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Coercion without baselines: Unconstitutional conditions in three dimensions

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... 10 To appreciate the variety of counterfactual reasoning when trying to capture the idea of threats (and offers for that matter), see: e.g. Nozick 1969;Lyons 1975;Gorr 1986;Wertheimer 1987;Feinberg 1989;Altman 1996;Hetherington 1999;Berman 2001;Rhodes 2002. in which the second condition plays a decisive role, thus determining whether a given exchange is productive or not, is when we would indeed like the other party to drop dead. With the first condition satisfied, the satisfaction of the second condition would yield the exchange under consideration unproductive whereas if the second condition is not met, the overall exchange would be considered productive. ...
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The book subjects to critical scrutiny the notion of voluntariness, as employed by Austro-libertarians. It tackles the relation of voluntariness to property rights, (moralized) freedom as well as identifies its key role in Austrian welfare economics. The spirit of the book is through-and-through polemical: I take issue not only with well-entrenched Austro-libertarian positions (i.e. Austrian welfare economics, moralized idea of freedom etc.) but also with my prior publications on the subject.
... Unconstitutional conditions case law spans the Bill of Rights quite broadly. 44 Of particular interest here, the Fifth Amendment's Takings Clause features unconstitutional conditions jurisprudence, 45 ...
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The Emergency Medical Treatment and Active Labor Act (“EMTALA”) requires every Medicare-contracting hospital with an emergency department (“ED”) to screen and stabilize anyone with an emergency condition, regardless of ability to pay. Enacted in 1986, EMTALA vastly expanded Medicare’s initial focus on elderly and disabled beneficiaries and imposed enormous financial liabilities. Neither the Supreme Court nor any Circuits have addressed EMTALA’s constitutionality. This Article proposes that EMTALA violates the Fifth Amendment’s Takings Clause. First, it imposes a host of individual takings as the government forces one private party—the hospital—to transfer personal property to another private party—the patient. Here, violations depend on whether the hospital is justly compensated. Second, EMTALA as a whole is an “unconstitutional condition” imposed on hospitals’ participation in Medicare. Although the government can properly attach “strings” to ensure public funds are spent as Congress intended, the government cannot with impunity require persons to waive fundamental constitutional rights as a condition for receiving a government benefit. This Article shows that, as EMTALA forces hospitals to abdicate their Fifth Amendment right against uncompensated takings, it exceeds the Supreme Court’s boundaries on federal spending. In the final analysis, EMTALA's mandate that hospitals care for emergency patients should remain, but hospitals must be justly compensated.
... 65 Plea bargains in criminal cases can raise Sixth Amendment questions about the right to trial by jury. 66 And Tenth Amendment issues can arise where conditions on federal funding may usurp states' rights. In South Dakota v. Dole, for instance, the federal government conditioned states' receipt of federal highway funds on their willingness to set their legal drinking age at twenty-one. ...
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The Emergency Medical Treatment and Active Labor Act (“EMTALA”) requires every Medicare-contracting hospital with an emergency department (“ED”) to screen and stabilize anyone with an emergency condition, regardless of ability to pay. Enacted in 1986, EMTALA vastly expanded Medicare’s initial focus on elderly and disabled beneficiaries and imposed enormous financial liabilities. Neither the Supreme Court nor any Circuits have addressed EMTALA’s constitutionality. Although this longstanding statute may not be reconfigured any time soon, it is important to consider the constitutional legitimacy of legislation carrying such an enormous and growing impact. This Article proposes that EMTALA violates the Fifth Amendment’s Takings Clause on two levels. First, it imposes a host of individual takings as the government forces one private party—the hospital—to transfer personal property to another private party—the patient. Here, violations are episodic, depending on whether the hospital is justly compensated. Second, EMTALA as a whole is an “unconstitutional condition” imposed on hospitals’ participation in Medicare. Although the government can properly attach “strings” to ensure public funds are spent as Congress intended, the government cannot with impunity require persons to waive fundamental constitutional rights as a condition for receiving a government benefit. This Article shows that, as EMTALA forces hospitals to abdicate their Fifth Amendment right against uncompensated takings, it exceeds the Supreme Court’s boundaries on federal spending. In the end, the mandate that hospitals care for emergency patients should remain, but hospitals must be justly compensated. Patients who can pay are of course legally obligated to do so, but for those who cannot or will not, the government must make good.
