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Conditional Spending and the (General) Conditional Offer Puzzle
Abstract
There are two basic ways to think about the constitutionality of conditional funding offers from the national government to the states: as a localized problem subject to a localized solution, or as instantiating a broader problem subject to a more general analysis. The first perspective views conditional spending grants as, essentially, an issue of federalism. The second views it under the rubric of what is sometimes called “the unconstitutional conditions problem” or (preferably) “the conditional offer puzzle.” In last year’s health care decision, the Court adopted the first approach — the “particularist perspective.” That is, all Justices analyzed the constitutionality of the Medicaid expansion by reference to concepts, tests, and principles that, as far as the several opinions revealed, the authors thought particular to conditional funding grants offered from the federal government to the states. No Justices drew upon, or sought to further develop, principles or analytical frameworks that purported to be general in the sense of applying to other sorts of conditional offers of benefits — for example, conditional proposals made to individuals rather than to states, or made from state governments rather than from the national government, or made of an offer to provide some benefit other than cash or cash equivalent. This essay, prepared for an edited volume of essays concerning the health care decision, argues that the unsatisfactoriness of the Court’s analysis of the Medicaid expansion can be traced to its adoption of the particularist approach to the conditional spending problem, and it explores the “generalist” alternative of analyzing the conditional spending problem as a subtype of the more general conditional offer puzzle. The generalist alternative I offer rests upon a distinction between coercion and compulsion, along with an account of what it means to “penalize” the exercise of a right. I conclude both that those who support the Affordable Care Act should treat the states’ challenge with greater seriousness than, by and large, they have given it, and that those who already harbored doubts about the constitutionality of the Medicaid expansion have reason to be more sympathetic to a general solution to the conditional offer puzzle than was the Supreme Court.
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Blackmail, a wonderfully curious offense, is the favorite of clever criminal law theorists. It criminalizes the threat to do something that would not be criminal if one did it. There exists a rich literature on the issue, with many prominent legal scholars offering their accounts. Each theorist has his own explanation as to why the blackmail offense exists. Most theories seek to justify the position that blackmail is a moral wrong and claim to offer an account that reflects widely shared moral intuitions. But the theories make widely varying assertions about what those shared intuitions are, while also lacking any evidence to support the assertions.This Article summarizes the results of an empirical study designed to test the competing theories of blackmail to see which best accords with prevailing sentiment. Using a variety of scenarios designed to isolate and test the various criteria different theorists have put forth as “the” key to blackmail, this study reveals which (if any) of the various theories of blackmail proposed to date truly reflects laypeople’s moral judgment.Blackmail is not only a common subject of scholarly theorizing, but also a common object of criminal prohibition. Every American jurisdiction criminalizes blackmail, although there is considerable variation in its formulation. The Article reviews the American statutes and describes the three general approaches these provisions reflect. The empirical study of lay intuitions also allows an assessment of which of these statutory approaches (if any) captures the community’s views, thereby illuminating the extent to which existing law generates results that resonate with, or deviate from, popular moral sentiment.The analyses provide an opportunity to critique the existing theories of blackmail and to suggest a refined theory that best expresses lay intuitions. The present project also reveals the substantial conflict between community views and much existing legislation, indicating recommendations for legislative reform. Finally, the Article suggests lessons that such studies and their analyses offer for criminal law and theory.
In this essay I shall address the modem American system of plea bargaining from a perspective that must appear bizarre, although I hope to persuade you that it is illuminating. I am going to contrast plea bargaining with the medieval European law of torture. My thesis is that there are remarkable parallels in origin, in function, and even in specific points of doctrine, between the law of torture and the law of plea bargaining. I shall suggest that these parallels expose someaimportant truths about how criminal justice systems respond when their trial procedures fall into deep disorder.
The New Family Structures Study (NFSS) is a social-science data-collection project that fielded a survey to a large, random sample of American young adults (ages 18-39) who were raised in different types of family arrangements. In this debut article of the NFSS, I compare how the young-adult children of a parent who has had a same-sex romantic relationship fare on 40 different social, emotional, and relational outcome variables when compared with six other family-of-origin types. The results reveal numerous, consistent differences, especially between the children of women who have had a lesbian relationship and those with still-married (heterosexual) biological parents. The results are typically robust in multivariate contexts as well, suggesting far greater diversity in lesbian-parent household experiences than convenience-sample studies of lesbian families have revealed. The NFSS proves to be an illuminating, versatile dataset that can assist family scholars in understanding the long reach of family structure and transitions.
