Current Issue

  • Volume 66,
  • Number 2 -
  • November 2016


Muscle Memory and the Local Concentration of Capital Punishment
Lee Kovarsky

The modern death penalty is not just concentrating in a handful of practicing states; it is disappearing in all but a few capitally active localities. Capital-punishment concentration, however, still surfaces more as the subject of casual observation than as the object of sophisticated academic inquiry. Normative and doctrinal analyses of the phenomenon are virtually nonexistent, in part because the current ability to measure and report concentration is so limited.

This Article is the first attempt to measure capital-punishment concentration rigorously, by combining different sources of county-level data and by borrowing quantitative tools that economists use to study market competition. The analysis yields three major findings: (1) capital sentencing is concentrating dramatically; (2) executions are concentrating more gradually; and (3) both trends persist within most capitally active states.

Certain normative and doctrinal conclusions follow from the empirical findings. The causes of concentration are likely to be more bureaucratic and path dependent than they are democratic and pragmatic, reflecting what I call the “muscle memory” of local institutional practice. If local muscle memory indeed explains concentration, such concentration violates basic punishment norms requiring equal treatment of similar offenders. This problem notwithstanding, existing death penalty jurisprudence does not account for local concentration. For concentration to have any influence on the outcome of constitutional inquiry, the Supreme Court would have to revise its working definition of “arbitrariness.”

Fiduciary Voters?
D. Theodore Rave

What does the majority owe the minority when issues are put to a vote? This question is central to direct democracy, where voters bypass the legislature and enact law directly. Some scholars have argued that voters in direct democracy bear fiduciary-like duties because they act as representatives when casting their ballots. The Supreme Court, by contrast, has suggested that voters are not agents of the people and thus have no fiduciary obligation. By focusing on whether direct-democracy voters are representatives who bear duties, both sides have framed the issue incorrectly. They have imported a legal tool—fiduciary duty—from private law designed to combat a governance problem absent from direct democracy: a principal–agent problem.

The real governance problem in direct democracy is the tyranny of the majority. Once we focus on the right problem, private law—specifically corporate law—provides useful insights. Corporate law imposes duties—sometimes confusingly also called “fiduciary”—on shareholder majorities to consider minority interests when voting. Although these duties do not require the majority to subordinate its own interests like a true duty of loyalty, courts recognize the need to police for opportunism when the minority is vulnerable to exploitation. Looking to these private-law voter duties can help explain a puzzling line of Supreme Court cases reviewing the constitutionality of ballot initiatives that rolled back legislation benefitting minority groups. In direct democracy, where structural protections for the minority are lacking, courts may be playing a familiar institutional role from corporate law: keeping the majority from exploiting the minority.


The Jurisdictional Difficulties of Defining Charter-School Teachers Unions Under Current Labor Law
Amelia A. DeGory

As charter schools have flourished in form, they have also evolved in variety: parents can send their children to a trilingual immersion school or a school whose classes meet entirely online. The same flexibility that charters offer as an alternative to traditional public schools also makes them difficult to classify for purposes of labor law. When charter-school teachers form a union, it is not clear why the National Labor Relations Board (NLRB), and not a state labor analogue, should have jurisdiction over a charter-school labor dispute. And yet, the NLRB has asserted jurisdiction in most charter-school cases. This Note examines the NLRB’s test for determining whether the broad protections of the National Labor Relations Act apply to a group of workers in the context of charter-school employees. It proposes a more robust test for differentiating between charter schools for purposes of the Act, and it applies the test to two charter schools.

(In)equitable Subrogation: The Federal Circuit’s Irrational and Unworkable Progress Payment Framework in Balboa
Will F. Hawkins

American taxpayers spend more than $100 billion per year on federal construction projects. Yet massive construction delays, huge budget overruns, and unorganized contractors increase the cost of construction for the federal government. Passed in 1935, the Miller Act attempted to protect the federal government in the event that the contractor defaulted or was unable to complete the project. By requiring contractors to enlist third party “sureties” as guarantors on projects, the Miller Act provides the government with the assurance that another party will step in to complete projects if need be. Contractors are typically paid via periodic progress payments, with monthly invoices paid for work completed. If a contractor defaults, forcing a surety to take over on the project, the doctrine of equitable subrogation entitles the surety to all remaining progress payments due to the contractor. Fearing that default may be imminent and eager to receive any payments it can, a surety may be inclined to warn the federal government of imminent contractor default, at the same time that the contractor assures the federal government that it can perform. A series of Federal Circuit cases allows the surety to sue the federal government to recover progress payments that were already made to the contractor, even though those payments were made prior to the contractor defaulting, in accordance with federal regulations.

Given an opportunity to reduce this risk of double payment, the Federal Circuit instead created an incoherent and unworkable progress-payment framework in Balboa Insurance Co. v. United States, complicating a government official’s regulatory mandate to provide progress payments to contractors. The court misinterpreted a standard that is normally extremely deferential to the federal government, and created a complex eight-factor behemoth that unreasonably burdens the federal government. This Note proposes new regulations to replace Balboa, which focuses on whether the federal government received reasonable assurances from the contractor that it would complete performance.