Current Issue

  • Volume 66,
  • Number 1 -
  • October 2016


Analyzing Avoidance: Judicial Strategy in Comparative Perspective
Erin F. Delaney

Courts sometimes avoid deciding contentious issues. One prominent justification for this practice is that, by employing avoidance strategically, a court can postpone reaching decisions that might threaten its institutional viability. Avoidance creates delay, which can allow for productive dialogue with and among the political branches. That dialogue, in turn, may result in the democratic resolution of—or the evolution of popular societal consensus around—a contested question, relieving the court of its duty. Many scholars and judges assume that, by creating and deferring to this dialogue, a court can safeguard its institutional legitimacy and security.

Accepting this assumption arguendo, this Article seeks to evaluate avoidance as it relates to dialogue. It identifies two key factors in the avoidance decision that might affect dialogue with the political branches: first, the timing of avoidance (i.e., when in the life cycle of a case does a high court choose to avoid); and, second, a court’s candor about the decision (i.e., to what degree does a court openly acknowledge its choice to avoid). The Article draws on a series of avoidance strategies from apex courts around the world to tease out the relationships among timing, candor, and dialogue. As the first study to analyze avoidance from a comparative perspective, the Article generates a new framework for assessing avoidance by highlighting the impact of timing on the quality of dialogue, the possible unintended consequences of candor, and the critical trade-offs between avoidance and power.

Institutions and the Second Amendment
Darrell A. H. Miller

District of Columbia v. Heller ruptured the one institution—the militia—that courts had used for centuries to implement the right to keep and bear arms. If the question was “what arms?,” one looked to the militia to find an answer; if the question was “whose arms?,” again, one looked to the militia. Heller loosened the fit between the militia and the right, causing a welter of conflict as to what institutions now facilitate and constrain the Second Amendment. This Article attempts to restructure the inquiry into Second Amendment rights by drawing from the literature on institutionalism and constitutional law.

Although the institutional turn in constitutional law has been important to free speech scholarship, religion clause scholarship, and separation of powers scholarship, no one has consciously applied institutionalism to the Second Amendment. This Article fills that gap. In so doing, it situates institutionalism within the leading methodological approaches of today: textualism, originalism, common law constitutionalism, popular constitutionalism, and pragmatism. As such, this Article aims to reach beyond Second Amendment scholars and speak more generally to debates about constitutional law and constitutional theory.

People Prefer System 2 Nudges (Kind Of)
Cass R. Sunstein

In the United States, the United Kingdom, Australia, and many other nations, those involved in law and policy have been exploring initiatives that preserve freedom of choice, or “nudges,” informed by behavioral science and promoting important public policy goals, such as improved health and safety. But there is a large and insufficiently explored difference between System 1 nudges, which target or benefit from automatic processing, and System 2 nudges, which target or benefit from deliberative processing. Graphic warnings and default rules are System 1 nudges; statistical information and factual disclosures are System 2 nudges. On philosophical grounds, it might seem tempting to prefer System 2 nudges, on the assumption that they show greater respect for individual dignity and promote individual agency. A nationally representative survey in the United States finds evidence that, in important contexts, most people do prefer System 2 nudges. At the same time, that preference is not fixed and firm. If people are asked to assume that the System 1 nudge is significantly more effective, then many of them will shift to preferring the System 1 nudge. In a range of contexts, Republicans, Democrats, and independents show surprisingly similar responses. The survey findings and an accompanying normative analysis offer lessons for those involved in law and policy who are choosing between System 1 nudges and System 2 nudges.


Leveling the Playing Field: Applying Federal Corporate Charging Considerations to Individuals
Nicole T. Amsler

The American prison system is grappling with a well-publicized carceral crisis. In the words of former U.S. Attorney General Eric Holder, “too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason.” And, as a result of developments in federal law over the past few decades, the power of federal prosecutors to decide when and how to charge individuals with crimes is crucial to when and how American citizens go to prison.

Many ideas have been proposed to revise prosecutorial discretionary powers, but few have been heeded by the Department of Justice (DOJ). However, this Note posits that the DOJ has already paved the way to enhanced guidance for federal prosecutors when charging individuals with crimes. This is because the DOJ’s prosecutorial guidance for charging corporations with federal crimes is more robust than the guidance for charging individuals. In particular, a discussion on collateral consequences is included in the corporate charging guidance, yet lacking in the individual charging guidance.

This enhanced corporate guidance has had the purposeful impact of curtailing the prosecution of corporate crime. This Note argues that a similar discussion of collateral consequences in the individual charging guidance could have important and far-reaching effects on the federal criminal regime. Perhaps more importantly, such a discussion could remedy some of the unfairness presented by the current system in which federal prosecutors are guided to consider a superior set of factors before charging corporations with crimes.

To Erie or Not to Erie: Do Federal Courts Follow State Statutory Interpretation Methodologies?
J. Stephen Tagert

The Erie doctrine requires federal courts sitting in diversity jurisdiction to apply state substantive law if applying federal law would change the outcome of the case. If statutory interpretation methodologies affect the outcomes of cases and state courts give them stare decisis effect, does Erie require federal courts to use state interpretation methodologies when applying state substantive law? This Note examines whether federal courts are already applying state interpretation methodologies when they interpret state statutes by examining state statutory interpretation cases heard in Michigan federal courts interpreting Michigan statutes. This Note examines Michigan state cases because its supreme court established a distinct statutory interpretation methodology that it uses as precedent for all cases. For the most part, federal courts do not appear to use Michigan statutory interpretation techniques when they interpret Michigan law. Instead, they use a variety of inconsistent tests. This Note argues that a better approach would be for the federal courts to apply Erie to statutory interpretation and use state interpretation methods to interpret state statutes. This Note adds to the current statutory interpretation literature by examining how lower federal courts interpret federal and state statutes and investigating whether they treat both sets differently. Because more than 99 percent of statutory interpretation cases do not reach the U.S. Supreme Court, how lower courts interpret statutes matters for case outcomes and for litigants gauging their likelihood of success.