Recent decades have witnessed a marked increase in efforts to craft a satisfactory definition of coercion. Despite substantial gains in understanding, however, much about coercion remains obscure. This article argues that prior bids to define coercion have not fully succeeded largely because scholars have been seduced by the vision of a single unified concept. This is a mistake, for coercion talk is employed to perform two very different normative functions. First, we apply the coercion label to signal that a given proposal is morally bad and, relatedly, that its maker is morally blameworthy. Second, coercion claims are used to excuse (fully or partially) an individual for engaging in action that would otherwise warrant moral or legal censure. This article demonstrates that the sets of conditions that constitute coercion for these two normative purposes are distinct. In substantiating this thesis, the article identifies the necessary and sufficient conditions that validate each of the two basic types of coercion claims, and also unravels the puzzling relationship among the terms "coercion", "threat", and "offer". Lastly, it shows how distinguishing these two normative functions enables us to resolve a myriad of much - debated cases from the philosophical literature. It is hoped that careful attention to the distinct functions of coercion claims will be of use to legal theorists operating in a wide range of fields, including criminal law, constitutional law, and contracts.
This article proposes a radically new solution to the so-called paradox of blackmail -- i.e., the puzzle that it should ever be criminal to threaten what it would be lawful to do. After reviewing and criticizing theories grounded on the competing notions that society may legitimately criminalize conduct if, respectively, it produces adverse consequences in the aggregate, or it is wrongful in itself, the article suggests that explaining and justifying blackmail's criminalization requires recourse to a novel criterion of criminalization. The article then proposes -- consistent with both retributivist and consequentialist versions of the general justifying aim of the criminal law -- that society may criminalize conduct that both causes cognizable harm and is likely to be undertaken with morally bad motives (regardless of whether the act is wrongful in itself). Focusing on the paradigmatic case of a threat to reveal an adulterer's infidelities unless paid off, the article demonstrates that the conditional offer of silence provides strong circumstantial evidence that the actor would have morally bad motives were he to disclose the information he threatens. Accordingly, there would be nothing problematic about criminalizing performance of the act, in which event criminalization of the threat would no longer be puzzling. In short, and contrary to common wisdom, the blackmailer's threat is not necessarily morally worse than the act threatened; it is only evidence that the act threatened would be morally blameworthy on this particular occasion, because badly motivated (in which case so is the threat). After explaining criminalization of blackmail in its paradigmatic form, the article proceeds to explore the proper contours of the crime by examining several variations upon the central case, including "market-price" blackmail, and conditional threats to expose criminal wrongdoing. The article concludes by offering some exploratory thoughts regarding possible broader implications of the evidentiary theory.
Throughout the Rehnquist Court's so-called federalism revolution, as the Court cut back on federal power under Article I and the Civil War Amendments, many commentators asserted that the spending power was next to go on the chopping block. But in the last years of the Rehnquist Court, a majority of Justices seemed to abandon the federalism revolution, and in the end, the Rehnquist Court never got around to limiting Congress's power under the Spending Clause. This Article contends that it is wrong to expect the Roberts Court to be so charitable about Congress's spending power. But the Court is not likely to limit the spending power in the way some hoped and some feared the Rehnquist Court would-by imposing direct limitations on the kinds of legislation Congress has power to pass under the Spending Clause. Direct limitations such as those proposed by Professors John Eastman, Lynn Baker, and Mitchell Berman are unlikely to find favor in the Roberts Court's cases. Rather, the Court is likely to act indirectly-through doctrines that skew the interpretation and limit the enforceability of conditional spending statutes. Those doctrines are both more analytically tractable and less ideologically problematic for conservative Justices than are the direct limitations that might be imposed on the spending power. In other words, the paradigm case for the Roberts Court's restriction of the spending power is likely to be not United States v. Butler, but rather Arlington Central School District Board of Education v. Murphy.
