voiced from the wrong ethical perspective, and are inconsistent with right-to-privacy jurisprudence.
 
Article
Professor Bernstein considers a theme of Judge Weinstein's judicial and academic writings--that tort law works imperfectly to effect justice in mass disaster cases--through the vehicle of thalidomide, the paradigmatic toxic substance. Thirty-five years ago, thalidomide poisoned thousands of children, inflicting limb-reduction birth defects. Professor Bernstein argues that the drug has also had a malforming effect on mass tort law. Courts and scholars have used the precedent of thalidomide to build stringent legal standards of proof and causation, without enough attention to the functions and consistency of these standards. Thalidomide has also prompted commentators to celebrate American drug regulation and the American liability system; Professor Bernstein argues that these paeans are exaggerated. She concludes that the United States must confront its thalidomide history, as other nations in the world have done, and build social institutions--strong regulation and social insurance--to guard against toxic disasters of the future.
 
Article
Evidence of physician attitudes favoring the withholding of needed medical treatment from infants infected with HIV compels a reassessment of the applicability and adequacy of existing law in dealing with selective nontreatment. Although we can hope to have learned some lessons from the Baby Doe controversy of the mid-1980s, whether the legislation emerging from that controversy, the Child Abuse Amendments of 1984, has ever adequately dealt with the problem of nontreatment remains far from clear. Today, the medical and social characteristics of most infants infected with HIV introduce new variables into our assessment of that legislation. At stake are the lives of infants who, for reasons of class, race, and HIV infection, are both particularly vulnerable to having their lives devalued and relatively likely to have decisions regarding their medical treatment made by someone other than their parents. These factors, when combined with the prognostic uncertainty characteristic of perinatally transmitted HIV infection, are likely to diminish further the Child Abuse Amendments’ ability to assure an effective response to nontreatment of these infants.The Americans with Disabilities Act, by contrast, offers great promise as an adequate legal response to nontreatment based on HIV infection. Although the ADA’s applicability to individual medical treatment decisions is unclear from the statute’s face and legislative history, normative considerations amply justify interpreting the ADA as covering such decisions. Applying the ADA to treatment decisions pursuant to the medical effects approach proposed by this Article respects the legitimate complexity of the medical decision-making process, but prohibits the interjection of illegitimate considerations of disability into that process. Use of the medical effects approach would not create new burdens, unanticipated by Congress, for medical decision-makers; rather, the approach simply would harmonize legal protection with existing ethical standards. Although using the medical effects approach to judge the legitimacy of treatment decisions for infants infected with HIV doesn’t promise easy answers in hard cases, it does offer a sensitive way of ensuring that the ADA’s revolution reaches infants infected with HIV and all patients with disabilities.
 
Article
For more than thirty years, federal regulations--collectively known as the "Common Rule"--have governed all federally funded medical research involving human subjects. The Common Rule requires, inter alia, that any research facility receiving federal funds submit a Federal Wide Assurance (FWA) to the department or agency from which funding is sought. The FWA is a contract in which the research facility promises to abide by the Common Rule for all its research that involves human subjects, whether it is privately or federally funded. Drawing upon other instances in which third-party beneficiaries have successfully enforced government contracts, this Note argues that, upon discovery that a contract of assurance has been breached in the course of federally or privately funded research, a research subject should be able to maintain an action against the research institution as a third-party beneficiary to that contract.
 
Article
Law plays crucial roles in the field of public health, from defining the power and jurisdiction of health agencies, to influencing the social norms that shape individual behavior. Despite its importance, public health law has been neglected. Over a decade ago, the Institute of Medicine issued a report lamenting the state of public health administration, generally, and calling, in particular, for a revision of public health statutes. The Article examines the current state of public health law. To help create the conditions in which people can be healthy, public health law must reflect an understanding of how public health agencies work to promote health, as well as the political and social contexts in which these agencies operate. The authors first discuss three prevailing ways in which the determinants of health are conceptualized, and the political and social problems each model tends to create for public health efforts. The analysis then turns to the core functions of public health, emphasizing how law furthers public health work. The Article reports the results of a fifty-state survey of communicable disease control law, revealing that few states have systematically reformed their laws to reflect contemporary medical and legal developments. The Article concludes with specific guidelines for law reform.
 
Article
Our working hypothesis is that a professional board which is independent of management should tip the scales in favor of higher returns to investors. Although this hypothesis is amply supported by observation and reasonable assumptions, no detailed analysis of corporate relative performance has been undertaken. Here we define returns to investors as the achievement of "economic profit," ie., operating earnings in excess of the costs of capital, and we posit the presence/absence of a professional board for each corporation in a reasonably comprehensive sample of large corporations. An empirical study based on such reasonable studies and 1991- 1995 data demonstrates that the added returns to investors associated with the presence of a professional board are positive and significant. Corporations with active and independent boards appear to have performed much better in the 1990s than those with passive boards.
 
Article
A review of Stephen Breyer's Regulation and Its Reform.
 
