nys70-1_cv_nys70-1_cv 3/2/2015 12:06 PM Page 2 Vol. 70 No. 1

New York University Annual Survey of American Law e okUiest nulSre fAeia a 2014 of American Law University Annual Survey

DEDICATION TO JUDGE

TRIBUTES Introduction by Dean Richard L. Revesz Introduction by Ted Kelly Chief Judge Robert A. Katzmann Vincenzo Varano Kenneth S. Abraham Chief Judge Judith S. Kaye Acknowledgment by Judge Guido Calabresi

ARTICLES

THE REGULATION OF SENTENCING DECISIONS: WHY INFORMATION DISCLOSURE IS NOT SUFFICIENT, AND WHAT TO DO ABOUT IT W.C. Bunting

A SCHOLAR ON THE BENCH: A CONVERSATION WITH GUIDO CALABRESI Vittoria Barsotti

Volume 70 Issue 1 2014 36095-nys_70-1 Sheet No. 1 Side A 03/04/2015 07:12:55 ALL H ANDERBILT T. V ISSUE 1 Washington Square RTHUR VOLUME 70 A ANNUAL SURVEY ANNUAL NEW YORK UNIVERSITY SCHOOL OF LAW NEW YORK UNIVERSITY SCHOOL OF AMERICAN LAW OF AMERICAN NEW YORK UNIVERSITY NEW YORK \\jciprod01\productn\n\nys\70-1\FRONT701.txt unknown Seq: 1 3-MAR-15 17:32 36095-nys_70-1 Sheet No. 1 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 1 36095-nys_70-1 36095-nys_70-1 Sheet No. 1 Side B 03/04/2015 07:12:55 A Uniform System of is published quarterly at 110 West New York University Annual Survey of American ISSN 0066-4413 All Rights Reserved (212) 998-6540 (212) 995-4032 Fax invites the submission of unsolicited manuscripts. L.C. Cat. 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Manuscripts: The the 19th edition of Text and citations should conform to Citation manuscript returned after consideration. 36095-nys_70-1 Sheet No. 1 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 1 36095-nys_70-1 36095-nys_70-1 Sheet No. 2 Side A 03/04/2015 07:12:55 MERSON E Or land or life, if freedom fail? Or land or life, if freedom For what avail the plough or sail For what avail the plough \\jciprod01\productn\n\nys\70-1\FRONT701.txt unknown Seq: 3 3-MAR-15 17:32 36095-nys_70-1 Sheet No. 2 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 2 36095-nys_70-1 36095-nys_70-1 Sheet No. 2 Side B 03/04/2015 07:12:55 iv \\jciprod01\productn\n\nys\70-1\FRONT701.txt unknown Seq: 4 3-MAR-15 17:32 36095-nys_70-1 Sheet No. 2 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 2 36095-nys_70-1 36095-nys_70-1 Sheet No. 3 Side A 03/04/2015 07:12:55 IX UN ANG ONG OON OON N ICON S UEDE NGER IMON TONE OMAIS ILKINS ILKINS ENTER ATSON Y EYNERI W ICHOLS LEIMAN OBERTS ROTTER -U ERLMAN EISSMAN OHNSON R UDOFSKY J. Y RUNNELL R W MILY CHWARTZ ILKERSON -J T P A. P OSENTHAL B. S L. W B. S E R M. S W S J. W EIXIAO H. S USAN W A. W L. K R. R C. N ILY S EAL W LAGER L MMA ICOLE TASINOPOULOS AFAEL H. T USTIN N ICHAEL E. R E OSEPHINE IANCA ARAH R A N EREMY ANIEL ANIEL J ANIEL Symposium Editor ARYL J ARBURG ALLORY S M B D D NDREW EYHAN D D C. P ATTHEW M LLISON ICHAEL V. S A R W COTT A ATHAN M LIZABETH M S OSE E N R ARAH S EORGIA G ´ INEZ IU UGHES ITER ALZI OOLE U EUCHTEN -L ITCHELL ART EVINE C ISKOW O EITH I ILLER ASS ATEL AUFMAN APLAN ARKEL OWLEY ALIK ANTER NMAN ANIER L IM ILLIKIN AECKL UECHNER INTURN ELLEGRINO L OBERT OYNER S T. L RAHAM CHUSTER RMAN K ACINSKI P K I W. H K S H K ORGENTHAU M J K. L B TEINERMAN L M G K ACHMUND L. L V. M O A. M USTON S. B N. L F. O’T D. K E. M S J. P M. K D. L K. M EAN L E. S ICHAEL UNINE H S J VAN P. M ORDAN Staff Editors AUL EGAN M OUGLAS ESHAMA J Article Editors RANCIS E RENDAN ANIEL Editor-in-Chief ACH YLE EATHER OSHUA P AUREEN HRISTINA AOMI USAN ENNIFER ARTHA DWARD F J R LEXANDER D ULIENNE Z M B OBERT J K D ACOB Managing Editors S ARAH C H J N E HARLES OLIN HARON J M NDREW LIZABETH A M R S ARRY S ICHOLAS ERNANDO C ATHERINE C E A HRISTOPHER H F HRISTOPHER K N C C 2014–2015 BOARD OF EDITORS NEW YORK UNIVERSITY NEW RAFSTEIN EJIA HEN -G LACK DEL RUTIUNOV REELAND HILELLI UTCHINSON ERMAN ALY ALL ECKERMAN REENE ICHARDS ARRETT IOS UITERMAN YUN ERBER Y. C OSEWEHR OGG ORDI OUNTAIN OLLANDER ORDOVA B D. F H HIZNER D HISOLM P.D. M ERTRAN OYARSKY W. E A. A G IDLER E. F B G C K. C H OHEN J. B C J. R EKTIN B B ANNUAL SURVEY OF AMERICAN LAW OF AMERICAN SURVEY ANNUAL A. H F G. G E. G J. F J. H A. C C H. G ANIEL L. C G C.J. H ILLIAM ATTHEW ALLORY AX ARRY ALEY LIVER IANA AVID REGORY ATHERINE ALEB MENEH LEXIA AITLYN EBECCA YAN OAZ ENJAMIN RIN ATRICK ATRICK COTT AMUEL OPHIA AN ONATHAN ACLYN ONATHAN ONNAH ORDAN B K. D G A A E P M M J M K S J I J D C P D B H C W H R J S S Development EditorsJ O Note Editors R Executive Article Editors Senior Articles Editor \\jciprod01\productn\n\nys\70-1\FRONT701.txt unknown Seq: 5 3-MAR-15 17:32 36095-nys_70-1 Sheet No. 3 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 3 36095-nys_70-1 36095-nys_70-1 Sheet No. 3 Side B 03/04/2015 07:12:55 vi \\jciprod01\productn\n\nys\70-1\FRONT701.txt unknown Seq: 6 3-MAR-15 17:32 36095-nys_70-1 Sheet No. 3 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 3 36095-nys_70-1 36095-nys_70-1 Sheet No. 4 Side A 03/04/2015 07:12:55 This Volume of This Volume is respectfully dedicated to is respectfully JUDGE GUIDO CALABRESI New York University Annual Survey of American Law Annual Survey of New York University \\jciprod01\productn\n\nys\70-1\FRONT701.txt unknown Seq: 7 3-MAR-15 17:32 36095-nys_70-1 Sheet No. 4 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 4 36095-nys_70-1 36095-nys_70-1 Sheet No. 4 Side B 03/04/2015 07:12:55 ALABRESI C UIDO G UDGE J \\jciprod01\productn\n\nys\70-1\FRONT701.txt unknown Seq: 8 3-MAR-15 17:32 36095-nys_70-1 Sheet No. 4 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 4 36095-nys_70-1 36095-nys_70-1 Sheet No. 5 Side A 03/04/2015 07:12:55 JUDGE GUIDO CALABRESI GUIDO JUDGE Judge Guido Calabresi is a senior judge on the U.S. Court of on the U.S. Court a senior judge Calabresi is Judge Guido to in 1932 and moved in , Italy was born Judge Calabresi economics movement, Judge As the founder of the law and for his immense intellectual In addition to being recognized Guido Calabresi is an exceptional legal figure who has en- Appeals for the Second Circuit, an internationally renowned legal renowned Circuit, an internationally for the Second Appeals mentor, and friend. professor, and an extraordinary scholar, a B.S. in old. He received he was six years States when the United he was an under- from , where analytical economics he was a Rhodes from Oxford University, where graduate; a B.A. he was first in his from , where Scholar; an LL.B. and econom- and an M.A. in politics, philosophy, graduating class; of University. After clerking for Justice ics from Oxford to Yale Law Court, Judge Calabresi returned the U.S. Supreme Torts, and later Constitutional Litigation and School, first to teach President William In 1994, he was nominated by to serve as its dean. on the Second by the Senate as a judge J. Clinton and confirmed status in 2009. Appeals, where he assumed senior Circuit Court of one hundred articles on law and He has written five books and over approximately fifty honorary de- related subjects, and has received grees from academic universities. principles, analyses, and implica- Calabresi introduced economic expanded ’s pivotal tions to the legal scholarship and for examining legal rules, ideas into a new and powerful framework their effects on behavior and in- their underlying rationales, and Calabresi brought the well-known centives in the real world. Judge transaction costs, and Coa- economic concepts of risk distribution, law; published groundbreaking sian efficiency to the field of tort property rules, and liability rules; papers on cost-benefit analysis, professors, and students and revolutionized how legal academics, liability, incentives, and remedies. across the world understand tort Calabresi is known by his stu- contributions to the legal field, Judge approachable, humorously jovial, dents and his peers as a warmly colleague, and friend. His stu- and deeply compassionate teacher, his playful “Guidoisms,” his dents and law clerks fondly remember brilliance in the classroom. animated lectures, and his insightful from the bench speak affection- His fellow professors and jurists his ately of his perspicacious mind, his quick wit, his kind heart, and generous spirit. his dowed the legal scholarship, institution, and community with intellectual accomplishments, his cheerful accessibility, and, most of all, his enormous humanity. \\jciprod01\productn\n\nys\70-1\FRONT701.txt unknown Seq: 9 3-MAR-15 17:32 36095-nys_70-1 Sheet No. 5 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 5 36095-nys_70-1 36095-nys_70-1 Sheet No. 5 Side B 03/04/2015 07:12:55 OF DEDICATEES NYU ANNUAL SURVEY OF AMERICAN LAW OF AMERICAN SURVEY NYU ANNUAL Robert M. LaFollette, Jr.Robert M. LaFollette, A.S. Mike Monroney 1982 M. Hufstedler Shirley 1983 Thurgood Marshall * In memoriam 194219431944 Harry Woodburn Chase1945 Frank H. Sommer 19771946 Manley O. Hudson Carl McFarland Charles D. Breitel George B. Galloway 19781947 19791948 Henry J. Friendly 1949 Roscoe Pound 1981 David L. Bazelon 19801950 Arthur T. Vanderbilt1951 Herbert Hoover Jr. William J. Brennan, Weinfeld Edward 1952 Bernard Baruch 19851953 Robert P. Patterson*1954 Phanor J. Eder 19841955 J. Skelly Wright Edward S. Corwin 1986 19881956 Arthur Lehman Goodhart Hans A. Linde 19871957 John Johnston Parker 1991 William Wayne Justice 1958 Bernard Schwartz Henry T. Heald Frank M. Johnson, Jr. 19901959 1989 Herbert F. Goodrich Martin Lipton 1992/931960 Harold H. Burton John Paul Stevens 1961 Harry A. Blackmun Charles E. Clark Barbara Jordan 19951962 Whitney North Seymour 19941963 Austin Wakeman Scott 1998 19961964 Hillary Rodham Clinton Fred H. Blume Judith S. Kaye 1965 Laurence P. Simpson 1999 1997 Janet Reno Sandra Day O’Connor 1966 Edmond Cahn*1967 Charles S. Desmond Alexander L. Boraine Ruth Bader Ginsburg 20001968/69 Tom C. Clark Russell D. Niles1969/70 Francis J. Putnam Jack L. Kroner* George Mitchell 1970/71 2002 2001 Frank Rowe Kenison1971/72 Robert A. Leflar1972/73 Laurence H. Tribe Desmond M. Tutu Norman Dorsen Justine Wise Polier1973/74 2004 2003 2005 2007 Walter J. Derenberg1974/75 2006 Robert B. McKay1976 John Sexton Antonin Scalia Stephen G. Breyer 2008 2009 Ronald Dworkin 2010 Herbert Peterfreund Anthony G. Amsterdam Patricia M. Wald Arthur R. Miller 2011 2012 Cass R. Sunstein Derrick Bell* \\jciprod01\productn\n\nys\70-1\FRONT701.txt unknown Seq: 10 3-MAR-15 17:32 36095-nys_70-1 Sheet No. 5 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 5 36095-nys_70-1 36095-nys_70-1 Sheet No. 6 Side A 03/04/2015 07:12:55 1 5 9 41 13 25 29 19 33 37 101 HAT W W.C. Bunting Akhil Amar HY Vittoria Barsotti AND Kenji Yoshino , : W Vincenzo Varano Kenneth S. Abraham ECISIONS UFFICIENT S D Introduction by Ted Kelly Introduction by ONVERSATION WITH Chief Judge Judith S. Kaye Chief Judge Judith OT RTICLES RIBUTES A T N S : A C I Chief Judge Robert A. Katzmann Chief Judge Robert ENTENCING ENCH S B Introduction by Dean Richard L. Revesz by Dean Richard Introduction T ISCLOSURE Acknowledgment by Judge Guido Calabresi Acknowledgment I SUMMARY OF CONTENTS SUMMARY D BOUT ALABRESI TO A C EGULATION OF O R CHOLAR ON THE D UIDO HE NFORMATION G T I \\jciprod01\productn\n\nys\70-1\FRONT701.txt unknown Seq: 11 3-MAR-15 17:32 A S 36095-nys_70-1 Sheet No. 6 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 6 36095-nys_70-1 36095-nys_70-1 Sheet No. 6 Side B 03/04/2015 07:12:55 xii \\jciprod01\productn\n\nys\70-1\FRONT701.txt unknown Seq: 12 3-MAR-15 17:32 36095-nys_70-1 Sheet No. 6 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 6 36095-nys_70-1 36095-nys_70-1 Sheet No. 7 Side A 03/04/2015 07:12:55 1 well, and one of them was the Yale Law DEAN RICHARD L. REVESZ DEAN RICHARD extraordinarily My second year in law school, I took a terrific course: A My second year in law school, substantive conversations Guido and I began having serious Welcome! I’m delighted that you are here tonight to join us in tonight to join that you are here I’m delighted Welcome! TRIBUTE TO JUDGE GUIDO CALABRESI GUIDO JUDGE TO TRIBUTE paying tribute to the Honorable Guido Calabresi. As I think all of Calabresi. As I think Guido to the Honorable paying tribute Law, which is year the Annual Survey of American you know, every its volume to a fig- at the law school, dedicates one of our journals Over the years, made a significant contribution. ure of law who has been selected for of outstanding people has an incredible group had Justice Scalia, eleven years doing this we have this honor. In my Amsterdam, Posner, Judge Walls, Professor Justice Breyer, Judge and Professor Dworkin—it’s a star-studded group, and tonight’s moment for into that category. It’s a bittersweet honoree fits right introductions actually really enjoyed doing these me because I’ve and it’s to these Annual Survey dedications, and welcoming people my eleventh and last year as my last time since I’m completing to do this for someone who has dean. I’m very pleased that I get and my friend over a period of been my professor, my mentor, more than thirty years. Tragic—no—A Common Law for the Age of Statutes. Followed the Statutes was not a course, al- next year by Tragic Choices. (Tragic it would be another book.) though maybe it should be. Maybe vibrant today. I just came from These courses are so relevant and and we actually spent a por- teaching a regulatory policy seminar, choices and talking about the tion of the class talking about tragic to spend all this money getting kid in the well and why we are going lot of money making wells safer. I the kid out of the well, but not a attest that this in fact happened. have some students here who will way back to the Spring of 1983 in These are conversations that go Professor Calabresi’s class—Professor before Dean Cala- Calabresi, bresi, before Judge Calabresi. of N.Y.U. Law School. I obvi- again when I was chosen to be dean Law School that Yale had done ously knew, as an alumnus of Yale But I had begun doing extraordinarily well under his deanship. some more research and I realized that the different pieces of Yale had done School Annual Fund, which I realized before I started this job I School Annual Fund, which I realized before I started this job a really should care a lot about. I think it had gone up by close to I factor of ten under Guido’s deanship, which is extraordinary. So \\jciprod01\productn\N\NYS\70-1\NYS101.txt unknown Seq: 1 6-FEB-15 14:18 36095-nys_70-1 Sheet No. 7 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 7 36095-nys_70-1 36095-nys_70-1 Sheet No. 7 Side B 03/04/2015 07:12:55 (1979). HRIST C ICAR OF V HE T , URPHY F. M We didn’t plan it this way, but it turns out that by the time We didn’t plan it this way, but it ALTER 1 W So I will now let other people tell more about all of these as- So I will now let other people tell Of course, he is now a very distinguished judge on the Second now a very distinguished judge on Of course, he is 1. we did this dedication, that job became open as well. we did this dedication, that job and friend’s career, and I’ll leave pects of my teacher, colleague, Ted is the Editor-in-Chief of the you in the hands of Ted Kelly. So everything that is happening Annual Survey of American Law. The Annual Survey was here is happening under Ted’s leadership. I’m very grateful for that, enormously wise in making this selection; for me. Ted has been a star and it provides for a very nice moment student; he was a research assis- here at the law school: he was my and Barry Friedman; and hope- tant to Professors Richard Stewart an area I care a lot about, the fully he will pursue a career in energy policy, which is what he is intersection of environmental and 2 and Haven to New come if I could and asked his chambers called that. It doing about one went him how from learn I could whether NYU ANNUAL in New lunch with Guido First, having lunch. was an extraordinary SURVEY OF AMERICAN to the everyone comes the monarch: basically like meeting Haven is LAW Guido But then So that was interesting. pay their respects. table to things, was basically four to do, and it what you needed told me [Vol. 70:1 classes that of statistics: the baseball, lots He said, it’s like four rules. that. He told me and the most this, and the most have the most this, hadn’t done, and get five-year pledges, which we that we needed to of other rules of every year. There were a couple we sort of did this an enormous and I can tell you that they made thumb of that sort, I owe that suc- success as dean. To a large extent, difference in my generous from Guido. He was enormously cess to things I learned and great expertise. with his time, energy, about all of these people here who will talk Circuit. There are things—I that’s about every aspect myself, but would love to tell you I’ll just tell you that Guido’s career—verynot my job tonight. distin- dean, very distinguished guished law professor, very distinguished judge—reminds figure of law, al- me of another very successful award. This figure is actually fic- though never one who got this He was a protagonist in Vicar of tional. His name is Declan Walsh. quite well, like Guido, and the Christ, and he did all of these things a judge was he was elected to the last job he took, after having been papacy. \\jciprod01\productn\N\NYS\70-1\NYS101.txt unknown Seq: 2 6-FEB-15 14:18 36095-nys_70-1 Sheet No. 7 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 7 36095-nys_70-1 36095-nys_70-1 Sheet No. 8 Side A 03/04/2015 07:12:55 EVESZ L. R ICHARD R Dean, N.Y.U. School of Law School of Dean, N.Y.U. Director, Institute for Policy Integrity Institute for Policy Director, Lawrence King Professor of Law, N.Y.U. School of Law of Law, N.Y.U. King Professor Lawrence 2014] then and the journal behalf of us on welcome Ted will into. looking so much! Thanks for the tributes. be set we’ll TRIBUTE REVESZ 3 \\jciprod01\productn\N\NYS\70-1\NYS101.txt unknown Seq: 3 6-FEB-15 14:18 36095-nys_70-1 Sheet No. 8 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 8 36095-nys_70-1 36095-nys_70-1 Sheet No. 8 Side B 03/04/2015 07:12:55 4 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 70:1 \\jciprod01\productn\N\NYS\70-1\NYS101.txt unknown Seq: 4 6-FEB-15 14:18 36095-nys_70-1 Sheet No. 8 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 8 36095-nys_70-1 36095-nys_70-1 Sheet No. 9 Side A 03/04/2015 07:12:55 . , 70 The Problem of . 1 (1959). CON (1970). , 3 J.L. & E CCIDENTS 5 A Some Thoughts on Risk Distribution and Some Thoughts on Risk Distribution TED KELLY OSTS OF Tort Law in the Shadow of Agency Preemption C HE Some Thoughts on Risk Distributions and the Law of Torts , T The Problem of Social Cost was perhaps the first work published in the modern was perhaps the first work published 1 ALABRESI C into print by a matter of months, apparently because the into print by a matter of months, 2 was that the main goal of liability rules is to minimize the was that the main goal of liability 3 UIDO However, the traditional role of the Editor-in-Chief is to sum- However, the traditional role of Judge Calabresi’s article The Annual Survey was founded in 1942 by Arthur Vanderbilt. in 1942 Survey was founded The Annual the Judge Guido Calabresi, has influenced Today’s honoree, 1. Guido Calabresi, 2. R.H. Coase, 3. G L.J. 499 (1961). TRIBUTE TO JUDGE GUIDO CALABRESI GUIDO JUDGE TO TRIBUTE ALE Y \\jciprod01\productn\N\NYS\70-1\NYS102.txt unknown Seq: 1 24-FEB-15 11:13 marize a few of those contributions which inspired our board to marize a few of those contributions N.Y.U., as students, the primary nominate the dedicatee. Here at reading his scholarly works. way we know Judge Calabresi is through of my remarks. Of course, in my Those, therefore, will be the focus brush their surface of Judge Cala- brief time up here I will barely I’m focusing on some of his tort bresi’s scholarship; in particular, of his work in a variety of other law scholarship to the exclusion of common law and the use of cer- fields, including the importance tification by federal courts. the Law of Torts Since our founding, we have dedicated each of our yearly volumes we have dedicated each of Since our founding, in honor of their member of the legal community to a preeminent impact on, American law. service to, and their any other individ- law in more ways than almost course of American a dean, and a a teacher, a scholar, a mentor, ual. He has been be enough to in any one of these fields would judge. His impact of his former stu- you need only look at a list merit this dedication; a word in to see that, even if he hadn’t published dents and clerks on American Law. have had a substantial impact his life, he would been at N.Y.U. at the Annual Sur- This isn’t even the first time he’s provided the keynote ad- vey’s invitation. In 2009, Judge Calabresi dress for our symposium, journal slated to publish Coase’s article was several issues behind; a journal slated to publish Coase’s have some sympathy for. The im- predicament I must admit that I article, and the book that fol- portant insight of Judge Calabresi’s lowed it, field of , beating Ronald Coase’s field of law and economics, beating Social Cost 36095-nys_70-1 Sheet No. 9 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 9 36095-nys_70-1 36095-nys_70-1 Sheet No. 9 Side B 03/04/2015 07:12:55 7 OF- ALE , 8 H article, he which has often which has 4 , Cathedral Property Rules, Liabil- Property Rules, The Cathedral, 106 Y . 1089 (1972). EV Property Rules, Liability Rules, and Inalien- . L. R The Simple Virtues of ARV , 85 H note 1. About Law and Economics: A Letter to Ronald Dworkin supra In a more recent discussion of the In a more recent 5 553 (1980). Guido Calabresi, Remarks, Calabresi, STRA EV 6 See See In another piece, which in fact took the form of a letter to the In another piece, which in fact took be a field which can make its Law and economics may, indeed, Perhaps even more influential is Judge Calabresi’s famous col- famous is Judge Calabresi’s even more influential Perhaps Perhaps the importance of Judge Calabresi to the field of law of Judge Calabresi to the Perhaps the importance 4. Guido Calabresi & Alan Melamed, 7. Guido Calabresi, 5. 6. L. R ability: One View of the Cathedral L.J. 2201 (1997). great legal scholar Ronald Dworkin, who is already much missed great legal scholar Ronald Dworkin, that some fields are better at here at N.Y.U., Judge Calabresi argued goal as lawyers—justice—byreaching what should be our universal while others are at their best focusing on justice as an end point which point towards that goal. when they focus on the road signs second category, and suggested He put law and economics in the often focused on concerns that criticisms that law and economics were not wholly on point for this like efficiency rather than justice reason. the road signs of efficiency and best contributions by focusing on American legal theory as a whole cost, but it is a stronger field, and has always been there to remind is richer, because Judge Calabresi ity Rules, and Inalienability: One View of the Cathedral One View of the and Inalienability: ity Rules, 6 into justice and both efficiency takes a way that in of accidents, cost account. NYU ANNUAL SURVEY OF AMERICAN Douglas Melamed, with his student laboration LAW [Vol. 70:5 \\jciprod01\productn\N\NYS\70-1\NYS102.txt unknown Seq: 2 24-FEB-15 11:13 been ranked among the most cited articles of all time. review articles of most cited law among the been ranked but per- and novel ideas, of valuable contains a number This article of how alloca- has been its recognition haps the most influential compared across and remedial decisions can be tions of rights be made based on about those allocations can fields, and decisions a variety of concerns. the areas can be best understood by considering and economics Judge Calabresi’s from its other founders. Even where he diverges parties and that justice, both for individual earliest work recognized decision about is a key consideration in any as a societal matter, legal rules. explained that for him, the most interesting part of the article was explained that for him, the most but what it had to say about not what it had to say about efficiency want to allow decisionmakers justice: its recognition that we might desires through the legal to respond to, for example, distributional system. 36095-nys_70-1 Sheet No. 9 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 9 36095-nys_70-1 36095-nys_70-1 Sheet No. 10 Side A 03/04/2015 07:12:55 ELLY K ED T Editor-in-Chief N.Y.U. Annual Survey of American Law N.Y.U. Annual Survey 2014] on reasons, other and many For those goal. is the end justice us that Amer- of Survey N.Y.U. Annual of the Editors Board of of the behalf seventi- as we dedicate our to welcome you I am honored ican Law, law of to American the contributions to commemorate eth volume Calabresi. Judge Guido TRIBUTE KELLY 7 \\jciprod01\productn\N\NYS\70-1\NYS102.txt unknown Seq: 3 24-FEB-15 11:13 36095-nys_70-1 Sheet No. 10 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 10 36095-nys_70-1 36095-nys_70-1 Sheet No. 10 Side B 03/04/2015 07:12:55 8 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 70:5 \\jciprod01\productn\N\NYS\70-1\NYS102.txt unknown Seq: 4 24-FEB-15 11:13 36095-nys_70-1 Sheet No. 10 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 10 36095-nys_70-1 36095-nys_70-1 Sheet No. 11 Side A 03/04/2015 07:12:55 1 9 CHIEF JUDGE ROBERT. A KATZMANN ROBERT. CHIEF JUDGE Guido Calabresi is an internationally renowned figure, recog- figure, renowned is an internationally Guido Calabresi is an ensemble of twenty- The Second Circuit Court of Appeals 1. Judge Frank M. Coffin, Judge, U.S. Court of Appeals for the First Circuit, TRIBUTE TO JUDGE GUIDO CALABRESI GUIDO JUDGE TO TRIBUTE It is not like a string quartet or a brass assembly or a set of It is not like a string quartet or symphony can read music, timpani. All of the members of the different or greatly dif- that is a given, but each plays a slightly ferent instrument. that It is the difference in the instruments accounts for the depth and richness of symphony sound. nized and saluted for the perspicaciousness of his capacious mind, for the perspicaciousness of his nized and saluted in the law over reaching consequence. His role for his work of far as a teacher, as has been seminal, as a scholar, the past half-century so, in published He has been celebrated, rightly a dean, as a jurist. by uni- to his work, in international conferences, symposia devoted globe. How do I him honorary degrees across the versities awarding I speak from the to someone of his stature? begin to pay tribute of Appeals for judge on his circuit, the U.S. Court perspective of a Guido Calabresi’s to offer some thoughts on the Second Circuit, to future sym- our court. I leave to others, indeed important role on My concern is with a posia, an examination of his . question: how does an individual little-studied but vitally significant of a court? More specifically: judge affect the life, the functioning my court in his two decades on how has Guido Calabresi affected the role of the teacher as judge or the bench? My theme is that of Guido, first as a student at the judge as teacher. I have experienced a colleague. From him, I have Yale Law School, and then as so much. learned, and continue to learn, court’s timbre, its tone, comes two players. The resonance of the of philosophy, as Guido once ob- not so much from differences of backgrounds and experiences: served, but from the diversity academia; some from district some from practice, others from is a helpful metaphor in thinking court; some from politics. Music to the Second Circuit and re- about Guido and his contributions Frank M. Coffin of the First Circuit minds me of what the late Judge said about a great appellate court: Remarks on the Occasion of the Swearing in of Judge Robert A. Katzmann as a Remarks on the Occasion of the Swearing in of Judge Robert A. Katzmann as Judge for the U.S. Court of Appeals for the Second Circuit (October 1999). \\jciprod01\productn\N\NYS\70-1\NYS103.txt unknown Seq: 1 24-FEB-15 11:17 36095-nys_70-1 Sheet No. 11 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 11 36095-nys_70-1 36095-nys_70-1 Sheet No. 11 Side B 03/04/2015 07:12:55 61, 63 Y ’ OL , J.L. & P As music is a subtle process of As music is a subtle 2 at 64. The different styles and techniques can be observed in a Id. A Conversation with Judge Harry T. Edwards My friend Judge Coffin’s analysis is truly insightful. A great truly insightful. is analysis Coffin’s friend Judge My In any courtroom sitting, Guido sets the tempo. To watch him sitting, Guido sets the tempo. In any courtroom 2. wrote, that there is “homogeneity This is not say, as Judge Harry Edwards or conformity, which would make for a decidedly unhealthy judiciary.” Judge or conformity, which would make for Harry Edwards, 10of mis- sense a shared in is grounded court, a great like orchestra, NYU ANNUAL SURVEY and pur- to the values deep commitment view of and sion, a shared OF AMERICAN LAW if of differing approaches, Its players, even the enterprise. poses of one an- relationships with ongoing and noncompetitive labor in [Vol. 70:9 greater ego for the strengths; forego one another’s other; value and compromise; respect, patience, civility, mutual good; honor results from the excellence of the final product and recognize that insights of the full skills, experiences, and the combined energies, the satisfaction players. Even if a prior life brought complement of that the the players of court understand of the virtuoso performer, submerged for jarring if such virtuosity were not music would be sound. the benefit of a collaborative \\jciprod01\productn\N\NYS\70-1\NYS103.txt unknown Seq: 2 24-FEB-15 11:17 unfolding, appellate decisionmaking is one of graduated decision- decisionmaking is one of graduated unfolding, appellate making—a the appropri- of justification in the search for discipline by subtle nuance. ate result, marked Beethoven’s listening to Rudolf Serkin perform in our court is like York Philharmonic. His impact Fifth Piano Concerto with the New dean of the Yale Law School, on the Court is manifold. As a former predecessors: Judge Henry he is in a tradition of distinguished and Judge Charles Clark. Inde- Wade Rogers, Judge Thomas Swan, renown reinforces the per- pendently, his international academic is—andception that the Second Circuit I believe it in fact is—a meet a lawyer or scholar from weighty court. Often times, I will I am a judge on the U.S. Court of abroad, who when I indicate that respond: “Isn’t that Guido Cala- Appeals for the Second Circuit, will Calabresi’s extraordinary prowess bresi’s court?” Moreover, Judge to our court. At her best, a as a teacher has contributed much deeply, to probe, to challenge our teacher encourages us to think he himself approaches cases, own assumptions. In the way that the decisional process Guido Calabresi does just that: strengthening our work such that we meet and encouraging all of us to undertake that he thoroughly and com- the highest standards. In the way (2004). Collegiality, Judge Edwards continued, “is a process that helps to create (2004). Collegiality, Judge Edwards continued, by allowing all points of view to be aired the conditions for principled agreement, and considered.” variety of venues: as to particular cases, at oral argument, in exchanges among ad- colleagues at conference, in post-conference, in opinion writing; and as to the ex- ministration of the court, at court meetings, in memoranda, and in informal changes about particular issues. 36095-nys_70-1 Sheet No. 11 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 11 36095-nys_70-1 36095-nys_70-1 Sheet No. 12 Side A 03/04/2015 07:12:55 your With his experience as an institution builder at Yale, he en- as an institution builder at With his experience 2014] cases—his for prepares pletely his notes, handwritten detailed argument—heat oral questions searching a example by his offers as he an oral argument, work. At many how to do our lesson on on the the other judges litigants and with both communicates adding to thought of, I would not have raises questions panel, he never to he takes care process. And, of the decisional the richness TRIBUTE KATZMANN questions, tough series of after a feeling diminished leave litigants coun- saying to counsel on all sides: “Well-argued not infrequently point, respectfully memoranda get to the sel.” His post-argument nuanced effort points of view, and are a subtle, anticipate different in respond- find common ground. He is assiduous to persuade, to emanating from and draft opinions ing quickly to memoranda criticism. with diplomatically phrased, constructive other chambers, in active learning, style reflects a life immersed And his opinion 11 he holds with fidelity to the principles thinking, and engagement, dear. think institutionally, to appreciate courages us, his colleagues, to and its constituencies. He also how what we do will affect the court though resilient, are fragile teaches by his example that institutions, sustain them must be nourished. and that the relationships which imagine the sense of awe I felt On a personal note, you can well a sense reinforced by the knowl- when I joined the Second Circuit, to two former professors: edge that I would be a junior colleague But to all judges who join the Guido Calabresi and Ralph Winter. Winter, I might add), is su- court, Guido Calabresi (like Ralph offer counsel about matters large premely welcoming, available to something, he will come to and small. If he wants to talk about Striking is his civility, the office, a measure of his great courtesy. respect with which he treats everyone—his colleagues, staff, clerks, the pro ses, to whom he will pa- litigants from the well-heeled to His and his marvelous spouse tiently explain the legal landscape. are legion. His gracious presence Anne’s acts of personal kindness and high civility, adroitly facili- alone fosters a collegial atmosphere sometimes contentious cases, with- tating the resolution of difficult, and generous, a formidable out rancor. All at once, he is brilliant The memorable social gatherings presence with a twinkle in his eye. gift of olive oil from their at the Calabresis’ home, the personal grove at holiday time, remind us that though work is important, its friendship is too; indeed, personal goodwill allows a court, with of diversity of human beings, to function harmoniously, regardless differences in individual cases. \\jciprod01\productn\N\NYS\70-1\NYS103.txt unknown Seq: 3 24-FEB-15 11:17 36095-nys_70-1 Sheet No. 12 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 12 36095-nys_70-1 36095-nys_70-1 Sheet No. 12 Side B 03/04/2015 07:12:55 ATZMANN A. K OBERT R UDGE J HIEF C U.S. Court of Appeals for the Second Circuit of Appeals for U.S. Court Adjunct Professor of Law, N.Y.U. School of Law Adjunct Professor When I think of the Second Circuit in the years ahead, and my ahead, the years Circuit in Second of the I think When 12 voice powerful inimitable, Guido’s know that on it, I tenure own NYU ANNUAL SURVEYthank you, Guido, I say: role. To to have a significant will continue OF AMERICAN LAW hugs. bravo, and [Vol. 70:9 \\jciprod01\productn\N\NYS\70-1\NYS103.txt unknown Seq: 4 24-FEB-15 11:17 36095-nys_70-1 Sheet No. 12 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 12 36095-nys_70-1 36095-nys_70-1 Sheet No. 13 Side A 03/04/2015 07:12:55 13 AKHIL AMAR I first heard the expression, “a life lived greatly in the law,” as I in the law,” “a life lived greatly the expression, I first heard so much to thing, I think, actually has not The most important Chil- I consider Guido my fairy godparent. Let me back up. But now what about this So that’s the most important thing. So how does one measure greatness of a teacher? It’s a hard TRIBUTE TO JUDGE GUIDO CALABRESI GUIDO JUDGE TO TRIBUTE and Massi said: “The thing about my dad is that he likes helping and Massi said: “The thing about \\jciprod01\productn\N\NYS\70-1\NYS104.txt unknown Seq: 1 2-MAR-15 10:58 first learned of many important things: in Guido Calabresi’s torts in Guido Calabresi’s things: of many important first learned about what to talk with you a little bit this evening class. And I’d like lived greatly in the law.” that means: “a life And I think is about “a life lived greatly.” do with law. It ultimately of soul. I don’t of living comes from a greatness that that greatness it any better—Ithink I can put wouldn’t try to. they live, they learn by example—Guidodren learn what has been the point about example. I don’t think I can put my godfatherly biological son, any better than how Guido’s “greatness of soul” seventieth birthday party. We were Massi, put the point at Guido’s all in the barn together—and children learn what they live— again, every one of you gathered here people. I bet he’s helped each and And I started nodding my head, today. I bet he’s done you a favor.” around and each person was just instinctively, and I started looking instinctively, and there we were all nodding his or her head, quite our heads—ittogether in this barn, all nodding was a barn of bob- because Massi had cut at bleheads. It was really quite extraordinary, precisely to the bone of the truth. part, “in the law”—“agreatly in the law.” The other life lived but it’s really quite extraordi- tributors and I haven’t coordinated, on at least four of the same nary to think that all of us are focusing a law teacher; a life lived greatly as dimensions: a life lived greatly as as the dean of a great law school a legal scholar; a life lived greatly but a great law school); and a life (not the only great law school, all mentioned that—quitelived greatly as a judge. And we’ve inde- pendently—there in the world, you see, that are very few people of these dimensions. And then it have that greatness along all four as a mentor. I think that pulls all of was also mentioned: a greatness these together, in a way. do thing to explain to someone who wasn’t in the classroom. I think it’s quite striking that so many of us up here on the podium of and previously at this podium have been classroom students 36095-nys_70-1 Sheet No. 13 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 13 36095-nys_70-1 36095-nys_70-1 Sheet No. 13 Side B 03/04/2015 07:12:55 ALE , 81 Y L.J. 499 (1961); Therein hangs 5 ALE . Western & Atlantic 1 , , 70 Y —which pro- is how he 3 . 1089 (1972); Guido Calabresi, EV Property Rules, Liability Rules, and Ina- . L. R Rylands v. Fletcher ARV Toward a Test for Strict Liability in Torts Ives v. South Buffalo and , 85 H 4 , Holmes v. Math[v]er 2 , Leame v. Bray Guido Calabresi & Alan Melamed, You see, they’re connected, there are connections. Not all You see, they’re connected, there See 6 Just as an aside that way: my third year of law school, when I that way: my third year of law school, Just as an aside Calabresi as a legal scholar. Well, you know the statistics: Calabresi as a legal scholar. Well, 1. 201 N.Y. 271 (1911). 2. 279 U.S. 639 (1929). 3. [1875] Ex. 261 (Eng.). 4. 593. (1803) 102 Eng. Rep. 724 (K.B.); 3 East 5. [1868] H.L. 330 (Eng.). 6. L.J. 1055 (1972). lienability: One View of the Cathedral 14 I look as it’s striking I think not a coincidence. that’s I think Guido; classroom who were folks I see other that the audience, here in out, NYU ANNUAL SURVEY these things—they’re one had to measure of Guido. But if students OF AMERICAN LAW to measure—Ivery difficult I know there’s anyone don’t think that law in the of students in group had a more distinguished who has [Vol. 70:13 who not just as people themselves, who describe world. Students was Cala- who say, “I but people to be in your classroom, happen And some of us have done torts—andbresi’s student.” I’m looking at one now—and but we are all of us have done other things, some because he was a great teacher. Guido’s students in on my favorite to be a teacher, I actually sat decided I wanted it. I sat in on second time, if you can believe teacher’s class a I’m not a torts to hear the stories one more time. Guido’s class just I remember scholar, and yet \\jciprod01\productn\N\NYS\70-1\NYS104.txt unknown Seq: 2 2-MAR-15 10:58 great teachers are great scholars, not all great scholars are great great teachers are great scholars, administrators, and then teachers, very few of them are half-decent you when add the judicial dimension—these skillsets, they don’t al- the statistics: author of two books ways overlap. Okay, but you know the American Bar Association, the that won the highest awards of Railroad v. Henderson nounced it— Guido Calabresi & Jon T. Hirschoff, a tale: I remember every one of these silly torts cases, and I don’t do every one of these silly torts cases, a tale: I remember teacher, and he made every class torts! You see, because he was a memorable—so this stuff thirty years later. memorable, I remember anything that happened in Way more, frankly, than I remember Constitutional Law. of Yale; the author of not one, but youngest professor in the history articles of all time, including several of the most-cited law review of the very handful of greatest law one that by acclamation is one with a student, and Guido co- review articles ever, one co-authored things with so many different stu- authored so many with so many dents. Some Thoughts on Risk Distributions and the Law of Torts 36095-nys_70-1 Sheet No. 13 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 13 36095-nys_70-1 36095-nys_70-1 Sheet No. 14 Side A 03/04/2015 07:12:55 (1982); ROUBLED T 8 TATUTES S RIDGE OVER (1985). B AW GE OF on L , A AND THE , AW FOR THE L TTITUDES , A OMMON So Long, Frank Llyod Wright ELIEFS , That just begins to scratch the surface, if you surface, the to scratch just begins That 7 , A C , B DEALS ARFUNKEL , I ALABRESI C & G UIDO ALABRESI IMON (Columbia Records 1970). C Calabresi changed our point of view, and not just about torts. not just about of view, and changed our point Calabresi while you’re ahead? But that Now, why not just, you know, quit 7. G 8. S ATER UIDO W 2014] of the Order and of Merit, Certificate the Award and Gavel Silver Award. Book the Coif TRIBUTE AMAR question, or at thought, in 1955, that the central Who would have questions of tort one of the preeminent least a central question, and their avoid- minimize the cost of accidents, law, was: how to a central ques- if not the central question, then ance? That that was, could bring just the perspective that economics tion. Forget torts, changed how How many people fundamentally to legal questions. and I think law? Ronald Dworkin was mentioned, we think about economics; I think in this room, and in law and appropriately so, mention Posner. mentioned; I think we should Coase was already 15 about law. I can’t change actually how we think Very few people me (and I’ll come a story that Guido once told resist telling you he went off to Germany and he back to this): as a very young man, a traditionalist said, “That is not presented some of these ideas, and said, “Yes, but it will be.” That’s the law”; and the young Calabresi Calabresi as a scholar. he actually—andwouldn’t be Calabresi. You know, this is really quite extraordinary—in decided to do something differ- mid-career could have failed at, after having ent, something actually that he generation—onebeen the preeminent scholar of his of the preemi- He could have just quit, but in- nent legal scholars of the century. and he could have just flopped; stead he decided to become a dean, appointments early on (after all, you know he made some very risky I think he is reckoned one of he hired me). And by acclamation, twentieth century. And there was the truly towering deans of the Calabresi, maybe a Bronze Age, but maybe a Silver Age before Dean the Yale Law School. There have he ushered in a Golden Age of been many Golden Ages—and heard Dean Revesz talk about you legal academic—Ithe great skills of Calabresi as a mean, as a legal administrator, as a dean—and to remind you, the skillset for just the skillset of a great scholar, of that does not typically overlap with a great teacher. \\jciprod01\productn\N\NYS\70-1\NYS104.txt unknown Seq: 3 2-MAR-15 10:58 just focus on those things, because very few people change not just few people change because very on those things, just focus comes law. A song lyric we think about but change how their field, and ar- may come Paul Simon: “Architects think it’s from to me, I point of view.” change your may go and never chitects G 36095-nys_70-1 Sheet No. 14 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 14 36095-nys_70-1 36095-nys_70-1 Sheet No. 14 Side B 03/04/2015 07:12:55 genuinely modest? A conversation and generous, and modest? That’s the rare combination. I modest? That’s the rare combination. genuinely And then, he did it one more time! So that’s what Dean Revesz what Dean that’s time! So more did it one then, he And One way—it’sthe only way—might not his be to think about But I want to come back, So, now, to sum up: that’s greatness. were talking about someone, So here’s what he said to me. We 16 of Christ—youthe Vicar at with getting was one great not know, NYU ANNUAL SURVEY once could have flopped And he two great careers. career, not OF AMERICAN LAW a judge—andagain, as So okay, Katzmann. heard from Judge you careers—andfour epic in a measure greatness how do you again, [Vol. 70:13 as a scholar—that’s indices of greatness given you some judge? I’ve the easiest to measure—andprobably and as a teacher, greatness Revesz has already greatness as a dean, and Dean we could measure the Yale Law the statistics, for example on reviving told us some of you measure great- and in other ways. So how do School financially ness in a judge? I don’t it’s connected to this idea of mentorship. clerks. Because collection of law in American law who has the think there’s anyone that Guido Cala- of Judge Calabresi’s chambers, clerks, of alumni Court; it’s really most justices on the Supreme bresi has. Not even quite extraordinary. Because these are very—they’rein the end, to ‘greatness of a life.’ extraordinary—achievements,what’s so special about Guido? I but ambition, generosity, and would say it’s a combination of brilliance, on the last dimensions, a story that humility. So let me just tell you, you don’t achieve these things Calabresi told me. You see, because you can’t if you’re not brilliant, if you’re not hugely ambitious, and ambitious people are but then how many brilliant and generous and I know lots of ambitious people, know some brilliant people, and but brilliant, ambitious, with Guido—Ia deep place of comfort. A lot of think it comes from I’m okay you’re okay. With Guido people, here’s the best you do: so are you. And he makes you it’s: I’m good! I’m really good! And I think he feels good about feel good about yourself, partly because himself—that’s about generosity. very great life in the law but said a person who may have lived a and I was trying to understand something a little sour at one point, said to me, “Oh, you know, this what that was all about, and Guido the law, but maybe feels disap- person has lived really greatly in pointed. Akhil, don’t be like that.” He said, “Look at me.” He said, “I’m an economist, and I never won the Nobel” (although it’s not too late, just like the papacy). He said, “I was an administrator, and I never became university president. I was a judge and I never got on the Supreme Court.” Now first of all, think about the epic ambi- \\jciprod01\productn\N\NYS\70-1\NYS104.txt unknown Seq: 4 2-MAR-15 10:58 36095-nys_70-1 Sheet No. 14 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 14 36095-nys_70-1 36095-nys_70-1 Sheet No. 15 Side A 03/04/2015 07:12:55 MAR A KHIL A Yale Law School of Law Sterling Professor So, in conclusion Guido, all I can say is: I love you. You are and love you. You are all I can say is: I Guido, So, in conclusion 2014] And reach! within as even things these think about Just to tion. the modesty, and yet for him, ambitions unrealistic weren’t these things done very great “Other people have He said, the generosity. that.” Just extraordinary. comfortable with what I am. I’m too. I am basically very deeply, teach me something then, trying to And even all. Mentor above about life. TRIBUTE AMAR who I would be, role model. I cannot imagine always will be my you. been able to do, had I not met what I would have 17 \\jciprod01\productn\N\NYS\70-1\NYS104.txt unknown Seq: 5 2-MAR-15 10:58 36095-nys_70-1 Sheet No. 15 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 15 36095-nys_70-1 36095-nys_70-1 Sheet No. 15 Side B 03/04/2015 07:12:55 18 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 70:13 \\jciprod01\productn\N\NYS\70-1\NYS104.txt unknown Seq: 6 2-MAR-15 10:58 36095-nys_70-1 Sheet No. 15 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 15 36095-nys_70-1 36095-nys_70-1 Sheet No. 16 Side A 03/04/2015 07:12:55 idea that The Costs of (1970). CCIDENTS A 19 OSTS OF C was that most unusual of works. It actually was that most unusual of works. HE KENNETH S. ABRAHAM KENNETH , T ALABRESI C Though of course we didn’t know it at the time, in retro- Though of course we didn’t know 1 . UIDO The Costs of Accidents I’m grateful to Dean Revesz and the editors of the Annual Sur- Revesz and the editors of the I’m grateful to Dean into Professor passed since I first walked Forty-five years have the realization, but only some I distinctly remember coming to was still working out ideas These were the years when Guido 1. G TRIBUTE TO JUDGE GUIDO CALABRESI GUIDO JUDGE TO TRIBUTE \\jciprod01\productn\N\NYS\70-1\NYS105.txt unknown Seq: 1 24-FEB-15 11:22 spect, I can see that sometimes he was working out these ideas in spect, I can see that sometimes were witnesses to the thinking that our classroom itself and that we became the argument of that book. vey for inviting me to join you tonight. I’m delighted to be part of to join you tonight. I’m delighted vey for inviting me company. and to be in such distinguished this happy celebration 1967. Although he course in torts in the fall of Guido Calabresi’s his brilliance as a he was already a legend for was young then, directly to the We thought that he talked teacher and a scholar. he was telling us, we could only understand what gods, and that if But we were so, so his conversations with them. we could overhear I offer myself as a humble—onefar behind him. might even say pathetic—example. on whom liability was imposed time in October, that a defendant the ultimate bearer of the costs of would not necessarily end up as might pass these costs on to that liability. Rather, the defendant or it might be covered by liability customers, employees, or others, just beginning to grasp insurance. Students who were only conversations between Calabresi were not going to comprehend held partly in Italian anyway just and the gods, which probably were so that they could not be overheard. in his great work, such as this, which he then developed Accidents deserved being called “seminal.” In that book and the articles in the deserved being called “seminal.” what most academics can only sixties that preceded it, Guido did whole new field of study: the eco- dream of doing. He invented a articles in the next decade ex- nomic analysis of civil liability. His the preeminent torts scholar of tended his analysis and he became his time. 36095-nys_70-1 Sheet No. 16 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 16 36095-nys_70-1 36095-nys_70-1 Sheet No. 16 Side B 03/04/2015 07:12:55 , , . 