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This Article debunks the idea that a federal statute’s novelty is an indication that the statute violates constitutional principles of federalism or the separation of powers. In the last six years, every Justice on the Supreme Court has signed onto the idea that legislative novelty signals that a statute is unconstitutional. Many courts of appeals have also latched onto antinovelty rhetoric, two doing so in the course of finding federal statutes unconstitutional. The Supreme Court’s rhetoric about legislative novelty originated as an observation: the Court described a statute as novel when distinguishing that statute from other, constitutionally permissible ones. Since then, the Court has weaponized its rhetoric about legislative novelty such that a federal statute’s novelty is now a “telling indication” that the statute is unconstitutional. This Article urges the Court to abandon this rhetoric. The idea that legislative novelty is a sign that a statute is unconstitutional primarily rests on the mistaken Madisonian premise that Congress reliably exercises the full scope of its constitutional powers and that prior Congresses’ failure to enact a statute shows that prior Congresses assumed that the statute was unconstitutional. But there are myriad reasons why Congress does not enact statutes: enacting federal laws is difficult—in part because of constitutional requirements—and Congress legislates in response to existing conditions, which change over time. There are also many reasons why Congress may not innovate and why Congress may not have enacted every constitutionally permissible means of regulation. This Article suggests that there may be a more limited role for legislative novelty to play in areas of underenforced constitutional norms where courts have struggled to articulate workable doctrinal rules. Even then, a statute’s novelty should carry little weight in any determination about the statute’s constitutionality. Finally, this Article reflects on whether rejecting the Court’s rhetoric about legislative novelty necessarily calls into question the idea that a history of similar congressional statutes is evidence that a statute is constitutional.
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Though originally an interloper in a system of justice mediated by courtroom battles, plea bargaining now dominates American criminal justice. This Article traces the path of plea bargaining's progress. The forum is a single Massachusetts county in the nineteenth century, but the lessons of the work Extend to America as a whole. The path of plea bargaining's rise was in great part a function of the powers and interests of individual courtroom actors. Although criminal defendants play a distinct part in this story, the most important actors prove to be prosecutors and judges. In the early decades of the nineteenth century plea bargaining was the work of prosecutors, who found natural incentives in the quick and easy victories it gave them. But because judges-and not prosecutors-held most of the sentencing power and therefore most of the plea-bargaining power, plea bargaining could spread no further than those few cases in which prosecutors happened to hold the balance of sentencing power. Only in murder cases and in cases arising under the Massachusetts liquor-licensing law did prosecutors have substantial sentencing power, and so plea bargaining remained largely confined to these narrow categories. Plea bargaining could not spread across the entire criminal spectrum until judges became partners in the cause. Through the first three-quarters of the nineteenth century, judges showed far less enthusiasm for plea bargaining than did prosecutors. After all, judges lacked prosecutors' natural incentives to plea bargain. Plea bargaining did not assure them "victory," and they did not suffer under the workload pressures prosecutors faced. Moreover, judges had principled objections to dickering for justice and prideful objections to sharing sentencing authority with prosecutors in the course of plea bargaining. Only in the last quarter of the century did these various obstacles to judicial participation begin to give way Among the most important catalytsts of change was the revolution in tort law brought on by the mechanization of manufacture and transportation. A flood of complex civil cases persuaded judges of the wisdom of efficient settlement of their criminal cases. Claiming now the patronage of the two principal power-brokers in the criminal courtroom, plea bargaining quickly grew to be the dominant institution of American criminal procedure. Nor only did it become the primary mode of settling almost all criminal cases, but it also became the principal arbiter of the success of other new institutions of criminal procedure. Plea bargaining's role in fostering the rise of probation was quire direct: The procedural formula that later took the name "probation" was popularized in the first half of the nineteenth century by Massachusetts prosecutors who sought a plea-bargaining technique they could employ, without judicial cooperation. The rise of public defenders' offices owes a similarly direct debt to plea bargaining: Early proponents of the public defender attempted to win support within legislatures and the established bar by arguing that the new defenders would be ready participants in plea bargaining-a strategy that became prophecy. Conversely the interests of plea bargaining helped to defeat the indeterminate-sentencing movement A true indeterminate-sentencing scheme, in which judges had no power to dictate sentences would have brought plea bargaining nearly to a halt So those judges and lawyers who valued plea bargaining made sure that such a scheme never came about, and they worked to frustrate any sentencing innovation that advanced the indeterminate ideal. In the end, the most vivid testimony to the dominance of plea bargaining within American criminal procedure is this simple fact: it is difficult to name a single procedural innovation of the last 150 years that has been incompatible with plea bargaining's progress and has survived.