Article
Born out of a Reagan-era desire to minimize regulatory costs, and not fundamentally reconsidered since its inception, the centralized review of agency rulemakings has arguably become the most important institutional feature of the regulatory state. Yet it is a puzzling feature: although centralized review is sometimes justified on the ground it could harmonize the uncoordinated sprawl of the federal bureaucracy, the agency tasked with regulatory review, the Office of Management and Budget (OMB), has never embraced that role. It has instead doggedly clung to its original cost-reduction mission, justifying its function as a check on the federal bureaucracy with reference to the pervasive belief that agencies will systematically over-regulate.This article shows why this belief is wrong. The claim that agencies are systematically biased in favor of regulation finds little support in public choice theory, the political science literature, or elsewhere. In any event, theories predicting rampant over-regulation are no more plausible than alternative theories suggesting that agencies will routinely under regulate. Even if zealous agencies captured by powerful interest groups did characterize the regulatory state, OMB review is a curious and poorly designed counterweight. There is no reason to believe that OMB's location in the Executive Office of the President will inoculate OMB from the pathologies that afflict other agencies, and some reason to think that it will exacerbate them. As a response to these problems, we urge a reconsideration of the foundational role that centralized review should play in our regulatory state, and a revival and re-conceptualization of the neglected principles of harmonization that once ostensibly animated it.
 
Article
Despite the fact that compensation is the governing principle in contract law remedies, it has tenuous historical, economic and empirical support. A promisor's right to breach and pay damages (which is subject to the compensation principle) is only a subset of a larger family of termination rights that do not purport to compensate the promisee for losses suffered when the promisor walks away from the contemplated exchange. These termination rights can be characterized as embedded options that serve important risk management functions. We show that sellers often sell insurance to their buyers in the form of these embedded options. We explain why compensation is of little relevance to the option price agreed to by the parties, which is a function of the value of the option to the buyer, its cost to the seller and the market in which they transact. We thus propose a novel justification for why penalty liquidated damages may be higher than seller's costs: they are option prices that reflect the value of the options to the buyer. The regulation of liquidated damages is thus tantamount to price regulation, which is outside the realm of contract law. Moreover, in light of the heterogeneity among optimal option prices, we also make the case against having an expectation damages default rule to begin with. In thick markets, we argue for enforcing the parties ex ante risk allocation with market damages. In thin markets, we propose that parties be induced to agree explicitly with respect to all termination rights, including breach damages, by the threat of specific performance of their contemplated exchange or, in the case of consumers, by a default rule that provides them a termination option at no cost.
 
Article
In protecting safety, health, and the environment, government has increasingly relied on cost-benefit analysis. In undertaking cost-benefit analysis, the government has monetized risks of death through the idea of "value of a statistical life (VSL)," currently assessed at about $6.1 million. Many analysts, however, have suggested that the government should rely instead on the "value of a statistical life year" (VSLY), in a way that would likely result in significantly lower benefits calculations for elderly people, and significantly higher benefits calculations for children. I urge that the government should indeed focus on life-years rather than lives. A program that saves young people produces more welfare than one that saves old people. The hard question involves not whether to undertake this shift, but how to monetize life-years, and here willingness to pay (WTP) is generally the place to begin. Nor does a focus on life-years run afoul of ethical limits on cost-benefit analysis. It is relevant in this connection that every old person was once young, and that if all goes well, young people will eventually be old. In fact, a focus on statistical lives ismore plausibly a form of illicit discrimination than a focus on life-years, because the idea of statistical lives treats the years of older people as worth far more than the years of younger people. Discussion is also devoted to the uses and limits of the willingness to pay criterion in regulatory policy, with reference to the underlying welfare goal and to the nature of moral and distributional constraints on cost-benefit balancing.
 
Article
Economic systems produce wealth. Law and economics analysts strive to see which laws are more apt to produce greater societal wealth and, on occasion, which will distribute that wealth acceptably. For some economic systems, however, productive arrangements might generate political backlash, and this backlash complicates the economic analysis. When the potential for wealth-decreasing political instability is high, basic efficiency analysis becomes harder than it would otherwise be. Professor Roe provides several reasons why law and economics analyses of American institutions seldom take backlash into account, why this relative neglect is often justified, and when it might not be justified. Some of these reasons are rooted in American history and help to explain the American-centered nature of law and economic analysis. Professor Roe first analyzes the complications arising from backlash abstractly, showing how even an initially wealthy and Rawlsian fair society could deteriorate due to backlash, with markets sometimes unable to remedy the problem. He then examines plausible national instances that fit the abstract model of wealth, fairness, and political backlash, with the backlash risking instability, turmoil, and if not otherwise remedied, lower wealth. Finally, Professor Roe argues that even in the United States some institutions that are hard to justify on normal efficiency grounds become understandable as institutions that either mitigated or resulted from backlash. Several American business laws, such as Glass-Steagall, Robinson-Patman, some antitakeover laws, and chapter 11 of the Bankruptcy Code, can be seen as examples of backlash or as means of avoiding more serious backlash.
 