5 as ARV 6 , 125 H L., Oct. 2007, at 1, The Costs of Accidents 8 ORT famous view of the famous note 2, at 1085 (expres- . 1057 (1975). and on the different on the and his EV , J. T 3 supra . L. R . 1089 (1972). EV ARV Toward a Test for Strict Liability in Torts Property Rules, Liability Rules, and Inalien- In Tribute: Frank I. Michelman . L. R , 88 H ARV on causation, on 2 , 85 H . 69 (1975). Hard Cases note 1, at 135 n.1. EV Toward a Unified Theory of Torts Concerning Cause and the Law of Torts: An Essay for Harry Concerning Cause and the Law of Torts: supra . L. R , HI —would to give him a on their own been enough have 4 ALABRESI C http://www.bepress.com/jtl/vol1/iss3/art1. Guido Calabresi, Dedication, Ronald Dworkin, , 43 U. C L.J. 1055 (1972). See See See To paraphrase what the late Ronald Dworkin once said of his To paraphrase what the late Ronald . 879, 880 (noting how Frank Michelman, in reviewing . 879, 880 (noting how Frank Michelman, 7 In fact, Guido has gone from strength to strength even as he In fact, Guido has gone from strength Today, in the pages of the law reviews and of the Federal Re- of the law reviews and of the Today, in the pages The insights he developed in just three of his articles during his articles of just three in he developed insights The This was the idea that liability should be imposed on what he that liability should be imposed This was the idea 2. Guido Calabresi & Jon T. Hirschoff, 3. Guido Calabresi, 4. Guido Calabresi & Alan Melamed, 7. Guido Calabresi, 6. 5. 8. ALE EV now moves briskly forward in his eighty-first year. It is probably most now moves briskly forward in his however, that he is still in gratifying for Guido’s former students, in what I am pretty sure he his Torts classroom every fall, engaged 81 Y But, of course, there were many articles and several books on other were many articles and several But, of course, there them is their crea- One of the great virtues of all of subjects as well. genuine creativity by Guido Calabresi and his tivity. Read anything shines through. quest further,” continues to “push the porter, Guido Calabresi 201970s—onthe strict liability, NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 70:19 \\jciprod01\productn\N\NYS\70-1\NYS105.txt unknown Seq: 2 24-FEB-15 11:22 Kalven, Jr. teacher, H.L.A. Hart, the province of tort law is now the province teacher, H.L.A. Hart, the province in each corner, his is the view that Guido Calabresi traveled, and of departure. that others must take as their point lasting place in the history of tort law scholarship. The idea that was The idea of tort law scholarship. in the history lasting place to modern contributions one of the great of it all was at the center legal theory. cost avoider”—thecalled the “cheapest in the best posi- party who is invest in precau- to risk an accident or to tion to decide whether on that decision. reduce this risk, and then to act tions that would ability: One View of the Cathedral sing the wish that retirement for Fleming James, Jr. be an opportunity for him to sing the wish that retirement for Fleming James, Jr. be an opportunity for him “push the quest further”). “pushed the quest further”); Calabresi & Hirschoff, “pushed the quest further”); Calabresi & available at his teacher, Fleming James, long ago praised him for doing. his teacher, Fleming James, long our common law forbearers con- Guido’s recent article on the way accidents and accident law is only ceptually divided up the worlds of creativity in pushing the quest fur- one example of his continuing ther. domains of property rules and liability rules ( and liability rules of property rules domains cathedral) L. R 36095-nys_70-1 Sheet No. 16 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 16 36095-nys_70-1 36095-nys_70-1 Sheet No. 17 Side A 03/04/2015 07:12:55 13 of 11 note 2, at 1058 supra of Minelda’s pelvis, of Minelda’s 10 of entrants onto Guidacres, of entrants 12 note 4, at 1106 (discussing the property Calabresi & Hirschoff, supra of adult fools, of adult 9 see also Fault, Accidents, and the Wonderful World of Blum and Fault, Accidents, and the Wonderful World note 3, at 94 (distinguishing cheapest cost avoider of note 3, at 94 (distinguishing cheapest supra L.J. 216 (1965); ALE Calabresi & Melamed, Calabresi, Lange v. Hoyt, 159 A. 575 (Conn. 1932). Guido Calabresi, Ives v. S. Buffalo Ry. Co., 201 N.Y. 271 (1911). Ives v. S. Buffalo Ry. Co., 201 N.Y. 271 See See See See See , 75 Y Apart from the enormous scholarly depth and productivity of enormous scholarly depth and productivity Apart from the he was dean, his dedication to His exuberant leadership while been a source of support for For me personally, Guido has 13. 9. 10. 11. 12. (referring to the “wonderful, let us freely admit, fantastic world of Professor Posner”). injuries to children from cheapest cost avoider of injuries to “adult fools”). injuries to children from cheapest cost 2014] Un- a teacher. as calling, his primary been always say has would only that references with his students regaling is still he doubtedly, cannot resist mentioning but which I you here will get, a few of he still my heart. I’m sure them so warms the memory of because Judge Werner, talks of old TRIBUTE ABRAHAM have since that I many other “Guidoisms” he uses many, and that he has since invented. forgotten or that significant charac- faculty, I think that the most the Yale Law School has been its Law School over these past decades teristic of the Yale And no one humanity and support for its students. combination of Guido Calabresi. that combination more than has exemplified on great leader- like Yale and like N.Y.U., thrive Great law schools, 21 successful member and then as an enormously ship. As a faculty spirit of the Yale been the public face and guiding dean, Guido has Law School. and the palpable love he has for the Yale Law School community, the whole enterprise with kind- the people who are part of it, imbue all the years, indeed to this ness and sensitivity. And throughout itself and in the hearts of its day, in the halls of the Yale Law School been heard the joyful noise of graduates elsewhere, there has Guido Calabresi. just one of many hundreds of ex- nearly forty years. But my case is and the Yale Law School’s former amples of Guido’s supporting his To some who are in the academic students, over an entire lifetime. of suggesting that they too world, he has paid the high compliment of course he has supported and have pushed the quest further. And but also people who be- helped not only obscure law professors, justices of the Supreme Court came governors, U.S. senators, and of state and presidents, too. of the ; secretaries \\jciprod01\productn\N\NYS\70-1\NYS105.txt unknown Seq: 3 24-FEB-15 11:22 “Guidacres”). Kalven other scholars’ wonderful worlds, wonderful other scholars’ 36095-nys_70-1 Sheet No. 17 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 17 36095-nys_70-1 36095-nys_70-1 Sheet No. 17 Side B 03/04/2015 07:12:55 In that case a wo- 17 If I fail to light the If I fail to light . 14 This conception then influenced This conception Far from being the categorical im- 15 18 note 3, at 71. Zuchowicz v. United States supra The cases adopting these doctrines do not cite Cala- The cases adopting these doctrines 16 Calabresi, Sindell v. Abbott Labs., 607 P.2d 924 (Cal. 1980) (adopting market at 85. at 390–91. See Id. See Id. Now fast forward to 1998; Judge Calabresi is on the bench and Now fast forward to 1998; Judge Guido has been on the bench for nearly two decades now, but decades two for nearly bench on the has been Guido Further, the article argued, the presence of a causal link might argued, the presence of a causal Further, the article 14. 15. 16. 17. 140 F.3d. 381 (2d Cir. 1998). 18. cause-in-fact and proximate cause—and and proximate cause-in-fact new added a third, then bresi, but he is nonetheless the intellectual godfather of the think- bresi, but he is nonetheless the ing that underlies these doctrines. writes the opinion in share liability); Herskovits v. Grp. Health Coop., 664 P.2d 474 (Wash. 1983) (im- posing liability for reduction in the chance to survive). 22 scholarship his between connection an admirable has been there NYU ANNUAL SURVEY exam- of many possible give you just one judging. Let me and his OF AMERICAN LAWGuido ana- in torts, article on causation wonderful 1975 ples. In his notions of causation— understood two conventionally lyzed the [Vol. 70:19 link be- There is a causal “causal link.” He called this the notion. occurrence of the an injury, he said, when the tween an event and probability of the injury. event increases the \\jciprod01\productn\N\NYS\70-1\NYS105.txt unknown Seq: 4 24-FEB-15 11:22 perative that it is sometimes thought to be, proof that the overdose perative that it is sometimes thought was not essential. was a but-for cause of the disease the development of the law in a number of areas. I would trace the the development of the law in a and a physician’s liability for development of market share liability, survive, directly to the notion of reducing a patient’s chance to causal link. stairs in an apartment house I own, that negligence increases the house I own, that negligence stairs in an apartment individual person will fall on the stairs, even if no risk that people of light caused her able to prove that the absence who falls will be fall. which Guido the requirement of cause-in-fact, be a substitute for imperative being the essential, almost categorical said was “far from to be.” it is sometimes described man was given a negligent overdose of a prescription drug and then man was given a negligent overdose causes were only partially un- developed a very rare disease, whose of causal linkage, the court held derstood. Invoking the notion drugs often increase the risk that, because overdoses of prescription had introduced legally suffi- of negative side effects, the plaintiff cient evidence of cause-in-fact. 36095-nys_70-1 Sheet No. 17 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 17 36095-nys_70-1 36095-nys_70-1 Sheet No. 18 Side A 03/04/2015 07:12:55 19 BRAHAM S. A ENNETH K 20 School of Law University of Virginia School of speculates about what was really going on in that really going about what was speculates , Williams v. Utica Coll. of Syracuse Univ., 453 F.3d 112 (2d Cir. David and Mary Harrison Distinguished Professor of Law David and Mary Harrison Distinguished KFC Nat’l Mgmt. Co., 391 F.3d at 423 n.3. See, e.g. See Zuchowicz Causal linkage has proved to be a functional alternative to but- alternative be a functional to has proved linkage Causal speculating this? The author of the opinion, Are you getting all had from the good fortune we have I can hardly believe 19. 20. 2006); Williams v. KFC Nat’l Mgmt. Co., 391 F.3d 411, 422–32 (2d Cir. 2004) (Cala- bresi, J., concurring); Liriano v. Hobart Corp., 170 F.3d 264 (2d Cir. 1999). 2014]well. cases as Circuit Second other of in a number for causation There is causal linkage. jurisprudence of a developing There is the later in one of concurrence Calabresian even a quintessentially the opin- very author of cases in which the in that line of decisions ion in TRIBUTE ABRAHAM opinion he wrote. going on in the case whose about what was really was not only probably respond that the opinion But then, he would text that had taken the text of the court, and also a his text, but also speculating about and that he was as justified in on a life of its own, would simply else. And that kind of response its meaning as anyone 23 scholarship and of the continuity between be additional evidence a judge. has perfected in his time as judging that Guido and personal lives presence in our professional Guido Calabresi’s the accomplishments and are re- all these years. Few people have they are known around the world garded with such affection that Elvis. Santa. Guido. What a ca- simply by their first names: Hillary. And may there be much, much reer. What a fellow. What a life. more to come. \\jciprod01\productn\N\NYS\70-1\NYS105.txt unknown Seq: 5 24-FEB-15 11:22 case, as if he were just an outside observer trying to figure out what trying to figure outside observer he were just an case, as if mind but did not say. that court had in 36095-nys_70-1 Sheet No. 18 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 18 36095-nys_70-1 36095-nys_70-1 Sheet No. 18 Side B 03/04/2015 07:12:55 24 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 70:19 \\jciprod01\productn\N\NYS\70-1\NYS105.txt unknown Seq: 6 24-FEB-15 11:22 36095-nys_70-1 Sheet No. 18 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 18 36095-nys_70-1 36095-nys_70-1 Sheet No. 19 Side A 03/04/2015 07:12:55 2 OM- An 4 C HE T available at 3 1 She then gives 6 reprinted in 7 (1475), . While Guido is known for . While Guido is ALES T , his mind will go to Chaucer and 25 (F.N. Robinson ed., 2d ed. 1957), ANTERBURY C The Clerk’s Tale KENJI YOSHINO He then exacts a series of appalling sacri- He then exacts a series of appalling 5 HE HAUCER T , C The Clerk’s Tale HAUCER EOFFREY C G at 20. at 101–14. at 104–05. at 107. at 108. PLETE EOFFREY ORKS OF Id. Id. Id. Id. Id. Id. G So I clerked for Guido from 1996 to 1997, as Ricky just men- as Ricky just 1996 to 1997, for Guido from So I clerked Ron Stone- married me and my spouse, And in 2009 Guido and of Guido today from that perspective, I would like to speak The Clerk’s formal reserve adds to the horror of the tale he The Clerk’s formal reserve adds Chaucer’s Clerk is quiet, mild-mannered, and even taciturn. Chaucer’s Clerk is quiet, mild-mannered, W 2. 3. 4. 5. 6. 7. 1. TRIBUTE TO JUDGE GUIDO CALABRESI GUIDO JUDGE TO TRIBUTE Bianca is here today—bothin literature, so I know hold doctorates Italian count named Walter sweeps up a virtuous peasant woman Italian count named Walter sweeps after asking for her free consent named Griselda and marries her and absolute obedience. birth to a son who meets with the same fate. birth to a son who meets with the his contribution in law and economics, he is also a passionate sup- in law and economics, he is also his contribution daughter Bianca— literature. His mother and his porter of law and that when I invoke his twenty-nine pilgrims on their way to Canterbury. his twenty-nine pilgrims on their tioned, and in 2006 I was named the inaugural Guido Calabresi I was named the inaugural tioned, and in 2006 in part because I an honor I received from Yale Professor of Law, clerk of Guido’s, I suspect. had been a former clerks. As even this only performs for his former ham, an office he clerking for him relationship with Guido suggests, summary of my experience. has been a transformative have titled my dedication fices from her to test her virtue. She gives birth to her daughter, fices from her to test her virtue. to have her killed. whom he takes away, ostensibly http://name.umdl.umich.edu/CT. tells. It is a tale of patient Griselda, originally from Petrarch. tells. It is a tale of patient Griselda, He is described as poor, but committed to scholarship, and, having He is described as poor, but committed all of his money on books. come down from Oxford, he spends Like many of Guido’s clerks, he is not just a student, but a teacher. Like many of Guido’s clerks, he the General Prologue ends with Indeed, the description of him in learn and gladly teach.” the phrase, “and gladly would he \\jciprod01\productn\N\NYS\70-1\NYS106.txt unknown Seq: 1 6-FEB-15 14:31 36095-nys_70-1 Sheet No. 19 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 19 36095-nys_70-1 36095-nys_70-1 Sheet No. 19 Side B 03/04/2015 07:12:55 Yet it 8 9 as a drama narra- , we must know something , we must know The Clerk’s Tale The Clerk’s Tale 10 at 114. at 113. at 109–10. Id. Id. Id. You may think I’m retelling You may think I’m The sadistic Walter then pretends to annul their marriage so their marriage annul to then pretends Walter sadistic The and of her virtue is finally assured Count Walter At the end, understand the purpose of this retelling. To But that is not So we got acquainted in the front seat of his car—asSo we got acquainted in the front human because—andAnd both times I dropped it actually this is Please remember that the clerkship process was not then the Please remember that the clerkship 10. 9. 8. is an awkward reconciliation for all the needless suffering that has for all the needless is an awkward reconciliation recoils from even the Clerk, in his closing envoy, preceded it, and his own brutal fable. that he can marry a younger woman. He sends Griselda summarily Griselda He sends woman. younger marry a he can that new wife. castle for his to prepare the then recalls her home, but patience. affronts with preternatural bears all these Griselda now-grown is actually their new wife her that his supposed reveals to son. is actually their squire and that the daughter’s daughter, in Guido’s actual role tive: having given my free consent and absolute obedience to an my free consent and absolute tive: having given as his clerk, was subjected to increasing exactions Italian noble, I sole purpose of home and then recalled for the only to be sent for a younger clerk. preparing his chambers stately and dignified pageant it is today. I was racing to the taxi stately and dignified pageant it razor and I almost rammed into stand while wielding an electric unannounced, to pick me up. Guido, who had come to the airport, beings—and any classes with him. he asked me why I hadn’t taken student, and I gave him an answer In fact, I had never been Guido’s would sink me, even though it during the interview that I was sure was I took Tragic Choices, and was an honest one, and the answer Law, and then I dropped it. then I dropped it. And I took Common Akhil’s term—Guido such a liturgical way: conducted his classes in was meant to be a response. And I there was a call, and then there and that I just felt that Guido knew that there was a right answer, been described that there was was so far ahead of me as has just change his mind on any subject. nothing that I could ever do to that I could benefit reading his And so I said, you know, I thought work, but that I shouldn’t take his class. more about him. My first real conversation with Guido was when I more about him. My first real conversation just finished some interviews in interviewed for my clerkship. I had to the tiny New Haven airport D.C., and had flown up that evening chambers. to make a 9PM interview at Guido’s 26 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 70:25 \\jciprod01\productn\N\NYS\70-1\NYS106.txt unknown Seq: 2 6-FEB-15 14:31 36095-nys_70-1 Sheet No. 19 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 19 36095-nys_70-1 36095-nys_70-1 Sheet No. 20 Side A 03/04/2015 07:12:55 in preparation His defense—note 11 . (1995). The Clerk’s Tale ORMAL N Virtually Normal —ofpeople was that they were gay IRTUALLY V , defense ULLIVAN S NDREW A And at the time I had a huge chip on my shoulder and I felt shoulder and huge chip on my time I had a And at the me from Yale Law School, Guido mentored When I landed at farm in Woodbridge. There In 2009, Guido married me on his and gave us a talk that is Guido sat us both down beforehand It was not until I was rereading Andrew Sullivan published his In 1995, the year I was clerking, What I didn’t tell him, and what I’m telling him for the first him for telling what I’m and tell him, I didn’t What 11. “[u]nencumbered by children, [and so] they may be able to press “[u]nencumbered by children, [and the limits of the culture or the business infrastructure, or the that this was his time tonight, is that there’s an additional reason I shied away from away I shied reason an additional there’s is that tonight, time last year as when in his during orientation, this was that Guido. And how they oration on class a stirring gave the incoming dean, he a single He ended it with school careers. their law should conduct each other.” “Love closing injunction: somehow mawk- too good to be true; that it was that this was simply I had with But by the end of this interview ish, and sentimental. years later I went so sure. During my clerkship two Guido I was not on my behalf. In market. Guido advocated tirelessly on the teaching back down on my that I should not particular, he underscored which was—andmain scholarly interest, remains—gay civil rights. I was committing professional suicide. Others told me the chair that junior professor all the way to having my first day as a I needed to leave And then, when I told him that bore his name. he did the hardest thing a mentor New Haven for personal reasons, can do: he let me go with his blessing. auspicious for me and Ron. Guido is one date that was particularly and Anne postponed a vacation—on motion—so Anne’s that we day. could hold our wedding on that which has been a talisman of our too personal to repeat here, but began. “Don’t wait,” he said to us marriage. And then the chivvying be parents.” We needed no per- repeatedly, “you are both born to Ron and I have welcomed a suasion, and in the past two years, world. daughter and then a son into this that patient Griselda had had for tonight’s ceremony that I recalled that I could have easily have a daughter, and then a son. I reflected had a spouse, a daughter, or a led a life in which I would not have son. pro-gay manifesto entitled 2014] TRIBUTE YOSHINO 27 \\jciprod01\productn\N\NYS\70-1\NYS106.txt unknown Seq: 3 6-FEB-15 14:31 36095-nys_70-1 Sheet No. 20 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 20 36095-nys_70-1 36095-nys_70-1 Sheet No. 20 Side B 03/04/2015 07:12:55 OSHINO Y ENJI K N.Y.U. School of Law 12 at 204. Chief Justice Earl Warren Professor of Constitutional Law Chief Justice Earl Warren Professor Id. But I had what Griselda did not: a mentor who protected me Griselda did not: a mentor who But I had what it is easy to forget his kind- Guido’s brilliance is so dazzling that In this narrow regard, the struggle for gay equality has been gay equality has struggle for regard, the In this narrow 12. the mirror image of feminism. While women struggled to work as struggled While women image of feminism. the mirror families struggled to have gay people have have families, well as to was played in my fable of Count Walter to work. The role as well as should not gay individuals that said that wisdom by a conventional have children—a have wisdom to which I could easily conventional my daugh- my personal aspirations, my husband, surrendered all of ter, and my son. the story, but the choice. Guido is not the Count in from that tragic He was not the its narrative flow for me. person who interrupted fragile and funda- held this aegis over those more only person who important. So in but he was one of the most mental aspirations, his role as a today, I hope we do not forget honoring Guido mentor. as to which attribute we should ness. But he himself leaves no doubt clerk has so gladly learned from hold more dear. This is what this he hopes to gladly teach. Guido, and what, on his best days, 28 dint by heterosexuals, that in a way life, intellectual of boundaries cannot.” calling, type of different of a NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 70:25 \\jciprod01\productn\N\NYS\70-1\NYS106.txt unknown Seq: 4 6-FEB-15 14:31 36095-nys_70-1 Sheet No. 20 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 20 36095-nys_70-1 36095-nys_70-1 Sheet No. 21 Side A 03/04/2015 07:12:55 29 VINCENZO VARANO VINCENZO When I was invited to be part of today’s event, which honors part of today’s was invited to be When I some signifi- Guido, I decided to go back to For my tribute to with a couple of fortunate My relationship with Guido began as an amateur but success- So, my first approach to Guido was TRIBUTE TO JUDGE GUIDO CALABRESI GUIDO JUDGE TO TRIBUTE \\jciprod01\productn\N\NYS\70-1\NYS107.txt unknown Seq: 1 24-FEB-15 11:25 Guido Calabresi—a per- judge, and a great a great great scholar, son—I to be visiting myself; I felt I was very fortunate felt honored another fortunate semester. As much as I lived N.Y.U. during this visiting N.Y.U. for twenty years ago, when I was coincidence, almost Haven for his I was invited by Guido to New the first time, and a federal appellate judge. inauguration as fond personal my forty-plus years of uninterrupted cant episodes of his wife Anne. I him and his family, and especially relationship with of his legendary student, I did not sit in one haven’t been Guido’s classes—unfortunately of students and I do not belong to the crowd their love and admiration—butlaw clerks who surround him with I as all of his former students and admire and love Guido as much lessons from him, one way or the clerks. All of us have learnt great other. to spend his sabbatical, back circumstances. When Guido decided Law in Florence, directed in 1969, at the Institute of Comparative Cappelletti, I was at the begin- by his friend, and my mentor, Mauro me whether I knew of some nice ning of my career. Mauro asked Professor Calabresi, and his house on the hills for his great friend, in Bagno a Ripoli; a charming family. I didn’t, but I found one the typically Tuscan landscape of house on a hill, surrounded by owned by a very distinguished olive trees, vineyards, and cypresses, Barone Franchetti. house, and that location, have re- ful real estate agent. I think that family, and have favored ally meant something for the Calabresi the Tuscan countryside, and its their everlasting love for Florence, that they now own a small olive olive trees. Some of you may know fall for the olive-picking season, grove, where they come back every at this point let me say something and to make their own oil. But about Anne, also because it is impossible to honor Guido without honoring Anne at the same time. While in Bagno a Ripoli, Anne I began a real field study, on Tuscan “contadini and their families.” think that Anne recorded dozens of cassettes. If published, as they should be, they could provide an extremely important anthropolog- 36095-nys_70-1 Sheet No. 21 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 21 36095-nys_70-1 36095-nys_70-1 Sheet No. 21 Side B 03/04/2015 07:12:55 1 , . So far , I began to ` a and Pietro The Costs of Accidents The Costs (1970). Giuristi Stranieri di Oggi CCIDENTS The Costs of Accidents A OSTS OF C HE , T ALABRESI C UIDO The other fortunate circumstance which contributed a lot to contributed a which fortunate circumstance The other something like a nightmare. Guido, I have to be frank: it was Following the translation of 1. G 30 on it, lived who the people countryside, the Tuscan study of ical culture centuries-old and their the Resistenza, in participation their NYU ANNUAL SURVEYfamilies have disappeared, old peasant Most of the and traditions. OF AMERICAN LAW and the jobs in the city, home to find have left their their children in Anne’s cassettes! lost. They live have been old traditions [Vol. 70:29 book; I mean was Guido’s our friendship Florence. At the writing, or polishing, while in which he was still unaware of law of Italian legal scholarship was time, the most part little knowledge They had no or very and economics developments. suspicion on the they looked with at least some of English, and States) as a sort of (and especially on the United common law world colleagues at “Is there law over there?” My young terra infidelium: of law and eco- and I did not know anything the Florence Institute spent a year we knew English, and had already nomics, but at least the translation of of us agreed to engage in at Stanford. Three have certainly Italian, something which would Guido’s book into him to the and would have introduced suited Guido’s background, a handful of scholars were work- Italian academic world where only Stefano Rodot ing along similar lines (for example, Trimarchi). Of course, we knew the basics of The book was extremely difficult. damages, causation), but what the law of torts (fault versus no fault, and general deterrence? Well, about deep pocket, transaction costs, students. As comparative law- indirectly at least, we became Guido’s we were aware that a literal yers, though in our formative years, didn’t make any sense. translation of certain foreign expressions for some tutorials, so as to convey We had to study, and ask Guido to the Italian readers. In these unfamiliar concepts appropriately good job. The book was a success, the end, I think we did a fairly much more widely than before, Guido’s ideas began to circulate grew as well as their migra- and the number of his Italian students exciting teaching. tion to Yale, to experience Guido’s \\jciprod01\productn\N\NYS\70-1\NYS107.txt unknown Seq: 2 24-FEB-15 11:25 think with a very good colleague and friend of mine, as well as think with a very good colleague to make Italian lawyers more Guido’s, that we should do something legal scholarship. So, in the aware of what was going on in foreign early eighties, we started a new series: we have published the translation of over fifty books, introducing Italian academics to a number of foreign innovative authors with 36095-nys_70-1 Sheet No. 21 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 21 36095-nys_70-1 36095-nys_70-1 Sheet No. 22 Side A 03/04/2015 07:12:55 ARANO Which 2 V INCENZO V (1978). HOICES In 2006, we celebrated in In 2006, C 3 RAGIC , T OBBIT B , http://www.giuffre.it/it-it/products/20000696 Professor of Law, University of Florence , of course, another landmark in Guido’s another landmark , of course, HILIP DITORE & P E ` E IUFFR ALABRESI Global Visiting Professor of Law, N.Y.U. School of Law Global Visiting Professor of Law, C Tragic Choices Giuristi Stranieri di Oggi—Diretta da Cosimo Marco Mazzoni e Vin- UIDO The truth is that Guido Calabresi is a person of immense The truth is that Guido Calabresi 4 See I know, at this point, that I must conclude my tribute. Allow that I must conclude my I know, at this point, 2. 3. G 4. United States v. Then, 56 F.3d 464, 466–69 (Calabresi, J., (2d Cir. 1995) cenzo Varano, G 2014] acquainted. become have would never they probably whom TRIBUTE VARANO 31 \\jciprod01\productn\N\NYS\70-1\NYS107.txt unknown Seq: 3 24-FEB-15 11:25 culture, great wisdom, and great vision; he is open-minded and culture, great wisdom, and great problems of an ever-changing so- quick to catch the ever-changing of life. He has another ciety; he is always young in his perception have: he is generous with his quality not many persons of his caliber over to those, young or less young, learning. He is ready to hand it is always available, and he is al- who turn to him for guidance. He we all admire and love him, and ways in a good mood. That’s why from him. are grateful to him for all we receive bibliography, written with . written with bibliography, concurring). Rome, at the Accademia dei Lincei, the twentieth anniversary of the anniversary dei Lincei, the twentieth the Accademia Rome, at and Guido, his co-author, we celebrated the same time, series; at edi- very year, the second in that which had reached their book, tion—the a success. in the series to have had such only book a comparative law- a couple of final remarks. As me, however, just never felt con- admired Guido, because he has yer, I have always as a scholar boundaries of national law, neither strained within the is a lawyer—ornor as a judge. Guido a philosopher, maybe better, or both—who How at problems in a universal perspective. looks parents do not much celebrated , “Wise can we forget the referred to the ex- from their children,” when he hesitate to learn and Italy (the Constitutional Courts of Germany perience of the (the parents) for the courts of this country children) as a model have become increasingly du- when dealing with old statutes which bious? book opened the series, one of the very few translated by its two by translated very few of the one the series, opened book directors? .html (last visited Oct. 31, 2014). 36095-nys_70-1 Sheet No. 22 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 22 36095-nys_70-1 36095-nys_70-1 Sheet No. 22 Side B 03/04/2015 07:12:55 32 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 70:29 \\jciprod01\productn\N\NYS\70-1\NYS107.txt unknown Seq: 4 24-FEB-15 11:25 36095-nys_70-1 Sheet No. 22 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 22 36095-nys_70-1 36095-nys_70-1 Sheet No. 23 Side A 03/04/2015 07:12:55 A Com- (1982). TATUTES S GE OF A As a judge of New York State’s 33 AW FOR THE 1 . L OMMON , A C CHIEF JUDGE JUDITH S. KAYE JUDITH S. CHIEF JUDGE ALABRESI C UIDO I am so pleased to be here at my alma mater to add a word or to add a word at my alma mater pleased to be here I am so gentleman background of this extraordinary The distinguished heard from Judge Calabresi’s What beautiful tributes we have Actually, there is one additional connection to Judge Calabresi Actually, there is one additional in our great democracy, The process rests on the fact that, 1. G TRIBUTE TO JUDGE GUIDO CALABRESI GUIDO JUDGE TO TRIBUTE through constitutional, statutory and rule amendment, and has through constitutional, statutory \\jciprod01\productn\N\NYS\70-1\NYS108.txt unknown Seq: 1 24-FEB-15 11:27 mon Law for the Age of Statutes two about a great star of the judiciary and the world of law, now the world of the judiciary and a great star of two about Annual Survey of of dedicatees of the part of the constellation Circuit Judge Guido Calabresi. American Law: Second is widely known—indeed, with summa in several languages, starting of the Coif, and laudes, , Order and magna cum maybe just that. Or, staying with foreign tongues, Emeritus this and absorbing one it best. Always it is a joy, whether plain “mensch” says counsel from writings, or hearing him engaging of his lectures or from Guido and sitting across a dinner table the bench, or just Anne. a proud NYU alumna, I too Yale colleagues and students! Though am a student of Judge Calabresi—but in another sense. I am a de- one favorite book, voted fan of his writings, and in particular highest court—by common law court—over tradition a great my in an age of proliferating stat- twenty-five year tenure on that bench Calabresi’s help in melding the utes, I greatly appreciated Judge the tributes to you I add a state two worlds. So, Guido, to all of assistance. judge “bravo” for all your magnificent is a certified, and certifying, ge- that I would like to linger on: he our by now well-established certifi- nius. By that I have in my mind law questions are sent by other cation process, where New York courts—mostcircuit courts—to particularly federal the Court of for final resolution. The process Appeals of the State of New York began in New York State in 1985—nearly three decades ago— Calabresi. been immensely assisted by Judge and federal sovereignties, it is founded on dual independent state the state courts that have the last word on questions of state law. Federal courts are of course free to decide them—we have concur- rent jurisdiction—but they risk reversal if the law question (be it 36095-nys_70-1 Sheet No. 23 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 23 36095-nys_70-1 36095-nys_70-1 Sheet No. 23 Side B 03/04/2015 07:12:55 And, wonder 2 But as we all know, getting a new procedure adopted is one getting a new procedure adopted But as we all know, the reform, immediately saw the wisdom of Judge Calabresi I would like to focus on just two of the enormous benefits of I would like to focus on just two The certification process puts The first, of course, is one of law. I especially thank Judge The second benefit is one for which been actively and vigorously The certification process, as it has 2. Oral Argument, Tunick v. Safir, 209 F.3d 67 (2d Cir. 2000) (No. 99-7823). 34 the reaches law) later constitutional or statutory, common, state a view. What different takes a court the state and high court state NYU ANNUAL SURVEY a situa- court in such a federal circuit thing it was to allow sensible OF AMERICAN LAWtion—instead state deciding a novel or erroneously of abstaining law issue—immediately high to the state the issue directly to certify [Vol. 70:33 paper re- the necessary it was to secure what a triumph court. And York law. into New to be adopted permit the procedure forms to another. Change is to use it is too often quite thing; getting people became such an where our hero, Guido Calabresi, hard. And here’s important facilitator. never forget once make it an everyday reality. I will and was quick to it was not the Second Circuit argument when listening to a taped that they con- Calabresi himself who suggested parties but Judge to the New York Court of Appeals. sider certification \\jciprod01\productn\N\NYS\70-1\NYS108.txt unknown Seq: 2 24-FEB-15 11:27 of wonders, they heartily embraced the Judge’s suggestion. I am de- heartily embraced the Judge’s suggestion. of wonders, they Appeals has thus that the New York State Court of lighted to report overwhelmingly from the far successfully resolved 115 certifications, had a hand in a major number Second Circuit. I’m sure that Guido of them. of a judge of the Court of Appeals the process, from the perspective if a retired one). of the State of New York (even another court has determined is an before the state high court what Would that the Second Circuit important open issue of state law. leave to appeal! Only the law issue reviewed all our applications for rest of the case remains for resolu- goes to the state high court. The will thereafter apply the state tion with the certifying court, which facts. Just think: the state court has court’s law determination to the of state law—andthe chance to settle a pure issue an important one at that—unencumbereddetails that sometimes get in the by factual a treat at both ends of the process. way of a nifty law question. What How we think about the law is of Calabresi: it’s the human part. how we think about one another. course vitally important, but so is has done an enormous amount to employed by the Second Circuit, bridge the gap between our state and federal court systems. I can- not remember a time in my own long career at the New York Bar 36095-nys_70-1 Sheet No. 23 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 23 36095-nys_70-1 36095-nys_70-1 Sheet No. 24 Side A 03/04/2015 07:12:55 AYE S. K UDITH J UDGE J HIEF C Chief Judge, New York State Court of Appeals New York State Chief Judge, Of Counsel, Skadden, Arps, Slate, Meagher & Flom Of Counsel, Skadden, Yes, a certified, and certifying, genius. and certifying, Yes, a certified, 2014] re- and mutual collegiality, such camaraderie, enjoyed we have that honoree, distinguished to our I give for this credit And much spect. brilliance. and personal his judicial, academic, through TRIBUTE KAYE 35 \\jciprod01\productn\N\NYS\70-1\NYS108.txt unknown Seq: 3 24-FEB-15 11:27 36095-nys_70-1 Sheet No. 24 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 24 36095-nys_70-1 36095-nys_70-1 Sheet No. 24 Side B 03/04/2015 07:12:55 36 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 70:33 \\jciprod01\productn\N\NYS\70-1\NYS108.txt unknown Seq: 4 24-FEB-15 11:27 36095-nys_70-1 Sheet No. 24 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 24 36095-nys_70-1 36095-nys_70-1 Sheet No. 25 Side A 03/04/2015 07:12:55 37 JUDGE GUIDO CALABRESI JUDGE GUIDO ACKNOWLEDGMENT First, I want to thank you: thank you all. What a joy and what What a joy and thank you all. to thank you: First, I want about who you are—allWhen I thought of the speakers—I no- of the conversations which But what is stunning is the diversity who talks with historians and So, back to conversations. Akhil, who spoke tonight. For these But it is equally true of the judges is your willingness to engage in conversations, in dialogue with to engage in conversations, is your willingness \\jciprod01\productn\N\NYS\70-1\NYS109.txt unknown Seq: 1 24-FEB-15 11:28 an honor. A joy and an honor because it is N.Y.U., because it is the is N.Y.U., because because it A joy and an honor an honor. beloved wife, my because you have invited my Annual Survey, the things that you son-in-law; but also because of daughter, and my are. especially because of who you have said, and most law work you have in addition to the magnificent ticed one thing: all done—and have done— is central to what you do, what you that of the law, the study, to further the development others, to further a way, it is not sur- to push the quest further. In to make it better, to do that—thatprising for academics today is what the academics are supposed to do. represented and that is what academics each of the speakers has represented—whom they talk to, and so interrupt myself right there. The elegantly. I’m going to stop and a name, a position that required Dean suggested that I might take I was thinking as you were talking me to take another name. And take: Ricky the First—no;about the possible names I might Akhil the First—a the First—sounds little better; Vincenzo good; Kenji absolutely clear that if anything the First. I’ve decided that it was should take is: Judith the First. like that happened, the name I conversation. Kenji, who talks with even with the Framers; that is his of literature and the poets; one literature and the greatest works with them. Ricky, who never hears Kenji talk except in conversation administrators. Ken, who talks with talks with environmentalists and do insurance work—andeconomists and people who actually that is yet he talks to them and they a very hard group to talk to, and lawmakers and expounders in cog- listen. Vincenzo, who talks with countries, and in that conversa- nate countries and in non-cognate tion pushes the quest further. to are judges who understand that the role of judges is not only be decide cases and occasionally to make law, but that it is also to as part of an ongoing process of law development that comes about a result of judges dialoguing and structural conversations with ad- other law-developing institutions: with legislatures, executives, 36095-nys_70-1 Sheet No. 25 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 25 36095-nys_70-1 36095-nys_70-1 Sheet No. 25 Side B 03/04/2015 07:12:55 2 . ), that some- 3 The Cathedral Kelo in a different way. I’ve . 1089 (1972). EV Property Rules, Liability Rules, and Inalien- . L. R The Cathedral ARV , 85 H Not to mention the development of certi- the development Not to mention 1 has a little model and it looks through that model at has a little model and it looks through All this is crucially important to me because I am both an aca- important to me because I am All this is crucially examples from Let me give just two very quick 1. People v. Smith, 468 N.E.2d 879 (N.Y. 1984). 