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Legal academics seem to have reached a consensus that plea bargaining is unfair and wrong. On the other hand, judges, prosecutors, and defense attorneys (together with most defendants) seem to think the current system of plea negotiation functions fairly well. In this Article, the authors argue that both consensus positions are mistaken, for reasons that become apparent when one views plea bargaining through the lens of contract law and theory. Measured against the standards we apply to bargains in other settings, plea bargaining appears both fair and efficient as a general matter. At the same time, bargain theory suggests a fundamental flaw in the process, albeit one that affects only a relatively small minority of cases: the bargaining dynamic tends to thwart innocent defendants' efforts to separate themselves from guilty defendants. Abolishing plea bargaining would only make this problem worse, though there are more modest doctrinal reforms that could marginally improve innocent defendants' bargaining position. Once again, a contractual analysis proves helpful in identifying those reforms.
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In the past decade, the notion that plea bargaining is a permanent component of our criminal justice system has gained near-unanimous acceptance among the system's defenders and critics alike. The twin evils of caseload pressure and an irrepressible tendency toward cooperation among members of the courtroom "work group" are said to render plea bargaining unavoidable. Professor Schulhofer challenges this dogma; he offers, in place of plea bargaining, a bench trial system that is based on one actually used in Philadelphia today. Drawing on his own close study of the Philadelphia system, Professor Schulhofer argues that bench trials can be - and in Philadelphia are - genuine adversary proceedings in which defendants retain many of the constitutional protections that plea bargaining sacrifices. Moreover, he demonstrates that such a system could be instituted- even to the total exclusion of plea bargaining - with only a minimal increase in the resources needed to handle modern criminal dockets. Against this background, Professor Schulhofer considers how bargaining came to be seen as an inevitability. He concludes that plea bargaining has won widespread acceptance not because it is a necessary concession to immutable "realities," but rather because it serves a seductive but highly problematic normative conception of justice.
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Basic constitutional jurisprudence dictates that courts subject most government benefit decisions to minimal scrutiny, but scrutinize government actions that directly burden preferred liberties more closely. Unconstitutional conditions problems arise at the boundary between these two directives: when government conditions a benefit on the recipient's waiver of a preferred liberty, should courts review the conditioned benefit deferentially, as a benefit, or strictly, as a burden on a preferred liberty? In this Article, Professor Sullivan criticizes traditional analyses of unconstitutional conditions for focusing wrongly on whether conditions coerce individuals, distort legislative process, or permit alienation of constitutional rights. She articulates an alternative defense of close scrutiny, arguing that rights-pressuring conditions on government benefits skew distribution of power between government and rightholders, as well as among rightholders themselves. Professor Sullivan then develops this systemic approach, detailing both the circumstances in which courts should apply close scrutiny, and those in which government justifications may be strong enough to survive such scrutiny.
