2017, Vol. 111, No. 5
Does the punishment of one defendant depend on how she fares in comparison to the other defendants on the judge’s docket? This Article demonstrates that the troubling answer is yes. Judges sentence a given offense more harshly when their caseloads contain relatively milder offenses and more leniently when their caseloads contain more serious crimes. I call this phenomenon “punishing on a curve.”
Consequently, this Article shows how such relative sentencing patterns put into question the prevailing practice of establishing specialized courts and courts of limited jurisdiction. Because judges punish on a curve, a court’s jurisdictional scope systematically shapes sentencing outcomes. Courts of limited jurisdiction usually specialize in relatively less serious crimes—such as misdemeanors, drug offenses, or juvenile cases. They treat the mild offenses on their docket more harshly than generalist courts that also see severe crimes. This leads to the disturbing effect of increasing punitive outcomes vis-à-vis these offenses, wholly contradictory to the missions of these courts. Such sentencing patterns undermine notions of justice and equitable treatment. They also undermine retributive principles and marginal deterrence across crimes of increasing severity.
In light of the profound normative and practical implications, this Article proposes a remedy to standardize sentences through “curving discretion.” In addition to consulting the sentencing range recommended by the sentencing guidelines for a particular offense, a judge should see the distribution of sentences for the same offense across different courts. This Article illustrates the feasibility of this proposal empirically using sentencing data from neighboring judicial districts in Pennsylvania. It also explains how this proposal fits within the Supreme Court’s jurisprudence following United States v. Booker, which rendered sentencing guidelines advisory, and its potential advantage to improve appellate review.
Notes & Comments
For much of the last forty years, ERISA’s church plan exemption has existed quietly without much fanfare. But increased litigation over the last five years has dragged the exemption into the spotlight. The litigation focuses on religiously affiliated hospital systems and whether their pension plans have been correctly classified as church plans exempt from ERISA.
This Note examines the history behind the church plan exemption, including statutory modifications made in 1980 and the IRS’s longstanding interpretation of these changes, which precipitated the dispute at issue in the current wave of litigation. While the U.S. Supreme Court’s recent decision in Advocate Health Care Network v. Stapleton endorsed a broad interpretation of the scope of the church plan exemption, this Note argues that Congress should revisit the church plan exemption and implement a more balanced approach to granting and evaluating church plan status. A more robust evaluation of church plan applicants would strike a balance between pension participants’ concerns around plan funding and other ERISA protections, and the needs of good faith church plan operators with valid religious affiliations.
The United States Supreme Court’s 2014 decision in Daimler AG v. Bauman changed how the courts will determine whether companies should be subject to general personal jurisdiction. In 1945, Pennoyer v. Neff’s geographical fixation gave way to International Shoe Co. v. Washington, which provided a test for courts to determine whether corporations had sufficient contact with a forum to meet the bar for personal jurisdiction there. Specific jurisdiction requires “minimum contacts,” provided the action is satisfactorily related to the forum. However, to be subject to general jurisdiction, a corporation must possess more than just “minimum contacts,” and claimants can bring actions in forums where companies are subject to general jurisdiction regardless of whether those actions have any relationship to that forum. Precisely how much contact a company must have with a forum to be subject to general jurisdiction has evolved since International Shoe, and Daimler is the most current iteration.
Analyzing general jurisdiction by pinpointing a company’s level of contact with a particular forum can be a superfluous exercise. The case law has developed such that “consent” can overcome even a remarkable lack of contacts with a particular forum and subject a company to general jurisdiction. Some courts have interpreted a corporation’s registration and appointment of someone to accept service of process in a state as implied consent to general jurisdiction. Others at least require a state’s registration procedure to explicitly mandate the company submit to general jurisdiction. Daimler, and its recent progeny, may have signaled the death knell for at least implied consent to general jurisdiction by virtue of registration and perhaps for explicit consent as well. Some courts and commentators are rightly noting that mandating consent as the cost of doing business in a particular forum is consent in name only. While courts used to give credence to the legal fictions of corporate consent and corporate presence, they are now striking them down as violations of the Fourteenth Amendment’s Due Process Clause.
This Note seeks to address how states can maintain general jurisdiction over corporations that do not meet Daimler’s apparent demand that a company be “at home” in the forum. The inevitable chipping away of states’ registration statutes as sufficient (impliedly or explicitly) for general jurisdiction potentially leaves a viable alternative intact: genuine consent. States might look to structure a form of incentive based consent by use of their regulatory or taxing authority. States can craft solutions based on how important it is to them to provide their courtrooms to those who would seek redress from corporations operating within their borders. Additionally, an incentive-based genuine consent to jurisdiction serves the ancillary benefit of ensuring more companies go through the proper channels of a state’s registration process, including filling out the appropriate paperwork, instead of operating outside its bounds.
After Daimler, states will have to decide whether, and how, to adapt their corporate registration statutes to ensure their courts remain open to claims based on general jurisdiction. This Note will put forward solutions so that states will be able to craft new legislation before the courts invalidate their reliance on fictional consent.
The media and academic dialogue surrounding high-stakes decisionmaking by robotics applications has been dominated by a focus on morality. But the tendency to do so while overlooking the role that legal incentives play in shaping the behavior of profit-maximizing firms risks marginalizing the field of robotics and rendering many of the deepest challenges facing today’s engineers utterly intractable. This Essay attempts to both halt this trend and offer a course correction. Invoking Justice Oliver Wendell Holmes’s canonical analogy of the “bad man . . . who cares nothing for . . . ethical rules,” it demonstrates why philosophical abstractions like the trolley problem—in their classic framing—provide a poor means of understanding the real-world constraints robotics engineers face. Using insights gleaned from the economic analysis of law, it argues that profit-maximizing firms designing autonomous decisionmaking systems will be less concerned with esoteric questions of right and wrong than with concrete questions of predictive legal liability. Until such time as the conversation surrounding so-called “moral machines” is revised to reflect this fundamental distinction between morality and law, the thinking on this topic by philosophers, engineers, and policymakers alike will remain hopelessly mired. Step aside, roboticists—lawyers have this one.