2. Guido Calabresi & Alan Melamed, 3. Kelo v. City of New London, 545 U.S. 469 (2005). ability: One View of the Cathedral The Cathedral there are things that aren’t in the world as it is, and it says: “Gee, if you are dialoguing, it is because the world.” And then you realize, from the standpoint of appel- we were looking at the world entirely world in the way it really was. So late cases, and not looking at the the world in a way. But more there, economics caused us to rethink recently, I’ve been thinking of 38 fed- with states; sovereign of other with courts agencies; ministrative Judith about Think academy. with the and all levels; courts of eral NYU ANNUAL SURVEY that York death penalty, on the New and her decision for instance, OF AMERICAN LAWa conversa- the legislature, a dialogue with which was great decision, the legislature. tion with [Vol. 70:37 \\jciprod01\productn\N\NYS\70-1\NYS109.txt unknown Seq: 2 24-FEB-15 11:28 fication, which is a dialogue between the federal courts and the federal courts between the which is a dialogue fication, some- ask and learn while federal courts in which the state courts know from some- “Here is what we might times even suggesting, want to accept it is up to you to tell us whether you place else but it in immigration. Bob Katzmann, and his work or not.” Think about in creating that the development of that law and In talking about in touch with his direct writings about getting bar, not to mention of the courts the legislature, when the decisions Congress, with and so he asks direction but don’t make sense, have to be in one cure that. the legislature to defines my work And if there is anything that demic and a judge. dialogue. This has it is the centrality of and my judicial philosophy, for example—andbeen, I hope, true of my scholarship, I hope not only—withemphasize dialogue, not subser- economics. And here I vience—not to law, but a back and forth in just applying economics what the other can tell. It is not which each discipline gains from economic analysis of law—it and economics talking to each is law other. been thinking that most of us, myself included, when we started out been thinking that most of us, myself rule as if it was there to mimic with that, talked about the liability the market—to should do if the market didn’t do what the market world—thework. But if you look at the real world of punitive dam- do more than give compensation, ages, of juries that are willing to domain (as in of juries that give less, of eminent times ought to give more than market value compensation, or as in times ought to give more than market 36095-nys_70-1 Sheet No. 25 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 25 36095-nys_70-1 36095-nys_70-1 Sheet No. 26 Side A 03/04/2015 07:12:55 ALABRESI C UIDO G UDGE J U.S. Court of Appeals for the Second Circuit U.S. Court of Appeals for the Second But I think it is equally important to my view of judging. Yes, view of judging. important to my it is equally But I think But in a sense, those you So there it is. I’ve given myself away. 2014]value—you market use, not value in is where compensation Italy see ina- can mimic rule liability that the world says real in fact the that forth. back and from a conversation All that comes lienability. we we do; yes, occasionally the first thing cases and that’s we decide re- we make law through more often, directly, but much make law ACKNOWLEDGMENT law other lawmakers, comments to engage and mands, suggestions, of the process. in the task; we become part developers, institutions seen in decisions in certification, but it can also be This can be seen looks. It can be to the legislatures for second that send cases back seen—whether or obliquely—in directly on pruden- cases that turn invoking the conversations of that sort. Decisions tial rightness, and European—Italian, originally—notion towards con- of laws heading opinions in which It can be seen in concurring stitutional invalidity. 39 with my own ma- even when I write a concurrence we talk; indeed, but I also want to I want to decide the case, jority opinion, because of course, in deci- start talking beyond that. And write in ways that thought. I to the academy and draw from academic sions that speak don’t mean that dialogue is the only—or even the primary—role of crucial one. And it is one that an an American judge, but it is a to engage in. It is both modest academic judge is especially suited practical effects, but in a long-term and restrained in its immediate it’s great fun. It’s great fun sense it can be very assertive. Moreover, to be doing that. have because they were all dia- chose to speak about me already loguers—they that is why I rejoice and am so are all dialoguers. And grateful for this evening. \\jciprod01\productn\N\NYS\70-1\NYS109.txt unknown Seq: 3 24-FEB-15 11:28 36095-nys_70-1 Sheet No. 26 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 26 36095-nys_70-1 36095-nys_70-1 Sheet No. 26 Side B 03/04/2015 07:12:55 40 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 70:37 \\jciprod01\productn\N\NYS\70-1\NYS109.txt unknown Seq: 4 24-FEB-15 11:28 36095-nys_70-1 Sheet No. 26 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 26 36095-nys_70-1 36095-nys_70-1 Sheet No. 27 Side A 03/04/2015 07:12:55 the correc- decrease * 41 ABSTRACT W.C. BUNTING the correctional population. A survey of existing the correctional population. A AND WHAT TO DO ABOUT IT DO ABOUT TO AND WHAT increase DECISIONS: WHY INFORMATION WHY DECISIONS: DISCLOSURE IS NOT SUFFICIENT, IS DISCLOSURE THE REGULATION OF SENTENCING REGULATION THE This Article identifies a number of problems, both in practice a number of problems, both This Article identifies * Economist, American Civil Liberties Union (ACLU). Ph.D. 2012, Yale be subjected to cost-benefit analysis (as opposed to fiscal impact be subjected to cost-benefit analysis University; J.D. 2006, N.Y.U. School of Law; B.A. 2000, Carleton College. \\jciprod01\productn\N\NYS\70-1\NYS110.txt unknown Seq: 1 24-FEB-15 11:35 and in theory, in what is denoted here as the “information disclo- what is denoted here as the “information and in theory, in disclosure model regulation.” While the sure model of sentencing problem of ineffi- information at the heart of the places a lack of how the prob- policy, the present Article explains cient sentencing informational, but as incentives lem is better understood, not as requirement is described that based. A statutory appropriation to engage in myopic legisla- seeks to correct an explained incentive a one-year appropriation is re- tive decisionmaking; specifically, into a statutorily created special quired from a general budget fund change in sentencing policy pro- reserve fund for any proposed jected to statutory appropriation requirements is provided and certain best statutory appropriation requirements a novel statutory provision is practices are identified. In addition, from the special reserve proposed: monies should be appropriated is projected to fund to the general fund if a bill from the special reserve fund tional population. Such withdrawals serve as concrete, immediate evi- made in the current fiscal period less punitive criminal sentences, dence of the fiscal benefits of only in the long run, and where such benefits are often realized to engage in forward-look- supply a novel incentive for legislators policy. The present Article fur- ing, fiscally responsible sentencing in sentencing policy should ther contends that proposed changes not statutory appropriation require- analysis as required under the of a criminal sentence is ex- ment), because the retributive value the current state of estimation tremely difficult to measure given technology. 36095-nys_70-1 Sheet No. 27 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 27 36095-nys_70-1 36095-nys_70-1 Sheet No. 27 Side B 03/04/2015 07:12:55 R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R .... 79 ..... 55 ...... 58 ...... 96 ...... 57 ...... 62 ...... 49 ...... 54 ...... 47 ...... 51 ...... 76 ...... 82 ...... 71 ...... 47 ...... 53 ...... 58 59 ...... 86 ...... 90 ...... 85 ...... 86 ...... 76 ...... 47 ...... 47 ...... 80 ...... 82 ...... 63 ...... 63 ...... 69 ...... 63 ...... 64 ...... 93 ...... 57 Schedule Impacts ...... 91 a. Proper Scope of Fiscal Impact Analysis.b. . . Fund Features of the Special Reserve c. 76 Utility of an Appropriations The d. The Problem of Indeterminate Fiscal b. Electoral Uncertainty The Impact of a. Problems in Practice b. Problems in Theory a. Forces Weak Antiregulatory b. Forces Proregulatory Powerful c. Electorate An Uninformed a. Stacking-Effect Hypothetical ...... 43 ...... 100 Justice Sentences Regulation 2. Difficulties Remain 4. Nebraska 1. Existing Statutory Provisions 2. A Novel Statutory Provision 1. Some Descriptive Facts 1. Impact Statements The Role of Fiscal 2. Best Practices Fiscal Impact Statements: 1. Tennessee 2. Colorado 3. Virginia 1. Group Dynamics Interest 2. Question The Delegation A. CBA and the Data-Driven Trend in Criminal B. Valuing the Retributive Benefit of Criminal C. A More Limited Role for Expert Agencies B. A Separation of Powers Issue C. Best Practices Defined D. The Empirical Evidence B. Disclosure Model of Sentencing The Information A. State Survey A. Crime Administering I. Theoretical Framework II. Requirement The Statutory Appropriation III. Analysis Against Cost-Benefit Conclusion 42Introduction NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 70:41 \\jciprod01\productn\N\NYS\70-1\NYS110.txt unknown Seq: 2 24-FEB-15 11:35 36095-nys_70-1 Sheet No. 27 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 27 36095-nys_70-1 36095-nys_70-1 Sheet No. 28 Side A 03/04/2015 07:12:55 : N 4 ’ RIS- SS RISON , P 1981, EPORT A L P available http:// ’ R 1 (2014), AT USTICE http://www note 1, at 2. The prob- J 5 EDERAL PTIONS RISONERS IN F supra TOF ’ note 1, at 13, 31. available at O , P HE XPENDITURE EP E available at , T AND supra 2011, , http://www.bjs.gov/con- USTICE 5 tbl.1, 7 (1987), 2011], J TATE , U.S. D ERVICE SSUES , S 2011, TOF S , I EPORT ’ R EP RISONERS IN available at 7, 54 (2013), FFICERS TATISTICS RISONERS IN S HANGES O ESEARCH C , U.S. D Likewise, from FY1986 to FY2012, Likewise, from RISONERS IN R 3 1981], PENDING USTICE XPENDITURE UDGET S OLICY J E B , P note 1, at 2; P TATISTICS TATE INTRODUCTION TATE S TATE , S supra S RISONERS IN UREAU OF ONGRESSIONAL VERVIEW note 3, at 19; P USTICE , C NOF J ’ : O 1981, FFICERS SS 2011–2013 S AMES O supra A , L J ’ UILDUP state spending increased over that same time period. state spending increased over that The increasing number of prison inmates, combined The increasing AT ISCAL UREAU OF B 2 AMES N UDGET J B http://www.fas.org/sgp/crs/misc/R42937.pdf. F During that same time period, the number of prison in- time period, the number of During that same OF ONERS IN 1 ATHAN total B 2011, at 2 (2012) [hereinafter P RISONERS IN See See See As a consequence of these trends, the state and federal prison As a consequence of these trends, Since the early 1980s, there has been a historically unprece- has been a early 1980s, there Since the 3. N 1. 2. P 5. 4. TATE S http://www.nasbo.org/sites/default/files/ER_1987.pdf. Note that dollar XAMINING OPULATION dented rise in state and federal prison populations in the United populations in the federal prison in state and dented rise of fed- the jurisdiction inmates under number of prison States. The by almost has increased for example, authorities, eral correctional in to 145,416 prisoners in FY1980 24,363 prisoners 500%, from FY2011. P systems have become increasingly overcrowded. In FY2011, for ex- systems have become increasingly was 39% over its rated capacity ample, the federal prison system adult male prison facilities operat- (with high- and medium-security over rated capacity). ing at 51% and 55%, respectively, 2014] DECISIONS OF SENTENCING THE REGULATION 43 \\jciprod01\productn\N\NYS\70-1\NYS110.txt unknown Seq: 3 24-FEB-15 11:35 with the rising per capita costs of incarceration, has made it increas- capita costs of incarceration, has with the rising per to operate for state and federal governments ingly more expensive to FY2013 alone, prison systems. From FY2000 and maintain their increased from the Federal Bureau of Prisons appropriations for $6.445 billion. $3.668 billion to tent/pub/pdf/p81.pdf; B mates under the jurisdiction of state correctional authorities has in- jurisdiction of state correctional mates under the to 1,248,815 300%, from 304,844 prisoners creased by over prisoners. lem of prison overcrowding is even more acute at the state level. In lem of prison overcrowding is even has transformed into California, for example, prison overcrowding then-Governor Schwarzenegger a wide-ranging fiscal crisis. In 2006, in response to California’s proclaimed a state of public emergency state expenditures on corrections increased by almost 700%, from on corrections increased by almost state expenditures the rate at which billion, more than double $6.7 billion to $53.2 overall available at .nasbo.org/sites/default/files/State%20Expenditure%20Report.pdf; N www.bjs.gov/content/pub/pdf/p11.pdf. at 2 (1982) [hereinafter P at amounts are not adjusted for inflation. E 36095-nys_70-1 Sheet No. 28 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 28 36095-nys_70-1 36095-nys_70-1 Sheet No. 28 Side B 03/04/2015 07:12:55 . O . N EP Although Following 7 6 10 , 922 F. Supp. 2d at 889. ., Proclamation, Arnold Schwarzenegger, Governor of the State of ., Proclamation, Arnold Schwarzenegger, In May 2011, the Supreme Court of the United States Supreme Court of the United In May 2011, the 9 e.g , 18 U.S.C. § shall enter a 3626(a)(3)(E) (2012) (“The three-judge court See See Coleman the Ninth Circuit, nonetheless, found the prison conditions found the Circuit, nonetheless, the Ninth 8 The dramatic rate of growth in state and federal correctional of growth in state and federal The dramatic rate 6. 7. 2d 882, 888 (E.D. Cal. 2009). Coleman v. Schwarzenegger, 922 F. Supp. 8. 10. Brown v. Plata, 131 S. Ct. 1910, 1923 (2011) (upholding order directing 9. Cal., Office of the Governor, Prison Overcrowding State of Emergency Proclama- Cal., Office of the Governor, Prison Overcrowding (“[A]ll 33 [California tion (Oct. 4, 2006), http://gov.ca.gov/news.php?id=4278 prisons are now at or above maxi- Department of Corrections and Rehabilitation] prisons are so overcrowded that the [Cali- mum operational capacity, and 29 of the Rehabilitation] is required to house more fornia Department of Corrections and pose substantial safety risks . . . . I believe than 15,000 inmates in conditions that death and harm caused by California’s immediate action is necessary to prevent severe prison overcrowding.”). finds by clear and convincing evidence prisoner release order only if the court that—(i) the primary cause of the violation of a Federal right; and crowding is of the Federal right.”); H.R. R (ii) no other relief will remedy the violation populations is not sustainable in the long run. Changes must be sustainable in the long run. populations is not same time main- prison populations while at the made to reduce of public policy and social order. A number taining public safety overcrowding and other forms of options exist to address prison the steady growth in correc- budgetary shortfalls resulting from the capacity of state and tional populations, including increasing in diversion or other rehabilita- federal prison systems or investing might also consider revising the tive programming. Policymakers over the past three decades that legislative measures implemented in prison populations, including: have contributed to the growth penalties, (2) eliminating ha- (1) modifying mandatory minimum 44of 173,000. level a record reaching population prison NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 70:41 \\jciprod01\productn\N\NYS\70-1\NYS110.txt unknown Seq: 4 24-FEB-15 11:35 affirmed the Ninth Circuit’s judicially imposed population cap on Circuit’s judicially imposed affirmed the Ninth overcrowding prisons, holding that severe prison California’s state violations” and cause of “serious constitutional was the primary and death.” “[n]eedless suffering in California so egregious that judicial intervention was considered egregious that judicial intervention in California so by the Con- by which to enforce rights guaranteed “the only means stitution.” under federal law, a release of prisoners is a “remedy of last re- is a “remedy of prisoners law, a release under federal sort,” this proclamation, litigation commenced in California federal in California commenced litigation proclamation, this popula- in prison that a reduction plaintiffs contending court, with medical prison system’s the California necessary to “bring tion was compliance.” into constitutional health care and mental the State of California to reduce its prison population by 38,000 to 137.5% capacity within two years). 104-21, at 25 (1995). 36095-nys_70-1 Sheet No. 28 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 28 36095-nys_70-1 36095-nys_70-1 Sheet No. 29 Side A 03/04/2015 07:12:55 Part I identifies a number of problems with this Part I identifies a number of problems 11 The present Article seeks to address this problem at its source to address this Article seeks The present interest-group argues that due to distinct Part I of this Article might choose to delegate sen- Part I next posits that legislators 11. The basic thrust of the information disclosure model can be summarized as follows: inefficient sentencing policy will obtain if legislators lack accurate and reliable official state estimates of the expected fiscal impact of proposed changes in sentencing policy. 2014] DECISIONS OF SENTENCING THE REGULATION centers, reentry residential (3) expanding laws, bitual-offender fed- parole for (5) reinstating of probation, the use (4) increasing and of good-time credits, the use (6) expanding eral prisoners, 45 (e.g., low-level offenses for certain criminal statutes (7) repealing possession). marijuana seeks to requirement that appropriation a statutory by proposing This proposal re- structure facing legislators. change the incentive fiscal period in an appropriation in the current quires a one-year of a proposed to the expected fiscal impact amount proportional the short-term policy. Thus, it brings into change in sentencing run when current first realized only in the long costs that are often do not incur the longer in office and, accordingly, legislators are no a fiscal crisis. political costs of administering sen- officials charged with and political dynamics, that are subop- incentivized to adopt sanctions tencing policy are public sides more run. Part I first explains that the timal in the long the context of sentencing policy, easily with proregulatory forces in of regulation. By enacting longer unlike in other substantive areas reap political benefits from a gen- prison sentences, legislators can the substantial fiscal costs im- eral electorate that fails to perceive policy. plied by changes in sentencing agency in order to avoid a harm- tencing power to an independent of such delegation, denoted here ful race to the bottom. One form of sentencing regulation,” is as the “information disclosure model then examined. \\jciprod01\productn\N\NYS\70-1\NYS110.txt unknown Seq: 5 24-FEB-15 11:35 disclosure model, both in practice and in theory. Most importantly, disclosure model, both in practice of information at the heart of the the disclosure model places a lack policy. The present Article, by problem of inefficient sentencing not as informational, but rather contrast, characterizes the problem aspects of the democratic process as incentives based. Structural limits) cause even perfectly in- (e.g., electoral uncertainty, term excessively shortsighted time hori- formed political actors to adopt In turn, these political actors zons in public policy decisionmaking. while rational in terms of private enact criminal sentences that, run, are nonetheless suboptimal electoral self-interests in the short for society in the long-run. 36095-nys_70-1 Sheet No. 29 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 29 36095-nys_70-1 36095-nys_70-1 Sheet No. 29 Side B 03/04/2015 07:12:55 12 retribu- in practice the 13 United States v. Craig, 703 F.3d See the correctional population. the correctional use cost-benefit analysis to assess the use cost-benefit analysis to assess decrease not the fiscal costs imposed upon future taxpayers. Part upon future taxpayers. the fiscal costs imposed of a proposed criminal sanction, of a proposed criminal sanction, internalize Part III considers the claim that proposed changes in sentenc- Part III considers the claim that Part II sets forth the main theoretical contribution of the Arti- of contribution main theoretical the II sets forth Part 12. able to identify withdrawals from A sponsor of such a bill would then be 13. In this context, “retributive benefit” refers to “the effect of punishment in 1001, 1004 (7th Cir. 2012) (Posner, J., concurring). the special reserve fund in the current fiscal period (as well as the uses to which the special reserve fund in the current as concrete, immediate evidence of the these withdrawals are subsequently put) fiscal benefits of less punitive criminal sentences. of assuaging the indignation that serious crime arouses and in providing a form nonfinancial compensation to the victim.” merits of proposed criminal sentences. The rationale for this con- merits of proposed criminal sentences. possible to measure the clusion is that while it is theoretically tive benefit This budgetary windfall creates a political incentive for legislators to creates a political incentive This budgetary windfall optimal sen- fiscally responsible, socially engage in forward-looking, benefit to off- also provides an immediate political tencing policy. It a bill that is set the political cost of advancing as “soft on crime.” Part II con- readily characterized by opponents the relevant empirical evidence cludes with a brief assessment of from Virginia. cost-benefit analysis (as opposed ing policy should be subjected to under the statutory appropria- to fiscal impact analysis as required way that the executive branch tion requirement) in much the same proposed agency regulations. of the federal government scrutinizes as a legislative budget office or a In theory, an expert agency such use cost-benefit analysis to de- state sentencing commission could of a proposed change in sen- termine if the expected social benefits social costs. Part III contends tencing policy exceed the expected that expert agencies should 46 that corrects mechanism appropriation a statutory describing cle, NYU ANNUAL SURVEY in Part I. Specifically, incentives identified suboptimal the socially OF AMERICAN LAW a correctional population, increase the bill projected to for any a statuto- budget fund into the general appropriation from one-year [Vol. 70:41 for this The rationale fund is required. special reserve rily created of push some proportion is to mandated appropriation statutorily sentencing policy costs of proposed changes in the expected fiscal legislators more fiscal period in order to have back into the current fully requirements and statutory appropriation II then surveys existing In addition, Part on the basis of this survey. identifies best practices to appropriate statutory provision designed II proposes a novel reserve fund if a the general fund from the special money back into projected to proposed bill is \\jciprod01\productn\N\NYS\70-1\NYS110.txt unknown Seq: 6 24-FEB-15 11:35 36095-nys_70-1 Sheet No. 29 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 29 36095-nys_70-1 36095-nys_70-1 Sheet No. 30 Side A 03/04/2015 07:12:55 , 14 LSON . 715, EV O ANCUR , 52 UCLA L. R (1982); M CTION Due to various coordina- A 15 I. Administering Crime OLLECTIVE , C (1965). And, as each individual waits for others And, as each individual waits for ARDIN 16 CTION H A. Administering Crime A 1. Interest Group Dynamics USSELL THEORETICAL FRAMEWORK THEORETICAL R Rachel E. Barkow, OLLECTIVE C See generally See generally OGIC OF The political science and administrative law literature generally The political science and administrative Drawing heavily from the work of Professor Rachel Barkow, Drawing heavily from the work This Part sets forth a theoretical framework intended to illumi- intended to framework sets forth a theoretical This Part Although the regulation of sentencing decisions does, in many of sentencing decisions Although the regulation 14. 16. This assumes that advocacy is costly. 15. L HE a. Weak Antiregulatory Forces weak. assumes that diffuse interests are Part I.A.1 summarizes how interest group dynamics in the context Part I.A.1 summarizes how interest more conventional regulatory of sentencing policy differ from settings. 2014] DECISIONS OF SENTENCING THE REGULATION to difficult extremely is sentence a criminal of value retributive technology. of estimation state the current given measure 47 require- underlying the statutory appropriation nate the rationale Part II. ment detailed in \\jciprod01\productn\N\NYS\70-1\NYS110.txt unknown Seq: 7 24-FEB-15 11:35 of regulatory agen- within the public choice model ways, fall neatly typical regulatory important differences between cies, there are the regulation of government agencies tasked with agencies and the sentencing decisions. to act, their shared policy objectives remain underprovided. The to act, their shared policy objectives more difficult it becomes to sur- larger the interested group, the Under this approach to regu- mount these barriers to mobilization. regulation (e.g., consumers) have lation, those who benefit from effort or time to an initiative that little incentive to contribute costly tion problems, large groups of individuals are difficult to organize tion problems, large groups of individuals in public policymaking. If groups and, therefore, underrepresented interest in a particular policy and of individuals share a common be easily excluded from any other the benefits of that policy cannot single member has an interest to member of the group, then no advocate for that policy. T 724–30 (2005). 36095-nys_70-1 Sheet No. 30 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 30 36095-nys_70-1 36095-nys_70-1 Sheet No. 30 Side B 03/04/2015 07:12:55 , 3 see also RIMINAL OLITICS OF , C P Moreover, HE 17 22 T The Theory of Eco- RANKEL in , E. F ARVIN 239, 241, 291, 296 (1999) M . 3 (1971). Moreover, to the extent that CI see also 21 . S RIMINOLOGY GMT The Politics of Regulation 21 (1973) (decrying the “horrible” sentencing . & M . L. & C RDER RIM CON The Effect of the Federal Sentencing Guidelines on Inter-Judge The Effect of the Federal Sentencing Guidelines note 14, at 724. Further, a judge cannot challenge a O note 14, at 724; note 14. note 17, at 12. J. E supra supra supra ELL For example, sentencing commissions regulate For example, supra James Q. Wilson, . 271, 274 (1999) (finding that variation in sentencing between . 271, 274 (1999) (finding that variation . 1, 6–10 (1993). What Do Judges Maximize? (The Same Thing Everybody Else Does) What Do Judges Maximize? (The Same Thing ITHOUT , 90 J. C 19 EV W , 2 B CON . R . at 728 (noting sentencing is not subject to market forces); . at 728 (noting sentencing is not subject AW Stigler, 367 (James Q. Wilson ed., 1980); George Stigler, 367 (James Q. Wilson ed., 1980); George Barkow, Barkow, Barkow, CON : L The judiciary’s views on optimal sentencing policy are views on optimal sentencing The judiciary’s See generally See See See See See id . E 20 18 T As Professor Barkow has convincingly argued, however, the has convincingly argued, As Professor Barkow 17. 21. 18. 22. 19. 20. , 42 J.L. & E . C 28 U.S.C. § (2012). However, the Sentencing Commission’s rules can- 994(x) EGULATION UP ENTENCES R S regulation of sentencing decisions does not follow this conven- decisions does not follow regulation of sentencing tional pattern. 48 benefits. private individual only limited provide may NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 70:41 \\jciprod01\productn\N\NYS\70-1\NYS110.txt unknown Seq: 8 24-FEB-15 11:35 judges, who in turn regulate criminals. Neither the judiciary nor turn regulate criminals. Neither judges, who in the existing sentenced to prison fit neatly within the individuals private industry, control mechanisms. Unlike paradigm of agency financial judiciary does not act to maximize for example, the profit. views are formed not on the basis likely to be quite diverse as such represent a varied set of judi- of a shared profit motive, but rather properly constitutes the optimal cial ideologies and sense of what level of punishment in a given case. nomic Regulation disparities that resulted from indeterminate sentencing); James M. Anderson et al., disparities that resulted from indeterminate Before and After the Federal Sentencing Guide- Measuring Interjudge Sentencing Disparity: lines of the Federal Sentencing Guide- typical judges narrowed with implementation lines); Paul J. Hofer et al., Sentencing Disparity the judiciary has a unified interest, there is little that judges can the judiciary has a unified interest, favorable legislation. offer politicians in exchange for these diffuse benefits often imply substantial concentrated costs for costs concentrated substantial often imply benefits diffuse these regulated These (e.g., private industry). of regulation the targets from the to suffer less and are assumed better organized entities are inter- characterize diffuse problems that collective actions types of special acting as organized entities, these regulated ests. Therefore, defend their profit-making to mobilize to groups, are able interest costs of proposed or remove the concentrated interests and to limit the greater social might otherwise serve to promote regulations that good. (same). sentencing agency’s decisions in court. For example, the Sentencing Reform Act sentencing agency’s decisions in court. For example, the Sentencing Reform to requires that the Sentencing Commission’s rulemaking proceedings conform the notice and comment requirements of the Administrative Procedure Act (APA). See S Richard A. Posner, 36095-nys_70-1 Sheet No. 30 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 30 36095-nys_70-1 36095-nys_70-1 Sheet No. 31 Side A 03/04/2015 07:12:55 , See See ISEN- D , https:// . 989, 1028 ELON EV : F NION UT U . L. R O TAN IBERTIES OCKED , 58 S . L , L IV . C GGEN This political disadvantage M U 25 . , A . 219 (2004). (2006). In only two states (Maine and EV See id Parity of Resources for Defense Counsel and the Parity of Resources for Defense Counsel and Likewise, the set of individuals Likewise, the 24 L. R , Footnote Four, and the Theory HISTOPHER OWA EMOCRACY & C D , 90 I ANZA note 14, at 730. M disenfranchised. MERICAN 26 EFF supra J Ronald F. Wright, A . 1079, 1089 (1993). EV Separation of Powers and the Criminal Law ., Donald A. Dripps, e.g L. R Moreover, those organizations that do exist to advocate organizations that do exist to Moreover, those , Barkow, permanently FRANCHISEMENT AND 23 See generally See See See generally Under the traditional paradigm, the relatively more powerful Under the traditional paradigm, In addition, while sentencing decisions do imply a traditional a do imply decisions while sentencing In addition, . In three states (Florida, Kentucky, and Iowa), all persons with a felony con- 25. 26. 23. 24. YRACUSE Rachel Barkow, b. Powerful Proregulatory Forces greater regulation of industry. lobbying force generally opposes presents the opposite situa- The regulation of sentencing decisions powerful lobbying forces advocate tion. Here, the relatively more and capricious under the APA. not be challenged in a court of law as arbitrary 2014] DECISIONS OF SENTENCING THE REGULATION their well as (as of crimes convicted those cost upon concentrated im- this adversely local communities), families, and loved ones, 49 and collectively mobilize ill positioned to is generally pacted group to im- sentences tend position. Criminal in support of its advocate networks or support not have organizations who do pact individuals receive because those who ex ante, in part their interests protecting self-identify in the in the future cannot readily criminal sentences present. \\jciprod01\productn\N\NYS\70-1\NYS110.txt unknown Seq: 9 24-FEB-15 11:35 directly impacted by sentencing policy—thosedirectly impacted have served, or who serving, time in prison—tendwho are currently have relatively to cases are excluded or power, and in many little political influence process altogether. from the electoral on behalf of this class (e.g., the criminal defense bar) often lack class (e.g., the criminal defense on behalf of this and federal prose- especially compared to state financial resources, of traditional cor- approach the lobbying power cutors, and do not regulation. porate targets of is further compounded by the fact that many offenders come from by the fact that many offenders is further compounded backgrounds and tend to relatively disadvantaged socio-economic engage in various forms of educa- lack the resources necessary to have proven effective in other tion and lobbying campaigns that political contexts. www.aclu.org/maps/map-state-felony-disfranchisement-laws (last visited Oct. 3, www.aclu.org/maps/map-state-felony-disfranchisement-laws persons with a felony conviction can vote. 2014). In seven states, some, but not all, See id viction are Vermont) can all prisoners, probationers, and parolees participate in elections. Vermont) can all prisoners, probationers, Laws Map of State Criminal Disenfranchisement of Public Choice; or, Why Don’t Legislatures Give a Damn About the Rights of the Accused? 44 S (2006). Reach of Public Choice Theory 36095-nys_70-1 Sheet No. 31 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 31 36095-nys_70-1 36095-nys_70-1 Sheet No. 31 Side B 03/04/2015 07:12:55 29 , 152 U. RIMINOL- Richard . 205, 233 , 3 C EV Recharging the 28 Plea Bargaining see also Victims’ rights L. R 30 TAH Longer sentences Longer 27 L.J. 1909, 1948 (1992) (con- note 14, at 732 (citing numer- ALE , 1999 U , supra Ryan Scott King, Marc Mauer & Tracy , 101 Y . 2463, 2507–12 (demonstrating (2004) see also The Arc of the Pendulum: Judges, Prosecutors, EV L.J. 1420, 1440–42(2008); Barkow, . L. R ALE See See generally note 14, at 728; Rachel E. Barkow, ARV , 117 Y supra note 14, at 728; note 14, at 729 & n.28. The notion that prison sentences , 117 H supra supra Plea Bargaining as Contract 453 (2004) (showing that prisons did not have a statistically sig- Y , Barkow, ’ , Corrections Corp. of Am., Annual Report (Form 10-K), at 19–20, Corrections Corp. of Am., Annual Report OL Barkow, Barkow, . P . 33, 97–100Kate Stith, (2003); regulation by government. As an example, Professor Bar- Professor As an example, government. by regulation OGY See, e.g. See, e.g. See See An Analysis of the Economics of Prison Siting in Rural Communities UB EV Reconciling Loss Aversion and Guilty Pleas In addition to prosecutors, other powerful organized groups other powerful organized In addition to prosecutors, more 27. 29. 28. 30. & P . L. R A Similarly, corrections officer unions, as well as certain rural commu- officer unions, as well as certain Similarly, corrections component of a identified prisons as an important nities that have develop- strategy to stimulate local economic broader, long-term for longer prison sentences. ment, have lobbied 50for in- a strong have prosecutors that suggested have and others kow NYU ANNUAL SURVEY prison sentences. to lobby for longer centive OF AMERICAN LAW [Vol. 70:41 mandatory prison to lobby for increased and have clear incentives private prisons in- model adopted by the sentences. The business rates of incarcera- depends, in part, upon high dustry, for example, longer sentences has consistently pressed for tion, and the industry contributions. lobbying efforts and campaign through extensive \\jciprod01\productn\N\NYS\70-1\NYS110.txt unknown Seq: 10 24-FEB-15 11:35 and the Exercise of Discretion how risk preferences can skew the outcomes of plea bargaining); Robert E. Scott & how risk preferences can skew the outcomes William J. Stuntz, render trials more costly for risk-averse criminal defendants. And, criminal defendants. for risk-averse more costly render trials prison the potential (i.e., the longer costly trials are the more might to obtain (or some for prosecutors less costly it is term), the defendants. risk-averse criminal pleas from say, coerce) Jury: The Criminal Jury’s Constitutional Role in an Era of Mandatory Sentencing Jury: The Criminal Jury’s Constitutional Role P tending that innocent defendants are likely more risk-averse than guilty defend- tending that innocent defendants are supports the contention that prosecutors ants). The empirical evidence generally to increase their bargaining power in lobby for longer criminal sentences in order the context of plea negotiations. Birke, ous examples where prosecutors have requested more stringent sentencing laws). ous examples where prosecutors have requested (“[P]rosecutors turn time-consuming and resource expensive investigations and (“[P]rosecutors turn time-consuming and so, they can keep the numbers of cases trials into time-efficient pleas, and in doing come in at a manageable equilibrium.”). closed and the numbers of new cases that (Feb. 2, 2010) (“The demand for our facilities and services could be adversely af- (Feb. 2, 2010) (“The demand for our facilities efforts, leniency in conviction or parole fected by the relaxation of enforcement the decriminalization of certain ac- standards and sentencing practices or through our criminal laws. . . . [R]eductions in tivities that are currently proscribed by prevent and enforce crime could lead to crime rates or resources dedicated to requiring incarceration at correc- reductions in arrests, convictions and sentences tional facilities.”). Huling, Outside the Shadow of Trial can expand the prison system as a whole and spur economic development is in can expand the prison system as a whole and spur economic development is itself a questionable assumption. 36095-nys_70-1 Sheet No. 31 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 31 36095-nys_70-1 36095-nys_70-1 Sheet No. 32 Side A 03/04/2015 07:12:55 31 AW AND : L AY P RIME C Franklin D. Gilliam Jr. & Television News and the Cul- AKING Q. 492 (1981). , M see also PINION 62 (1997) (estimating that over 90% ECKETT note 33, at 99–103 that expo- (finding regulation, with respect to sen- with respect regulation, . O . 623 (2008). B New Rights and Remedies: The Federal Crime UB EV anti supra OLITICS P . 88, 88 (2003). L. R , 45 P ATHERINE . 113, 120 (2003) (citing to research finding that . 113, 120 (2003) (citing to research finding K ACE OMM EV . R MERICAN note 14, at 728 (“When it comes to crime and sentenc- note 14, at 728 (“When it comes to crime , 28 P A Perceptions of the level of crime in the Perceptions of UST . 560, 562–63 (2000); Joseph F. Sheley & Cindy D. Ashkins, see also , 53 J. C 34 CI . J supra David E. Aaronson, . S regulation, not regulation, RIM OL particularly well informed about criminal justice mat- informed about criminal justice particularly well The Power to Persuade: Presidential Influence over Congress on Crime The Power to Persuade: Presidential Influence Prime Suspects: The Influence of Local Television News on the Viewing Moreover, most voters have no actual direct experi- Moreover, most pro , Romer, Hall & Aday, at 749; 33 . J. P e.g. , 28 C not A substantial empirical literature shows, however, that literature shows, however, A substantial empirical Daniel Romer, Kathleen Hall & Sean Aday, Daniel Romer, Kathleen Hall & Sean Aday, ONTEMPORARY , Barkow, M For a variety of reasons, however, the news media tends to For a variety of reasons, however, 32 C See generally See id. See id. See See See 35 As a result, the news media’s coverage of crime, as consumed As a result, the news media’s coverage , 44 A Finally, unlike other subject matter areas highlighted under highlighted matter areas unlike other subject Finally, 36 31. 34. 35. 36. 32. 33. RDER IN sure to overly crime-saturated local television news increases a widespread fear of sure to overly crime-saturated local television the violent crime that persists notwithstanding decreasing national crime rates and fact that crime is concentrated in urban areas); Shanto Iyengar, Public nificant impact upon employment and income indicators in rural New York State nificant impact upon employment and from 1977 to 2000). Victims’ Rights Act of 2004 O 2014] DECISIONS OF SENTENCING THE REGULATION this country, voice in political influential an increasingly groups, inter- coordinated of powerful the set to more element yet one add are ests that 51 policy. tencing c. Electorate An Uninformed tends to perceive model of regulation, the public the interest group criminal justice is- well informed with respect to itself as relatively sentencing de- generally reluctant to entrust sues and is, therefore, an administrative of outside experts (e.g., cisions to a body agency). \\jciprod01\productn\N\NYS\70-1\NYS110.txt unknown Seq: 11 24-FEB-15 11:35 Crime, Crime News, and Crime Views voters are for example, tend sentence lengths. Voters, ters, especially optimal most salient examples of crime—mostto recall only the often vio- lent crimes. community are thus largely informed by local and national news community are thus largely informed media. violent crimes, even though the focus its coverage primarily upon in the United States are non-vio- vast majority of crimes committed lent. in a given jurisdiction, tends and interpreted by the general public ence with crime. 95% of study respondents stated that “their primary source for information on 95% of study respondents stated that crime was the media”). ing, in contrast, the public does not readily perceive the same knowledge deficit.”). ing, in contrast, the public does not readily tivation of Fear of Crime of Americans use the media as a primary source of information about crime); Wil- of Americans use the media as a primary liard M. Oliver, Control Policy 36095-nys_70-1 Sheet No. 32 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 32 36095-nys_70-1 36095-nys_70-1 Sheet No. 32 Side B 03/04/2015 07:12:55 . See EV RIME UBLIC C ULTURE P . L. R C 4 (2007); ICH note 35, at The Political HE , Douglas A. AR ON EAR L.J. 287, 299 , T W e.g. F supra , ALL , , 100 M See OPULISM AND H P ARLAND OW THE G ECKETT : H ULTURE OF Instead of addressing Instead B ENAL 38 SGOODE C AVID ., P See D RIME C , 39 O REATED A see also C HROUGH OBERTS ET AL The Failure of the Sentencing Guidelines: A Plea The Failure of the Sentencing Guidelines: A T . 901, 932 (1991) (“[P]oliticians fear endors- EV V. R . L. R OVERNING ULIAN In other words, it is often politically expedi- In other words, 40 HI note 14, at 752; EMOCRACY AND The Pathological Politics of Criminal Law , G 39 D note 37, at 201–03 that the “get-tough” rhetoric (explaining supra IMON S , 58 U. C supra MERICAN , , Albert W. Alschuler, note 14, at 751. 37 A 158 (2001) (stating that television provides “selective coverage of fac- 158 (2001) (stating that television provides Barkow, OF ONATHAN supra ARLAND See See, e.g. 4 (2003) (arguing that the media should cover criminal cases in a way 4 (2003) (arguing that the media should William J. Stuntz, G Unfortunately, elected officials have not exhibited a strong en- exhibited a strong have not elected officials Unfortunately, ONTROL 37. 39. 38. J 40. Fashioning abstract criminal justice policy largely in the aggregate and C PINION RANSFORMED that will leave the public fully informed). This lack of information is especially that will leave the public fully informed). that individuals tend to exhibit less en- problematic in light of research showing when provided with more concrete infor- thusiasm for harsher criminal sanctions practices. mation about criminal justice policy and T O 52 that rate in crime the actual with correlated to be closely not jurisdiction. NYU ANNUAL SURVEY OF AMERICAN LAW and its sentencing policy the public about for educating thusiasm rate of crime. to the actual true relationship [Vol. 70:41 \\jciprod01\productn\N\NYS\70-1\NYS110.txt unknown Seq: 12 24-FEB-15 11:35 of modern times is a means by which political actors are able to manufacture the of modern times is a means by which political is easily reducible to a sound bite). illusion of control over social unrest, and generally tual crime stories” and “unrealistic crime dramas” that “tend to distort public per- tual crime stories” and “unrealistic crime ceptions of the problem”); J ent for elected officials to exacerbate the news media’s portrayal of to exacerbate the news media’s ent for elected officials electo- issues, misleading an otherwise uninformed criminal justice The officials rates of crime in the community. rate as to the true simple and unin- fears of social unrest with the respond to public sentences, of longer, more draconian criminal spired solution address the root crafted policies designed to rather than carefully of the crime problem. the root causes of crime in society, it is often less politically costly often less politically in society, it is causes of crime the root rate with rise in the crime to respond to a legislators for individual positioning them- of longer prison sentences, the simple solution who promise “to as “law-and-order” candidates selves in the process get tough on crime.” ing any position that an opponent can characterize as ‘soft on crime’ in a 30-sec- ing any position that an opponent can N. Doob & Carla Cesaroni, ond television commercial.”); Anthony Attractiveness of Mandatory Minimum Sentences (2001) (exploring why mandatory minimum sentences are so politically attractive); (2001) (exploring why mandatory minimum see also Barkow, for Less Aggregation 108 (“The more exposure people have to non-sensationalistic accounts of real 108 (“The more exposure people have rather than media accounts), the less criminal incidents (from court documents punitive they become.”). 505, 533–39 (2001). the from an ex ante perspective may give political actors a skewed assessment of true social costs of longer sentences, further decreasing the likelihood of political actors publicizing the true rate of crime in the community. 36095-nys_70-1 Sheet No. 32 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 32 36095-nys_70-1 36095-nys_70-1 Sheet No. 33 Side A 03/04/2015 07:12:55 . at L. EV , 87 Id. But cf. . L. R 9 (1999) ORNELL UNISHMENT EX P NCARCERATION , 68 C I OWERS AND , 84 T P , ASS Legislators can Legislators : M 41 RIME behind bars for as behind bars for , C ROW 42 At the same time legis- At the same time ELEGATING Delegating Punitive Power: The ACE C 43 IM , D : R J the authority to set sentenc- the authority EW N EGLECT . 93, 107 (1999) (arguing that because . 