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For nearly two decades state legislatures have been wrestling with the problem of drunk driving. In an effort to attack this problem at its core, most drunk driving legislation currently in effect contains educational and rehabilitation requirements, and many driving while intoxicated (DWI) offenders are sentenced to probation rather than incarceration. As part of their probationary conditions, DWI offenders are often directed to participate in alcohol-related self-help programs such as Alcoholics Anonymous (AA). Requiring AA as a probationary condition for DWI offenses, however, raises serious constitutional issues under the First Amendment's Establishment Clause because the AA program of recovery is religiously oriented. This Note contends that compulsory AA as a condition of drunk driving probation violates the Establishment Clause. What this Note views as the more complex issue, however, is what exactly amounts to compulsory AA. After surveying the relevant case law, this Note presents a nonexhaustive list of factors courts might examine in the course of addressing this inquiry. A review of AA's approach to rehabilitation, leads the author to conclude that AA qualifies as a religious program for purposes of the Establishment Clause. The author also argues that the applicable case law indicates that an Establishment Clause violation will only be found where the probationer has been denied the freedom to choose between religious and nonreligious support programs. To prevent state authorities charged with formulating DWI probationary conditions from committing future Establishment Clause violations, the author recommends legislative or administrative guidelines similar to California's administrative scheme designed to guarantee state compliance with the Establishment Clause. Such guidelines would both safeguard probationers' constitutional rights and protect state probation authorities from potential liability.
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Since Sherbert v. Verner, which held the free exercise clause to protect religious practice as well as religious belief, no clear legal principles have evolved to define when practice is protected and when it can be regulated by the state. The author describes the disadvantages of the ad hoc balancing of interests made necessary by the absence of standards. He proposes that when a conscientious refusal to perform a positive duty is at issue, a strong presumption be applied that the state can satisfy its interest by some less burdensome means than criminal prohibition: either by imposing an alternative burden on the objector or by performing the act for him, or both. Positive acts should also be specially privileged, the author says, when they are believed by the actor to be inexcusable moral duties and when they do not interfere with nonparticipants.
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Subconstitutional rulemaking for the states by the Supreme Court was recently defended in these pages by Henry Monaghan. Professor Monaghan believes that what he calls "constitutional common law" has decided cases otherwise as disparate as Miranda and Calandra. He also believes it should become a regular feature of the Court's decisional process. Whereas Professor Monaghan argues that constitutional common law is both legitimate and salutary, Professors Schrock and Welsh think it illegitimate and likely to prove pernicious. Their Article is a disputation of Monaghan's recommendation for the jurisprudence he has named.
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"[N]or shall private property be taken for public use, without just compensation." For a long time, there has been no Just Compensation Clause in constitutional law. Three words, "for public use," have been cut away from it, treated as if they prescribed a distinct command of their own. Instead of the Just Compensation Clause as written, we have a Takings Clause engulfed in confusion and a Public Use Clause of nearly complete insignificance. This strange breach is never remarked on. It is simply presupposed, most clearly by those who complain about the toothlessness of the "Public Use Clause" in modem doctrine. Their complaint is an old story: it has to do with the line of Supreme Court decisions in which the public-purpose requirement received its current, broad construction. The Court has held, for instance, that a state may (with proper compensation) take A's estate and give it to his tenants B, C, and D on the ground that redistributing concentrated holdings of property can plausibly be deemed to further the public welfare. Construed this way, the so-called "public-use requirement" is simply duplicative of the legitimate-state-interest test that every deprivation of property must satisfy under the Due Process and Equal Protection Clauses. As a result, commentators—particularly those with an anti-redistributionist bent—have been proclaiming the demise of the public-use limitation or mocking it as "invisible" for more than forty years.
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To get right to the point: (1) Professor Alexander first wonders how I can urge a smoking-out conception of strict scrutiny while still supporting affirmative action programs that would fail strict scrutiny. "If [such programs] failed strict scrutiny, . . . does that not demonstrate that they were unconstitutionally motivated?" The answer is no—no more than a speed limit's inability to survive strict scrutiny proves that it was unconstitutionally motivated. Nearly all laws would fail strict scrutiny. That is why strict scrutiny must be an exceptional test, triggered only when there are powerful grounds for suspecting an impermissible purpose.
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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.