Article
This Article explores the efficient design of civil liability for mandatory securities disclosure violations by established issuers. An issuer not publicly offering securities at the time of a violation should have no liability. Its annual filings should be signed by an external certifier-an investment bank or other well-capitalized entity with financial expertise. If the filing contains a material misstatement and the certifier fails to do due diligence, the certifier should face measured liability. Officers and directors should face similar liability, capped relative to their compensation but with no indemnification or insurance allowed. Damages should be payable to the issuer, not traders in its shares, because the true social harm from issuer misstatements is poor corporate governance and reduced liquidity. A trader is as likely to be a gainer by selling, as a loser by buying, at the misstatement-inflated price. An issuer publicly offering securities at the time of a violation should be liable to purchasers for the resulting inflation in price. Such liability is an antidote to what otherwise would be extra incentive not to comply. This design would increase incentives for U.S. issuers to comply with periodic disclosure rules. At the same time, litigation-expensive fraud-on-the- market class actions would be eliminated. So would underwriter liability for lack of due diligence, a sharply diminishing spur for disclosure given the speed of modern offerings. For countries considering implementation of securities disclosure civil liability systems for the first time, the design helps them get it right from the star.
 
Article
Contract interpretation and supplementation is conventionally conceived of as a multistage process, in which various sources, including express terms, course of performance, course of dealing, trade usages, default rules, and general standards of reasonableness, are sequentially resorted to. The decision maker should not turn to any particular source before exhausting the previous ones, and in case of inconsistency, each source trumps the following ones. A competing theory, inspired by Karl Llewellyn, maintains that the decision maker should be free to consider all the elements of the "bargain in fact" (the first four sources in the above list). Yet, it accepts that in case of inconsistency each source governs the following ones, and disregards the role of default rules and principles of contract law in the interpretive process. This Article argues that to some extent there is indeed a hierarchy among the sources, but it is an inverted one. The inverted hierarchy emphasizes the primacy of standards of reasonableness and good faith, legal default rules, and trade usages. The argument is made on three levels. First, close examination of legal doctrines and courts' practice reveals that they better conform to the inverted hierarchy than to the conventional one. Second, based on empirical findings and on economic, sociological, and psychological insights, it is argued that the actual behavior of contracting parties largely falls into line with the inverted hierarchy. Finally, it is claimed that the inverted model is ethically superior to the conventional one. It is justified not only on the basis of social conceptions of contract law (fairness in exchange, re-distributive justice, and paternalism), but also as a means for realizing the parties' actual intentions and enhancing economic efficiency.
 
Article
This Article explores the distinction between in personam contract rights and in rem property rights. It presents a functional explanation for why the legal system utilizes these two modalities of rights, grounded in the pattern of information costs associated with each modality. To test this theory, the Article examines four legal institutions that fall along the property/contract interface-bailments, landlord-tenant law security interests, and trusts-in order to determine how the legal doctrine varies as the underlying situation shifts from in personam, to in rem, to certain relations intermediate between these poles. With respect to each institution, we generally find that in personam relations are governed by flexible default rules; in rem relations are governed by bright-line rules that impose immutable and standardized obligations; intermediate relations, as befits their intermediate level of information. costs, feature a type and degree of standardization beyond pure contract but short of pure property.
 
Article
The Author observes that sex and sexual orientation equality jurisprudence is premised upon the traditional understanding of "sex" as determined by anatomy at birth. The presumption typically following from this reduction of sex to anatomy is the notion that certain gendered attributes are inherent in biological male- or femaleness. The Author asserts that these erroneous and unduly narrow views significantly hamper courts' ability to address the core of sex and sexual orientation discrimination-hostility based on failure to conform to conventional gender norms. Surveying workplace, public accommodation, asylum, marriage, and custody cases, Flynn explains how conventional jurisprudence fails a wide array of persons. Looking to the burgeoning transgender case law, the Author demonstrates how individuals ranging from working women, gay men and lesbians, and stay-at-home dads can benefit from a jurisprudence that adopts more accurate and multifaceted understandings of sex and gender.
 
Article
Suppose two people commit the same crime and are sentenced to equal terms in the same prison facility. I argue that they have identical punishments in name only. One may experience incarceration as challenging but tolerable while the other is thoroughly tormented by it. Even though people vary substantially in their experiences of punishment, our sentencing laws pay little attention to such differences. I make two central claims: First, a successful justification of punishment must take account of offenders' subjective experiences when assessing punishment severity. Second, we have certain obligations to consider actual or anticipated punishment experience at sentencing, at least when we can do so in a cost-effective, administrable manner. Though it may seem impossible or prohibitively expensive to take punishment experience into account, we should not accept this excuse too quickly. In civil litigation, we often make assessments of emotional distress. Even if we cannot calibrate the punishments of individual offenders, we could enact broad policies that are better at taking punishment experience into account than those we have now. I do not argue that more sensitive offenders should receive shorter prison sentences than less sensitive offenders who commit crimes of equal blameworthiness. I do, however, argue that when they are given equal prison terms, more sensitive offenders receive harsher punishments than less sensitive offenders and that it is a mistake to believe that both kinds of offenders receive punishments proportional to their desert.
 
Top-cited authors
C. Sunstein
  • Harvard University
Robert P Merges
  • University of California, Berkeley
Charles F. Sabel
  • Columbia University
Michael C. Dorf
  • Cornell University
Mark J. Roe
  • Harvard University