93, 107 (1999) (arguing ALLORAN HE EV N note 14, at 730 (“[T]he public seems to note 14, at 730 (“[T]he public seems R , T delegate Y ’ O’H A Theory of Legislative Delegation ALIGN OL supra , M (2011) (contending that the political benefit de- (2011) (contending that the political HARYN LEXANDER ONRY . L. & P A & S T 2. Question Delegation The TAN PSTEIN ICHELLE ICHAEL Racial Critiques of Mass Incarceration: Beyond the New Jim Crow Racial Critiques of Mass Incarceration: Beyond , 11 S E OLORBLINDNESS , M ., M C AVID . 21, 45, 53–54 (observing that the New Jim Crow framework (2012) So, why then have some state legislatures chosen to dele- some state legislatures chosen So, why then have e.g D e.g. , , Rachel E. Barkow & Kathleen M. O’Neil, Rachel E. Barkow & Kathleen M. O’Neil, EV 4–7 (1996); Barkow, 44 IN A Common Law for This Age of Federal Sentencing: The Opportunity and Need for Age of Federal Sentencing: The Opportunity A Common Law for This GE OF IN THE See See See See A Given these interest-group dynamics, there would appear to be would appear dynamics, there interest-group Given these 43. 44. 41. 42. MERICA . 1, 57 (1982) (“[A] greater reliance on precise legislative enactments and the A EV legal system should occur where regulatory beneficiaries are diffused and those who bear the burdens are concentrated . . . .”). over-emphasizes the War on Drugs and ignores violent crimes, and suggesting that over-emphasizes the War on Drugs and is now heavily stratified by class, Alexander does not analyze the way imprisonment writes that the Jim Crow analogy “ob- even among African-Americans). Forman are mass incarceration’s targets,” noting scures the extent to which whites, too, passing; she says that mass imprisonment’s that “Alexander mentions them only in whites are ‘collateral damage.’”true targets are blacks, and that incarcerated 58. Berman, Judicial Lawmaking 2014] DECISIONS OF SENTENCING THE REGULATION 53 to for legislators little incentive agency. independent to an external ing policy \\jciprod01\productn\N\NYS\70-1\NYS110.txt unknown Seq: 13 24-FEB-15 11:35 gate sentencing power to an independent agency (e.g., a state sen- power to an independent agency gate sentencing tencing commission)? agree that harsher punishments on a concentrated minority lead to diffuse bene- agree that harsher punishments on a concentrated fits for society.”). N.Y.U. L. R political actors possess “no context for assessing and passing judgments on the “no context for assessing and passing political actors possess such actors come to violate various criminal prohibitions,” actual person who will as abstract and nefarious characters”). “can really only consider criminal offenders Political Economy of Sentencing Commission and Guideline Formation Political Economy of Sentencing Commission benefit from a general electorate that fails to perceive the large fis- to perceive the that fails a general electorate benefit from that and generally believes such sentences associated with cal costs especially people of color, keeping people, long as possible is a net positive for society. long as possible special the policy asks of influential, coordinated lators can satisfy interests. rived from increased incarceration may additionally derive from its capacity to rived from increased incarceration may over time as required by changing politi- serve as a form of racial control, evolving with the policies of the present criminal cal circumstances and social standards, which, in turn, displaced slavery). justice system displacing Jim Crow laws, James Forman Jr., R (“Legislators will prefer to make policy themselves as long as the political benefits (“Legislators will prefer to make policy they derive from doing so outweigh the political costs; otherwise, they will dele- gate . . . .”); Peter H. Aranson et al., 1973, 1983 (2006). 36095-nys_70-1 Sheet No. 33 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 33 36095-nys_70-1 36095-nys_70-1 Sheet No. 33 Side B 03/04/2015 07:12:55 , . L. RIM ALLORAN J. C EAR Y & O’H ERKELEY PSTEIN E , 12 B ENTENCE BY see also S The realization of incarcer- 46 RISON note 41, at 1985–86; Robert Weisberg, P supra ONGER L 500500500500500 No600 No No $15,000,000 No $15,000,000 No $15,000,000 No $15,000,000 $15,000,000 $18,000,000 Prison OST OF It is useful to first examine how the incarceration to first examine It is useful 1: C , Barkow & O’Neil, 45 ABLE T See, e.g. Year Population New Prison Incarceration Cost The following hypothetical describes how increasing a criminal describes how increasing The following hypothetical The answer to this question is not new to this Article: legisla- Article: to this is not new to this question answer The note 44, at 224 (contending that delegation provides a “means to escape note 44, at 224 (contending that delegation 45. 46. For conceptual simplicity, suppose that 1/5 of the initial prison popula- Year One Year Two Year Three Year Four Year Five Year Six sentence leads to a “stacking effect” in which the fiscal impact of a a “stacking effect” in which the sentence leads to long run as addi- is first realized only in the longer prison sentence enter sentenced under the new law incrementally tional prisoners that each year 100 each year. To start, suppose the prison system a given criminal and sent to prison for individuals are convicted inmate is $30,000. annual incarceration cost per offense, where the enacts a bill doub- that in Year One, the legislature Assume further offense from five to ten years. Also, ling the sentence length for this by more than 450 inmates, then a if the prison population increases in the form of a new prison, large capital expenditure is required is $50 million. The initial where the cost of this capital expenditure 500. equilibrium prison population is 54race to a harmful to avoid in order power sentencing delegate tures NYU ANNUAL SURVEYthe bottom. OF AMERICAN LAW [Vol. 70:41 a. Stacking-Effect Hypothetical \\jciprod01\productn\N\NYS\70-1\NYS110.txt unknown Seq: 14 24-FEB-15 11:35 costs of a proposed change in sentencing policy are realized over policy are realized in sentencing a proposed change costs of sentence of a criminal in the length how an increase time, and costs im- of the fiscal where the bulk a “stacking effect,” leads to long run. only in the are first realized the longer sentence plied by ation costs over time is summarized in Table 1. ation costs over time is summarized How Sentencing Commissions Turned Out to Be a Good Idea How Sentencing Commissions Turned Out 179, 207–10 Barkow & O’Neil); (2007) (examining supra from legislative excesses”). tion has been incarcerated for one year, 1/5 of the population has been incarcer- this ated for two years, and so forth, and that individuals are sent to prison only for one criminal offense. 36095-nys_70-1 Sheet No. 33 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 33 36095-nys_70-1 36095-nys_70-1 Sheet No. 34 Side A 03/04/2015 07:12:55 fiscal impact no 700800900 No No No $21,000,000 $24,000,000 $27,000,000 1000 Yes $30,000,000 + $50,000,000 Suppose that the longer prison sentence examined above Suppose that the longer prison Observe that the longer prison sentence has prison sentence that the longer Observe in Table 1 is only part of the Yet, the cost structure examined Year Seven Year Eight Year Year Nine Year Ten b. The Impact of Electoral Uncertainty to society of $3 million (in the yields an additional annual benefit deterrence, and so forth). form of incarceration, incapacitation, cost of a new prison, it should Even excluding the expected fiscal although offering substantial be clear that the sentencing change, justified in the long run. Specifi- societal benefits, is not cost-benefit equilibrium, the longer prison cally, in the long-run steady-state of $3 million at an annual cost sentence generates annual benefits of $15 million (= $30,000 x 500), and this change in sentencing policy would therefore not be implemented by a welfare-maximiz- ing social planner. Unlike the benign social planner, however, legis- lators must periodically participate in elections. To the extent that the outcomes of these elections are uncertain or unknown, legisla- 2014] DECISIONS OF SENTENCING THE REGULATION 55 equal number of in the first five years, an until Year Six. Specifically, Six however, 100 exit the prison system. In Year prisoners enter and who were first the system, but those inmates, new prisoners enter the new law. Year One, were incarcerated under incarcerated in Year Ten. For the will remain in prison until Thus, these inmates year, are “stacked” additional prisoners, 100 per next five years, 500 prison sentence. It serving the longer ten-year upon those inmates arrives at the new Ten that the prison system is not until Year equal number of of 1000 inmates, with an steady-state equilibrium each year. Fur- and exiting the prison system individuals entering which is an $50 million in capital expenditures, ther, note that the prison sentence in this exam- entirely predictable cost of the longer after the initial change in sentenc- ple, is not realized until ten years are no short-run costs associated ing policy. In other words, there with the more punitive sentence—the expected fiscal costs of the long run in nature. longer prison sentence are purely remains: how specifically does the story. The following question still as illustrated in Table 1, result realization of fiscal costs over time, The causal mechanism suggested in a harmful race to the bottom? here is electoral uncertainty. \\jciprod01\productn\N\NYS\70-1\NYS110.txt unknown Seq: 15 24-FEB-15 11:35 36095-nys_70-1 Sheet No. 34 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 34 36095-nys_70-1 36095-nys_70-1 Sheet No. 34 Side B 03/04/2015 07:12:55 . EV first See State , 42 R L.J. 315 See generally LECTION , 1 E 2000 – The Political Economy of Fiscal Importantly, assume fur- Importantly, 48 The Incumbency Advantage in U.S. The Political Business Cycle , http://termlimits.org/term-limits/state- Marcela Eslava, IMITS L . 645 (2011) (surveying relevant literature on the . 645 (2011) (surveying relevant literature URV ERM ., William Nordhaus, . S See generally may be represented as follows: CON , U.S. T See, e.g still in office at the time the fiscal cost/benefit is time the fiscal cost/benefit is still in office at the , 25 J. E Net Benefit Given this set of simplifying assumptions, the probability- Given this set of . 169 (1975). 49 47 only if 50 TUD Because the probability-discounted net benefit of the longer net benefit Because the probability-discounted In particular, suppose that a legislator in our hypothetical must our hypothetical a legislator in suppose that In particular, . S 47. effect. In fifteen states, mem- Note that term limits would have a similar 50. The 48. candidate loses an election, it For simplicity, in the event that an electoral 49. long explored the idea that elec- Economists and political scientists have CON realized. where the denominator represents the probability that the legislator is still in of- where the denominator represents the probability that the legislator is still in fice during the relevant time period, and the numerator represents the fiscal cost/ in benefit of the sentencing change incurred during the subsequent two-year term office (expressed in millions of dollars). bers of state legislatures serve in rotation (i.e., under enacted term limits). bers of state legislatures serve in rotation Legislative Term Limits prison sentence is strictly positive, legislators will advocate for this is strictly positive, legislators will prison sentence longer prison sen- despite the fact that the more punitive sentence, simplified hypo- in the long run. In this tence is socially suboptimal legislator (i.e., a legislator who thetical, a perfectly shortsighted criminal sanction only in considers the fiscal impact of a proposed advocate for the longer prison the current fiscal time period) will social benefit. This is because the sentence no matter how small the 56 long- weigh therefore, will, and players true long-run are not tors social a welfare-maximizing would than differently outcomes run NYU ANNUAL SURVEYplanner. OF AMERICAN LAW chance of has an equal two years and re-election every stand for [Vol. 70:41 success is probability of campaign (i.e., the any re-election winning given election). one-half in any equal to \\jciprod01\productn\N\NYS\70-1\NYS110.txt unknown Seq: 16 24-FEB-15 11:35 political economy of fiscal deficits). discounted net electoral benefit to the individual legislator of the benefit to the individual discounted net electoral frame is strictly over a ten-year time longer prison sentence positive. ther that a legislator incurs the full fiscal cost/benefit of enacted incurs the full fiscal cost/benefit ther that a legislator policies Elections: An Analysis of State and Federal Offices, 1942 Elections: An Analysis of State and Federal term-limits/state-legislative-term-limits/ (last visited Nov. 23, 2014). term-limits/state-legislative-term-limits/ run for re-election in the future. Also, the is assumed that this candidate does not be higher than one-half. re-election rate for incumbents will typically Jr., Stephen Ansolabehere & James M. Snyder, E Deficits: A Survey (2002) (investigating various explanatory factors for increasing incumbency (2002) (investigating various explanatory advantage). of accountability, might also in- tions, while providing a fundamental mechanism duce short-term bias. 36095-nys_70-1 Sheet No. 34 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 34 36095-nys_70-1 36095-nys_70-1 Sheet No. 35 Side A 03/04/2015 07:12:55 , EARE increase 51 G TRATEGY FOR ENJAMIN : A S , special require- & B https://www.aclu.org/ EFORMS R by law HETTIAR USTICE M. C available at J NIMAI Some states additionally require , I RIMINAL 53 (2012), . 345, 367 (1993). C EV ONEY TATE EACHMAN S L. R M A Decade of Sentencing Guidelines: Revisiting the Role of A Decade of Sentencing Guidelines: Revisiting L The contention is that a clear and rigorous The contention is that a clear and AVING OREST 52 S F ICHAEL NALYSIS OF M AKE A 1. The Role of Fiscal Impact Statements at 7 (“At least three of these states, Nevada, North Carolina, and , 28 W UDGET Richard S. Frase, B UTCOMES AND ee See generally See id. O At least fourteen states have established, At least fourteen states have established, Thus, under this simple theoretical framework, legislators dele- simple theoretical framework, legislators Thus, under this model of sen- of the information disclosure The basic thrust B. Disclosure Model of Sentencing Regulation The Information 51. S 52. 53. ETTER MPROVING ments for fiscal notes written in connection with criminal justice ments for fiscal notes written in legislation—typically sentence lengths or create bills that increase new criminal offense categories. B the Legislature 2014] DECISIONS OF SENTENCING THE REGULATION cost in fiscal at zero be implemented can sentence prison longer pro- as the As long years). next five over the (i.e., short run the such social benefit, implies some positive change posed sentencing 57 in “credit-card-sen- will choose to engage legislators shortsighted sanctions criminal legislatures increase policy,” in which tencing to the resources necessary of whether proper consideration without future fiscal periods. be available in sanctions will fund such to reduce the oc- power to an independent entity gate sentencing policy.” Part I.B “credit-card-sentencing currence of suboptimal taken place: the in which such delegation has examines one form model of sentencing regulation.” “information disclosure inefficient sen- can be summarized as follows: tencing regulation official state occur if legislators lack reliable tencing policy will proposed changes in sentencing estimates of the fiscal impact of which lie at the heart of the policy. These official state estimates, sentencing regulation, are known information disclosure model of statements,” and are typically pre- as “fiscal notes” or “fiscal impact budget office or a state sen- pared by an independent legislative tencing commission. \\jciprod01\productn\N\NYS\70-1\NYS110.txt unknown Seq: 17 24-FEB-15 11:35 assessment of the expected fiscal impact of a change in sentencing assessment of the expected fiscal by short-run bias, better policy will help legislators, characterized and more accurately assess allocate scarce budgetary resources policy is likely to increase whether a proposed change in sentencing social welfare in the long run. files/assets/improvingbudgetanalysis_20120110.pdf. I Virginia, require specialized criminal justice fiscal notes only for bills that the length of criminal sentences.”). 36095-nys_70-1 Sheet No. 35 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 35 36095-nys_70-1 36095-nys_70-1 Sheet No. 35 Side B 03/04/2015 07:12:55 , 56 EACHMAN L See or “correctional resources state- resources “correctional or 54 . § 5120.51 (West 2014) (“If the director of NN . § 74-9106 (2014) (“When requested by the A NN ODE . A . § 2014). 42-56-39 (West . C NN note 52, at 16. TAT EV A R . S supra AWS AN HIO , This is particularly problematic with respect to pro- This is particularly problematic . L 2. Best Practices Fiscal Impact Statements: 57 ., K ., O EN EARE e.g e.g , , In Rhode Island, for example, the prison impact statement the prison Island, for example, In Rhode & G See See 55 The manner in which many fiscal impact statements are cur- which many fiscal impact statements The manner in There are a number of problems however, both in practice and of problems however, both in There are a number In addition, fiscal impact statements too frequently conclude In addition, fiscal impact statements 54. 55. 56. R.I. G 57. One study, for instance, found that fifteen of the twenty-nine states that HETTIAR a. Problems in Practice best practices. To fails to meet certain important rently prepared fail to project that prepare fiscal impact statements start, most states sanctions at a reasonable the fiscal impact of proposed criminal time horizon. 58 statement,” impact by a “prison accompanied note be the fiscal that statement,” impact “population NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 70:41 of sentencing reg- information disclosure model in theory, with the are pre- manner in which fiscal impact statements ulation and the pared in particular. \\jciprod01\productn\N\NYS\70-1\NYS110.txt unknown Seq: 18 24-FEB-15 11:35 posed changes in sentencing policy, where the fiscal cost is often posed changes in sentencing policy, long run. In the hypothetical ex- first realized only in the relative a fiscal impact analysis, limited in amined in Part I.A.2, for example, incorrectly project the fiscal cost scope to one or two years, would from five to ten years as $0, where of doubling the sentence length to $95recall that the true fiscal cost amounts over a ten-year million period. has an “indeterminate” fiscal im- that a proposed criminal sanction purpose of a fiscal note require- pact. This entirely defeats the ment.” bed space, and additional dollar amounts the effect in must “specify fiscal year for the current programs staff and additional additional fiscal years.” two . . . succeeding for the next and estimates prepare fiscal impact statements in connection with criminal justice bills do not prepare fiscal impact statements in connection with criminal justice bills do provide an estimated fiscal impact beyond an average of two years. rehabilitation and correction determines that a bill introduced in the general as- rehabilitation and correction determines on the population of, or the cost of sembly is likely to have a significant impact under the administration of the operating, any or all state correctional institutions the department shall prepare a popu- department of rehabilitation and correction, bill.”). lation and cost impact statement for the chairperson of a special or standing committee of the legislature, a fiscal impact chairperson of a special or standing committee be provided for bills amending any cur- and correctional resource statement shall the laws of the state of Kansas.”). rent crime or creating a new crime under C 36095-nys_70-1 Sheet No. 35 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 35 36095-nys_70-1 36095-nys_70-1 Sheet No. 36 Side A 03/04/2015 07:12:55 ., See not , 1st EGIS L TAFF RD S ., 83 OARD D ; and (2) the ; and (2) B B . § 120-30.45 (West NN collect the relevant UDGET UDGET . A B B TAT and For example, South Da- For example, South . S 59 EN EGISLATIVE EGISLATIVE This must mean that the fiscal This must mean L 60 .L N.C. G EX http://www.lbb.state.tx.us/Fiscal_Notes/ See T given all known available data known available given all TATE OF § 2-1-19 (2013). available at NSTRUCTIONS FOR AWS : I L OTES N . § 75-3715a (2014). ODIFIED . at 13 (“About 15 percent of the criminal justice fiscal notes pre- . at 13 (“About 15 percent of the criminal . at 10. Some states, such as Texas and North Carolina, require re- . at 10. Some states, such as Texas and NN ISCAL . A F Broadly speaking, there are two circumstances under which under two circumstances are there speaking, Broadly See id See id 58 TAT Problems with the information disclosure model of sentencing Problems with the information disclosure 58. 59. impact statement is especially Allowing sufficient time to prepare a fiscal 60. S.D. C . S UIDE TO AN deem cost justified if the expected fiscal impact of proposed sen- deem cost justified if the expected vised fiscal notes for amended bills. tencing changes was clearly disclosed and understood at the time of tencing changes was clearly disclosed estimate of the budget impact, or indi- pared in the last three years provided no or negative.”). cated only whether it would be positive Some bills may be amended late important with respect to proposed amendments. purpose of avoiding fiscal impact in the legislative session for the sole strategic can be circumvented, however, if fiscal scrutiny. This type of strategic behavior to a bill is adopted that has a fiscal notes are updated whenever an amendment impact. b. Problems in Theory the manner in which fiscal im- regulation, however, extend beyond disclosure model places a lack of pact statements are prepared. The problem of inefficient sentencing information at the heart of the are imperfectly informed as to policy, and assumes that legislators changes in sentencing pol- the expected fiscal impact of proposed legislators would be less likely to icy. It further assumes that these that future legislators would enact criminal sentencing policies 2014] DECISIONS OF SENTENCING THE REGULATION ment. 59 \\jciprod01\productn\N\NYS\70-1\NYS110.txt unknown Seq: 19 24-FEB-15 11:35 an indeterminate fiscal impact is provided: (1) the fiscal impact fiscal (1) the is provided: impact fiscal an indeterminate determined, cannot be fiscal impact cannot be determined, because certain data, which is certain data, determined, because cannot be fiscal impact analyst. to the fiscal been made available exist, have not known to latter situ- to avoid the be structured note process should The fiscal data analy- more time than often consumes data collection ation. As time must be a fiscal impact statement, sufficient sis in preparing data collection process. set aside for the Guide%20to%20Fiscal%20Notes%20Committee%20Staff.pdf. Kansas, by contrast, expressly exempts, by statute, amendments from its fiscal note requirement. K 2014) (requiring that a committee that passes an amended bill with a fiscal impact 2014) (requiring that a committee that obtain a new fiscal note); S kota law states that the sponsor of legislation impacting state prison the sponsor of legislation impacting kota law states that sufficient time to must “request and allow or county jail populations statement.” prepare a fiscal impact sufficient time to analyze analyst is allotted or passes out of bill receives a committee hearing data before the committee. G Sess., at 12 (2013), 36095-nys_70-1 Sheet No. 36 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 36 36095-nys_70-1 36095-nys_70-1 Sheet No. 36 Side B 03/04/2015 07:12:55 Of course, in order for this 61 ., Bldg. Dep’t, LLC v. DCBS, 43 P.3d 1167, 1170 (Or. Ct. App. 2002) ., Bldg. Dep’t, LLC v. DCBS, 43 P.3d 1167, e.g , See This represents an overly sanguine view of legislative decision- an overly sanguine view of legislative This represents is to argue that informa- One possible response to this critique 61. (explaining that the “overarching objective” of a fiscal impact statement require- (explaining that the “overarching objective” arbitrary and inadequately publicized gov- ment “is to provide protections against fiscal impact statements at issue were ernment conduct” and holding that the to “explain why the effect was undeter- insufficient to satisfy this purpose for failing mined or, more importantly, to allow potentially affected parties to evaluate their in positions and understand what information, if any, [the agency] might need order to make an informed decision”); Or. Funeral Dirs. v. Mortuary and Ceme- tery Bd., 888 P.2d 104, 107 (Or. Ct. App. 1995) (explaining that a fiscal impact statement satisfies the “purpose of providing protection against arbitrary and inad- 60 by appointing this problem to resolve seeks model The enactment. non-parti- is trusted, which agency, governmental an independent NYU ANNUAL SURVEY detailed to legislators funded, to disclose sufficiently well san, and OF AMERICAN LAW of pro- fiscal impact about the expected information and consistent in hand, this information policy. With in sentencing posed changes [Vol. 70:41 or longer unknowingly legislators will no is that the contention subop- that are socially policies criminal sentencing naively enact run. timal in the long of the democratic be specific structural aspects making. There may and so forth) ex- uncertainty, term limits, process (e.g., electoral might fail to adopt perfectly informed legislators plaining why even decisionmak- time horizon in their legislative a sufficiently long-run instance, legisla- examined in Part I.A.2, for ing. In the hypothetical with respect to to possess perfect information tors were assumed from five to ten of increasing the sentence length the fiscal impact in the best inter- perfect information, it was still years. Despite this sanction that is so- legislator to impose a criminal est of a rational run. More generally, informing cially suboptimal in the long of proposed legislation may not legislators of the fiscal impact incentive structure of the change behavior given the short-term who is perfectly informed as to electoral process. Even a legislator change in sentencing policy the true fiscal impact of a proposed criminal sentence as an optimal may choose to support a particular despite knowing that it is not short-term private electoral strategy in the long term. beneficial for society as a whole necessarily because of its capacity tion disclosure is important, not decisionmaking, but rather be- to directly correct myopic legislative through the general electo- cause of an indirect effect operating note process serves to make the rate. Under this view, the fiscal of proposed changes in sentencing public aware of the fiscal impact as an important check upon policy and, in turn, indirectly serves suboptimal legislative decisionmaking. \\jciprod01\productn\N\NYS\70-1\NYS110.txt unknown Seq: 20 24-FEB-15 11:35 36095-nys_70-1 Sheet No. 36 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 36 36095-nys_70-1 36095-nys_70-1 Sheet No. 37 Side A 03/04/2015 07:12:55 See Even if 62 Dika v. Dep’t “persons who see also notifies The present Article, 65 note 52, at 24, 26–27. The follow- These concentrated interests These concentrated 64 supra , The Politician and the Judge: Accountability in EARE & G . 1034 (2004). EV . R HETTIAR , C CON . E Moreover, these fiscal impact statements are techni- Moreover, these Part I.A.1.b. M 63 EACHMAN . Nearly all states include a summary of the relevant provisions of the . Nearly all states include a summary of Tuxis Ohr’s Fuel, Inc. v. Adm’r, Unemp’t Comp. Act, 72 A.3d 13, 23 L ., Eric Maskin & Jean Tirole, , 94 A See See supra See . See id Most states do, in fact, make fiscal notes available on the state available on the fiscal notes do, in fact, make Most states In short, the fundamental problem with the information dis- In short, the fundamental problem sentencing regulation, not less. sentencing regulation, See, e.g 62. 64. 65. 63. that assumes that ordinary There exists a large and important literature . of Ins. and Fin., 817 P.2d 287, 288 (Or. 1991) (finding that the fiscal impact state- of Ins. and Fin., 817 P.2d 287, 288 (Or. interested parties and, thus, failed to sat- ment at issue failed to adequately notify “protections against arbitrary and isfy the statutory objective of providing inadequately informed governmental conduct”). equately publicized government conduct” if, when considered with the other infor- equately publicized government conduct” rulemaking, it mation provided in the notice of proposed their positions”); might be economically affected to evaluate 2014] DECISIONS OF SENTENCING THE REGULATION fiscal these to access be able must public true, the to hold view cost. low at relatively notes 61 of states do not. a number website, although legislature’s \\jciprod01\productn\N\NYS\70-1\NYS110.txt unknown Seq: 21 24-FEB-15 11:35 will therefore tend to seek to minimize public awareness of fiscal will therefore tend to seek to minimize them to highlight the budgetary impact statements, instead of using policy. implications of more punitive sentencing of inefficient sentencing policy is closure model is that the problem one. conceived primarily as an informational n.13 (Conn. 2013) (“[T]he fiscal impact statement and bill analysis are prepared cal documents, employing a specialized methodology. Thus, insofar a specialized methodology. cal documents, employing used to gen- is unfamiliar with the techniques as the ordinary voter take the projected estimate, the voter must erate the fiscal impact is unlikely to ap- value. This rhetorical posture fiscal impact at face highly technical Rather, this type of detailed, peal to most voters. highly organized exploited by easily mobilized, information is best that such Recall from Part I.A, however, concentrated interests. in support of are more likely to advocate concentrated interests more id to expert opinion available to legisla- citizens are characterized by a lack of access tors. ing five states produce fiscal notes for some spending bills but do not make them ing five states produce fiscal notes for some Massachusetts, Mississippi, and Rhode publicly available online: Arkansas, Georgia, Island and include the name and con- bill, and most states identify the bill’s sponsor(s) improving the transparency of the fiscal tact information of the lead fiscal analyst, to be directed to the lead analyst. impact statement by allowing direct questions fiscal notes are publicly available, however, the ordinary voter is un- the ordinary however, are publicly available, fiscal notes fiscal and downloading effort researching expend costly likely to In of state legislatures. the public websites from impact statements of the fiscal note voter may be wholly unaware fact, the ordinary process itself. Government 36095-nys_70-1 Sheet No. 37 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 37 36095-nys_70-1 36095-nys_70-1 Sheet No. 37 Side B 03/04/2015 07:12:55 . EB . § 9-4-210 Part II.A. NN infra A ODE Stenberg v. Moore, . C ex rel. ENN 68 State note 52, 26–27; This is typically structured as supra 67 , II. EARE invalidated by . § T 2-2-703 (2014); & G NN In particular, these states have strength- In particular, these states have note 67. 66 . A supra TAT HETTIAR . S . § 1993 Neb. Laws 507 (codified at N 30-19.1:4 (2014); , C EV NN . R the fiscal costs imposed upon future taxpayers. the fiscal costs A OLO ODE EACHMAN C sources cited L . C . §§ (1996)), 50-129, 50-130 A See See See THE STATUTORY APPROPRIATION REQUIREMENT THE STATUTORY internalize TAT This Part begins with a survey of existing statutory appropria- This Part begins with a survey of A small number of states have enacted statutes designed to of states have enacted statutes A small number 68. 66. 67. these statutes also require a corre- In addition to a fiscal impact statement, . S EV 544 N.W.2d 344, 347 (Neb. 1996). tion requirements. On the basis of this survey, certain best practices tion requirements. On the basis a novel statutory provision is dis- are then identified. In addition, a brief assessment of the relevant cussed. This Part concludes with of Virginia. empirical evidence from the state Assembly, solely for purposes of infor- for the benefit of members of the General (citations omitted). mation, summarization and explanation.”) 62 the and not based, incentives as the problem identifies by contrast, not therefore it is this view, Under of information. of a lack result NYU ANNUAL SURVEY fiscal impact information. disclosure of to simply mandate sufficient OF AMERICAN LAW it is no altered such that must be legislative incentives Instead, policy in sentencing to enact changes for legislators longer rational [Vol. 70:41 short run, in the re-election prospects their private that increase in the run. As discussed in the long are socially suboptimal but that to push some frac- to accomplish this objective is next Part, one way criminal sentences fiscal costs of more punitive tion of the expected legislators more fiscal period in order to have back into the current fully \\jciprod01\productn\N\NYS\70-1\NYS110.txt unknown Seq: 22 24-FEB-15 11:35 ened fiscal note requirements by requiring, for any proposed bill ened fiscal note requirements by correctional population, an appro- projected to increase the state’s in an amount based upon the ac- priation from the general fund companying fiscal impact statement. make legislators more fully internalize the expected fiscal impact of more fully internalize the expected make legislators longer prison sentences. sponding appropriation with any bill likely to increase the state’s correctional pop- sponding appropriation with any bill likely ulation. a one-year appropriation from the state’s general fund to a non- a one-year appropriation from under the same statute, equal reverting special reserve fund created increase in correctional operating to the largest estimated annual period. costs over a statutorily defined time (2014); V R 36095-nys_70-1 Sheet No. 37 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 37 36095-nys_70-1 36095-nys_70-1 Sheet No. 38 Side A 03/04/2015 07:12:55 . § 2-2-703 NN . A These statuto- TAT 71 . S EV . R . OLO Id . § 9-4-210 (2014)). “Operating costs” 72 NN A ODE 2. Colorado 1. Tennessee A. Survey State . C note 67. The legislation states: ENN 73 supra The appropriations amount made under the statute The appropriations In 1985, the Tennessee General Assembly enacted In 1985, the Tennessee Diaz v. Romer, 801 F. Supp. 405, 413 (D. Colo. 1992) (stating that 70 69 . sources cited 1991 Colo. Sess. Laws. 68 (codified at C . see also See See id Id See Six years later, the Colorado General Assembly passed a similar Six years later, the Colorado General Tennessee was the first state in the country to enact a statute first state in the country to enact Tennessee was the Part I.A provides a brief survey of statutory appropriation re- appropriation survey of statutory provides a brief Part I.A 69. 70. Act of 1985, ch. 1, §§ Comprehensive Corrections Improvement 1–6 71. 72. 73. [N]o bill may be passed . . . which would result in a net in- [N]o bill may be passed . . . which in state correctional facili- crease in periods of imprisonment an appropriation of moneys ties unless, in such bill, there is statute requiring that funding must be expressly provided for any statute requiring that funding must periods of imprisonment in state bill resulting in a net increase in correctional facilities. (codified as amended at T 2014] DECISIONS OF SENTENCING THE REGULATION 63 revenues funds be appropriated from recurring mandating that state jail or prison law expected to increase the with respect to any populations. \\jciprod01\productn\N\NYS\70-1\NYS110.txt unknown Seq: 23 24-FEB-15 11:35 legislation requiring that “[f]or any law . . . which results in a net that “[f]or any law . . . which legislation requiring there shall be of imprisonment in state facilities, increase in periods operating cost recurring revenues the estimated appropriated from of such law.” fiscal to the amount reflected in an accompanying was to be equal set equal to the highest projected impact statement and was to be ten fiscal years. annual operating cost over the next quirements currently in effect, as well as a 1993 Nebraska statute a 1993 Nebraska effect, as well as currently in quirements 1996 as an Court in the Nebraska Supreme struck down by that was power to legislatures’ upon future restriction unconstitutional legislate. rily required appropriations were to be placed in a special reserve rily required appropriations were following purposes: (1) “cancella- fund to be expended only for the yet sold;” and (2) “capital outlay tion of bonds authorized but not for the department of correction.” implies “all costs other than capital outlay costs.” implies “all costs other than capital outlay (2014)); the Colorado Legislature has devised “a new approach to the sentencing of con- victed felons, one that recognizes that there must be a commitment of financial resources concomitant with an increase in criminal sentences”). 36095-nys_70-1 Sheet No. 38 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 38 36095-nys_70-1 36095-nys_70-1 Sheet No. 38 Side B 03/04/2015 07:12:55 . A V 78 . 30-19.1:4 . § 17-1-116 NN NN A . A ODE TAT OMMONWEALTH OF . S . C C A EV , H.D. 1990-46, 1990 Sess., See . R EPORT OLO R so that any proposed legislation 77 INAL , F In 1993, the Colorado legislature the Colorado In 1993, 75 http://leg2.state.va.us/DLS/H&SDocs.NSF/ 74 3. Virginia This special reserve fund is nonrevert- This special reserve Code of Virginia 76 . § 2-2-703 (2014). NN VERCROWDING O . A AIL TAT available at . S & J EV . R . RISON P . OLO See id Id (1990), NON ’ Of all the statutes surveyed in Part II.A, the Virginia statute has surveyed in Part II.A, the Virginia Of all the statutes Assembly enacted legislation In 1993, the Virginia General The statutorily required fiscal impact statement is prepared by is prepared fiscal impact statement required The statutorily 74. C 75. 76. at C 1993 Colo. Sess. Laws. 119 (codified 77. 78. amended at V 1993 Va. Acts 804 (codified as For any law becoming effective on or after July 1, 1994, which For any law becoming effective on of imprisonment in state results in a net increase in periods appropriation shall be made correctional facilities, a one-year estimated increase in oper- from the general fund equal to the dollars, of the highest of the ating costs of such law, in current effective date of the law. next ten fiscal years following the which is sufficient to cover any increased capital constructions capital increased cover any to is sufficient which of such the result are costs which operating any increased and im- there is a fiscal years in which of the first five bill in each result of the bill. pact as a OMM which would have the effect of increasing the prison or jail population would be- which would have the effect of increasing the prison or jail population would come law only if the funds required to increase the capacity of the system commen- surately are appropriated.”). at 56 received most attention from scholars and public policymakers, and received most attention from scholars in relatively greater depth. therefore this statute is examined stating: 64 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 70:41 committee. the appropriations \\jciprod01\productn\N\NYS\70-1\NYS110.txt unknown Seq: 24 24-FEB-15 11:35 created the “Corrections Expansion Reserve Fund,” which sets aside Fund,” which Expansion Reserve “Corrections created the subject to annual General Assembly is to funds that the Colorado the statutory ap- the purpose of complying with appropriation for propriation requirement. moneys “[a]ny unexpended or unencumbered ing, meaning that shall remain in fund at the end of any fiscal year remaining in the to the general not revert to or be transferred the fund and shall fund of the state.” fund or any other 4d54200d7e28716385256ec1004f3130/ 359ce1b5ccea4f3685255fda0075d590?OpenDocument (“The General Assembly should consider amending the (2014)). The legislation implemented key recommendations from a 1989 report (2014)). The legislation implemented in Virginia. examining prison and jail overcrowding C (2014)). 36095-nys_70-1 Sheet No. 38 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 38 36095-nys_70-1 36095-nys_70-1 Sheet No. 39 Side A 03/04/2015 07:12:55 The 80 UBCOMMIT- S OINT 84 In 1996, the Gen- In 1996, 79 The assembly also stipu- The assembly also 82 note 79, at 1. supra , The joint subcommittee also ad- 86 From 1994 to 1999, approximately From 1994 to EPORT 83 R http://leg2.state.va.us/dls/h&sdocs.nsf/fc86c2b17a1cf38 UBCOMMITTEE The general assembly specified that monies in the specified that monies in The general assembly S 81 Significantly, the joint subcommittee concluded that joint subcommittee concluded Significantly, the at 12 (citing as supporting evidence the fact that only fourteen bills . at 8. . available at 85 OINT J S. 2000-29, 2000 Sess., at 7 (Va. 2000) [hereinafter J S. 2000-29, 2000 Sess., at 7 (Va. 2000) [hereinafter ], . TEE See See id. See id Id. Id. Id See id See In 1999, a joint subcommittee was formed to review the 1993 subcommittee was formed to review In 1999, a joint This legislation was modified over the following two years. Spe- two following over the was modified legislation This To start, the joint subcommittee addressed the more theoreti- To start, the joint subcommittee EPORT 79. 86. 80. 81. 82. 83. 84. 85. R legislation. 2014] DECISIONS OF SENTENCING THE REGULATION sentencing the state directed Assembly 1995 General the cifically, impact statements. to prepare fiscal commission 65 \\jciprod01\productn\N\NYS\70-1\NYS110.txt unknown Seq: 25 24-FEB-15 11:35 the legislation had succeeded in compelling Virginia legislators to the legislation had succeeded in of bills likely to increase Vir- carefully consider the fiscal impact ginia’s correctional population. respect to the implementation dressed several practical issues with of which are discussed in detail of the 1993 legislation, a number below. intent of the statutory appro- cal question of whether the legislative balance sentencing policies with priation requirement was to to build up large cash correctional resources or, alternatively, expenses of new correctional fa- reserves to support the operating special reserve fund must be used solely to cover the operating ex- must be used solely to cover special reserve fund programs facilities, including community penses of correctional or treatment. that provide supervision fund in accor- deposited into this special reserve $28.9 million was appropriation requirement. dance with the statutory 8852570f9006f1299/983c2718b71d6aaa852568690058de1e/$FILE/SD29_2000. pdf. falling within the scope of the statutory appropriation requirement were enacted of during the six-year period following the passage of the original statute, and that re- these fourteen bills, a significant majority had been amended in committee to duce the projected fiscal impact). 1996 General Assembly also created the “Corrections Special Re- “Corrections Special also created the Assembly 1996 General of the on the books nonreverting fund as a special serve Fund Comptroller.” eral Assembly removed the Senate Finance and House Appropria- and House the Senate Finance removed eral Assembly process altogether. the fiscal note from tions Committees lated that such funds should not be expended prior to the first year should not be expended prior lated that such funds under the legisla- impact of any such bill covered in which the fiscal to occur. tion was expected 36095-nys_70-1 Sheet No. 39 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 39 36095-nys_70-1 36095-nys_70-1 Sheet No. 39 Side B 03/04/2015 07:12:55 be not minimum no fiscal years fol- . 30-19.1:4 (2014)). . 30-19.1:4 (2014)). In addition, due NN NN ten 93 , the fiscal impact A A ODE ODE The joint subcommittee . C . C A A 92 note 79, at 20. Even if the bill was note 79, at 23. supra , supra , 95 EPORT Thus, there was no need to accumulate was no need Thus, there R EPORT 89 R Further, the statute originally required that required the statute originally Further, 90 The joint subcommittee, however, did recom- The joint subcommittee, however, -year look-forward period instead, expressing a -year look-forward 94 six UBCOMMITTEE S UBCOMMITTEE for those bills included in the process S at 19–20.that the Further, the joint subcommittee recommended at 16. . . at 19. . at 24. OINT 91 J 1996 Va. Acts 972 (current version at V 1996 Va. Acts 972 (current version at V The subcommittee concluded that the intent of the legis- of the the intent that concluded subcommittee The OINT J See id. Id. Id. See id See See id See id. See See 87 See id The special reserve fund was “a means to accomplish this to accomplish was “a means reserve fund The special See 88 Also, the statute originally required an appropriation equal to originally required an appropriation Also, the statute 87. 88. 89. 90. 91. 92. 94. 95. 