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The original understanding of the Takings Clause of the Fifth Amendment was clear on two points. The clause required compensation when the federal government physically took private property, but not when government regulations limited the ways in which property could be used. In 1922, however, the Supreme Court's decision in Pennsylvania Coal v. Mahon established a new takings regime. In an opinion by Justice Holmes, the Court held that compensation must be provided when government regulation "goes too far" in diminishing the value of private property. Since that decision, the Supreme Court has been unable to define clearly what kind of regulations run afoul of Holmes's vague standard. Attempts to do so, including the Court's recent decisions in Lucas v. South Carolina Coastal Council and Dolan v. City of Tigard, have created a body of law that more than one recent commentator has described as a "mess.” The Court and leading commentators have not seriously considered the possibility that there was an underlying rationale, worth reviving, that explains why the Takings Clause and its state counterparts originally protected property against physical seizures, but not against regulations affecting value. This article contends that the limited scope of the takings clauses reflected the fact that, for a variety of reasons, members of the framing generation believed that physical possession of property was particularly vulnerable to process failure. The article then argues on both originalist and non-originalist grounds for a process-based theory of the Takings Clause that departs dramatically from current takings jurisprudence.
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Practically every weapon system requires a battery to provide electrical power for various functions. The lithium battery is becoming the “power source of choice” for a large number of these military systems. Lithium technology offers unique solutions to the combination of requirements imposed by military systems — low weight, low volume, long storage life, low life cycle cost, and immediate readiness over the full military environmental condition spectrum.
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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.
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Constitutional rights are conventionally thought to be "personal" rights. The successful constitutional litigant is thought to have a valid claim that some constitutional wrong has or would be been done "to her"; the case of "overbreadth," where a litigant prevails even though her own conduct is permissibly regulated, is thought to be unique to the First Amendment. This "personal" or "as-applied" view of constitutional adjudication has been consistently and pervasively endorsed by the Supreme Court, and is standardly adopted by legal scholars. In this Article, I argue that the conventional view is incorrect. Constitutional rights, I claim, are rights against rules. Constitutional reviewing courts operate at the same level of generality as legislatures. Their task is to evaluate statutes and other rules, in light of constitutional criteria, and to repeal or amend the rules that fail those criteria. The strength of the litigant?s personal claim is irrelevant. I defend this view of constitutional rights with specific reference to the case of conduct-regulating rules, and to the provisions in the Bill of Rights that provide the main (substantive) protection against conduct-regulating rules -- namely, the Free Speech Clause, the Free Exercise Clause, the Equal Protection Clause, and the substantive component of the Due Process Clause. My view has wide implications, for a host of problems in federal courts and constitutional jurisprudence. For example, it suggests that classic justiciability doctrines such as "ripeness" and "standing" have no support in the nature of constitutional rights; their justification, if any, must be found elsewhere. It explains why constitutional doctrines are typically framed in terms of "tests" (e.g., narrow-tailoring tests, or anti-discrimination tests) that look to the predicate and history of rules. In particular, the view defended in my Article bears on the problem of "facial" and "as-applied" challenges -- a problem that, in recent years, has provoked considerable controversy at the Supreme Court. If constitutional rights are indeed rights against rules, then all constitutional challenges are "facial" challenges, and properly so. Relatedly, the "overbreadth" doctrine is misconceived; there is nothing unique to the First Amendment about the propriety of challenges by litigants who lack personal claims of constitutional wrong.
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Nearly every governmental action has the incidental effect of burdening some fundamental constitutional right. In this Article, Professor Dorf argues that constitutional text, history, and structure, as well as normative considerations, require that courts treat these burdens seriously. How, though, can government recognize these incidental burdens without rendering itself powerless to achieve its legitimate ends? Professor Dorf analyzes the Supreme Court's approach to incidental burdens on free speech, free exercise of religion, and privacy rights. In these areas, he discerns a tendency to apply close scrutiny to incidental burdens that are "substantial." He then argues that the nature of the impinged right should also influence the Court's approach to an incidental burden. Finally, Professor Dorf reexamines common understandings of the distinction between direct and incidental burdens. He contends that his proposed framework ought to be applied not only to incidental burdens, but also to direct burdens on conduct facilitating the exercise of a fundamental right. Burdens on equality norms, however, need not be substantial to elicit close scrutiny.