93. lowing the effective date of the sanction. lowing the effective the highest estimated annual increase in operating costs of the pro- annual increase in operating the highest estimated calculated over the next posed criminal sanction, 66cilities. NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 70:41 \\jciprod01\productn\N\NYS\70-1\NYS110.txt unknown Seq: 26 24-FEB-15 11:35 lation was to encourage careful consideration of the fiscal impact of fiscal impact of the consideration careful encourage was to lation popula- correctional bills on the state’s criminal justice proposed tion. an end in itself.” end, not operating only for the fund be used in the special reserve monies community correctional facilities or certain expenses of existing programs. projected to have a minimal impact upon prison bed space during this six-year projected to have a minimal impact upon that there should be interval, the joint subcommittee concluded re- threshold dollar amount below which the special fund deposit would not be quired. mend that, a large fund balance. a large fund statement should include a calculation of the expected impact statement should include a calculation detention facilities, and com- upon local and regional jails, juvenile munity corrections programs. expanded to bills projected to impact the number of individuals in expanded to bills projected to impact homes, or community cor- local or regional jails, juvenile detention rections programs. to a potential impact on government workload, the joint subcom- on government workload, to a potential impact of the statute should mittee recommended that the scope recommended a recommended a lack of confidence in the accuracy of forecasts extending beyond in the accuracy of forecasts lack of confidence horizon for cap- that this was the standard time six years and noting for new prison construction. ital outlay planning Interestingly, the joint subcommittee recommended that the Virginia legislation Interestingly, the joint subcommittee recommended special reserve funds on capital expenses, be amended to allow for expenditure of but not on operating expenses, with no including the cost of pre-planning studies, expenditures from the special reserve restrictions placed upon the timing of such fund. legislation be amended to specify that the words “Cannot Be Determined” be legislation be amended to specify that the words “Cannot Be Determined” 36095-nys_70-1 Sheet No. 39 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 39 36095-nys_70-1 36095-nys_70-1 Sheet No. 40 Side A 03/04/2015 07:12:55 See The De- Id. . at 3. See id . at 22. At the time, the state sentencing See id In 2000, the Virginia legislature adopted almost all of the find- all of almost adopted legislature Virginia the In 2000, A. The Virginia Criminal Sentencing Commission shall pre- shall Sentencing Commission Virginia Criminal A. The at- the operating costs reflecting impact statement pare a fiscal which for any bill appropriations to and necessary tributable in of imprisonment in periods in a net increase would result of Planning facilities. The Department state adult correctional Criminal Sen- annually provide the Virginia and Budget shall inmate. with the operating cost per tencing Commission conjunction of Planning and Budget, in B. The Department a fiscal of Juvenile Justice, shall prepare with the Department attributable to reflecting the operating costs impact statement result in a for any bill that would and necessary appropriations of the periods of commitment to the custody net increase in Justice. Department of Juvenile includes, but for a fiscal impact statement C. The requirement add new crimes for which is not limited to, those bills which authorized, increase the peri- imprisonment or commitment is authorized for existing ods of imprisonment or commitment minimum terms of im- crimes, impose minimum or mandatory modify the law governing re- prisonment or commitment, or in such a way that the time lease of prisoners or juveniles to the custody of the served in prison, or the time committed will increase. Department of Juvenile Justice, any bill introduced on or af- D. The fiscal impact statement of in a net increase in periods of ter July 1, 2002, that would result facilities or periods of com- imprisonment in state correctional of Juvenile Justice, mitment to the custody of the Department fiscal impact on local and re- shall include an analysis of the and community-based pro- gional jails, state and local pretrial detention facilities. bation services agencies and juvenile . The joint subcommittee also recommended that only one fiscal impact state- commission would include “NA” (Not Available) as the projected estimate of any commission would include “NA” (Not Available) to calculate a fiscal impact. bill for which there was insufficient data would occasionally, if confronted with partment of Planning and Budget (DPB) impact of three to five offenders and in- missing data, impute a minimum fiscal clude, as a monetary estimate of the fiscal impact, an amount equal to $62,500. id for ment be prepared by the staff of the Virginia Criminal Sentencing Commission all bills involving adult sentencing changes, conceiving the DPB’s role in the fiscal note process as duplicative and unnecessary. printed on the face of any proposed bill for which there was insufficient informa- printed on the face of any proposed bill tion to project the fiscal impact. 2014] DECISIONS OF SENTENCING THE REGULATION and report, subcommittee of the joint and recommendations ings as follows: and reenacted was amended the statute 67 \\jciprod01\productn\N\NYS\70-1\NYS110.txt unknown Seq: 27 24-FEB-15 11:35 36095-nys_70-1 Sheet No. 40 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 40 36095-nys_70-1 36095-nys_70-1 Sheet No. 40 Side B 03/04/2015 07:12:55 96 . § 30-19.1:4 NN A ODE . C A 96. 2000 Va. Acts 825, 833 (codified as amended at V E. The amount of the estimated appropriation reflected in the reflected appropriation estimated of the amount E. The of each the face on be printed shall statement impact fiscal agency responsible be codified. If the but shall not such bill, suffi- does not have impact statement the fiscal for preparing state- the fiscal impact the impact, to project cient information be determined” the words “Cannot state this, and ment shall bill. face of each such printed on the shall be not be limited statement shall include, but F. The fiscal impact popu- increase or decrease in the offender to, details as to any Sentenc- prepared by the Virginia Criminal lation. Statements in shall detail any necessary adjustments ing Commission by the bill for the crime or crimes affected guideline midpoints other crimes in guideline midpoints for as well as adjustments the opinion of the bill that, in affected by the implementation are necessary and appropriate. of the Commission, shall for- the fiscal impact statement G. The agency preparing Clerk of the such impact statements to the ward copies of for transmittal and the Clerk of the Senate House of Delegates and to the chairman of each to each patron of the legislation to consider the legislation. committee of the General Assembly in a net increase in peri- H. For each law enacted which results facilities or a net in- ods of imprisonment in state correctional or the time committed to the crease in periods of commitment Justice, a one-year ap- custody of the Department of Juvenile the general fund equal to the propriation shall be made from costs of such law, in current estimated increase in operating six fiscal years following the dollars, of the highest of the next costs” means all costs effective date of the law. “Operating other than capital outlay costs. Fund (the “Fund”) is I. The Corrections Special Reserve special fund on the books hereby established as a nonreverting consist of all moneys ap- of the Comptroller. The Fund shall under the provisions of propriated by the General Assembly Any moneys deposited in this section and all interest thereon. at the end of the biennium. the Fund shall remain in the Fund solely for capital ex- Moneys in the Fund shall be expended or preplanning studies penses, including the cost of planning capital outlay projects. that may be required to initiate 68 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 70:41 \\jciprod01\productn\N\NYS\70-1\NYS110.txt unknown Seq: 28 24-FEB-15 11:35 (2014)). This is the most recent version of the statute, with a couple of very minor changes made by Acts of the Virginia General Assembly in 2004 and 2007. Specifi- cally, in subsection C, “mandatory” was amended to “mandatory minimum,” and, in subsection D, “community corrections programs” was amended to “pretrial and 36095-nys_70-1 Sheet No. 40 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 40 36095-nys_70-1 36095-nys_70-1 Sheet No. 41 Side A 03/04/2015 07:12:55 S. ODE See . C A Section 98 Section 50-129 . §§ 50-129, 50-130 99 TAT See Legislative History of SB . S EV . R http://legiscan.com/NM/text/ Legislation projected to in- Legislation projected EB Any bill that failed to include Any bill that failed 100 101 available at Stenberg v. Moore, 544 N.W.2d 344, 347 (Neb. Stenberg v. Moore, 544 N.W.2d 344, 347 4. Nebraska Under this section, these contingency 103 ex rel. , 544 N.W.2d at 347. , http://www.nmlegis.gov/lcs/legislation.aspx?chamber= Section 50-130 provided that funds appropriated Section 50-130 provided that funds State 102 , 544 N.W.2d at 347. . 30-19.1:4 (2014)); 2004 Va. Acts 461 (current version at V . 30-19.1:4 (2014)); 2004 Va. Acts 461 (current . . . 97 NN see also Moore EGISLATURE A ; See Moore See id See id See id invalidated by Id. ODE On May 24, 1993, the Nebraska Legislature passed L.B. 507, passed L.B. Legislature 24, 1993, the Nebraska On May . C 97. Cervantes introduced legisla- In 2013, New Mexico State Senator Joseph 98. N 1993 Neb. Laws 507 (codified at 99. 100. 101. 102. 103. . 30-19.1:4 (2014)). A , N.M.L NN SB450/id/727843/New_Mexico-2013-SB450-Introduced.pdf. Although the bill SB450/id/727843/New_Mexico-2013-SB450-Introduced.pdf. with a roll-call vote of eight for passed through the Senate Judiciary Committee, in committee. and one against, the bill subsequently died 450 450, 51st Leg. 1st Sess. (N.M. 2013), tion closely modeled after Virginia’s statute. The major substantive difference be- tion closely modeled after Virginia’s statute. from Virginia’s special reserve fund are tween the two statutes is that expenditures cost of planning or preplanning studies limited to “capital expenses, including the projects,” whereas monies in the New that may be required to initiate capital outlay broadly appropriated by the legislature Mexico special reserve fund can be more operational costs of the corrections for any “criminal justice purposes, including the public defender department.” department, courts, district attorneys and community-based probation services agencies.” 2007 Va. Acts 133 (current version community-based probation services agencies.” at V A 2014] DECISIONS OF SENTENCING THE REGULATION of its many because full here in is provided legislation Virginia The fully discussed as more best practices represent provisions statutory in Part II.C. 69 code. 50-129 and 50-130 of the state codified in sections \\jciprod01\productn\N\NYS\70-1\NYS110.txt unknown Seq: 29 24-FEB-15 11:35 either the fiscal estimates or the appropriation was to be considered or the appropriation was either the fiscal estimates “null and void.” costs pursuant to section 50- for increased correctional operating funds by the Department 129 be reserved and used as contingency of Correctional Services. S&legtype=B&legno=450&year=13 (last visited Nov. 23, 2014). S&legtype=B&legno=450&year=13 (last crease the state’s correctional population and the appropriation correctional population and crease the state’s at the same time. was to be enacted further instructed the Nebraska Legislature to provide, by specific the Nebraska Legislature to provide, further instructed the costs indi- an amount sufficient to meet itemized appropriation, impact statement. cated in the fiscal 1996). (1996)), 50-129 required that any legislation projected to increase the state’s that any legislation projected to 50-129 required the expected in- include an estimate of correctional population four fiscal years operating costs for the first creased correctional legislation was to be in effect. during which the 36095-nys_70-1 Sheet No. 41 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 41 36095-nys_70-1 36095-nys_70-1 Sheet No. 41 Side B 03/04/2015 07:12:55 HOICES C OLICY 105 P ”). . EBRASKA Prison Overcrowding in Ne- N It is clear that these in , 106 11, 1993, 93rd Neb. Leg., Reg. Sess., at We have to fund them AY M ON . EB on adult inmate and juvenile per diem and per diem juvenile and inmate on adult D only LOOR Under the debated appropriation requirement, Under the debated appropriation 104 This bill makes you live up to that responsibility 107 . S., F ., Dennis Hoffman & Vincent J. Webb, . at 347–48. . at 4829–30stating (emphasis added) (quoting Sen. Kristensen as EB e.g N , See id See See id See The legislative history also reveals a strong emphasis on “acting The legislative history also reveals The legislative history of the Nebraska statute illustrates the ap- illustrates the the Nebraska statute history of The legislative Acknowledging the importance of incentives, the Nebraska leg- Acknowledging the importance of 104. 105. 106. 107. When you bring a bill that has a large fiscal impact that is go- a bill that has a large fiscal impact When you bring we have to be large amount of General Funds, ing to require a the money about that, and not pretend that straightforward . . . It’s going in somebody’s basement . will be manufactured of the reasons we are in to come out of tax money. . . . [O]ne get all these programs that our current fiscal crisis is that we along with it. And even- are initiated . . . and no money passed tually that catches up with us. responsibly” as an elected public official. responsibly” as an elected public 70 and program budget separate to a be appropriated were to funds be expended could NYU ANNUAL SURVEYexpenses. medical OF AMERICAN LAW It is clear forth in Part I. framework set of the theoretical plicability [Vol. 70:41 the legisla- legislation that the proposed floor on from the role played a central under this framework predicted tive incentives legislative history of the legislation. Indeed, the in the enactment and illustrates the the theoretical framework, strongly reinforces justice bill involved in introducing a criminal legislative incentives For example, the state’s correctional population. likely to increase evidenced in the intertemporal cost shifting is the possibility of Crosby who cautioned: words of Senator \\jciprod01\productn\N\NYS\70-1\NYS110.txt unknown Seq: 30 24-FEB-15 11:35 the sponsor of a criminal justice bill projected to increase the state’s the sponsor of a criminal justice 4827 (1993) (emphasis added). state senators wished to act in furtherance of the public’s best inter- state senators wished to act in furtherance just how easy it is to increase est. But, these senators also recognized proper consideration to the ex- criminal sanctions without giving run. This focus on opportunistic pected fiscal impact in the long to the information disclo- legislative behavior reinforces, contrary the claim that the problem of sure model of sentencing regulation, so much informational as it is inefficient sentencing policy is not incentives based. solution to prison overcrowd- islature set forth an incentives-based ing in the state. “If you’re going to build prisons and you’re going to increase the penalties, you’ve got to pay for it. . . . braska: The Feasibility of Intensive Supervision Probation 36095-nys_70-1 Sheet No. 41 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 41 36095-nys_70-1 36095-nys_70-1 Sheet No. 42 Side A 03/04/2015 07:12:55 This would hold true even if This would hold http://digitalcommons.unl.edu/cgi/ 109 available at B. A Separation of Powers Issue note 39 and accompanying text. —a practice commonly referred to as legislative en- See id. See supra 110 In states with this appropriate mechanism, it is no longer mechanism, with this appropriate In states There is an important constitutional separation of powers issue There is an important constitutional Without such a mechanism in place, there is little incentive for in place, there is little Without such a mechanism 108 108. 109. 110. requirements impose To the extent that these statutory appropriation 1, 3 (Russell L. Smith ed., 1988), 2014] DECISIONS OF SENTENCING THE REGULATION prac- the very confront to obligated is now population correctional to pay necessary the funding finding of problem and strategic tical proposed impact of the estimated fiscal proportion of the for some 71 bill. \\jciprod01\productn\N\NYS\70-1\NYS110.txt unknown Seq: 31 24-FEB-15 11:35 simply a matter of convincing fellow legislators that the proposed that the fellow legislators matter of convincing simply a further of the bill must or fair; the sponsor sentence is just criminal also worth sanction is that the proposed fellow legislators convince appropria- resources are scarce. A required paying for. Budgetary funds can no fiscal period implies that revenue tion in the current programs. Thus, to other legislative initiatives or longer be devoted elected officials requirement pits the statutory appropriation funds. in a legislative fight for limited against each other policy and risk be- more punitive sentencing a legislator to oppose as “soft on crime.” ing characterized the length pressing social issue because increasing crime was not a financial sentence is unlikely to pose a significant of a given prison longer the case, legislative session. This is no cost in the current in sentencing policy now comes at however, if the proposed change on other legislative initiatives the expense of government spending productive form of legislative or programs. By introducing a socially requirement increases the bargaining, the statutory appropriation more punitive sentencing private cost to legislators of supporting to take more responsible policy, which, in turn, forces legislators fiscal impact of longer prison account of the expected long-run sentences. statutory appropriation require- that arises in connection with these can be made that such require- ments. Specifically, an argument power of future legislatures to ments impermissibly bind the legislate viewcontent.cgi?article=1014&context=cpar. does not extend to such officials who duties on executive officials, the argument are legally obligated to follow the statute until it is amended or repealed. Likewise, to the extent that these appropriation requirements impose duties upon legislative budget offices, a court would likely interpret the statutory appropriation require- ment as a rule of proceeding and conclude that this rule, so long as it is consistent with other rules, is binding upon legislative budget offices. 36095-nys_70-1 Sheet No. 42 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 42 36095-nys_70-1 36095-nys_70-1 Sheet No. 42 Side B 03/04/2015 07:12:55 EO see also , 85 G L.J. 1665, Eric A. Pos- ALE But see , 111 Y Vill. of N. Atlanta v. 112 . . J. 379, 379 (1987); No cost estimates, how- No cost see also ES 113 . R OUND On June 20, 1995, Nebraska Attor- On June 20, 1995, § 9 (1953)); Without such items, the legislation Without such items, Temporal Limits on the Legislative Mandate: En- Temporal Limits on the Legislative Mandate: 117 . B. F The court granted the application to The court granted 115 114 M 116 TATUTES S , 1987 A Legislative Entrenchment: A Reappraisal State ex rel. Stenberg v. Moore v. ex rel. Stenberg State Julian N. Eule, Majoritarian Judicial Review: The Entrenchment Problem Majoritarian Judicial Review: The Entrenchment Stenberg v. Moore, 544 N.W.2d 344, 348 (Neb. 1996) (citing Stenberg v. Moore, 544 N.W.2d 344, 348 118 ECUNDUM This issue was examined at length by the Nebraska length by at examined issue was This S ex rel. 111 URIS . at 346–47. . at 346. . at 347. . at 346. . J See generally Id Id Id Id Id In its analysis of the case, the Nebraska Supreme Court ex- the case, the Nebraska Supreme In its analysis of The facts of the case are as follows: in 1995 the Nebraska Legis- the Nebraska as follows: in 1995 of the case are The facts ORPUS 111. 112. 544 N.W.2d 344 (Neb. 1996). 113. 114. 115. 116. 117. 118. State One legislature cannot bind a succeeding legislature or restrict One legislature cannot bind a succeeding to enact legislation, except or limit the power of its successors by it, and as to rights which as to valid contracts entered into acts, and no action by one have actually vested under its a subsequent session of the branch of the legislature can bind same branch. L.J. 491, 509 (1997) (stating that legislative entrenchment is “inconsistent with the L.J. 491, 509 (1997) (stating that legislative rule themselves”). democratic principle that present majorities ner & Adrian Vermeule, plained the applicable constitutional rule: plained the applicable 72trenchment. NYU ANNUAL SURVEY OF AMERICAN LAW pro- various provisions which contained L.B. 371, lature passed inmate and juvenile average daily adult increase the jected to [Vol. 70:41 facilities. in state correctional population \\jciprod01\productn\N\NYS\70-1\NYS110.txt unknown Seq: 32 24-FEB-15 11:35 was rendered “null and void.” was rendered “null original action in Stenberg filed a petition for an ney General Don judgment find- Court, seeking a declaratory the Nebraska Supreme articles of the 50-129 and 50-130 violated specific ing that sections Nebraska state constitution. Supreme Court in Court Supreme action. commence an original ever, were formally included in the legislation, as required under as required in the legislation, formally included ever, were appropriations the enacted law, and no separate section 50-129 of as also re- along with the enacted legislation, bill was submitted 50-129. quired under section trenchment and Retroactivity that one legislature “cannot tie the Cook, 133 S.E.2d 585, 589 (Ga. 1963) (stating hands of its successors, or impose upon them conditions, with reference to subjects upon which they have equal power to legislate”); Atlas v. Wayne Cnty., 275 N.W. to 507, 509 (Mich. 1937) (“The power to amend and repeal legislation as well as its enact it is vested in the Legislature, and the Legislature cannot restrict or limit for right to exercise the power of legislation by prescribing modes of procedure Michael J. Klarman, 1666 (2002) (arguing that “entrenchment is both constitutionally permissible and, 1666 (2002) (arguing that “entrenchment attractive”). in appropriate circumstances, normatively 82 C 36095-nys_70-1 Sheet No. 42 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 42 36095-nys_70-1 36095-nys_70-1 Sheet No. 43 Side A 03/04/2015 07:12:55 The 119 . §§ 50-129, 50- TAT . S The court struck EV 120 . R EB The Virginia statute, however, is The Virginia statute, Stenberg v. Moore, 544 N.W.2d 344, 347 123 ex rel. . § 30-19.1:4 (2014). NN . art. IV, § 14. Further, the Virginia Constitution “is a A State ONST ODE Town of Madison, Inc. v. Ford, 498 S.E.2d 235, 236 (Va. Town of Madison, Inc. v. Ford, 498 S.E.2d . C . C 121 A A , 544 N.W.2d at 349 (“The Nebraska Constitution is not a grant, , 544 N.W.2d at 349 (“The Nebraska Constitution V 1993 Neb. Laws 507 (codified at N see also invalidated by with . Both statutes require a fiscal impact statement and corre- a fiscal impact statement Both statutes require See Moore Id. Id Compare 122 To better understand what is constitutionally required in order what is constitutionally required To better understand Unlike the U.S. Congress, which receives its grants of power grants its receives which Congress, the U.S. Unlike 119. 120. 121. 122. in Virginia cannot bind a suc- Just as in Nebraska, the current legislature 123. not to bind future legislators to the statutory appropriation require- legislators to the statutory appropriation not to bind future to compare the here, it is instructive ments under consideration with that in Vir- requirement in Nebraska statutory appropriation ginia. may one Legislature restrict or limit the the repeal or amendment of statutes; nor is true of statutes enacted by the legisla- power of its successors.”). Note that what public vote, “for when the people pass an ture is also true of initiatives enacted by that is coextensive with that of the legisla- initiative, they exercise legislative power v. Gregoire, 174 P.3d 1142, 1145 (Wash. ture.” Wash. State Farm Bureau Fed’n no more bind a current legislature than 2007) (“A previously passed initiative can a previously enacted statute.”). power, and the Legislature may legislate but rather, is a restriction on legislative Constitution.”). upon any subject not prohibited by the power of its successors to enact legisla- ceeding legislature or restrict or limit the Constitution sets forth the powers and tion. Article IV, section 14 of the Virginia providing, in relevant part, that limitations of the Virginia General Assembly, shall extend to all subjects of legislation “[t]he authority of the General Assembly a specific grant of authority in this Consti- not herein forbidden or restricted; and of its authority upon the same or tution upon a subject shall not work a restriction any other subject.” V 2014] DECISIONS OF SENTENCING THE REGULATION is ple- power Legislature’s Nebraska the Constitution, the U.S. from state constitution. of the by the provisions nary, limited 73 \\jciprod01\productn\N\NYS\70-1\NYS110.txt unknown Seq: 33 24-FEB-15 11:35 more flexible and allows the succeeding legislatures freedom to more flexible and allows the succeeding sponding one-year appropriation for any bill likely to increase the appropriation for any bill likely sponding one-year population. state’s corrections restraining instrument, and the General Assembly possesses all legislative power restraining instrument, and the General v. Commonwealth, 732 S.E.2d 22, not prohibited by the constitution.” Gallagher 26 (Va. 2012); 1998) (“[T]he Virginia Constitution is a restriction of powers, establishing the lim- its of governmental action.”). down the statutory appropriation requirement as an impermissible appropriation requirement as down the statutory legislatures to on the power of succeeding restriction or limitation enact legislation. (Neb. 1996), 130 (1996)), court held that, absent a constitutional restriction on the legislative on the constitutional restriction that, absent a court held legisla- prohibited one plenary power state legislature’s power, the certain legislature include a succeeding demanding that ture from projected in all legislation bills and appropriations cost provisions correctional population. to increase the state’s 36095-nys_70-1 Sheet No. 43 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 43 36095-nys_70-1 36095-nys_70-1 Sheet No. 43 Side B 03/04/2015 07:12:55 129 130 court sought Moore to appropriate some The Nebraska law, by The Nebraska law, 126 128 intention or (July 11, 1996), http://dls.virginia.gov/pubs/ promise by the Department of Correctional by the Department RIEF Binding the Hands of Future Legislators: The Nebraska v. Binding the Hands of Future Legislators: The B note 124. only In Virginia, a one-year appropriation must be appropriation a one-year In Virginia, SSUE 124 . I supra for adult inmate and juvenile per diem and medi- for adult inmate EGIS , Frederick v. Presque Isle Cnty. Circuit Judge, 476 N.W.2d 142, only . L e.g. A The Nebraska statute also contained a provision stating also contained a provision The Nebraska statute Putney, Joan E. Putney, , . . . . 125 ,V 127 and thus avoids the outcome that the and thus avoids the outcome that See Id Id Id Id See See 131 More generally speaking, any statutorily imposed future appro- More generally speaking, any statutorily In addition, even if a constitutional defect were located in Vir- if a constitutional defect were In addition, even Likewise in Virginia, the appropriated funds are placed in the are placed appropriated funds in Virginia, the Likewise 124. 125. 126. 127. 128. 129. 2013 Va. Acts 806. 130. 131. Even if a court holds that the statutory appropriation requirement Even if a court holds that the statutory legislatures, a future legisla- in Virginia is binding on succeeding free to ignore the statutory appro- ture would, nonetheless, still be bill thus supersedes the statutory priation requirement. The budget Virginia’s appropriation mecha- appropriation requirement, and to impermissibly restrict or nism cannot reasonably be interpreted to enact legislation. limit the power of succeeding legislatures priation merely expresses a Moore Case ginia’s statute, the statute would be saved by a provision in Vir- statute would be saved by a ginia’s statute, the states that “[n]otwithstanding any ginia’s budget bill. The provision of [the budget] shall pre- other provision of law . . . the provisions of any other law, without regard vail over any conflicting provision before or after this act.” to whether such other law is enacted 74 judi- from framework statutory the shielding action, legislative take result. as a cial veto NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 70:41 for capital be expended Fund and can Special Reserve Corrections studies the cost of planning or pre-planning expenses, including capital outlay projects. necessary to initiate \\jciprod01\productn\N\NYS\70-1\NYS110.txt unknown Seq: 34 24-FEB-15 11:35 that any legislation that failed to comply with the statutory appro- that failed to comply with the that any legislation and void”; Vir- was to be considered “null priation requirement no such provision. ginia’s statute contains made as part of the total budget bill in the year in which the legisla- year in which budget bill in the part of the total made as bill was appropriations a separate in Nebraska, tion is enacted; required. amount of money that is not binding upon subsequent legisla- amount of money that is not tures, briefs/BRIEF15.htm. contrast, required that the appropriated funds be used as contin- that the appropriated funds contrast, required gency funds cal expenses, and cal expenses, Services. 148 (Mich. 1991) (finding that a 1981 statute merely expressed a promise or inten- 36095-nys_70-1 Sheet No. 43 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 43 36095-nys_70-1 36095-nys_70-1 Sheet No. 44 Side A 03/04/2015 07:12:55 4 133 , the ASSAGE FFECT OF P TS I FTER . 08-195, E . O A Id . N P LECTED ., O E EN G Y 134 ’ TT SSEMBLY by the legislature, merely ex- legislature, merely by the A A . “Merely . . . placing [the monies] in a separate . “Merely . . . placing [the monies] in a ENERAL Id G ON FFICE OF THE .O Stenberg v. Moore, 544 N.W.2d 344, 348 (Neb. 1996). Stenberg v. Moore, 544 N.W.2d 344, 348 the statutory appropriation requirement was the statutory appropriation ENN http://www.tn.gov/attorneygeneral/op/2008/op/op195.pdf ex rel. T . § 9-4-210 even if subject to appropriation subject to NN The statutory appropriation requirements surveyed in surveyed requirements appropriation statutory The Associated Industries of Massachusetts v. Secretary of the Commonwealth Associated Industries of Massachusetts v. Secretary State A TATE OF 132 See available at ODE Finally, . C 132. 133. S 134. In ENN T presses a promise to appropriate in the future that succeeding legis- to appropriate in the future that presses a promise free to disregard. latures are perfectly tion the state would assume the responsibility of paying the fees of assigned that not bind the legislature with respect to appellate attorneys in the future and could appropriations made in 1988). 2014] DECISIONS OF SENTENCING THE REGULATION to avoid. 75 period in the current fiscal reserve fund in a special Placing money purpose in for a specific funds be used only that these and directing the future, \\jciprod01\productn\N\NYS\70-1\NYS110.txt unknown Seq: 35 24-FEB-15 11:35 Part II.A are therefore valid only as “rule[s] of legislative procedure legislative of only as “rule[s] valid therefore II.A are Part to pass legislatures are free where future in statutory form,” enacted requirements. with the appropriation do not comply laws that somehow legally binding, the requirement is not practically bind- binding, the requirement is not somehow legally statute mandating can amend or repeal the ing. A future legislature the appropriation in the first instance. Indeed, the appropriation insofar as future on future legislatures only requirement is binding is a sensi- that the proposed statutory mechanism legislators agree identified in inter-temporal externality problems ble solution to the that inter- legislature rejects the proposition Part I.A. If a future inefficient sentencing policy, then temporal cost-shifting results in (2008), (“[T]o the extent that [the appropriation requirement] imposes limits on the (“[T]o the extent that [the appropriation Tennessee Constitution, the statute is not General Assembly that are not in the General Assembly need not amend binding on a General Assembly. A subsequent or repeal the statute to avoid its requirements.”). Massachusetts Supreme Judicial Court concluded that in order for there to be an Massachusetts Supreme Judicial Court concluded from the public revenue must be set appropriation a certain sum of money derived that the executive officers of the aside “for a specified object, in such manner money, and no more, for that object and government are authorized to use that 1992) (citations omitted). The court for no other.” 595 N.E.2d 282, 286 (Mass. an appropriation occurs whenever public rejected the plaintiff’s contention that emphasizing that the monies must be monies are set aside for a specific purpose, officers of the government are author- set aside “in such manner that the executive “[i]t is not until the Executive Branch ized to use that money” and stating that that the monies are removed from the fur- becomes authorized to use the monies ther control of the Legislature.” fund does not necessarily remove them from the Legislature’s control,” nor does “directing that [the monies] be used for a specific purpose, while at the same time by acknowledging and providing that such use shall be ‘subject to appropriation’ its the Legislature” impermissibly impair the legislature’s discretion in exercising appropriative power as provided by the state constitution. 36095-nys_70-1 Sheet No. 44 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 44 36095-nys_70-1 36095-nys_70-1 Sheet No. 44 Side B 03/04/2015 07:12:55 ., . & , the CON See, e.g 135 . 917, 919 (1985). , 15 J.L. E EV ., George Baker, Robert . L. R e.g , AL See , 73 C ., Lenstrom v. Thone, 311 N.W.2d 884, 888 ., Lenstrom v. Thone, 311 N.W.2d 884, have an incentive to ignore or repeal incentive to ignore have an not 136 Informal Authority in Organizations See, e.g C. Best Practices Defined 1. Existing Statutory Provisions Institutional Aspects of Tort Reform Unless restricted by some provision of the state or federal Constitution Unless restricted by some provision of the state In the statutes examined above, the look-forward period (i.e., In the statutes examined above, Part II.C.1 introduces a set of best practices with respect to four Part II.C.1 introduces a set of best An important assumption underlying this proposal, however, is proposal, however, underlying this assumption An important The statutes surveyed above all differ in important respects, above all differ in important The statutes surveyed 135. future legislature from so acting, The current legislature cannot bar a 136. the political costs of choosing to Specifically, in any given fiscal period . 56 (1999) (providing a basic framing of the notion of “credible delegation”). RG Richard Pierce, suggesting a number of different ways to design a sensible statutory of different ways to design suggesting a number a set of best prac- Part II.C identifies appropriation requirement. addition, Part II.C existing statutory provisions. In tices in terms of in any existing leg- statutory provision not found introduces a novel in the manner in to an important asymmetry islation as a correction presently appropriation requirements which these statutory operate. Gibbons & Kevin J. Murphy, a. Proper Scope of Fiscal Impact Analysis statutorily mandated fiscal impact the period of time covered by the appropriation requirement as a provi- save perhaps by incorporating the statutory sion in the state constitution. the statutory appropriation requirement. Legislators will likely in- Legislators will requirement. appropriation the statutory a formal to dismantle costs in attempting political cur significant fiscal responsibility solely to promote mechanism designed statutory and public accountability. can be found in one or more key statutory provisions, each of which of the statutes surveyed in Part II.A. 76 created the statutorily repeal vote to simply could legislature that decisions. sentencing to regulate its ability on constraint NYU ANNUAL SURVEY OF AMERICAN LAW legislators will that future [Vol. 70:41 \\jciprod01\productn\N\NYS\70-1\NYS110.txt unknown Seq: 36 24-FEB-15 11:35 Also, simple legislative inertia will likely play an important role in ensuring that the Also, simple legislative inertia will likely play an important role in ensuring that commitment mechanism endures from one legislative session to the next. Legislature may enact laws and appropriate funds for the accomplishment of any Legislature may enact laws and appropriate public purpose.”) (emphasis added). a bill to repeal or amend the statu- ignore a required appropriation or sponsoring in this discussion to exceed the politi- tory appropriation requirement are assumed policy free of the implied statutory cal benefits of formulating sentencing for any legislative delegation intended constraints. This inequality must hold true to operate as an effective commitment mechanism. (Neb. 1981) (“ O 36095-nys_70-1 Sheet No. 44 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 44 36095-nys_70-1 36095-nys_70-1 Sheet No. 45 Side A 03/04/2015 07:12:55 . OF . TAT five . S NST first ROGRAMS EV I P . R ERA , V OLO Specifically, a USTICE C Impact Using J Projected Fiscal 138 See ATTHIES M PPROACH TO ARL NALYSIS FOR A C A 465, 474–75(examining (1998) Y ’ A fixed look-forward period look-forward A fixed NALYSIS OL 137 A see also ENEFIT $200,000$400,000 $0 $0 -B NTERVAL & P I AW OST MPACT C I , 20 L note 67. Colorado’s look-forward period operates note 67. Colorado’s look-forward period ISCAL supra F ONFIDENCE UALITY OF Q $0 $0 $0 http://cbkb.org/wp-content/uploads/2014/03/Advancing- Sentencing Commissions as Centers for Policy Analysis and Research: Sentencing Commissions as Centers for Policy 2: C $400,000) $800,000) Estimated Projected Fiscal Five-Year Look ($200,000, ($400,000, ABLE sources cited T available at DVANCING THE See , A A common justification for these fixed look-forward periods is periods for these fixed look-forward justification A common 138. Kim Hunt, 137. . § 2-2-703 (2014) (emphasis added). Year Confidence Interval Impact Forward Period NN Year 5 Year 6 Year 7 USTICE the-quality-of-CBA.pdf. If a statutorily imposed restriction or limitation on legisla- tive decisionmaking can be undone, quickly and at relatively low cost, then future legislatures will simply renege on the decision to delegate made in the current time period. Accordingly, there would be no real sense that the statutorily created commitment mechanism constrains the optimizing decisions of future legislatures. Illustrations from the Budget Process J 35 (2014), 2014] DECISIONS OF SENTENCING THE REGULATION to a Nebraska years in of four a minimum from ranges statement) in Tennessee. ten years of maximum 77 \\jciprod01\productn\N\NYS\70-1\NYS110.txt unknown Seq: 37 24-FEB-15 11:35 is a flawed approach, however, and should be replaced with a prop- be replaced with and should approach, however, is a flawed estimate. interval erly constructed further to diminish the forecast tends accuracy of a fiscal that the the use simple, Although conceptually the projection. out in time across dif- chosen threshold that remains constant of an arbitrarily blunt response to analyses is an unnecessarily ferent fiscal impact be to model the A better approach would estimation uncertainty. interval estimates estimate explicitly by providing reliability of the fiscal impact for each fiscal period. of the expected confidence interval could be estimated using standard statistical could be estimated using confidence interval change in sen- the projected fiscal impact of the techniques, and equal to the lower each fiscal period could be set tencing policy in is negative). Ta- (or zero if the lower bound bound of this interval sentence in- this approach for a hypothetical ble 2 summarizes to ten years in length: crease, from five slightly differently in that an appropriation must be made “in each of the slightly differently in that an appropriation years in which there is a fiscal impact as a result of the bill.” years in which there is a fiscal impact as Monte Carlo analysis, which generates a single estimate and confidence interval of Monte Carlo analysis, which generates a the forecasted impact of a policy change); A 36095-nys_70-1 Sheet No. 45 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 45 36095-nys_70-1 36095-nys_70-1 Sheet No. 45 Side B 03/04/2015 07:12:55 note . 673, ., Mona OL g . supra . P 140 e , UB See . & P fiscal period. sources cited RIMINOL See current This estimation strategy This estimation , 10 C . The need for some form of cost 139 $0 $0 $0 $0 fiscal periods, but also the fiscal costs $500,000 $0 $1,100,000 $0 and Locale , future in its entirety note 67. expenses, such as prison construction supra Legal Change , capital ($500,000, (-$400,000, Table 2. $5,200,000) $1,300,000) $2,800,000) (-$1,200,000, sources cited costs; they do not require the analysis to consider the esti- costs; they do not require the analysis See supra See Recall that the intended purpose of the statutory appropri- Recall that the intended purpose Mass Incarceration 141 All of the statutory appropriation requirements surveyed appropriation requirements All of the statutory Under the proposed confidence interval approach, the esti- confidence interval approach, Under the proposed 139. 140. surveyed above for review of No provision is made in any of the statutes 141. TOTAL Year 10 Year 8 Year Year 9 Lynch, bills projected to have a fiscal impact upon local and regional jails, state and local bills projected to have a fiscal impact upon facilities. community programs, or juvenile detention review to include such correctional facili- 67. Although expanding the fiscal impact of fiscal analysts, this cost is offset by the ties would certainly increase the workload the fiscal impact of a proposed criminal benefits of a more accurate estimate of sanction upon the corrections system to local or regional jail facilities or internalization is especially acute with respect This is because state actors community programs funded by local municipalities. an increase in local or regional correc- can enact criminal sanctions leading to the definition of certain low-level misde- tional populations, such as expanding full projected fiscal costs. meanor offenses, without incurring the above, with the exception of the Colorado statute, only require fis- of the Colorado statute, above, with the exception the estimated increase in annual cal impact statements to reflect operating 78 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 70:41 is equal to $1.1 of the longer prison sentence mated fiscal impact million—not given a statu- is the estimated fiscal impact $0, which period of five years. tory look-forward mated increase in \\jciprod01\productn\N\NYS\70-1\NYS110.txt unknown Seq: 38 24-FEB-15 11:35 ation requirement is to force the present legislature to adopt a suffi- ation requirement is to force the respect to sentencing decisions, ciently long-run time horizon with provides a more reliable estimate of the expected fiscal impact, rec- reliable estimate of the expected provides a more fiscal impact esti- to which the reliability of a ognizing the extent increases. the forecasting time horizon mate decreases as costs. 682 (2011) (“[C]riminal justice policy is made and put into action at the munici- 682 (2011) (“[C]riminal justice policy is the thousands of organizations that com- pal, county, state, and national levels, and for the most part, relatively autonomous prise this criminal justice network are, the scope of the fiscal analysis to both horizontally and vertically.”). By defining re- include all such correctional facilities, the proposed statutory appropriation quirement will, therefore, serve not only to internalize the fiscal costs imposed upon succeeding state legislatures in imposed upon local or regional legislatures in the 36095-nys_70-1 Sheet No. 45 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 45 36095-nys_70-1 36095-nys_70-1 Sheet No. 46 Side A 03/04/2015 07:12:55 145 142 as a . § 24-75- . “Average TAT . S EV operating costs . §§ 50-129, 50-130 . R TAT OLO . S EV ., C e.g . R ., average total costs average total EB Cf as opposed to annual Stenberg v. Moore, 544 N.W.2d 344, 347 (Neb. whereas other statutes (e.g., Virginia’s) 144 ex rel. This is overly broad. Expenditures from the This is overly broad. Expenditures . § 30-19.1:4 (2014). NN 146 average total costs A State ODE note 97 and accompanying text. Part II.A. to build up large cash reserves to fund new prison construction to build up large cash reserves to fund . C 143 not A 1993 Neb. Laws 507 (codified at N V See supra See supra See See invalidated by Best practices would allow special reserve funds to be appropri- allow special reserve funds to Best practices would 142. 143. as opposed to operating costs is Note that the use of average total costs 144. 146. 145. there is no need to limit expenditures of special reserve funds to to limit expenditures of special there is no need total costs” is defined here to mean all costs including capital outlay here to mean all costs including total costs” is defined lifespan of the costs amortized over the expected costs, with capital capital asset. recommended of new correctional facilities—theor to support the operating expenses special fund. reserve fund is not a capital construction b. Reserve Fund Features of the Special expenses— for either capital or operating ated by the legislature eitherhowever, statutes discussed in Part II.A, type of expense. The from the the limitations placed upon expenditures vary in terms of (e.g., Nebraska’s) limit expendi- special reserve fund. Some statutes operational expenses of the tures of special reserve funds to specific corrections department, Mexico bill allows monies in the Further, the proposed 2013 New “by the legislature for any special reserve fund to be appropriated the operational costs of the cor- criminal justice purpose, including attorneys and the public de- rections department, courts, district fender department.” 2014] DECISIONS OF SENTENCING THE REGULATION social benefits and long-run short-run the both balancing correctly social costs. corresponding the against changes of proposed of input in this weighing are an important capital expenses Clearly, 79 different are a number of Although there and benefits. social costs advocated the approach internalization, this cost ways to implement statement fiscal impact that the estimated simply require here is to in annual estimated increase reflect the \\jciprod01\productn\N\NYS\70-1\NYS110.txt unknown Seq: 39 24-FEB-15 11:35 proper strengthening of this incentive. limit expenditures of special reserve funds to capital expenses. limit expenditures of special reserve special reserve fund should be limited to spending on the correc- special reserve fund should be limited (1996)), 1996). 302 (2014) (creating a capital construction fund in which funds may be appropri- 302 (2014) (creating a capital construction remodeling or renovation of existing cor- ated for prison construction, including Rather, in accordance with the more rections buildings or other physical facilities). is simply to provide an incentive for legis- limited purpose of the statute, the intent to properly balance criminal justice priori- lators, characterized by short-run bias, and our proposed best practices advocate ties with available correctional resources, for the use of annual 36095-nys_70-1 Sheet No. 46 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 46 36095-nys_70-1 36095-nys_70-1 Sheet No. 46 Side B 03/04/2015 07:12:55 , there should The language realized. 148 Second first 147 note 79, at 23. , the fund should obviously , the fund supra First , shall be appropriated in the bill in the EPORT R . § 2-2-703 (2014). NN . A but too easily allows legislators to substitute but too easily allows TAT 149 UBCOMMITTEE . S S EV . R OINT J 150 OLO . See See id. Similarly, in Tennessee, section 9-4-210(a) states that the esti- Similarly, in Tennessee, section Both the Colorado and Tennessee statutes contain interesting Both the Colorado and Tennessee There are two other important constraints that should apply to that should apply constraints two other important There are 147. This is true of all the statutes surveyed in Part II.A. 148. 149. 150. C [M]oneys sufficient to cover such increased capital construc- [M]oneys sufficient to cover such costs for the first five fiscal tion costs and increased operating as a result of the bill shall years in which there is a fiscal impact committee, and after con- be estimated by the appropriations general assembly shall make a sideration of such estimate, the of moneys sufficient to cover determination as to the amount the costs, and such moneys the general fund in the years form of a statutory appropriation from affected mates of appropriations “may be adjusted to determine the amount mates of appropriations “may be to be repeated for the en- of appropriations of recurring revenues c. The Utility of an Appropriations Schedule appropriation beyond one year. provisions that extend the required 2-2-703 states: In Colorado, for example, section 80 internalized to be costs meant the these are as department, tions mechanism. appropriation the statutory under NYU ANNUAL SURVEY OF AMERICAN LAW fund. the special reserve monies in [Vol. 70:41 \\jciprod01\productn\N\NYS\70-1\NYS110.txt unknown Seq: 40 24-FEB-15 11:35 spending appropriated from the general fund in the current fiscal from the general fund in spending appropriated reserve fund in appropriated from the special period with spending required fiscal period. Instead, the appropriation the subsequent in a separate impact statement should be placed under the fiscal fund and should be appropriated account within the special reserve for expenditure only of the bill for which the when the fiscal impact made is statutory appropriation was originally be restrictions placed upon the timing of expenditures from the upon the timing of expenditures be restrictions placed eliminated the For instance, in 2000, Virginia special reserve fund. fund shall not be from its statute: “money in the following language year in which the expenditure prior to the first appropriated for such bill is expected to occur.” fiscal impact of any be nonreverting, meaning that the fund balance remaining at the balance remaining that the fund meaning be nonreverting, fund, but to the general not “revert” back fiscal year does end of the reserve fund. within the special instead stays was deleted in order to provide greater flexibility in the use of spe- to provide greater flexibility was deleted in order cial reserve funds, 36095-nys_70-1 Sheet No. 46 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 46 36095-nys_70-1 36095-nys_70-1 Sheet No. 47 Side A 03/04/2015 07:12:55 & http:// ILHELM HANGING THE F. W C available at RISIS ANIEL C 151 UDGET .” B ? 9 (2002), . § 74-9101(b)(15) (2014). This NN S THE . A ,I TAT . S USTICE NCARCERATION J AN I OF f no adjustment is made, then the amount of amount then the is made, adjustment f no . ] i NST Although this statutory provision implicates Although this statutory I . § 9-4-210 (2014) (emphasis added). NN 152 ERA A , V ENTENCING AND ODE S . C URNER ENN OOK AT R. T L E Moreover, recall that the funds are specifically set aside for Moreover, recall that the funds In addition to a one-year appropriation based upon the Vir- based upon the appropriation to a one-year In addition Notwithstanding, the appropriation schedule satisfies an im- the appropriation schedule satisfies Notwithstanding, 151. T 152. is made by the current This assumes, of course, that no adjustment 153. fails to put aside $50,000 as Suppose, for instance, that the legislature W 153 AY ICHOLAS W 2014] DECISIONS OF SENTENCING THE REGULATION “[ and fiscal year,” suing repeated shall be made previously appropriations 81 sched- an appropriations would include best practices ginia model, an statutes. Specifically, or Tennessee to the Colorado ule similar be re- reserve fund would to the special appropriation additional appro- the initial one-year years following each of the four quired in annual fiscal equal to the bill’s estimated priation in an amount impact in that year. \\jciprod01\productn\N\NYS\70-1\NYS110.txt unknown Seq: 41 24-FEB-15 11:35 spending on corrections. Coordinated interests that benefit from spending on corrections. Coordinated staff) would likely protest this monetary set-aside (e.g., corrections in a highly focused and organized any retraction of promised funds complaints have electoral ramifi- manner. To the extent that these the appropriation schedule, al- cations for current legislators, the constitutional concerns first raised in Part II.B, the future ap- concerns first raised in Part II.B, the constitutional expressing a should be understood as merely propriations schedule from the general to future appropriations promise with regard binding upon subsequent legislatures. fund that is not funding plan purpose in setting forth a concrete portant political policy. While fu- enacted change in sentencing with respect to an of prior legis- are free to ignore the funding plans ture legislatures to do so arguably invite criticism latures, legislators who choose and public accountabil- from proponents of fiscal responsibility ity. legislature. special reserve fund. This defection will scheduled, depositing instead $0 into the of future budgetary shortfalls (i.e., as a likely serve as a credible early-warning sign signing checks that it cannot cash). Kan- signal that the government is potentially provision that is similarly concerned sas’ fiscal note legislation contains a unique commission is directed, under its with early-warning signs. The state sentencing the impact of specific options for . . . enabling legislation, to “identify and analyze if fiscal impact projections show that reducing the number of prison admissions” inmate population will exceed available the state’s “projections indicate that the prison capacity within two years.” K www.vera.org/sites/default/files/resources/downloads/IIB_Budget_crisis.pdf. N “early-warning system” accomplishes two objectives: (1) it alerts the legislature of a “early-warning system” accomplishes two (2) it avoids putting legislators “in the possible impending budget shortfall, and sometimes politically perilous position of having to request ‘options to reduce prison population’ or formulate those options themselves.” D 36095-nys_70-1 Sheet No. 47 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 47 36095-nys_70-1 36095-nys_70-1 Sheet No. 47 Side B 03/04/2015 07:12:55 . Id Specifically, a minimum Informative fiscal impact Informative fiscal 157 156 155 This, however, completely undermines This, however, completely note 67. 154 . supra 2. A Novel Statutory Provision Part I.B. indeterminate note 97. The bill also requires the judiciary to provide any requested Or. Cable Telecommc’ns Ass’n v. Dep’t of Revenue, 240 P.3d 1122, Or. Cable Telecommc’ns Ass’n v. Dep’t sources cited See See supra Cf. Part II.C.2 proposes an additional manner in which monies Part II.C.2 proposes an additional The statutes surveyed above all contemplate that if the fiscal that if the all contemplate surveyed above The statutes See supra 154. 155. 156. 157. best practices would also re- In addition to a minimum default estimate, can be withdrawn from the special reserve fund. The size of the can be withdrawn from the special practices for appropriation, is reserve fund, even if following best presently the case in states such as likely to be much larger than is in a special reserve fund is Virginia. Money simply accumulating a result, there is likely to be pres- relatively inefficient, however. As special reserve fund—particularlysure to withdraw money from the agencies must explain why a projection 1130 (Or. Ct. App. 2010) (stating that state feasible and requiring such agencies to of fiscal impacts on small businesses is not information required to project a fiscal make “necessary efforts to ascertain” the impact). data collection. In New Mexico, for ex- quire rigorous information provision and the ample, the proposed bill requires the corrections department to provide operating cost per inmate and the number of inmates in adult correctional facili- ties, as well as admission and release data for all inmates in adult correctional facili- ties. 82 on restriction useful a still provides binding, legally not though behavior. legislative opportunistic myopic, NYU ANNUAL SURVEY OF AMERICAN LAWd. Fiscal Impacts of Indeterminate The Problem [Vol. 70:41 a fiscal im- to project sufficient information not possess analyst does should be bill, then the fiscal impact statement pact for a proposed reported as \\jciprod01\productn\N\NYS\70-1\NYS110.txt unknown Seq: 42 24-FEB-15 11:35 default amount should be assigned to any bill for which the fiscal should be assigned to any bill for default amount estimate the fiscal possess sufficient information to analyst does not size of this mini- determining the appropriate impact. Although open empirical question, some mum default amount remains an to counter the strong legislative type of penalty or fine is needed scrutiny. incentive to avoid fiscal impact statements are also critical to the success of the statutory appropria- critical to the success of the statutory statements are also reduce the fre- Accordingly, policy ought to tion requirement. fiscal impacts. quency of indeterminate the purpose of the information disclosure model to sentencing reg- information disclosure model the purpose of the as the rea- a lack of fiscal impact information ulation, which views sentencing policy. son for inefficient data necessary to prepare fiscal impact statements. 36095-nys_70-1 Sheet No. 47 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 47 36095-nys_70-1 36095-nys_70-1 Sheet No. 48 Side A 03/04/2015 07:12:55 , 61 Part , 64 U. 158 socially optimal . 217 (1982); Kay A. not EV Good Conduct Time: How Why Are Tough on Crime Policies in the short run, even if in the short run, cost Instead, the sponsor of such a Instead, the sponsor proposing a shorter prison sen- proposing a shorter , 30 UCLA L. R 161 160 . 9 (1999). Nora V. Demleitner, EV These measures are often much too These measures are often much R Y 162 ’ note 39; Marc Mauer, OL supra See generally The converse is also true. Due to the aforemen- The converse is in the corrections population. Such a provision Such a corrections population. in the . L. & P 159 Part I.A.1.c. note 39 and accompanying text. TAN Alschuler, Brown v. Plata, 131 S. Ct. 1910, 1923 (2011) (stating that “[Califor- Brown v. Plata, 131 S. Ct. 1910, 1923 decrease , 11 S . 777 (2009) (offering a positive account of good time); James B. Jacobs, See supra See supra See See EV Allocation of Discretion and Accountability Within Sentencing Structures As a specific example, legislatures tend to address the problem As a specific example, legislatures Recall that Part I.A set forth the claim that proposing a longer I.A set forth the claim that proposing Recall that Part 158. the Social Security Administration, Like the two trust funds controlled by 159. 160. 161. 162. . L. R LA the special reserve fund could be required, by law, to be invested in non-marketa- the special reserve fund could be required, the “full faith and credit” of the federal ble securities issued and guaranteed by government. 2014] DECISIONS OF SENTENCING THE REGULATION crisis. of fiscal periods and in is large balance the fund when 83 \\jciprod01\productn\N\NYS\70-1\NYS110.txt unknown Seq: 43 24-FEB-15 11:35 Sentencing by Prison Personnel: Good Time tioned “soft on crime” rhetoric, tioned “soft on crime” tence can imply a private political tence can imply in the long run. socially optimal Much and for Whom? The Unprincipled Approach of the Model Penal Code: Sentencing F bill must rely upon abstract notions of fiscal responsibility and pub- abstract notions of fiscal responsibility bill must rely upon ill-informed to convince an otherwise generally lic accountability is sound public less punitive criminal sentence electorate that the make, however, as difficult political argument to policy. This is a that the legislator can point to, in there is rarely tangible evidence the less punitive sentence. The the current fiscal period, to support statutory provision is that a legis- rationale underpinning our novel the special reserve fund in the lator can now use withdrawals from immediate proof of the fiscal ben- current fiscal period as concrete, policy. efits of less punitive sentencing shortfalls in the corrections of prison overcrowding and other policy initiatives, such as diversion budget with a series of reactive on good-time credits, in response or early-release programs based to a looming fiscal crisis. nia] may employ measures, including good-time credits and diversion of low-risk nia] may employ measures, including good-time to community-based programs” to reduce offenders and technical parole violators its prison population). So Popular? II.C.2 explains how money could be additionally withdrawn from withdrawn additionally could be money how explains II.C.2 pro- impact statements on the basis of fiscal reserve fund the special jecting a Knapp, does not exist in any of the statutory appropriation requirements the statutory appropriation exist in any of does not contribu- main theoretical represents the in Part II.A, and surveyed present article. tion of the in the short can imply a private political benefit prison sentence longer prison sentence itself is run, even if the in the long run. 36095-nys_70-1 Sheet No. 48 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 48 36095-nys_70-1 36095-nys_70-1 Sheet No. 48 Side B 03/04/2015 07:12:55 Leg- 166 At present, , to the bene- 164 881 (2011) (outlining Y ’ OL . P UB 402, 415 (1986) (identifying poten- & P in the current fiscal period in the current fiscal ELINQUENCY Using Early Release to Relieve Prison Crowding: A Di- Using Early Release to Relieve Prison Crowding: RIMINOLOGY & D RIME , 10 C note 162, at 220 (explaining that releasing prisoners for note 162, at 220 (explaining that releasing supra , 32 C the existing fund balance is zero. Further, the fund itself could the existing fund balance is zero. Further, Too Early Is Too Soon: Lessons from the Montana Department of Correc- Too Early Is Too Soon: Lessons from the Montana ., James Austin, Jacobs, . 679, 681–82reactive policy reforms trans- (1993) (noting how these only if EV 165 See See, e.g Enacting a series of reactive reforms, often in a state of public reforms, often a series of reactive Enacting Significantly, this model corrects an asymmetry in the manner model corrects an asymmetry in Significantly, this . L. R 163. 166. Interestingly, pressure applied by legislators on fiscal analysts to project 164. 165. criminal sanctions in a given fiscal Provided the net effect of all enacted 163 OLO in which such appropriation mechanisms presently operate. mechanisms presently in which such appropriation C 84 re- often measures such Moreover, broad. and overly ad hoc, late, in of classification a system without prematurely, inmates lease NYU ANNUAL SURVEY the pub- to increase risk to least likely select those inmates place to OF AMERICAN LAWlic. [Vol. 70:41 \\jciprod01\productn\N\NYS\70-1\NYS110.txt unknown Seq: 44 24-FEB-15 11:35 fit of the legislator directly responsible for the expected budgetary directly responsible for the expected fit of the legislator windfall. fer discretion on release of inmates from judges to correctional officials). fer discretion on release of inmates from alternatively be enlarged by gifts, grants, donations, or bequests made to the fund alternatively be enlarged by gifts, grants, want to maintain this statutorily created by private citizens or other entities that projected to decrease the long-run equi- incentive for legislators to introduce bills librium corrections population. large fiscal cost savings may expose and offset an existing bias to project small fiscal cost savings. That is, to the extent that current fiscal estimates tend to be down- wardly biased, the proposed statutory provision introduces a competing upward emergency, is at best a temporary solution to the problem, and is to the problem, temporary solution is at best a emergency, to measures designed forward-looking to rational, surely inferior fiscal crisis. other forms of overcrowding and prevent however, there exists little incentive for a rational, forward-looking little incentive for a rational, however, there exists statutory pro- such measures. The proposed legislator to introduce a withdrawal missing incentive by permitting vision supplies this reserve fund from the special tial financial and nonpecuniary victim costs and excessive discretion given to tial financial and nonpecuniary victim side” of early release); Kevin A. Wright & correctional administrators as a “dark Jeffrey W. Rosky, tions Early Release Program lemma in Public Policy good time “shift[s] sentencing discretion from centralized parole authorities to good time “shift[s] sentencing discretion visible and are arguably more subject to prison guards, whose decisions are far less abuse.”). inadequacies of alternative release procedures). be insufficient money in the special reserve period is negative, in theory, there may from the special reserve fund fund to cover all statutorily required appropriations proposed statutory provision assumes a to the general fund; in other words, the problem of a zero fund balance is likely to non-zero fund balance. Empirically, the requirement has generally suc- be small and would suggest that the appropriation inefficient criminal sanctions. Note that ceeded in solving the larger problem of sought to maximize the size of the this concern explains, in part, why best practices of non-zero fund balances, our proposed special reserve fund. To address the issue such that the required appropriation novel statutory provision could be modified is operable 36095-nys_70-1 Sheet No. 48 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 48 36095-nys_70-1 36095-nys_70-1 Sheet No. 49 Side A 03/04/2015 07:12:55 , respectively). sentencing generated by cost-savings inefficient fiscal impact in the long fiscal impact and fiscal positive externalities costs positive generated by fiscal impact in the long run, but do not but do run, in the long impact fiscal Part II.C.1.a. A similar procedure would apply to the Part II.C.1.a. A similar procedure would D. The Empirical Evidence negative See supra negative externalities Thus, the legislator is given another way to explain to the is given another way to explain Thus, the legislator 168 sentencing policy. Specifically, the sponsor of the bill can Specifically, the sponsor of sentencing policy. 167 Part II.D further clarifies how the proposed statutory appropri- Part II.D further clarifies how the 167. to increase the corrections As has been stated, bills that are estimated 168. bill and the fiscal cost savings im- The link between the sponsor of the ation requirement operates and identifies several areas of imple- ation requirement operates and bias likely to counter it, potentially leading to more accurate fiscal estimates in bias likely to counter it, potentially leading general (i.e., across those projecting fiscal population will give rise to a fiscal impact statement indicating the average total population will give rise to a fiscal impact the general fund to the special reserve cost increases, and an appropriation from fund must be made. 2014] DECISIONS OF SENTENCING THE REGULATION bill is if a proposed period fiscal the current a cost in incur islators have a to projected 85 such provision has been incorporated appropriations schedule to the extent that into the statutory appropriation requirement. more robust. Suppose that a legislator has plied by the proposed bill can be made length for a given offense, resulting in a proposed a bill decreasing the sentence from the special reserve fund in an statutorily mandated one-year appropriation transferring $100,000 from the spe- amount equal to $100,000. Instead of directly the individual legislator could be given a cial reserve fund to the general fund, any other bill of which she is a sponsor. For $100,000 appropriations credit towards for an education bill sponsored by this example, if the required appropriation legislator could use the credit obtained same legislator is also $100,000, then this appropriation required for the education from the sentencing bill to satisfy the is bill. The transfer to the general fund is, therefore, indirect. If the education bill the not passed, then the $100,000 would, of course, be directly appropriated to tie general fund. The rationale for the added complexity is simply to more closely expected cost savings to the individual legislator directly responsible for such cost savings. \\jciprod01\productn\N\NYS\70-1\NYS110.txt unknown Seq: 45 24-FEB-15 11:35 general electorate how less punitive sentencing policy translates how less punitive sentencing general electorate task of defend- and is relieved of the difficult into fiscal cost savings, only a distant fiscal unpopular policy initiative with ing a potentially benefit. enjoy a corresponding benefit in the current fiscal period if a pro- fiscal period in the current benefit enjoy a corresponding have a is projected to posed bill run. By allowing an appropriation from the special reserve fund the special reserve from allowing an appropriation run. By the statu- population, in the corrections decreases when projecting to inter- not only forces legislators mechanism tory appropriation nalize the to internalize the policy, but also efficient reserve fund money appropriated from the special now point to the on the basis of the in the current fiscal period to the general fund such funds are as well as the uses to which fiscal impact statement, accomplish- as an immediate, concrete political subsequently put, ment. 36095-nys_70-1 Sheet No. 49 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 49 36095-nys_70-1 36095-nys_70-1 Sheet No. 49 Side B 03/04/2015 07:12:55 . . A RIM , V . C A note 172, note 169. , V In FY2012 supra supra 172 , , the number of 170 note 180 and accom- Other common of- Other common 173 See infra 2. Difficulties Remain 13 (March 19, 2012), http://www.vcsc.virginia.gov/ With the exception of 2009, With the exception 1. Facts Some Descriptive Legislative Impact Analysis for the 2012 General Assembly Legislative Impact Analysis for the 2012 General 169 The types of legislative changes requiring fiscal The types of legislative 12 (March 18, 2013), http://www.vcsc.virginia.gov/Mar_11/ 171 174 OMMISSION at 13; The variation in 2009 is likely explained by budget language intro- The variation in 2009 is likely explained C G ’ See Legislative Impact Analysis for the 2013 General Assembly See Legislative Impact Analysis for the 2013 See id. See Legislative Impact Analysis for the 2012 General Assembly See Legislative Impact Analysis for the 2012 See id. See Legislative Impact Analysis for the 2013 General Assembly See Legislative Impact Analysis for the 2013 See id. OMMISSION ENT C For the most part, the Virginia legislation has succeeded in For the most part, the Virginia The number of fiscal impact analyses prepared pursuant to Vir- pursuant analyses prepared of fiscal impact The number G . S ’ 169. 170. 173. 174. 171. 172. RIM ENT Note that multiple fiscal impact statements may be produced for a given proposed Note that multiple fiscal impact statements forcing legislators to carefully consider the fiscal impact of pro- forcing legislators to carefully consider history of Virginia bill H.R. posed criminal sanctions. The legislative of how the statutory appropria- 2269 provides an excellent example incentives. Under the origi- tion requirement has altered legislative of confinement imposed as the nal version of the bill, any term sentence had to be served consecu- result of a mandatory minimum 86 the of brevity, sake For the remain. difficulties where mentation Virginia. state of on the exclusively focuses discussion NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 70:41 fairly has remained requirement appropriation ginia’s statutory constant over time. \\jciprod01\productn\N\NYS\70-1\NYS110.txt unknown Seq: 46 24-FEB-15 11:35 impact statements mainly involve the expansion or clarification of mainly involve the expansion impact statements or the establishment of a new crime. an existing crime Legislative%20Impact%20Analysis%202013.ppt. and FY2013, “sex offenses” was the most common type of offense offenses” was the most common and FY2013, “sex pursuant a fiscal impact analysis was completed category for which appropriation requirement. to the statutory Legislative%20Impact%20Analysis%202012%20HANDOUT.pdf. fiscal impact statements completed annually is typically in the range completed annually is typically fiscal impact statements of 200 to 300. fense categories included fraud/larceny, drugs, assault, and gangs/ included fraud/larceny, drugs, assault, fense categories gang offenses. S at 14. This is not surprising as the legislation of sex offenses is unlikely to encoun- ter substantial, coordinated pushback from powerful concentrated interests, and the class of convicted sex offenders is likely to be ineffective in mobilizing in sup- port of its own interests. duced by the governor of Virginia in that same year. duced by the governor of Virginia in that C panying text. bill, depending on the number of amendments to the bill or substitute versions bill, depending on the number of amendments proposed. 36095-nys_70-1 Sheet No. 49 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 49 36095-nys_70-1 36095-nys_70-1 Sheet No. 50 Side A 03/04/2015 07:12:55 M- M- I I ISCAL ISCAL https:// available at available at the bill , F , F minimum 176 Rather than Rather EVISED available at 177 NROLLED . E O 178 . 2269, at 1 (2012), . 2269, at 1 (2013), . 13100817 R , LD N After the Virginia Crimi- the Virginia After O O O N ’ 175 https://lis.virginia.gov/cgi-bin/ OMM , LD N H.B. N H.B. N N C ’ ˆ ul+HB2269ER. OMM C available at EGISLATION EGISLATION ENTENCING L L S 2013 Va. Acts 806; 2012 Va. Acts 3; 2011 Va. Acts 890; See ENTENCING text accompanying notes 181–83. S RIMINAL ROPOSED ROPOSED P P . C A infra , of $50,000 to the bill, and this amount shall be of $50,000 to the bill, and this ˆ ul+HB2269. ; V RIMINAL 180 . C In response to this problem, the Virginia General Assem- problem, the Virginia General In response to this A PACT PACT See id. See, e.g. 179 TATEMENT FOR TATEMENT FOR That is, rather than print the words “Cannot Be Determined” That is, rather than print the words Difficulties remain, however, in how the Virginia legislation however, in how the Virginia Difficulties remain, S S 176. V 175. Sess. (as offered by House of Dele- H.D. 2269, 2013 Gen. Assemb., Reg. 178. 177. Sess. (Va. 2013), H.D. 2269, 2013 Gen. Assemb., Reg. 179. 180. 2009 Va. Acts 781 (emphasis added). Note that Virginia’s statutory ap- [F]or any fiscal impact statement prepared by the Virginia impact statement prepared by [F]or any fiscal pursuant to §Criminal Sentencing Commission 30-19.1:4 . . . have sufficient information for which the commission does not shall assign a to project the impact, the commission fiscal impact such bill, but shall not be printed on the face of each codified. https://lis.virginia.gov/cgi-bin/legp604.exe?131+oth+HB2269IMP (follow “01/ https://lis.virginia.gov/cgi-bin/legp604.exe?131+oth+HB2269IMP (follow “03/ https://lis.virginia.gov/cgi-bin/legp604.exe?131+oth+HB2269IMP legp604.exe?131 on the face of any proposed bill for which there is insufficient infor- on the face of any proposed bill for gates, Va. Jan. 16, 2013), has been implemented in practice. To start, a substantial majority in practice. To start, a substantial has been implemented the Virginia stat- completed pursuant to of fiscal impact statements to project a fiscal there is insufficient information ute conclude that impact. 2014] DECISIONS OF SENTENCING THE REGULATION sentence. criminal other with any tively 87 \\jciprod01\productn\N\NYS\70-1\NYS110.txt unknown Seq: 47 24-FEB-15 11:35 bly passed an appropriations act in 2009 (Appropriations Act) that act in 2009 (Appropriations bly passed an appropriations statements: relating to fiscal impact included new language nal Sentencing Commission estimated, pursuant to the state’s to the pursuant estimated, Commission Sentencing nal appropriation, a $743,967 requirement, appropriation lis.virginia.gov/cgi-bin/legp604.exe?131 16/13 House: Impact statement from VCSC (HB2269)” hyperlink). 16/13 House: Impact statement from VCSC (HB2269ER)” hyperlink). 04/13 House: Impact statement from VCSC was amended in committee to apply only to a limited set of only to a limited to apply in committee was amended offenses. pornography for certain child sentences of the the sponsor one-year appropriation, this substantial fight for the re- to reduce scope, presumably limited the bill’s legislation to $50,000 and, appropriation from $743,967 down quired one-year the bill’s political cost. in turn, to minimize 2010 Va. Acts 874. propriation mechanism was not amended to reflect this change. Rather, the House bill of Delegates and the Senate inserted the applicable language into the budget and this requirement has remained in every budget adopted by the Virginia Gen- eral Assembly since 2009. 36095-nys_70-1 Sheet No. 50 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 50 36095-nys_70-1 36095-nys_70-1 Sheet No. 50 Side B 03/04/2015 07:12:55 note 169, note 172, of the ten supra supra , , eight note 52, at 13–14 (“Ex- Obviously, a rate of Obviously, a rate Of these twenty-five 183 This is especially true supra 181 , 184 EARE & G Likewise, in FY2012, there was in- Likewise, in FY2012, 182 HETTIAR , C EACHMAN L Part II.C.1.a. Even in those isolated cases where an impact esti- Part II.C.1.a. Even in those isolated cases . of the twenty-five. see also Moreover, not only are fiscal impacts too often described Moreover, not only are fiscal impacts .; See Legislative Impact Analysis for the 2013 General Assembly See Legislative Impact Analysis for the 2013 See id See Legislative Impact Analysis for the 2012 General Assembly See Legislative Impact Analysis for the 2012 See supra 185 One would expect this provision in the Appropriations Act to Appropriations in the expect this provision One would This analysis reveals an excessive reluctance on the part of fis- This analysis reveals an excessive See id 181. 185. Consider Virginia bill S. 1083, which added several chemicals to the list 182. 183. 184. nineteen 88 of amount default minimum a fiscal impact, a to project mation bill. the proposed cost of the fiscal as be imputed is to $50,000 NYU ANNUAL SURVEY OF AMERICAN LAW or time information provide the additional legislators to incentivize with a statements for bills fiscal impact to complete the necessary [Vol. 70:41 in turn, to $50,000 and, of less than fiscal impact likely expected fiscal im- the projected of bills for which the total number decrease of the available as indeterminate. A quick survey pact is classified provision has not suggests that this additional evidence, however, impact estimates. problem of indeterminate fiscal fully resolved the Assembly enacted example, the Virginia General In FY2013, for pursuant to fiscal impacts statements prepared twenty-five bills with requirement. the statutory appropriation \\jciprod01\productn\N\NYS\70-1\NYS110.txt unknown Seq: 48 24-FEB-15 11:35 plaining why a budget impact estimate was impossible improves the transparency plaining why a budget impact estimate allows the public to assess whether the of the process, increasing trust” and “also fiscal note author’s conclusion is justified.”). of synthetic cannabinoids, and a number of synthetic stimulants (known as “bath salts”) and other compounds, to Schedule I of Virginia’s Drug Control Act. 2013 Va. Acts 785. Although the accompanying fiscal note stated that the bill would sufficient information to project a fiscal impact for to project a fiscal impact sufficient information bills that required fiscal impact statements. bills that required completion of less than twenty-five percent of enacted bills falling than twenty-five percent of enacted completion of less undermines its effectiveness. within the scope of the statute severely that would allow for a cal analysts to posit reasonable assumptions in cases where an interval fiscal impact to be estimated, sometimes to yield values significantly above estimate approach would appear amount. the $50,000 minimum default with respect to legislative changes that expand or create a new with respect to legislative changes crime. bills, there was insufficient information to project the fiscal impact information to project bills, there was insufficient for at 16–21. at 16–19. mate of the proposed sentencing change is deemed indeterminate by the state mate of the proposed sentencing change should still carefully explain why provid- fiscal analyst, the fiscal impact statement This practice will serve to increase the ing a fiscal impact estimate was impossible. and allows the reader of the fiscal note to transparency of the fiscal note process contained therein are, indeed, justi- individually assess whether the conclusions fied. 36095-nys_70-1 Sheet No. 50 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 50 36095-nys_70-1 36095-nys_70-1 Sheet No. 51 Side A 03/04/2015 07:12:55 : EG- EN- L S MPACT RISONS I P available at ISCAL RIMINAL ROPOSED P . C RICE OF A P HE at 3. This absence of at 3. This absence , T Id. . 13101862, F note 186. Given that the O TATEMENT FOR USTICE http://lis.virginia.gov/cgi-bin/ J S supra . 1746, at 2 (2012), , OF , LD N O N . N ’ ’ MPACT NST I I OMM http://www.vera.org/files/price-of-pris- OMM H.B. N C C ERA ISCAL V available at See Further, when sufficient information is when sufficient Further, available at ENTENCING ENTENCING EGISLATION 187 S S L . 13104499, F O 1 (2012), RIMINAL RIMINAL . 1083 (2013), ROPOSED O . C , LD N . C A HEET P N A ’ S V . 2013 Va. Acts 424. The fiscal impact statement prepared in connec- 2013 Va. Acts 424. The fiscal impact statement Id ACT OMM ISLATION TENCING See See number of offenders who would receive longer sentence recommenda- number of offenders who would receive S.B. N F is only $50,000. is only C 186 187. 186. exact IRGINIA TATEMENT FOR http://lis.virginia.gov/cgi-bin/legp604.exe?131§um+HB1746 (follow “impact http://lis.virginia.gov/cgi-bin/legp604.exe?131§um+HB1746 S increase the need for state-responsible prison beds, the fiscal note also concluded state-responsible prison beds, the fiscal increase the need for the expected number bill could not be determined because that the impact of the V convictions could not be estimated. of additional new felony 2014] DECISIONS OF SENTENCING THE REGULATION often itself also default amount the minimum but as indeterminate, for is unlikely, It legislation. proposed of the in light low appears which of H.B. 1746, impact estimate that the best fiscal example, 89 violent fel- definition of a to Virginia’s offenses added numerous ony, \\jciprod01\productn\N\NYS\70-1\NYS110.txt unknown Seq: 49 24-FEB-15 11:35 ons-virginia-fact-sheet.pdf. available, the estimated fiscal impacts often appear low in light of appear low fiscal impacts often the estimated available, thresh- below the statutory and tend to fall legislation the proposed enacted in of the six bills with fiscal impacts old. For example, to prepare a fis- information was available FY2013 where sufficient tions in the future as a result of the proposed bill was unknown and could not be tions in the future as a result of the proposed necessary appropriation could not be de- calculated, the estimated amount of the termined. statement” hyperlink). It would seem to follow from this statement that the pro- statement” hyperlink). It would seem to prison terms for some large subset of total posed bill would have resulted in longer however, concluded that because criminal offenders. The fiscal impact statement, the annual operating cost per prison inmate in Virginia is approximately $25,000, us- annual operating cost per prison inmate ing the minimum default amount as an estimate of the fiscal impact implies that in- this far-reaching bill was projected to result in approximately two additional mate-years, which is not plausible. legp604.exe?131§um+SB1083 (follow “impact statement” hyperlink). Specifically, (follow “impact statement” hyperlink). legp604.exe?131§um+SB1083 Schedule I or II that existing data were insufficient to identify the fiscal note found other incidents involv- involved “bath salts” or the number of drug convictions that of a substance affected by the bill. ing possession or sale data is, of course, not surprising given that the bill was only then defining the data is, of course, not surprising given a crime. Given the presumed impetus for possession or sale of such substances as (i.e., the dramatic rise in the use of syn- introducing the bill in the first instance number of convictions or incidents is un- thetic marijuana in Virginia), the total conclude that the fiscal impact of the likely to be two or fewer. Rather than reasonable assumptions should have been proposed bill was indeterminate, a set of of new felony convictions, and an posited with respect to the expected number with the required statutory appropri- interval estimate should have been provided, to the lower bound of the derived inter- ation as discussed in Part II.C.1.a set equal val estimate. Virginia’s circuit court judges comply with tion with the bill stated that “[o]verall, in nearly 80% of all felony cases the sentencing guidelines recommendations before them.” V V 36095-nys_70-1 Sheet No. 51 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 51 36095-nys_70-1 36095-nys_70-1 Sheet No. 51 Side B 03/04/2015 07:12:55 189 . 38 Cur- CI . S note 169, supra SYCHOL , P accomplish the . 391 (2006) (discussing fully EV IRECTIONS D . at 18. . L. R A See id URRENT at 21. In 2012, the fiscal impact esti- , 92 V at 16. The cost of the other bill, how- See Legislative Impact Analysis for the 2012 A Jurisprudence of Risk Assessment: Forecasting See id. III. , 20 C See id. note 172, at 15–19(noting a fiscal impact of $50,000 for ., John Monahan, 188 AGAINST COST-BENEFIT ANALYSIS supra , See, e.g See Legislative Impact Analysis for the 2013 General Assembly See Legislative Impact Analysis for the 2013 If the intended purpose of the statutory appropriation require- of the statutory purpose If the intended data-driven approach to Part II advocated for a more analytical, 188. 189. risk assessment instruments in pa- Parole boards are increasingly using 90 $50,000 exceeded fiscal impact the estimated statement, cal impact bill. one in only NYU ANNUAL SURVEY OF AMERICAN LAW the fiscal consideration of careful primarily to encourage ment is for leg- it is acceptable sanctions, then proposed criminal impact of [Vol. 70:41 the statu- fiscal impacts. If the expected underestimate islators to bargaining prompt costly high enough to are tory appropriations the legislation all fighting for scarce resources, among legislators untested hypothe- intended purpose. This Article’s has achieved its appropriations on Virginia’s method of making sis, however, is that impact statements does not the basis of fiscal should be taken, objective. Additional steps legislation’s intended more reliable pro- explained in Part II.B, to ensure as outlined and to increase Vir- fiscal impact of bills likely jections of the expected populations. ginia’s jail or prison appropriation requirement relied sentencing policy. The statutory predictions, and best practices in- upon sophisticated fiscal impact to defining the appropriate cluded a confidence interval approach of data-driven techniques, in- fiscal impact estimates. These types are increasingly found in a cluding the use of cost-benefit analysis, such as parole hearings, wide range of criminal justice contexts, \\jciprod01\productn\N\NYS\70-1\NYS110.txt unknown Seq: 50 24-FEB-15 11:35 different instruments that may be used); Jennifer L. Skeem & John Monahan, rent Directions in Violence Risk Assessment at 16–21. of H.B. 1847, which expanded the list of criminal street The fiscal impact gang predicate offenses, was $574,916. mate for only one of the two bills for which there was sufficient information to mate for only one of the two bills for generate an estimate exceeded $50,000. General Assembly to prepare a fiscal impact state- bills where there was insufficient information bill, which established/increased certain ment). The projected fiscal impact of this I/II drug sale offenses, was rela- mandatory minimums with respect to Schedule tively large and equal to $5,512,531. ever, which added two offenses to the definition of “predicate criminal acts” for ever, which added two offenses to the gang offenses, was small and equal to $3358. role hearings. Harm Among Prisoners, Predators, and Patients (2011) (discussing how risk assessment can be a component of deciding bail, sen- tencing, and parole). 36095-nys_70-1 Sheet No. 51 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 51 36095-nys_70-1 36095-nys_70-1 Sheet No. 52 Side A 03/04/2015 07:12:55 . AND UST L. , ENTAL ATURE availa- . J M . 395–96 M RIM REVENTING ALTER ORECASTING UST . C Given this Given the use of : P F REATMENT . J W OUNTY 191 I (2007), , T RIME C RIM reject MPACT OF A C ONTEMP OSTS OLICING , I http://www.busines- C P & C USTICE ., J OLE OF LLEGHENY , 20 J. C R ESEARCH ORP A HE ., Chris Fox & Kevin Albertson, C REDICTIVE available at : T electronic monitoring ser- RIMINOLOGY , P AND ECIDIVISM AND 193 ., NPC R See, e.g : R ., R MPACT OF OLICING and prisoner reentry. prisoner and I , 11 C ACHNER P http://www.rand.org/content/dam/rand/ 21 (2013), 190 B ISCAL xix (2013). PERATION F INIGAN ET AL O IDGELY ET AL ENNIFER REDICTIVE R NALYTICS W. F available at ., J ., P PERATIONS A EARS OF USAN A Detailed Cost Analysis in a Mature Drug Court Setting: Cost- O ORP and drug courts, ICHAEL C 10 Y 192 See, e.g ., M. S ., M (2007), ATA AND AND e.g , VALUATION OF THE D ., R OURT E See See, e.g NFORCEMENT IN A. Criminal Justice CBA and the Data-Driven Trend in N C OURT OVER E CBA has been used to evaluate a number of different types of CBA has been used to evaluate a Although this suggestion is appealing in certain respects, Part certain respects, is appealing in this suggestion Although C : A http://www.ncjrs.gov/pdffiles1/nij/grants/219224.pdf; Shannon M. Carey & 190. policy technology that is enor- The police have embraced predictive 191. with social impact bonds as a fi- Several jurisdictions are experimenting 193. 192. AW L EALTH RUG OST RIME WITH ERRY ET AL C H D mously complex. C P 2014] DECISIONS OF SENTENCING THE REGULATION crime prevention, place-based 91 \\jciprod01\productn\N\NYS\70-1\NYS110.txt unknown Seq: 51 24-FEB-15 11:35 existing criminal justice programs, including the effectiveness of existing criminal justice programs, mental health sofgovernment.org/sites/default/files/Predictive%20Policing.pdf; nancing mechanism for prisoner reentry. nancing mechanism for prisoner reentry. Payment by Results and Social Impact Bonds in the Criminal Justice Sector: New Challenges Payment by Results and Social Impact Bonds for the Concept of Evidence-Based Policy? ble at Michael W. Finigan, Benefit Evaluation of the Multnomah County Drug Court trend toward more sophisticated data-driven approaches to crimi- to approaches data-driven sophisticated more toward trend why following question: to pose the it seems reasonable nal justice, popu- the corrections to increase subject bills projected not simply anal- cost-benefit data-driven some form of state-of-the-art, lation to requirement? statutory appropriation in lieu of the ysis (CBA) that sentencing authorities should III recommends changes in sen- assessing the merits of proposed full-scale CBA in of the use of III.A provides a very brief survey tencing policy. Part Part III.B then justice setting more broadly. CBA in the criminal as it specifically weakness in this approach exposes an important benefit of policy. Specifically, the retributive relates to sentencing unique to changes, an economic principle proposed sentencing given the current eludes accurate measurement sentencing policy, argues that a mix technology. Finally, Part III.C state of estimation actors are bet- elected representatives and judicial of democratically task of evaluat- this point to perform the difficult ter positioned at criminal sentences. ing the retributive value of proposed pubs/technical_reports/2007/RAND_TR439.pdf. (2011). 315 (2003). 36095-nys_70-1 Sheet No. 52 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 52 36095-nys_70-1 36095-nys_70-1 Sheet No. 52 Side B 03/04/2015 07:12:55 , . N- UST , I ORTH AY TO . J USTICE P N J OSTS AND RIM OLICY available at OF C . P http://www . OES IT ECIDIVISM AND HE UB Specifically, R NST ., D , 38 J. C ., T P I 198 NST NST FOR ERA I I AW ON URISDICTION IN . available at , V J Cost-Benefit Analysis of Re- , D.C. (2012), NST RBAN OLICY In 2009, for example, 2009, for In I P 2003 L , U EVSHIN 195 UVENILE TATE L RIME ? (2006), J . S HALFIN ASHINGTON http://www.wsipp.wa.gov/rptfiles/09- C ASH W ALERIE GE OF 196 NMATES MPACTS OF A ., D.C. C A I ARON : I ., W & V AIL J & A available at RISON http://www.vera.org/files/cost-benefit-analysis-of- P AISING THE OMAN ET AL OMAN ONITORING FOR RAKE ET AL ENRICHSON R M D H K. R K. R 1 (2009), ROGRAMS FOR available at OHN OHN P ELEASE FROM ., J ., J R NALYSIS OF EVISED . LIZABETH HRISTIAN LECTRONIC E C A , R at 11–17. E It projected this annually reoccurring investment to gen- It projected this annually reoccurring EENTRY iii (2011), CREASED ARNED See, e.g See See See id Id. See, e.g and prisoner re-entry programs. re-entry prisoner and R Working in conjunction with the Vera Institute of Justice Working in conjunction with the 199 OSTS E ENEFIT 194 197 C In addition to assessing the effectiveness of existing criminal the effectiveness of existing In addition to assessing -B 194. 196. 197. 198. 199. 195. RIME OST AROLINA ENEFITS OF NVEST IN .urban.org/projects/reentry-roundtable/upload/roman_chalfin.pdf. raising-the-age-of-juvenile-jurisdiction-in-north-carolina.pdf. C C B I justice policies, CBA has also been used to assess the expected re- CBA has also been used to assess justice policies, programs. In for proposed criminal justice turns on investment Assembly formed the North Carolina General 2009, for instance, examine a propo- Planning Task Force to the Youth Accountability sixteen to eigh- age of juvenile jurisdiction from sal to increase the teen. 92vices, NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 70:41 \\jciprod01\productn\N\NYS\70-1\NYS110.txt unknown Seq: 52 24-FEB-15 11:35 erate $123.1 million per year in reoccurring benefits, which erate $123.1 million per year and other partners, the Task Force estimated that the policy change and other partners, the Task Force million per year. would yield a net benefit of $52.3 04-1201.pdf. http://www.urban.org/UploadedPDF/412678-The-Costs-and-Benefits-of-Elec- Stuart S. Yeh, tronic-Monitoring-for-Washington-DC.pdf; ducing Crime through Electronic Monitoring of Parolees and Probationers ducing Crime through Electronic Monitoring the Washington State Institute for Public Policy (WSIPP) examined (WSIPP) Policy for Public Institute State the Washington of the Department state law enabling of a 2003 the effectiveness for eligible non-violent “early-release time” to authorize Corrections behavior” “good who demonstrated and drug offenders property of a CBA, on the basis WSIPP concluded, The while incarcerated. of $1.88 net social benefit generated a enacted legislation that the length of stay by by (1) shortening the prison per dollar of cost rates of prison- (2) decreasing the felony recidivism sixty-three days, similar offend- the law by 3.5% (compared with ers released under days), and (3) in prison an additional sixty-three ers who stayed market earnings. increasing labor the CBA estimated the total cost to taxpayers of increasing the age the CBA estimated the total cost per year, which included the of juvenile jurisdiction at $70.9 million administration, and other ex- costs of law enforcement, court penses. C 1090 (2010). 36095-nys_70-1 Sheet No. 52 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 52 36095-nys_70-1 36095-nys_70-1 Sheet No. 53 Side A 03/04/2015 07:12:55 . 202 HIL . 67 EV . & P See generally . L. R CON ROPORTIONATE TAN , P 35 (2008) (“Virtu- , 23 E , 58 S SHWORTH A UNISHMENT P NDREW note 202. 200 of a criminal sentence. supra & A Punishment Purposes ROBLEM OF Retributive justice is generally un- , 4 (2005) (stating that deterrence-oriented P 201 IRSCH HE , T H SHWORTH RINCIPLES ON P . 149, 164 (2010) (“Retributivism . . . is centrally con- . 149, 164 (2010) (“Retributivism . . . is V OONIN & A EV B Private Prisons, Public Functions, and the Meaning of Punish- Private Prisons, Public Functions, and the retributive benefit Richard S. Frase, NDREW IRSCH Philosophical Problems in Cost-Benefit Analysis AVID H , D ., A . U. L. R T ON XPLORING THE V . S . at 17–20. : E LA See generally Id See, e.g. See, e.g See Thus, these two distinct theories are typically conceptual- Thus, these two distinct theories B.Benefit of Criminal Sentences the Retributive Valuing 203 Broadly speaking, retributive justice is a theory of punishment Broadly speaking, retributive justice In theory, an expert agency such as a legislative budget office budget such as a legislative an expert agency In theory, 200. 201. 202. 203. , 38 F ENTENCING S CBA, however, is a utilitarian or teleological theory insofar as pun- CBA, however, is a utilitarian or means to some other good, either ishment is viewed as solely the efficient punishment deter- general or individual. The socially calculus may either exceed or mined by the relevant cost-benefit on the basis of “just de- fall short of the punishment required sert.” 2014] DECISIONS OF SENTENCING THE REGULATION vic- reduced system, adult corrections to the savings cost included fewer having of benefits long-term the and costs, timization records. with adult criminal juveniles 93 \\jciprod01\productn\N\NYS\70-1\NYS110.txt unknown Seq: 53 24-FEB-15 11:35 that considers proportionate punishment as an acceptable response that considers proportionate punishment to the commission of a crime. or a criminal sentencing commission could perform a CBA similar commission could perform or a criminal sentencing social bene- above to determine if the expected to those described the expected change in sentencing policy exceed fits of a proposed or screen to distin- agency could use CBA as a filter social costs. The welfare from sentences that increase social guish those criminal special interest purely the result of the harmful those that are an important diffi- described in Part I.A.1. There is group dynamics evaluate proposed arises in the use of CBA to culty, however, that of how to policy, and that is the question changes in sentencing properly value the derstood to be a deontological theory, meaning that a “proportion- derstood to be a deontological theory, moral value separate and ally just” punishment has an independent value derived from its effects. apart from some practical social cerned with the imposition of punishment in proportion to an offender’s moral cerned with the imposition of punishment desert.”). Sven Ove Hansson, punishment policies pay insufficient attention to proportionality). ally everyone who has attempted to justify punishment, for example, firmly believes ally everyone who has attempted to justify proportionate to the severity of the that punishment should be at least roughly offense.”); Mary Sigler, ment (2005). 163 (2007). 36095-nys_70-1 Sheet No. 53 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 53 36095-nys_70-1 36095-nys_70-1 Sheet No. 53 Side B 03/04/2015 07:12:55 ), is set CB , which is S CB 17–19 (1993) cS the optimally R S ) if and only if the ANCTIONS CB 204 S = S R S ENSURE AND , C : = rH R 206 S IRSCH : Under a simplified cost-benefit model, Under a simplified H bH . 139, 143–44 (1993). 205 Criminal Sentences as Endogenous Taxes: Are They “Just” CON NDREW VON ., A , 36 J. L. & E Joel Waldfogel, See See, e.g denotes an exogenously given constant of proportionality, denotes an exogenously depending on the costs implied by that punishment). depending on the costs implied by that r There is no reason to believe, however, that this equality will There is no reason to believe, however, equations are intended to il- Albeit a simplification, the above Given this particular formulation of these two theories of pun- Given this particular formulation According to the retributivist tradition, the appropriate sanc- the appropriate tradition, to the retributivist According 206. 204. 205.a given set of sentences is propor- Note that this equation implies that the social harm caused by the criminal act, and caused by the criminal act, and the social harm hold true with respect to a given crime. hold true with respect to a given that the optimal sanction lustrate the basic thrust of the argument to which the punishment is will vary depending upon the extent just. This Article tentatively sug- either efficient or proportionally distinction represents a gests that this deontological/teleological a criminal sanction, defined more false dichotomy. The justness of or “Efficient”? ishment, the optimal sanctions are equal ( ishment, the optimal sanctions are 94 of level a different demands each because as competing ized principles. its dominant to satisfy punishment NYU ANNUAL SURVEY OF AMERICAN LAW with proportionately sanction that varies be defined as a tion can for- can be represented harm. This of the crime’s the magnitude [Vol. 70:41 follows: mally as \\jciprod01\productn\N\NYS\70-1\NYS110.txt unknown Seq: 54 24-FEB-15 11:35 by contrast, the marginal social cost of punishment, marginal social cost of punishment, by contrast, the where H following equation holds true assumed to vary linearly with the sanction itself (i.e., with linearly with the sanction itself (i.e., assumed to vary as a linear func- social benefit, modeled here equal to the marginal harm tion of the crime’s just level of punishment. (suggesting that retributivism at least requires an ordinal ranking of criminal of- (suggesting that retributivism at least requires punishment, whereas criminal law poli- fenses that sets the parameters of requisite of similar classes of offenders cies informed by CBA could lead to punishment differently equal relative harms; i.e., if and only if: tionally just if and only if relative sentences 36095-nys_70-1 Sheet No. 53 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 53 36095-nys_70-1 36095-nys_70-1 Sheet No. 54 Side A 03/04/2015 07:12:55 ENTENCING Rachel Bar- . 391, 400–02 : S EV . 1276, 1298–99 ODE EV see also C . L. R O . L. R ENAL P , 77 M OLUM , Judge Posner makes ex- , Judge Posner makes ODEL M 211 . , 105 C Id See Cost as a Sentencing Factor United States v. Craig 208 , be compared with the benefits of imprison- , be compared with the benefits In a concurring opinion, he states that when a In a concurring 209 . at 1004. Chad Flanders, By “retributive value,” Posner means “the effect of punishment in Specifically, a criminal sanction that is proportional to sanction that is a criminal Specifically, in principle But Posner doubts whether judges could engage in a CBA But Posner doubts whether judges Cf. See id Id. 207 210 In theory, the retributive value of a criminal sanction can be In theory, the retributive value Under this view, the problem associated with incorporating the the problem associated with incorporating Under this view, Federalism and the Politics of Sentencing 207. 208. and utilitarian inputs is sug- This complementary weighing of retributive 209. 703 F.3d 1001, 1002–03 (urging (7th Cir. 2012) (Posner, J., concurring) 210. 211. measured using standard willingness-to-pay/willingness-to-accept § sentences may be de- 6B.03 (Tentative Draft No. 1, 2007) (stating that criminal goals within the boundaries of severity fined to effectuate one or more utilitarian justice principles); permitted under retributive/proportional kow, retributive benefit of a criminal sanction into some form of CBA is of a criminal sanction into some retributive benefit are irreconcilable. theories of optimal punishment not that the two is simply diffi- value of a criminal sanction Rather, the retributive In cult to measure. actly this point. 2014] DECISIONS OF SENTENCING THE REGULATION is propor- sanction a criminal which to the extent as specifically as a utilitarian be reconceptualized harm, can crime’s to the tional benefit. 95 \\jciprod01\productn\N\NYS\70-1\NYS110.txt unknown Seq: 55 24-FEB-15 11:35 judge must decide upon a criminal sentence, the social costs judge must decide upon a criminal should, the harm caused by a criminal act implies a social benefit, which a social benefit, act implies caused by a criminal the harm increas- criminal sanction cost as the becomes a social eventually jus- by proportional optimal level implied from the ingly deviates can be sanction, therefore, of a particular retributive value tice. The the retributive to its utilitarian value, with seen as complementary the cost-benefit merely an additional input in value serving as applicable max- an inequality constraint in the calculus (e.g., as imization program). such analysis is likely to in- of optimal sentencing severity because in assessing the “retribu- volve “enormous guesswork,” particularly tive value” of a criminal punishment. ment. (2012) (indicating that the legislature should be concerned with both social costs (2012) (indicating that the legislature should and retributivism). gested by the Model Penal Code itself. (2005) (“[A] consideration of costs might assist the retributivist in achieving his or (2005) (“[A] consideration of costs might be a feasible substitute for the kind of her goals because an analysis of costs might retributivism endorses.”). proportionality analysis among crimes that the judiciary to consider the fiscal impact of imposing de facto life sentences). assuaging the indignation that serious crime arouses and in providing a form of assuaging the indignation that serious crime arouses and in providing a form nonfinancial compensation to the victim.” 36095-nys_70-1 Sheet No. 54 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 54 36095-nys_70-1 36095-nys_70-1 Sheet No. 54 Side B 03/04/2015 07:12:55 The . 530 TATED GAINST EV S 173–92 , A GE . R Likewise, A attempt to CON . 79, 79 (1999) 213 . E HIL not ARCOURT M CTUARIAL ALUATION WITH E. H the criminal pays to his A V , 96 J. P , 95 A debt ERNARD B CONOMIC See ., E UNISHING IN AN P AND (2002); Charles R. Plott & Kathryn Zeiler, (2002); Charles R. Plott & Kathryn Zeiler, , In many cases, an individual likely individual an many cases, In Restitution and Revenge 212 ATEMAN ET AL ANUAL He suggests that what triggered this shift in our con- OLICING Id. J. B , P : A M AN I C. A More Limited Role for Expert Agencies ENTENCING ECHNIQUES David B. Hershenov, T : S The retributive benefit of a criminal sentence is better The retributive benefit of a criminal See generally See 214 Assuming that the retributive benefit of a criminal sanction can Assuming that the retributive benefit should An elite body of independent experts 212. 214. premise the notion that criminal Note that this argument takes as a basic 213. REDICTION REFERENCE P P 96 methodologies. valuation NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 70:41 \\jciprod01\productn\N\NYS\70-1\NYS110.txt unknown Seq: 56 24-FEB-15 11:35 society benefits in knowing that those who commit crimes are pun- commit crimes that those who in knowing society benefits benefit from the and are not able to unjustly ished for such actions, is likely smaller crimes. This indirect benefit commission of their are the direct benefits enjoyed by those who than the retributive benefits in prac- Measurement of these retributive victims of crime. of crime have an by the fact that the victims tice is complicated value of a crimi- or distort the true retributive incentive to overstate best to aggregate by the fact that it is unclear how nal sanction, and here, however, is benefit to society. The point the smaller, indirect can, in the- benefit of a criminal sanction simply that the retributive ory, be monetized. input in a broader CBA of a pro- be monetized and included as an the question is: which institu- posed change in sentencing policy, perform this valuation exercise? tional actor is best positioned to a proposed change in sentencing value the retributive benefit of policy. added). victim(s) as compensation”) (emphasis If this premise is not true, then the argu- sanctions should be proportionally just. force. In an engaging and impor- ment against CBA loses much of its theoretical how the use of actuarial methods has tant book, Professor Harcourt examines distorted our conception of just punishment. would be willing to pay some amount of money in exchange for no in exchange of money amount some to pay be willing would crime, the victims of For the direct sanction imposed. criminal the victims high because is likely to be greater punishment value of derive a utility—specifically,of crime benefit a retributive —in see- punished. caused them harm who ing the perpetrator Willingness to Pay-Willingness to Accept Gap, the “Endowment Effect,” Subject Misconcep- Willingness to Pay-Willingness to Accept Gap, Valuations tions, and Experimental Procedures for Eliciting “as a (contending that punishment can be understood ception of just punishment is the production of technical knowledge itself; in ception of just punishment is the production of technical knowledge itself; (2007). Harcourt contends that there now exists in our society an intuitive, deep- of rooted sense that it is just to determine punishment in large part on the basis actuarial risk assessment. (2005) (examining the existence and interpretations of a possible gap between (2005) (examining the existence and willingness to pay and willingness to accept). 36095-nys_70-1 Sheet No. 54 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 54 36095-nys_70-1 36095-nys_70-1 Sheet No. 55 Side A 03/04/2015 07:12:55 , & . 3 not EV http:// Flanders, . L. R EGISLATURE UNISHMENT L HIL P Under such But see in , 218 TATE . 707, 737 (2011) available at , 64 P EV . S E , M not just those of gov- not just those of . L. R 216 UQ EVIEW R . Harcourt finds this deeply troubling, . Harcourt finds this , 49 D ROGRAM Two Concepts of Rules 5 (2009) (“The fiscal impacts described in 5 (2009) (“The fiscal impacts described See id This does not imply, however, that however, imply, does not This fiscal impact of the legislation on state govern- & P 215 . VERVIEW direct ISCAL O F N See id John Rawls, : A Prolegomenon to the Principles of Punishment 217 , FFICE OF ROCESS ART , Jordan M. Hyatt, Steven L. Chanenson & Mark H. Bergstrom, , Jordan M. Hyatt, Steven L. Chanenson P ., O See generally 1, 8–12 In other words, the legislature should con- (2d ed. 2008). OTE . Under this view, rehabilitation proves inadequate because it cannot be proves inadequate because . Under this view, rehabilitation N See, e.g See, e.g. H.L.A. H See See id ISCAL Interestingly, a number of important scholars and policymak- of important scholars and Interestingly, a number note 207, at 400–04(contending that the distinction between the roles of the 215. two-tier division of labor H.L.A. Hart famously proposed the following 216. of a proposed sentence upon vic- These perspectives include the impact 217. 218. F HE ESPONSIBILITY ers have suggested that the regulation of sentencing decisions that the regulation of sentencing ers have suggested some type of “full-cost model.” should move towards technical knowl- of justice conforming itself to developing other words, it is a case edge. technically correct. demonstrated to be 2014] DECISIONS OF SENTENCING THE REGULATION repre- elected democratically of combination some by estimated actors. judicial and sentatives 97 directly influences and extent to which technical knowledge because it shows the shapes our sense of justice. justify punishment on the insti- between judges and the legislature: consequences a given case dictate individual’s punish- tutional level, but the particular facts of ment. \\jciprod01\productn\N\NYS\70-1\NYS110.txt unknown Seq: 57 24-FEB-15 11:35 there is no role for formal quantitative analysis in the regulation of in the regulation quantitative analysis no role for formal there is impact in Part II, a fiscal at length policy. As described sentencing re- appropriation to the statutory prepared pursuant statement proposed analysis of the a fiscal impact should contain quirement is analysis, however, A fiscal impact sentencing policy. change in of proposed which seeks to analyze the impact the same as a CBA, multiple perspectives, policy changes from sider the costs of sentences, whereas judges should consider only the punishment sider the costs of sentences, whereas judges crime committed. the offender deserves based on the particular supra cut as the two-tier theory might other- judiciary and the legislature is not as clear wise suggest). ment expenditures and revenue and the costs to local units of government. Fiscal ment expenditures and revenue and the value to the social benefits of a piece of notes do not try to assign a monetary to determine the secondary and tertiary legislation or conduct extensive modeling analysis . . . ).”), economic impacts (also known as ‘dynamic’ fiscal notes concentrate on the ernmental entities. (1955). members, the community, and so forth. tims, offenders, private industry, family www.maine.gov/legis/ofpr/other_publications/fiscalnote_process/overview124 .pdf. of Incorporating Risk Assessments and Cost- Reform in Motion: The Promise and Perils Benefit Analysis into Pennsylvania Sentencing R (“There are three CBA models that are most prevalent in sentencing. First is the (“There are three CBA models that are most prevalent in sentencing. First is criminal justice system model, which limits costs to criminal justice expendi- tures . . . . Second is the direct-loss model. This adds limited tangible victims’ costs to the first model. Third is the full-cost model. This model includes tangible victim costs and adds less tangible ones as well as outcome measures.”). T 36095-nys_70-1 Sheet No. 55 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 55 36095-nys_70-1 36095-nys_70-1 Sheet No. 55 Side B 03/04/2015 07:12:55 L. . L. . L. . 345. AL OWA EV , 160 U. see also OLUM David S. , 92 C , 98 I L. R Professor TAH 219 , 105 C to consider as a pri- See generally , 2013 U . 169 (2012) (providing a . 169 (2012) (providing urged EP R G ’ note 218, at 723–24; . 161, 163 (2012) (arguing that EP This statement is undoubt- This statement ENT R supra . S G 220 ’ ED How (Not) to Implement Cost as a Sentencing ENT Missouri’s Information-Based Discretionary Sen- . S , 24 F Cost-Benefit Analysis in Criminal Law ED . L. 95, 101 (2006) (describing how sentencing RIM Cost and Sentencing: Some Pragmatic and Institutional Cost and Sentencing: Some Pragmatic and , 24 F A Map of Sentencing and a Compass for Judges: Sentencing A Map of Sentencing and a Compass for Judges: . 164, 164–68 (contending that judges may not (2012) http://www.leg.state.vt.us/docs/2014/bills/intro/S-001 . 172, 175 (2012) (“Rather than asking individual judges . 172, 175 (2012) (“Rather than asking . J. C EP S. 1, 2013 Gen. Assemb., 2013 Sess. (Vt. 2013) (proposing S. 1, 2013 Gen. Assemb., 2013 Sess. (Vt. T EP Follow the Leader: The Advisability and Propriety of Considering Follow the Leader: The R S cf. R G ’ G ’ HIO Missouri Provides Cost of Sentences and Recidivism Data: What Does of Sentences and Recidivism Data: What Missouri Provides Cost ENT Sentencing Guidelines at the Crossroads of Politics and Expertise Sentencing Guidelines at the Crossroads of Politics ENT There is a similar push for courts to consider cost at sentencing. There is a similar push available at . S . S , 4 O Chad Flanders, ED Marc L. Miller, ED . 1599, 1606 (2012) (“A sound evaluation of sentencing laws must look at See id. The Imprisoner’s Dilemma: A Cost-Benefit Approach to Incarceration EV , 24 F But see , 24 F note 207, at 395 (“Cost should be, at most, a marginal consideration in sen- note 207, at 395 (“Cost should be, at most, 220. Hyatt, Chanenson & Bergstrom, 219. . 1351 (2005). . 905 (2013); Darryl K. Brown, . 323, 365 (2004). Lynn S. Branham, . L. R EV EV EV A Doubts .pdf. Rachel Barkow, P 98 CBA to be subjected would sentences criminal proposed a model, a legislative within located experts body of independent by an NYU ANNUAL SURVEYcommission. sentencing office or criminal budget OF AMERICAN LAW [Vol. 70:41 \\jciprod01\productn\N\NYS\70-1\NYS110.txt unknown Seq: 58 24-FEB-15 11:35 legislation mandating that courts consider the approximate financial cost of availa- legislation mandating that courts consider ble sentences), not only the costs but also the benefits of these laws.”). Abrams, edly true, but only in a more limited sense. edly true, but only to decide, on an ad hoc basis, whether and how costs should matter—creatingto decide, on an ad hoc basis, whether a serious risk of inter-judge disparity—the [sentencing commission should set] pre- all judges in all courts.”); Ryan W. Scott, sumptive-sentencing ranges applicable to at Sentencing The Skeptic’s Guide to Information Sharing System mary sentencing factor.”); Ryan W. Scott, mary sentencing factor.”); Ryan W. Scott, Factor Chanenson, for instance, has argued that limiting quantitative anal- limiting quantitative has argued that for instance, Chanenson, popu- to correctional in sentencing policy changes ysis of proposed costs and per unit to adequately address “fails lation simulations does not category, and option and offense by sentencing outcomes program participa- of important aspects of include consideration and victimization.” tion, recidivism information in Missouri now includes the resources available to other components information in Missouri now includes the of the justice system); judges should be provided with information on cost of recommended sentences if judges should be provided with information requested by judge); Michael A. Wolff, tencing System if judges do use such data, judges will do use available cost data at sentencing; that disparities in sentencing; and that the leg- so without uniformity, leading to unjust in effect budgetary decisions); Flanders, islature is better suited to make what are supra that judges are tencing and should not be something R R See at Sentencing Cost and Recidivism Data Cost Have To Do With Justice? number of arguments for why judges should be provided with information com- for why judges should be provided number of arguments sentencing options); and recidivism risks of different paring financial costs Michael A. Wolff, R See generally Next Generation of Reform Information Systems, Transparency, and the 36095-nys_70-1 Sheet No. 55 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 55 36095-nys_70-1 36095-nys_70-1 Sheet No. 56 Side A 03/04/2015 07:12:55 But 222 Newly col- 223 North Carolina’s 221 ., Thomas W. Ross & Susan Katzenel- e.g , See . § 2153(a)(11) (2014). to improve the accuracy and precision of to improve the NN . § 164-47 (2014). . A . 207, 210 (1999) (stating that estimates provided by only EP TAT TAT R . S . S G ’ EN ONS ENT . C . S A N.C. G ED See , 11 F Extending the collection and maintenance of criminal justice of criminal maintenance and collection the Extending In sum, the present Article rejects CBA of individual criminal In sum, the present Article rejects 221. 42 P 223. Using such techniques, prison population forecasting has proven, over 222. Crime and Punishment in North Carolina: Severity and Costs Under Structured Sen- son, tencing the North Carolina’s sentencing commission have been accurate to within 1% of actual prison population). time, to be fairly accurate and reliable. 2014] DECISIONS OF SENTENCING THE REGULATION incarceration annual and populations prison beyond databases rates, such as recidivism justice variables, other criminal costs to 99 of states Indeed, a handful useful project. an enormously seems like collection. Pennsylvania, such data authorize or mandate presently sys- to “[c]ollect its sentencing commission empowers for example, of regarding effectiveness information and disseminate tematically and sentences imposed.” parole dispositions \\jciprod01\productn\N\NYS\70-1\NYS110.txt unknown Seq: 59 24-FEB-15 11:35 lected data on variables such as recidivism rates should not be used such as recidivism rates should lected data on variables costs, as part of a costs or other indirect to calculate victimization sanction is social determine if a proposed criminal larger project to such as recidivism Rather, quantitative variables, welfare increasing. used rates, should be sentencing commission has a statutory mandate to collect data and has a statutory mandate sentencing commission rates. on both adult and juvenile recidivism regularly report the fiscal impact statements themselves. type of quantitative analysis sentences in favor of a more limited of overall correctional resources predicated upon the rational use prison populations. The claim is and the containment of jail and by an independent body of experts that full-blown CBAs performed because some combination of should not bind sentencing policy assess the overall justness of a crim- legislators and judges can better value the retributive benefit. inal sentence and can more accurately appropriation requirement, the Under our proposed statutory fiscal impact statements merely quantitative analysis and required in terms of funding commitments establish a minimum threshold need for an independent expert by the government. There is no if the expected social benefits of agency to more broadly determine policy, including the retributive a proposed change in sentencing costs. By reserving the final benefits, exceed the expected social and democratically elected leg- cost-benefit determination to judges this increased data collection is socially beneficial only insofar as collection is socially beneficial this increased data and preci- data is used to improve the accuracy the newly collected population forecasting models. sion of correctional 36095-nys_70-1 Sheet No. 56 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 56 36095-nys_70-1 36095-nys_70-1 Sheet No. 56 Side B 03/04/2015 07:12:55 CONCLUSION . One response to this lack of credibility would be to “make” this lack of credibility would be . One response to Unlike the information disclosure model of sentencing regula- model information disclosure Unlike the 100task of less arduous the only perform must agencies expert islators, NYUin sentencing changes of proposed impact fiscal the estimating ANNUAL SURVEY OFpolicy. AMERICAN LAW [Vol. 70:41 appropriation mechanism statutory Article’s proposed tion, this fiscal period to any promises made in the current recognizes that periods are not expenditures in future fiscal increase corrections credible current fiscal pe- to future spending in the the legislature commit bind the hands of legislature, however, cannot riod. The present make specific ap- by committing its successors to future legislatures to the cost- legislative sessions. The response propriations in future current legislature identified here is to make the shifting problem by requiring a fraction of expected future costs internalize some in an amount in the current fiscal period one-year appropriation costs of the proposed change in proportional to the expected fiscal requirement bolsters the sentencing policy. The appropriations to fund larger correctional credibility of the legislature’s promise the fiscal impact of the change in populations in the future when Identifying the socially optimal sentencing policy is first realized. interesting empirical question left level of cost internalization is an open as a topic for future research. \\jciprod01\productn\N\NYS\70-1\NYS110.txt unknown Seq: 60 24-FEB-15 11:35 36095-nys_70-1 Sheet No. 56 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 56 36095-nys_70-1 36095-nys_70-1 Sheet No. 57 Side A 03/04/2015 07:12:55 , 180 (1982). TATUTES A Common Law for S This is your job as a This is your job 1 * GE OF A AW FOR THE 101 L OMMON VITTORIA BARSOTTI VITTORIA Let me start telling you what Justice Hugo Let me start telling you what This morning, while waiting to meet you for This morning, while , A C GUIDO CALABRESI GUIDO Mr. Justice Black, The Supreme Court, and The Bill of Rights , where I found one of your most penetrating , where I found , Feb. 1961, at 63, 67. A CONVERSATION WITH A CONVERSATION ALABRESI once said to me: “You realize, Guy, I cannot agree with once said to me: “You realize, Guy, 2 C A SCHOLAR ON THE BENCH: THE ON A SCHOLAR AGAZINE UIDO M S ’ Vittoria Barsotti: I would like to go over some of the great ideas that you devel- I would like to go over some of Guido Calabresi: * Professor of Comparative Law, University of Florence School of Law. Ph.D., 1. G 2. Charles Black, ARPER University of Florence. \\jciprod01\productn\N\NYS\70-1\NYS111.txt unknown Seq: 1 24-FEB-15 11:39 that.” A long time after that conversation I understood what he that.” A long time after that conversation of values because a judge meant: he could not accept the balancing taking the real world in no con- must consider values as absolutes, to some extent, a judge must pay sideration. This is strange because real world and many times takes attention to what goes on in the as a scholar or as a politician. The positions that he would not take a judge is part of a system. The explanation lies in the fact that must also take into account, espe- judge must follow the law, but as mine, the opinion of his col- cially in an appellate court such with my fellow judges, but leagues. Many times I don’t agree a separate opinion, concurring or nevertheless I decide not to write with them I may contribute to dissenting, because if I go along our conversation, I was browsing among some of your works. The I was browsing among some of our conversation, I think it is is the one I love most, not because book I started with interests and feel- but because it is closer to my the most important, facets of your also because it summarizes many ings and probably I read again the last page of judicial philosophy. the Age of Statutes places and try to scholar, it is my job to look in dark sentences: “As a as I can, what I see.” describe, as precisely scholar. What about your job as a judge? scholar. What about and books. In other words, I oped over the years in so many articles have somehow changed since would like to see whether these ideas As a scholar, you looked in dark you were appointed to the bench. new and different tasks. places; now, you probably have H Black, on hearing of Charles Black’s defense of absolutes in discuss- Black, on hearing of Charles Black’s ing torture, 36095-nys_70-1 Sheet No. 57 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 57 36095-nys_70-1 36095-nys_70-1 Sheet No. 57 Side B 03/04/2015 07:12:55 which are part of 5 4 A Common Law for the Age Stat- note 1. supra , ALABRESI C I could openly follow this approach, this method, only if I could openly follow this approach, In the book I talk about “subterfuges,” You have just touched on one of the fundamental and You have just touched on one In the book you suggest that courts should develop a judi- In the book you suggest that courts at 164–65. But in this way you are not only using a subterfuge, you are But in this way you are not only using 3 at 172. See generally Id. Id. GC: Sometimes, then, a judge does not take into consideration “ab- consideration does not take into then, a judge Sometimes, or acts in the judge is a clear-cut absolutist In any case, whether I think that courts should For instance, although as a scholar VB: VB: GC: 3. 4. 5. : what happens to old and obsolescent laws—to: what happens to old and obsolescent laws that the 102 more a reaching eventually and positions their down smoothing NYU decision. balanced ANNUAL SURVEY OF AMERICAN LAWas a whole the system into consideration but instead takes solutes,” [Vol. 70:101 deci- makes “policy” degree a lawmaker, he is to some and, because to take a completely free agree, I am a scholar, if I don’t sions. As other hand—in stand. On the different certain to protect order fundamental rights—onmust recognize some occasions a judge one with is values that cannot be balanced “absolutes,” that another. decisions have not way, he always knows that his a more nuanced they also have a impact on real persons but that only an immediate take into account on the law. The judge must more remote impact scholar instead fit in the system as a whole. The how his decisions he is com- and since he creates no precedent, operates in a vacuum his personal ideas. pletely free to express statutes; in some of my have the power of updating obsolescent in our present system do not have opinions I have said that judges that power. in most fascinating issues discussed \\jciprod01\productn\N\NYS\70-1\NYS111.txt unknown Seq: 2 24-FEB-15 11:39 utes for simple inertia or for political legislative body does not update reasons? cial power over statutes, slowly, and in a common law fashion, but cial power over statutes, slowly, this power. now, as a judge, you are denying the judge’s natural power of interpretation. When an act can be the judge’s natural power of interpretation. I am free to use that subterfuge, interpreted by way of a subterfuge, eventually citing analogous cases. the statute in a common law rather constructing and manipulating common law mainstream. style so as to put it back in the the power, but this is not yet the the legislative body had given me hold that the statute is vague and case. Nevertheless, the judge can consequently interpret it in a manner close to the common law. But 36095-nys_70-1 Sheet No. 57 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 57 36095-nys_70-1 36095-nys_70-1 Sheet No. 58 Side A 03/04/2015 07:12:55 6 NALY- now and, A 10 , CONOMIC E EGAL AND : A L One View of the Cathedral 9 : torture must never be admitted, : torture must never , CCIDENTS 7 A 8 A Common Law for the Age of Statutes A Common Law for OST OF Ashcraft v. Tennessee, 322 U.S. 143, 155 (1944) Ashcraft v. Tennessee, 322 U.S. 143, C note 1. HE , T see also supra , The Cost of Accidents ALABRESI C ALABRESI As a scholar, I am always candid. I am always As a scholar, The ideas are the same. What changes is their application. The ideas are the same. What changes C This is very clear in the book, your choice is for candor. book, your choice clear in the This is very I realize that you are trying to make me understand what are trying to make me understand I realize that you Let’s go on now to other ideas and to other seminal works Let’s go on now to other ideas and at 173–74; at 178–80. SIS UIDO Id. See Id. GC: VB: GC: not to use subterfuges chooses cases, a judge generally In hard a judge must always remem- One of the most important things a judge must consider is that The second very important thing VB: VB: 7. 8. 6. 9. G (1970). (Black, J.) (explaining further why confessions obtained through coercive meth- ods should never be admissible). 2014] it a I consider reason for this and interpretation is not honest this who of my colleagues of those critic a harsh and I am “subterfuge” too often. a kind of construction use such BENCH ON THE A SCHOLAR precedent to follow the judges would have otherwise other openly, can use subter- subterfuge. In the end, a judge and use the same and here I have to he is able to hide this practice, fuges only when Black’s defense Black and his response to Charles go back to Justice 103 torture of absolutes in discussing a person holds a certain posi- I believe very much in roles. When duties of that position. tion, he must follow the rules and on real persons’ lives. If, for ber is that his decisions have an impact in his theory but his fellow judges instance, a judge strongly believes it, the outcome can be negative on the court are not ready to follow world because the opinion of the for the real person in the real majority tries to “resist” that theory. opinion of a judge sharply con- his decisions make law. And if the can be a court decision that is trasts with the majority, the result more “extreme” than what is needed—both for the parties in the the law. case and for the development of analysis of law. Let’s take into of yours. Let’s talk about economic consideration \\jciprod01\productn\N\NYS\70-1\NYS111.txt unknown Seq: 3 24-FEB-15 11:39 that you are on the bench. not even in very special cases. Admitting torture for special cases special cases. Admitting torture not even in very many exceptions in the wall through which too would open a crack of updating a who openly recognizes his power could go. The judge opening a crack in the system. statute ends up ideas of happened to the 36095-nys_70-1 Sheet No. 58 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 58 36095-nys_70-1 36095-nys_70-1 Sheet No. 58 Side B 03/04/2015 07:12:55 19 As 11 21 was strictly re- was strictly In that case, the In that case, 12 (1978). , 17 Tragic Choices Tragic 14 . HOICES C RAGIC http://www.defense.gov/speeches/ , T Taber v. Maine Taber v. Two questions were important. Two questions were 16 OBBITT note 11. The Cost of Accidents The Cost B available at supra and HILIP , This is so true that after my decision the This is so true that after my decision . 1089 (1972). 20 EV 13 Property Rules, Liability Rules, and Inalienability: One View of Property Rules, Liability Rules, and Inalienability: & P note 1. OBBITT . L. R I was then able to refer explicitly to my ideas. I was then able to refer explicitly supra ARV 18 , & B ALABRESI , 67 F.3d at 1033–42. , John H. Dalton, Sec’y of Navy, A Holistic Approach to Curbing C at 1033–37. at 1031 (citing Ira S. Bushey & Sons, Inc. v. United States, 398 F.2d at 1031 (citing Ira S. Bushey & Sons, Inc. , 85 H There was a car accident between two soldiers, one of accident between two soldiers, There was a car One of my first decisions, first decisions, One of my at 1032. at 1034–35. at 1033–42. Give me the facts of the case. Give me the facts UIDO ALABRESI ALABRESI A Common Law A Common See Taber Id. See id. See id. Id. Id. See, e.g. My opinion was very good and completely coherent with my very good and completely coherent My opinion was California had followed an important decision of Henry California had followed an important VB: GC: The first question was, “Can driving be considered part of the The first question was, “Can driving GC: 15 11. G 10. Guido Calabresi, 14. C 15. 16. 17. 18. 12. 67 F.3d 1029 (2d Cir. 1995). 13. C 19. 20. 21. Moreover, according to my theories, the administration was to be Moreover, according to my theories, or not drinking is part of the held liable given the fact that drinking is in turn part of the adminis- intrinsic behavior of a soldier, which tration’s responsibility. the Cathedral Friendly that cited my first works and followed my theories on eco- Friendly that cited my first works nomic analysis. 104 the volume perspective, different a slightly from NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 70:101 \\jciprod01\productn\N\NYS\70-1\NYS111.txt unknown Seq: 4 24-FEB-15 11:39 theories to the point that Judge Posner said: “It’s Guido at his best.” that Judge Posner said: “It’s theories to the point precedent, the decision, even though a binding But I must add that judges to follow. is hard for other while drunk. whom was driving military job of the soldier and therefore can the administration be military job of the soldier and therefore superior?” held liable for damages as respondeat rules on drinking and driving in the military were changed. rules on drinking and driving in lated to law was close to my theories and there was some room to maneuver my theories and there was some law was close to is the law of the to apply the law of Guam, which because we had and thus common is also the law of California Ninth Circuit, which law. a judge, have you ever come to grasp with the theories expressed in expressed theories with the to grasp come you ever have a judge, which you a decision in I have in mind and articles? these books your theo- position and explain your in order to better concurred analysis. on economic ries based 167, 171–72 1968)). (2d Cir. speech.aspx?speechid=622 (noting that “[in 1996 the Secretary of the Navy] estab- lished a senior-level Standing Committee on Alcohol Abuse Prevention and Alco- Sexual Harassment (Feb. 4, 1997), 36095-nys_70-1 Sheet No. 58 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 58 36095-nys_70-1 36095-nys_70-1 Sheet No. 59 Side A 03/04/2015 07:12:55 26 24 This was the right way of interpret- This was the right but more often a case can be decided but more often 25 Soldiers had to be considered as em- had to be considered Soldiers 27 doctrine, a doctrine that improperly, I doctrine, a doctrine , doctrine, soldiers could not sue the ad- sue the not could soldiers doctrine, 22 Because soldiers have insurance plans soldiers have Because 23 Feres Taber Feres , 67 F.3d at 1037 (citing Feres v. United States, 340 U.S. 135, 146 , 67 F.3d at 1037 (citing Feres v. United at 1042–44. at 1038–42. See Taber Id. Id. Id. Id. Id. I could do this in I could do this in The second question concerned the common law. Following law. common the concerned question second The for which hand, the soldier suffered damages But in the case at In these cases the judge has two possible ways of reasoning. In these cases the judge has two that in order to decide the In the first place, he may pretend 22. 23. 24. 25. 26. 27. hol Use Deglamorization in the Department of the Navy to provide assistance and hol Use Deglamorization in the Department alcohol use and abuse among sailors and advice on matters and policies relating to programs to deal with alcohol abuse in the Marines,” out of which came two major Navy and the Marine Corps). (1950)). 2014] Court’s Supreme the for damages. ministration BENCH ON THE A SCHOLAR compensation have been sued under workers’ the employer could employee. if he had been an 105 \\jciprod01\productn\N\NYS\70-1\NYS111.txt unknown Seq: 5 24-FEB-15 11:39 similar to, though somewhat different from, workers’ compensa- from, workers’ different though somewhat similar to, administration. cannot sue the tion, they ployees who can sue their employers only within the limits of only within the employers who can sue their ployees compensation. workers’ believe, was the result of courts misinterpreting statutory law just to result of courts misinterpreting statutory believe, was the with the common law. make it consistent ing the relevant statutes. But at the same time, I underlined that I statutes. But at the same time, I ing the relevant the did not agree with in a very limited way and still reach a fair result. Such a minimalist way and still reach a fair result. in a very limited because it often leaves unsatisfied scholars approach, however, the case stands in picture. It does not say where misses the general the stream of the law. He will say more than is needed. case he must rule in a broad way. think this approach is wrong. The He will be an “activist” judge. I without indulging in broad the- judge must decide the case at hand in a court like mine in which a ories. And this is especially true that are strictly binding on panel of three judges makes decisions we can overrule a prior panel’s the other later panels. In my court, en banc—thatdecision only when we are sitting is when all the judges on our court hear a case—but this occurs very rarely. Under that each panel does not de- the circumstances, it is very important Pretending that a broad deci- cide more than is strictly necessary. for the later judges who sion is unavoidable can create problems situation of having to choose will find themselves in the unpleasant 36095-nys_70-1 Sheet No. 59 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 59 36095-nys_70-1 36095-nys_70-1 Sheet No. 59 Side B 03/04/2015 07:12:55 29 Harvard Law you wrote a concurring because in the end, he is 28 30 . Ciraolo Ciraolo , but he wrote his ideas not in a concurring , but he wrote his ideas not in , you advanced the idea of postponement, of “sec- , you advanced the idea of postponement, Ciraolo Yes. Posner, more or less at the same time, wrote a deci- Yes. Posner, more or less at the Exactly! Through your concurring opinions you managed to be Through your concurring opinions Careful! When I concur in my own decision it might seem Careful! When I concur in my own This is what you did in If I remember correctly, in Let’s move on. There is another extremely interesting the- Let’s move on. There is another Foreword Id. ’s GC: VB: GC: In the second place, the judge can openly write dicta. But this write dicta. But judge can openly place, the In the second VB: VB: CG: VB: 28. Ciraolo v. City of New York, 216 F.3d 236, 242–50 2000) (Cala- (2d Cir. 29. 30. Kemezy v. Peters, 79 F.3d 33 (1996). opinion in which you explained punitive damages in terms of eco- opinion in which you explained your theory at length. nomic analysis and you expounded bresi, J., concurring). sion similar to court, opinion but in the opinion of the 106 it notwithstanding or follow the precedent disregard to whether NYU result. an incorrect is they believe what ANNUAL SURVEY OF AMERICAN LAWa judge say How much can of problems. can raise two sets practice [Vol. 70:101 we obscure? Moreover, the decision more without making in dicta two must dicta, the other and if I write of three judges are a panel must say The other judges to the dicta. with respect take a position only to Calabresi; that part of the opinion belongs if they agree or if don’t agree even if they might have to say that they in the latter case specific issue. I particularly strong feelings on the they don’t have dicta, my fel- carefully that if I insist on writing must consider very even if in the well feel they have to disagree now, low judges may with mine. Con- come to a position more in line future they might if they are not en- feel compelled to agree even versely, they might concurring Instead, if I write a separate opinion, tirely convinced. to explain where I I will first of all be able with my own decision, of law. I will also stands within the whole system think the decision theory about the more carefully my ideas and my be able to explain future. My fellow judges will be law without binding anyone in the be able to take it into considera- aware of my position and they will useful. tion for the future. This is extremely \\jciprod01\productn\N\NYS\70-1\NYS111.txt unknown Seq: 6 24-FEB-15 11:39 more aggressive, more activist than I am. more aggressive, more activist than scholar even on the bench. always a judge because the opin- that I write as a scholar, but I am of the case. ion is strictly related to the facts you. In the 1991 ory that I would like to discuss with Review 36095-nys_70-1 Sheet No. 59 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 59 36095-nys_70-1 36095-nys_70-1 Sheet No. 60 Side A 03/04/2015 07:12:55 Invali- 34 The other This is ex- 39 35 , an assisted sui- , an assisted . 80, 104 (1991). was an appropriate EV I wrote that we should 37 . L. R Washington v. Glucksberg, 521 , the Court of Appeals for , the Court of Appeals , my two conservative col- ARV Quill v. Vacco Quill v. Vacco , 521 U.S. 793 (1997). , 105 H rev’d sub nom. rev’d The statute prohibited physicians from The statute prohibited Quill v. Vacco 33 § 9A.36.060 (2011). Foreword: Antidiscrimination and Constitutional Accountabil- Foreword: Antidiscrimination and Constitutional ODE . C EV I proposed a new doctrine, a new approach to judi- I proposed a new doctrine, a new 38 I have labeled this new approach to judicial review as a review as judicial to approach this new labeled I have . R 31 32 Yes. Generally, I have advanced my “second look” theory my “second I have advanced Yes. Generally, at 731–43 (Calabresi, J., concurring). ASH was more respectful of Congress than the Ninth Circuit. was more respectful of Congress Compassion in Dying v. Washington Compassion in Dying Id. Id. Id. Id. 36 GC: In In my opinion I affirmed that Instead, in our case, 31. Guido Calabresi, 35. 80 F.3d at 725–31. 36. 37. 38. 39. 32. 80 F.3d 716 (2d Cir. 1996), 33. 79 F.3d 790 (9th Cir. 1996), 34. W the Ninth Circuit had struck down as a violation of the Due Process had struck down as a violation the Ninth Circuit State statute Amendment a Washington Clause of the Fourteenth suicide. regulating assisted “soft” approach because I think that it is a kind of judicial review judicial kind of it is a that I think because approach “soft” had the Have you ever the legislative body. respectful of that is very in your decisions? look” method to use the “second opportunity I have ex- case in which opinions. The or dissenting in concurring detail is my theory in more pounded cide case. ity (What the Bork-Brennan Debate Ignores) 2014]look.” ond BENCH ON THE A SCHOLAR 107 \\jciprod01\productn\N\NYS\70-1\NYS111.txt unknown Seq: 7 24-FEB-15 11:39 prescribing life-ending medication for use by the terminally ill, medication for use by prescribing life-ending death. who wished to hasten their own competent adults tremely interesting because using the Equal Protection Clause as a tremely interesting because using the possibility of enacting the benchmark gives the legislative body of the Constitution. My court law again in a wording respectful between those who could com- then, basing its decision on equality who could only do so if as- mit suicide on their own and those sisted, a concurring opinion. cial review, which I could do in case for applying the “second look” theory. case for applying the “second look” remand the case to the legislative body, we should advise the legisla- remand the case to the legislative of the law, and give tive body about the possible unconstitutionality and how to modify the sus- it the responsibility of deciding whether pect statute. dating a law because it is in contrast with the Due Process Clause is it is in contrast with the Due dating a law because there is nothing way of invalidating the law because the most activist can do to resurrect the law. the legislative body U.S. 702 (1997). leagues struck down a very similar New York statute holding that it leagues struck down a very similar Protection Clause. was in contrast with the Equal 36095-nys_70-1 Sheet No. 60 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 60 36095-nys_70-1 36095-nys_70-1 Sheet No. 60 Side B 03/04/2015 07:12:55 Be- 44 If, instead, 45 even though theirs was not theirs was even though Krauthammer wanted the 40 43 adopted a more aggressive because they because aggressive a more adopted Physician-Assisted Suicides Should Be Decided by Public, Quill ., Apr. 15, 1996, at 17. , 521 U.S. at 718–19, 735 (noting that “the States are cur- RIB . T HIC Yes. It is a moderate approach, but for Krauthammer it Yes. It is a moderate approach, at 725–31. But offering the legislative body a second chance is a very But offering the legislative body The Justices adopted a subterfuge while I acted in a more a subterfuge while I acted The Justices adopted , C Id. See Glucksberg Id. See id. 42 But it did so in such a confused way as to leave the door such a confused way as to leave But it did so in 41 At the time, Charles Krauthammer, a very conservative journal- At the time, Charles Krauthammer, Why did my colleagues decide the case in a way stronger than a way stronger the case in my colleagues decide Why did courts’ eventually overruled the appellate The Supreme Court VB: CG: 40. 41. v. Glucksberg, 521 U.S. Vacco v. Quill, 521 U.S. 793 (1997); Washington 42. 43. Charles Krauthammer, 45. 44. 702 (1997). examinations of physician-assisted suicide rently engaged in serious, thoughtful the Court’s holding “permits this debate and other similar issues,” and stating that to continue”). 108 court in of my judges NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 70:101 \\jciprod01\productn\N\NYS\70-1\NYS111.txt unknown Seq: 8 24-FEB-15 11:39 open to other developments of the law. The Justices almost did of the law. The Justices open to other developments states’ legislative and left some room for the what I had suggested bodies. manner. candid and transparent decisions, and especially my con- ist, attacked the appellate court new approaches to judicial review currence, bitterly criticizing such as extremely dangerous practices. courts simply to declare the statutes on assisted suicide valid. courts simply to declare the statutes Not Courts as aggressive a stand as the Ninth Circuit’s. a stand as as aggressive they Probably because opinion? in my concurring what I proposed was seem- Court, which the Supreme they were following believed not bound to fol- that direction. We are certainly ingly heading in Court, but it and future decision of the Supreme low a presumptive to precede such too activist for a court to try cannot be considered decisions. Supreme Court suicide stat- constitutionally valid the assisted decisions and held utes. directly and immediately struck down the New York statute as a vio- statute as York the New down struck immediately and directly Clause, the Equal Protection lation of courts have the possibility of asking the legislative body to take a courts have the possibility of asking their restraint and feel too free to second look, then they might lose cause of his ideological position he did not want to force the legisla- cause of his ideological position tive bodies to take a second look. moderate approach. that courts generally act with re- was a dangerous one. He thought unconstitutional because such a straint before declaring a statute to exceptional cases. power is very strong and reserved 36095-nys_70-1 Sheet No. 60 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 60 36095-nys_70-1 36095-nys_70-1 Sheet No. 61 Side A 03/04/2015 07:12:55 50 ELA- After R The (2006), 47 Id. RAR We don’t 49 A FFICIALS IN I know a lot O 54 AHER M ANADIAN Finally, the Syrians ac- C 52 ELATING TO R CTIONS OF A VENTS E ), 585 F.3d 559 (2d Cir. 2009) (en banc). Arar III EPORT OF THE NQUIRY INTO THE This is not a very democratic way of thinking. way of a very democratic is not This I , R 46 NOF RAR ’ A He was in prison for a year. at 565–66. (“The prize for judicial presumption, however, goes to Judge Guido (“The prize for judicial presumption, however, OMM 51 C at 585 (Sack, J., dissenting) (noting that during his initial detention in at 585 (Sack, J., dissenting) (noting that at 586–87. at 587. at 566–67 (majority opinion). AHER http://epe.lac-bac.gc.ca/100/206/301/pco-bcp/commissions/maher_ TION TO In Canada, an investigating committee made a serious In Canada, an investigating committee Id. See id. See id. Id. Id. Id. Id. See A terrible case. Arar, a Canadian and Syrian citizen, was Arar, a Canadian and Syrian A terrible case. (“[Until] his family contacted the Office for Consular Affairs . . . . The (“[Until] his family contacted the Office M 53 48 Another example of my use of second look is that of Maher use of second example of my Another Id. 46. 47. 48. Arar v. Ashcroft ( 49. 50. 51. 52. 53. 54. The secret services sent him to Syria, via Jordan, where he was tor- sent him to Syria, via Jordan, The secret services proved not to many facts that were eventually tured and confessed to be true. 2014] legislatures. press BENCH ON THE A SCHOLAR 109 \\jciprod01\productn\N\NYS\70-1\NYS111.txt unknown Seq: 9 24-FEB-15 11:39 inquiry into the case and recognized Arar’s rights. inquiry into the case and recognized travelling from Switzerland to Canada and his plane had a stopover to Canada and his plane travelling from Switzerland intelligence warn- in New York. Based on Canadian at J.F.K. Airport American agents that Arar was a terrorist, ing U.S. intelligence the airport and took him to Brooklyn. picked up Arar at Krauthammer was clearly looking at the result and my approach led approach and my the result at looking was clearly Krauthammer me. he attacked As a journalist, he did not like. to a result knowledged that he was not a terrorist and let him go back to Ca- knowledged that he was not a terrorist nada. whole story amused me very much because it revealed that because it revealed very much amused me whole story countermajoritarian not the supposed was criticizing Krauthammer of the decisions. only the merits the courts but nature of Arar. Frank Iacobucci, a Canadian Su- about the investigation because know exactly how he was treated there, but we do know that he was he was treated there, but we do know exactly how embassy or a law- to contact the Canadian not given an opportunity to Switzerland. given the opportunity to return yer, nor was he Calabresi of the 2nd Circuit in New York for his opinion concurring that the cur- Calabresi of the 2nd Circuit in New York be thrown out . . . .”). rent laws banning assisted suicide must meet with a lawyer and make telephone Brooklyn “Arar’s continued requests to only given the opportunity to return to calls were refused”). Initially, Arar was he would be tortured there. Syria, which he refused because he was afraid to make one phone call, to his mother-in- six days in detention Arar was permitted Canadian Office for Consular Affairs to his law in Canada, who in turn alerted the represent him in the his removal proceed- detention, and retained an attorney to ings. of Arar’s detention.”). Canadian Consulate [was not] notified available at arar/07-09-13/www.ararcommission.ca/eng/AR_English.pdf. 36095-nys_70-1 Sheet No. 61 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 61 36095-nys_70-1 36095-nys_70-1 Sheet No. 61 Side B 03/04/2015 07:12:55 N- 55 at I But as he 61 See id. 57 At our ONNOR vacated and 59 EVIEW OF THE Let’s leave O’C 56 ., R vacated on reh’g en Cabranes de- EC 60 S was not admissi- L ’ AT Bivens ACOBUCCI AND & N I AFETY Ottawa Reaches $10M Settlement with . S UB P http://www.parl.gc.ca/HousePublications/ ON . ! (June 13, 2001), http://www.democracynow RISING FROM THE and our court decided to rehear the and our court decided to rehear OW A ), 532 F.3d 157 (2d Cir. 2008), 62 OMM ), 414 F. Supp. 2d 250 (E.D.N.Y. 2006), action—a for constitu- special procedure N C available at Arar II Arar I action is not admissible when other defenses action is not admissible , 585 F.2d 559 (2009). Bivens The trial judge held that The trial judge TANDING EMOCRACY S 58 , D Bivens (Jan. 25, 2007, 9:06 PM), http://www.cbc.ca/news/canada/otta , 585 F.3d at 574 n.8 (citing ECOMMENDATIONS at 563–64 v. Six Unknown Named Agents of Fed. (citing Bivens R EWS —those me to Syria . . . to be tortured,” that “sent at 193–216 (Sack, J., dissenting). —the administration— States, the federal United QUIRIES See generally Arar III Maher Arar: My Rendition & Torture in Syrian Prison Highlights U.S. Reliance Maher Arar: My Rendition & Torture in Syrian See id. Id. Id. , 2009, H.C. (Can.), VB: GC: 55. 56. 57. 58. 59. Arar v. Ashcroft ( 60. Arar v. Ashcroft ( 61. 62. , 585 F.3d 559 (2d Cir. 2009). , CBC N INDINGS AND ble and the case was appealed to a panel of our court. was appealed to a panel of our ble and the case F 110was involved. mine, friend of good and a very Justice Court preme NYU as- correctly, very acting administration, conservative Canada’s ANNUAL SURVEY OF dollars. ten million Canadian damages for signed Arar AMERICAN LAW [Vol. 70:101 \\jciprod01\productn\N\NYS\70-1\NYS111.txt unknown Seq: 10 24-FEB-15 11:39 4–5. Arar wa-reaches-10m-settlement-with-arar-1.682875. on Syria as an Ally are possible (and this is true) and that there were many things an this is true) and that there were are possible (and himself. United States could do to defend immigrant to the .org/2011/6/13/maher_arar_my_rendition_torture_in. Redirector.aspx?RefererUrl=%2fHousePublications%2fPublication.aspx%3fDocId %3d4004074%26Language%3dE%26Mode%3d1%26Parl%3d40%26Ses%3d2&Re directUrl=http://www.parl.gc.ca/content/hoc/Committee/402/SECU/Reports/ While Judge Iacobucci RP4004074/securp03/securp03-e.pdf&StatsEnabled=true. he was Commissioner of a similar judi- was not Commissioner of the Arar Inquiry, had done enough to protect another cial inquiry into whether Canadian officials in Syria around the same time. dual Canadian-Syrian citizen from torture aside if sending people to torture is admissible or not. What is im- or not. What to torture is admissible people aside if sending corrected. error must be is an error, that is that when there portant Arar sued—At this point clared that a said. Arar filed a said. Arar filed wrote an absurd decision. court, Judge Cabranes Bureau of Narcotics, 403 U.S. 388 (1971)). superseded on reh’g en banc Arar was not given time to defend himself anyhow! Moreover, he time to defend himself anyhow! Arar was not given to come to the because he did not want was not an immigrant law was not applicable! United States and, therefore, immigration my help, wrote a very good and Another judge on the panel, with strong dissenting opinion, tional violations. banc 36095-nys_70-1 Sheet No. 61 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 61 36095-nys_70-1 36095-nys_70-1 Sheet No. 62 Side A 03/04/2015 07:12:55 67 id. at Arar Biv- id. 72 http:// note 64. at 630–39 id. supra was not an note 64 (noting available at Arar supra But before decid- Oral Argument, 70 was not available. see also action was available and action was available Oral Argument, Bivens see also And in order to ascertain this Bivens ); 71 at 623–30 (Pooler, J., dissenting). Arar II At that point, the majority that voted point, the majority At that id. at 623–30 dissenting); (Pooler, J., 66 In my dissenting opinion—which In my dissenting pro- id. would be remembered as a bad day—I would be remembered 69 Arar action might be permitted. action might be action would be a decision at a constitutional action would be a decision at , 585 F.3d at 562 n.* (noting that before he assumed senior , 585 F.3d at 562 n.* (noting that before , 585 F.3d at 562 (noting that Judge Katzmann “took no part in , 585 F.3d at 562 (noting that Judge Katzmann The appellant hired a new counsel who was closely counsel who hired a new The appellant —a level en banc At the procedure. unusual very panel and . . . participated in oral argument [before she] was panel and . . . participated in oral argument Bivens 64 63 Another judge on our court went senior and was no went senior judge on our court Another , 585 F.3d 559 (2d Cir. 2009) (en banc). , 585 F.3d at 580. My colleagues primarily addressed the question of addressed the question My colleagues primarily at 634–37. at 562 n.*** (noting that Justice Sotomayor “was originally a mem- at 562 n.*** (noting that Justice Sotomayor at 582–610 (Sack, J., concurring in part and dissenting in part); 65 Bivens 68 at 630–39 (Calabresi, J., dissenting). at 605–610part). (Sack, J., concurring in part and dissenting in at 582–610 concurring in part and dissenting in part); (Sack, J., in banc See Arar III Arar III See id. See Arar III Id. See id. Id. See id. Arar III Id. Why did I do this? All the dissenting opinions agreed (and this Why did I do this? All the dissenting We had to decide whether a We had to decide actions and torture. 65. 63. 64. 66. 70. 71. 72. 69. 67. 68. , 585 F.3d 559 (2d Cir. 2009) (No. 16-4216), ECF No. 189, , 585 F.3d 559 (2d Cir. 2009) (No. 16-4216), longer part of the plenum. longer part III www.c-span.org/video/?282779-1/arar-v-ashcroft-oral-arguments. was also the opinion of the majority) that any decision on the availa- was also the opinion of the majority) bility of a Four dissenting opinions were written, each partly concurring with opinions were written, each partly Four dissenting the others. ber of the 8, 2009”); elevated to the Supreme Court on August 2014] en banc case BENCH ON THE A SCHOLAR 111 \\jciprod01\productn\N\NYS\70-1\NYS111.txt unknown Seq: 11 24-FEB-15 11:39 that was a constitutional question. The majority held that in cases of question. The majority held that was a constitutional relevance political and international for rehearing the case en banc had changed, but we still agreed but we still banc had changed, the case en for rehearing decision could not hold because that the panel’s many things happened. was appointed to the Su- to the appointed was Sotomayor Sonia happened. things many preme Court. immigration case. ens voked a great controversy because I wrote that in our court’s history because I wrote that in voked a great controversy the day we decided wrote that the question, the case had to be remanded to the district court. question, the case had to be remanded related to one of the judges on our court, and who therefore had to and who therefore on our court, one of the judges related to be recused. ing on the availability of such an action, a preliminary question had ing on the availability of such an a problem with privileged mate- to be decided: whether there was rial, a problem with state secrets. the consideration or decision of the case”); Oral Argument, the consideration or decision of the case”); in the docket entry that “Judge Katzmann is [recused]”). in the docket entry that “Judge Katzmann (Calabresi, J., dissenting). at 610–23 (Parker, J., dissenting); status, “Senior Circuit Judge McLaughlin was a member of the initial three-judge status, “Senior Circuit Judge McLaughlin panel” that heard oral argument in 610–23 (Parker, J., dissenting); 36095-nys_70-1 Sheet No. 62 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 62 36095-nys_70-1 36095-nys_70-1 Sheet No. 62 Side B 03/04/2015 07:12:55 ex The Bivens Fed. R. 78 see also 75 at 627 (Pooler, J., action in a terror- id. Nobody is entitled to 77 Bivens The administration may 76 at 602 (concurring in part and dis- id. remedy . . . is a matter of constitutional inter- remedy . . . is a matter of constitutional Fed. R. Crim. P. 6(e)(2)(B). Bivens , 131 F.3d at 102 (“[D]istrict courts, as part of their , 131 F.3d at 102 (“[D]istrict courts, as , 131 F.3d at 101. see also at 574 (majority opinion) (“Although this action is cast in at 574 (majority opinion) (“Although at 620 (Parker, J., dissenting); id. , 585 F.3d at 631 (Calabresi, J., dissenting) (“[T]he existence , 585 F.3d at 631 (Calabresi, J., dissenting) Petition of Craig, 131 F.3d 99 (2d Cir. 1997). Petition of Craig, 131 F.3d 99 (2d Cir. at 605 (Sack, J., concurring in part and dissenting in part). at 605 (Sack, J., concurring in part and see also id. —andseems inclined administration fact the Obama in Yes. I would have encouraged and stimulated a political encouraged and stimulated a Yes. I would have at 101–02; In a sense, with your opinion you would have encouraged In a sense, with 74 See Arar III See id. See In re Id. In re Petition of Craig In re Petition of Craig But a decision based on the doctrine of state secrets is a secrets of state doctrine on the based a decision But of a claim meriting a 73 Grand jury proceedings are secret. VB: GC: In those two cases I was not successful. But there is a case in In those two cases I was not successful. 73. 74. 75. 76. 77. 78. 112level. NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 70:101 \\jciprod01\productn\N\NYS\70-1\NYS111.txt unknown Seq: 12 24-FEB-15 11:39 decision based on common law and statute and therefore could be could therefore statute and law and on common based decision changed cannot when a case doctrine. Moreover, the state secrets to change action is means that the reasons, it often for state secrets proceed the state because of go forward precisely but cannot well founded say, “The trial judge to it’s easy for the such a situation, secret. In the administra- I cannot proceed.” This can put action is good, but solution “Cana- driving it towards a political tion under pressure, to pay damages to administration will be pushed dian style.” The without going rights are allegedly violated the person whose fair result can be proceeding. In the end, a through a judicial reached in the case. a political response. decision. I was also trying to avoid a constitutional issue. I was trying trying to avoid a constitutional decision. I was also on the significance of a to avoid a decision those who get excited when ism case, to avoid a situation where tend to limit the reach of dealing with terrorism issues would of the case. actions just because of the merits review succeeded. which my soft approach to judicial publicize grand jury proceedings, but such a decision lies only publicize grand jury proceedings, within the discretion of the administration. jury. We had a case in which a know what was said before a grand a certain person said to the grand historian wanted to know what investigations of the 1950s. jury during the anti-communist vel non dissenting). Crim. P. 6(e)(3). supervisory authority over the grand juries that they have empaneled, are explicitly given the discretion to determine whether, if one or more of the listed exceptions to grand jury secrecy apply, disclosure of records is appropriate.”); pretation.”); terms of a claim for money damages . . . it operates as a constitutional challenge to terms of a claim for money damages . . . policies promulgated by the executive.”); senting in part); 36095-nys_70-1 Sheet No. 62 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 62 36095-nys_70-1 36095-nys_70-1 Sheet No. 63 Side A 03/04/2015 07:12:55 81 In my opinion I held In my opinion 80 In my view, the trial judge had simply In my view, the 82 —that is they “stopped” the Supreme Court The administration won the case and could The administration 84 83 Special Grand Jury 89-2, 450 F.3d 1159, 1178 (10th Cir. In re , It’s another way to leave room to different institutional It’s another way to leave room Sealed Case No. 99-3091, 192 F.3d 995, 1004 (D.C. Cir. 1999). at 105–07. at 107. On appeal, I wrote a decision in which I noted that if I noted that in which I wrote a decision On appeal, But this is not a “second look,” it’s a shrewd move. But this is not a “second look,” 79 Id. Id. Id. Id. Id. See, e.g. In re VB: CG: 79. 80. 81. 82. 83. 84. But when is such a time reached? One might reasonably consider, a time reached? One might reasonably But when is such people who made people involved in the case or for instance, if are for the trial the case are still alive. These issues statements about judge’s decision In the case at hand, I read the trial judge to decide. one. to be a discretionary 2014]is said that that all arguing request the denied administration the adminis- ruled for judge the trial is secret; jury the grand before tration. BENCH ON THE A SCHOLAR 113 \\jciprod01\productn\N\NYS\70-1\NYS111.txt unknown Seq: 13 24-FEB-15 11:39 and gave the administration only a “non-victory victory.” At this and gave the administration only The grand jury, within certain point, the law is sufficiently clear. public. This does not mean that it time limits, can be open to the for the Supreme Court to give a will be impossible in the future but it will be harder. This is a clear-cut victory to the administration, legislative body, but regarding the “second look” not regarding the will one day reach the Supreme other federal courts. If the issue had already modified the law Court, it will reach it as if Congress the proceedings of the grand admitting the possibility of opening “second look” is a very sophisti- jury. As a judge, I have learned that John Wilkes Booth, the murderer of President Lincoln, had not Lincoln, murderer of President Booth, the John Wilkes of a grand gone in front and if he had during his arrest been killed be able would never to the government, according jury, historians, the grand jury. what went on before to study to the public the time had not yet come to open thought that the investigations grand jury of the anti-communist proceedings of the era. of the McCarthy therefore not appeal to the Supreme Court, which was then not to the Supreme Court, which therefore not appeal (as it seemed to me). able to decide the issue prematurely tell you why. The losers did not actors on difficult issues and I’ll they were happy. What was in appeal because to a certain extent was that many decisions were fact the result of the case? The result courts of appeals and all of them taken on similar issues by various followed my opinion that a time must come when grand jury proceedings are to be avail- come when grand jury proceedings that a time must purposes. in order to be studied for research able to the public 2006); 36095-nys_70-1 Sheet No. 63 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 63 36095-nys_70-1 36095-nys_70-1 Sheet No. 63 Side B 03/04/2015 07:12:55 I am re- OMPARATIVE 85 C ROCESS IN P UDICIAL J HE , T where, looking at the European ex- where, looking at the European 86 APPELLETTI C AURO Tell me something about Guido as both a judge and a Tell me something about Guido United States v. Then That’s one of the most quoted sentences from my That’s one of the most quoted 87 (1989)). Exactly! I tried to initiate a dialogue among courts over a dialogue among I tried to initiate Exactly! at 469. (citing M It’s a very famous case, in which you cited a Florentine It’s a very famous case, in which When a judge writes a dissenting or a concurring opinion, a dissenting or a concurring When a judge writes Let’s change perspective. Once, in discussing how courts Let’s change perspective. Once, In any case, you leave a door open for dialogue. you leave a In any case, Here we go back to what you were telling me at the begin- to what you were telling me at Here we go back First of all, I think that citing foreign countries’ law not First of all, I think that citing Id. Id. GC: VB: VB: GC: VB: GC: VB: GC: 85. United States v. Then, 56 F.3d 464 (2d Cir. 1995). 86. 87. ERSPECTIVE P opinions. you acted like a true com- scholar, Mauro Cappelletti, and paratavist. 114 the legislative to is referred look” a “second Generally, theory. cated NYU to and other judges to referred also be it can but body, ANNUAL SURVEY OFadministrators. AMERICAN LAW [Vol. 70:101 successful my decision was In this case of the grand jury. the issue it—it’s nobody talks about is the reason why and this not interesting is their vocation The problem with judges because it’s not dramatic. dissent, the great temptation to write the great for martyrdom, their wrong.” saying “everybody but me is concurring opinion, take into account The good judge must ning of our conversation. you took into the situation that you just described, the real case. In of the law. real case and the development account both the he should not be he writes for history. But he feels good because right answer and such a case he has not found the happy because in has lost. should be free to decide—courts be free to remand cases, should ask for a “second look,” decide prospectively—you mentioned what are allowed to do. some European constitutional courts \\jciprod01\productn\N\NYS\70-1\NYS111.txt unknown Seq: 14 24-FEB-15 11:39 comparatavist. instance, for Justice Scalia, but it is only is not a problem, as it is, for an American judge because the part of the fundamental task of In our federation, values differ United States is a true federation. Vermont and Texas have dif- very much from one state to another. beginning of our history, not only ferent values. Yet, from the very state’s law, but that practice was could one state refer to another ferring to perience, you wrote beautifully, “Wise parents do not hesitate to perience, you wrote beautifully, learn from their children.” 36095-nys_70-1 Sheet No. 63 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 63 36095-nys_70-1 36095-nys_70-1 Sheet No. 64 Side A 03/04/2015 07:12:55 The 92 The second chance 91 The consequence is that for Scalia, is that The consequence 89 ` a-vis a referendum. Our Law, Their Law, History and the Citation of Foreign Our Law, Their Law, History and the Citation . art. XVIII. . 1417, 1418 (2006) (listing opinions in which Justice Scalia . art. II. Scalia declares that it’s not possible to quote an- to quote possible it’s not that declares Scalia ONST EV 88 . C , Riggs v. Palmer, 115 N.Y. 506, 512 (1889) (referring to Connecti- , Riggs v. Palmer, 115 N.Y. 506, 512 (1889) ONST AL . C C 90 David J. Seipp, In California, a decision of unconstitutionality can be con- In California, a decision of unconstitutionality AL And this is not the case in Washington. See, e.g. See Id. See VB: GC: But this was never true in our system because judges in Texas judges in our system because was never true in But this can be ge- mean? Obviously two jurisdictions What does “close” 88. 89. 92. 91. C 90. , 86 B.U. L. R sidered a “second look” vis- 368, 377 (1845) (referring to the Virginia cut probate law); State v. Post, 20 N.J.L. 1 N.H. 199, 214 (1819) (referring to Mas- state constitution); Merrill v. Sherburne, sachusetts common law). Law 2014]common. very BENCH ON THE A SCHOLAR 115 \\jciprod01\productn\N\NYS\70-1\NYS111.txt unknown Seq: 15 24-FEB-15 11:39 hard law is the only source of law. is the only source hard law and con- governor by Vermont’s are not nominated or California have always senate, yet judges in Vermont firmed by Vermont’s in order to de- opinions from Texas or California been free to cite into consideration better. Vermont, in taking cide their own cases jurisdictions, to jurisdictions, must look to “close” other American regarding the values similar to those of Vermont, jurisdictions with free to cite far to be solved. But Vermont is also problem that has example, to verify countries in order, for and culturally remote to a similar have a different approach whether those countries problem. from a systematic but they can also be close ographically close, York and California frequently cite point of view. For instance, New Field Code States. This is true one another because they are both common law, but also for consti- not only for issues regulated by the each other but they must be care- tutional issues. Courts talk among has invalidated its guest statutes ful. For example: “Look! California And then Washington State as a violation of the state constitution.” its own guest statutes. But it is very follows California and invalidates in California and in different to declare a statute unconstitutional Constitution can be very easily Washington. In California, the amended. other country’s courts because that country’s judges were not ap- were not judges country’s that because courts country’s other advice and States with the of the Unites by the President pointed of the U.S. Senate. consent “complained about the citation of foreign law”). is given not to the legislative body but directly to the people. is given not to the legislative body situation in Washington is different. In the end, Washington’s refer- situation in Washington is different. In order to follow another legal ence to California is not proper. 36095-nys_70-1 Sheet No. 64 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 64 36095-nys_70-1 36095-nys_70-1 Sheet No. 64 Side B 03/04/2015 07:12:55 I realized I have taken too 95 94 A Common Law for the Age of Stat- , the decision that declared sodomy laws , the decision that note 1, at 178–81. note 89, at 1417 & n.3. which was bitterly criticized not only on its mer- which was bitterly 93 supra supra , Lawrence v. Texas Seipp, She has to know what she is doing. But, that said, she has is doing. But, to know what she She has —but to or a supranational system. It comes is a foreign It can be that, for Maine or Vermont, Canada’s case law is Maine or Vermont, Canada’s It can be that, for Let me add a few more words on federalism. Let me add a few more words on ALABRESI When one compares, she has to know what she is doing. has to know compares, she When one And here we are back to See GC: VB: GC: VB: to cite the fifty-one jurisdic- In any case, if a judge is allowed VB: GC: The position of my court, as a federal court of appeals, is The position of my court, as a 93. 539 U.S. 558 (2003). 94. 95. C and your “choice for candor.” 116 of be aware and legal system with that familiar must be one system, NYUits complexity. ANNUAL SURVEY OF AMERICAN LAW [Vol. 70:101 that times it happens done it. And many as she has always to do it system—because easily comparable the more and le- of its cultural gal similarities—is the US— not within my mind For an American than that of Texas or California. more interesting But he and inevitable to be a comparatavist. judge, it is important saying: “It’s comparatavist. Once I heard Posner has to be a good is allowed to does not hold, but if a judge true, Scalia’s position gain too much power because he refer to any jurisdiction, he would that he likes.” He made me will always be able to find the answer debated was exactly if a judge laugh because the issue that was Posner was saying yes and I was could do anything he wanted and “Well, for you, a judge can do saying no. This is how I concluded: the difference?” anything anyway. What, then, is find everything he wants! It’s the tions of the United States, he will be honest when he interprets same old story. The judge must always so when, in the interpretation, he the law and this is just as much when he uses subterfuges, he uses comparative law. Indeed, even must be candid. utes \\jciprod01\productn\N\NYS\70-1\NYS111.txt unknown Seq: 16 24-FEB-15 11:39 its but also because it quoted extensively from the case law of the it quoted extensively from the its but also because of Human Rights. European Court much of your time. We’ve been talking all morning. Is there some- much of your time. We’ve been to our conversation? thing else you would like to add unique. It decides ordinary issues and constitutional issues and, in unique. It decides ordinary issues a court of last resort because the the great part of the cases, it’s certiorari. Only in those rare Supreme Court almost never grants cases that reach the Supreme Court do we really act as an interme- unconstitutional, 36095-nys_70-1 Sheet No. 64 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 64 36095-nys_70-1 36095-nys_70-1 Sheet No. 65 Side A 03/04/2015 07:12:55 98 aff’d sub 99 Two years later, in a crucial case, my opinion was fol- Two years later, in a crucial case, Holster v. Gatco, Inc., 130 S. Ct. 1575, 1577 (Ginsburg, J., dissenting). Precisely! And why is there no federal general common Precisely! And why is there no We can even say, “You have gone in this direction, but we We can even say, “You have gone 97 —where conflict or not. emphasize the you Yes. “There is no federal general common law.” Yes. “There is no federal general This is a crucial point. You “prepare” the case in order to point. You “prepare” the case in This is a crucial I can say, for instance, that Judge Posner in Chicago has that Judge Posner for instance, I can say, See everybody said about my opinion, “Ok, Guido. You’re right, everybody said about my opinion, 96 GC: But we also have another role that is important when we apply But we also have another role that VB: VB: GC: VB: GC: Warner-Lambert Co., LLC v. Kent, 552 U.S. 440 (2008). 96. Desiano v. Warner-Lambert & Co., 467 F.3d 85 (2d Cir. 2006), 97. Warner-Lambert Co., LLC v. Kent, 552 U.S. 440 (2008). 98. 99. Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). law? In the end, we also have the role of stimulating, of directing. In the end, we also have the role jurisdiction cases we apply state state law. As you know, in diversity law—common constitutional law. When we law, statutory law, and state judges. This is a interpret state law, we act like intermediate federalism. very important part of American 2014] reach will which cases very well know And we appeals. court of diate to con- able we are also judges, As intermediate Court. the Supreme to in deciding whether Supreme Court influence, the dition, to where to accept cases Justices now tend or not. The grant review BENCH ON THE A SCHOLAR we can write a decision— circuits. Well, a conflict among there is in New York and way, but that the fact situation decided in a certain probably is much, and what appears as a contrast Illinois differs very Court that there decision signals to the Supreme not. This kind of 117 circuits’ opinions. and suggests waiting for other is no need to rush “black” and we we can emphasize that Posner said To the opposite, to be decided. therefore that the contrast needs said “white,” and Court will take When we think that the Supreme But there is more. them a whole in a special way. We want to offer the case, we write to help the Court to decide. “menu”; we want Court. influence the decision of the Supreme a few years ago, in a preemption think it’s wrong.” For example, case, \\jciprod01\productn\N\NYS\70-1\NYS111.txt unknown Seq: 17 24-FEB-15 11:39 lowed because there had been a different development in the law. lowed because there had been a but the Court is going completely in another direction and you will but the Court is going completely to one.” I answered, “No prob- be reversed nine to zero or eight Justice did not participate in the lem!” It happened instead that one equally, and my opinion was decision, the remaining eight divided affirmed. nom. 36095-nys_70-1 Sheet No. 65 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 65 36095-nys_70-1 36095-nys_70-1 Sheet No. 65 Side B 03/04/2015 07:12:55 , I 101 105 , there is “no Quill v. Vacco Every state formally state Every 100 . 104 Erie Railroad Co. v. Tompkins, Erie Railroad Co. Adoption of the Common Law by the American Colonies Adoption of the Common Law by the American note 101, at 572 (noting that Arkansas incorporated note 1. supra supra . art I, § 14. , In other states, the same result was reached by stat- result was reached states, the same In other , Dale, ONST 102 Richard C. Dale, ALABRESI See, e.g. See State courts are delegated the power to develop English the power are delegated State courts In diversity cases, judges of most other circuits think they are judges of most other circuits In diversity cases, my colleagues because they My position shocked many of with New York State. Here This is what is going on, especially It’s a very interesting question because it brings us back again us back it brings because question very interesting It’s a 103 100. C 103. 104. 304 U.S. at 78. 105. 80 F.3d 716 (2d Cir. 1996). 101. 102. N.Y. C A Common Law for the Age of Statutes the Age for Law A Common better equipped than their state counterparts, and therefore tend than their state counterparts, and better equipped of the most impor- state law. But probably one to interpret directly “superiority” atti- as a judge was to consider that tant things I did I wrote, that in attitude. We must understand, tude to be a wrong and as a result, act as intermediate state judges diversity cases we courts to interpret we must ask state supreme through certification, their own law. overburden state courts. But my thought that in so doing we would to state courts, “Give us the inter- answer was: “Not at all!” If we say If, instead, we emphasize that pretation!,” that could be offensive. us their interpretation, but that if we would be grateful if they gave to do our best in giving meaning to they choose not to, we would try be collaborative. state law, state courts would surely understood my ideas and once the great Chief Judge Judith Kaye good relations between federal declared that the reason for such of certification.” My court and state courts was “Guido’s practice of their own law not only in di- now asks state judges the meaning where the issue to be decided is versity cases, but also in cases valid. In whether a statute is constitutionally 118 NYUto ANNUAL SURVEY OF AMERICAN LAW courts, is by state law, as elaborated English common For instance, [Vol. 70:101 of New York—thisthe law York by the New is expressly provided Constitution. \\jciprod01\productn\N\NYS\70-1\NYS111.txt unknown Seq: 18 24-FEB-15 11:39 ute. government. was never the case for the federal common law; this held in Therefore, as was federal general common law.” federal general adopted the English common law as the law of their jurisdiction. law as the the English common adopted the common law of England by statute). hoped the case would not reach the Supreme Court. I would have hoped the case would not reach banc and, prior to the constitu- preferred to rehear that case en to the panel level, I would have tional remand that I proposed 30 Am. L. Reg. 553 (1882). 36095-nys_70-1 Sheet No. 65 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 65 36095-nys_70-1 36095-nys_70-1 Sheet No. 66 Side A 03/04/2015 07:12:55 But, 106 . 865, 880 (1960). EV , 35 N.Y.U. L. R The Bill of Rights Hugo Black, You are right. The legal philosophy that I tried to develop legal philosophy that I tried You are right. The There are some constitu- Mild only to a certain extent. In the end, if I try to put together all your answers, I can try to put together all your answers, In the end, if I conclusion, that as a judge Would it be fair to say, by way of See VB: GC: VB: GC: 106. 2014] of meaning the certification, through court, York the New asked court York The New suicide. assisted on York statute New the 1818 us to in- question, leaving to answer our been free not would have to wait for have preferred court might statute. The state terpret the BENCH ON THE A SCHOLAR the issue. before deciding jurisdiction case within its own another we use our question. When to answer might have preferred Or they willing to “Yes, we are judges can answer: New York certification, decide first and can start a dialogue with us: “You decide.” Or they or not.” free to follow your interpretation then we will be 119 some aspects of as a judge has emphasized see that Guido Calabresi open to dialogue As a judge, he is extremely his original theories. Guido Cala- to judicial review is as soft as possible. and his approach body, but is addressed not only to the legislative bresi’s openness a dialogic attitude federal and state. He has also to other judges, that interacts with his court. towards any subject with state courts And there should be a dialogue is that of dialogue. certain cases, on federal law. not only on state law but also, in to dialogue? you are minimalist, mild, and open absolutes. In this I follow Jus- tional values that must be considered the Framers have given a great tice Black: there are cases in which that power must be used. power to courts, and in these cases \\jciprod01\productn\N\NYS\70-1\NYS111.txt unknown Seq: 19 24-FEB-15 11:39 in general, you are right. Dialogue is a great part of my job as a in general, you are right. Dialogue philosophy. judge; it lies at the core of my judicial 36095-nys_70-1 Sheet No. 66 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 66 36095-nys_70-1 36095-nys_70-1 Sheet No. 66 Side B 03/04/2015 07:12:55 120 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 70:101 \\jciprod01\productn\N\NYS\70-1\NYS111.txt unknown Seq: 20 24-FEB-15 11:39 36095-nys_70-1 Sheet No. 66 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 66 36095-nys_70-1 36095-nys_70-1 Sheet No. 67 Side A 03/04/2015 07:12:55 36095-nys_70-1 Sheet No. 67 Side A 03/04/2015 07:12:55 Side A 03/04/2015 Sheet No. 67 36095-nys_70-1 36095-nys_70-1 Sheet No. 67 Side B 03/04/2015 07:12:55 36095-nys_70-1 Sheet No. 67 Side B 03/04/2015 07:12:55 Side B 03/04/2015 Sheet No. 67 36095-nys_70-1 36095-nys_70-1 Sheet No. 68 Side A 03/04/2015 07:12:55 36095-nys_70-1 Sheet No. 68 Side A 03/04/2015 07:12:55 36095-nys_70-1 Sheet No. 68 Side B 03/04/2015 07:12:55 VALUE QUALITY SERVICE

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