With the birth and rise of cryptocurrencies following the success of Bitcoin and the popularity of “Initial Coin Offerings”, public awareness of blockchain technologies has substantially increased in recent years. Many blockchain advocates claim that these software artefacts enable radically new forms of decentralised governance by relying upon computational trust created via cryptographic proof, obviating the need for reliance on conventional trusted third-party intermediaries. But these claims rest on some key assumptions, which this paper subjects to critical examination. It asks: can existing mechanisms and procedures for collective decision-making of public blockchains (which we refer to as internal blockchain governance) live up to these ambitions? By drawing upon HLA Hart’s Concept of Law, together with literature from regulatory governance studies, we argue that unless public blockchain systems establish formal and effective internal governance, they are unlikely to be taken up at scale as a tool for social coordination, and are thus likely to remain, at best, a marginal technology.
Part I briefly considers the taxation of bitcoin transactions to give the reader some sense of the constitutional Pandora’s box that was opened by South Dakota v. Wayfair. Part II then delves into one aspect of the Wayfair decision that has broad implications for the future. Specifically, when does technological change justify a departure from the Court's previous Commerce Clause decisions? Part III sketches a possible solution to the problem of horizontal precedent: the application of voting to questions of horizontal precedent, or Bayesian Stare Decisis. Part IV summarizes this proposal and concludes.
New technologies, such as blockchain, cryptocurrency (e.g., Bitcoin), and artificial intelligence are rapidly changing how transactions occur in the United States. While scholars have started to examine how a number of areas of law should adapt, very little work has been done on what these changes mean for taxation. Yet these developments could have a huge impact on tax revenues. For example, some approaches to taxing transactions using cryptocurrency could result in these transactions being conducted abroad, beyond the reach of the U.S. taxing authorities. And if robots replace large segments of the labor force, this could drastically shrink federal and state income tax bases.
The approach to taxing new technologies is a careful balance of capturing value and not disincentivizing growth. For example, if governments decide to levy a “robot tax” to replace revenues the income tax is no longer generating, they may accidentally stifle innovation in that jurisdiction.
At the same time, these new technologies also provide tools that governments can harness to levy taxes far more effectively than they currently do. For example, using blockchain technology to track the history of income and company shares allows for the potential of an integrated tax system, which combines the currently separate corporate and personal taxes into one unified taxation regime. The effects of this transition are a removal of many distortions and behavioral inefficiencies.
Just because technology can be used to levy taxes far more creatively does not mean that it should be. But given the rapid rate at which technological change is occurring, governments cannot afford to sit back and make these decisions by inertia. Rather, the main argument of this is that governments should: (i) recognize and adapt to shifting tax bases; and (ii) use technology such as blockchain to better target the populations and behaviors desired to be taxed. The paper recommends specific examples of how to better tax and use technologies, such as blockchain, to reform current taxation schemes.
There is also ample discussion of whether cryptocurrency will be regulated as a security (as per the Howey test and recent SEC enforcement actions), a discussion of foreign jurisdictions' approaches to cryptocurrency regulation and taxation, and recommendations to the SEC and IRS on how they should adjust their taxation of cryptocurrency.
Článek se zabývá možností uzavření smluv formou kódu (algoritmu) zapsaného v rámci blockchainové databáze. Tyto smlouvy jsou označovány jako smart contract, i když samotný pojem smart contract byl poprvé použit již v roce 1997 na začátku internetové éry před blockchainem pro smlouvy samostatně vykonávající smluvní závazek skrze hardware či software. Blockchainová technologie dokázala překlenout některé nedostatky tehdejšího řešení a je předvídáno možné masovější využití možnosti uzavírání smluv touto formou. Cílem článku je nalézt odpověď, zda lze v rámci českého právního prostředí uzavřít smlouvu formou kódu a nastínit možné výzvy, které z této technologické možnosti mohou vyplývat v perspektivě českého práva.
The terminology around blockchain technology is notoriously confusing, with disputes over whether a blockchain is the same as a distributed ledger, or whether an appcoin is the same as a protocol token. In this article, I examine the difficulties the rapidly shifting, contested vocabulary poses for regulators seeking to understand, govern, and potentially use blockchain technology, and offer suggestions for how to fight through the haze of unclear language.
In Part I, I provide examples of the fluctuating, contested language in the blockchain technology space, and describe the forces at play in shaping the language. In Part II, I lay out the problems the language raises for regulators, including challenges in identifying the facts about the technology, distinguishing among the many variations of the technology, and communicating clearly about the technology, as well as increasing the chances of regulatory capture, inconsistent regulation across jurisdictions and subject domains, and “perverse innovation.”
In Part III, I closely analyze the use of the term “immutable” in blockchain discourse, to illuminate the confusion a single term can cause for regulators (and the public at large). I argue that the widespread use of the term “immutable” as a defining feature of blockchain technology is misleading, given that (i) real world events have demonstrated that the unchangeable nature of a blockchain record is always limited by the decisions of its human governors to change it, and (ii) the source of a blockchain record’s “immutability” is disputed, meaning that it is unclear whether any particular variation of the technology may be fairly described as creating an “immutable” record. This is problematic as regulators have already begun to craft legislation describing the records created by blockchain technology as immutable, and are making decisions to use the technology in large part because of its “immutability.”
In Part IV, I suggest ways regulators can become better educated about blockchain technology, as is essential for them to responsibly govern or use the technology. I also recommend that regulators take a highly critical approach that (i) seeks to separate hype from reality; (ii) is sensitive to how incentives may shape the way blockchain technology is portrayed by industry and those sponsored by industry, and how misleading terminology appears in publications of the highest prestige levels; (iii) includes diverse perspectives from proponents and critics of the technology, multiple disciplines, and from across the gender, race, geographic, and economic development spectrums; (iv) takes nothing, including descriptions of the technology itself, at face value, but deeply interrogates and scrutinizes the technology and its stated capabilities; and (v) asks regulators to think for themselves about the technology and its benefits rather than succumbing to herd behavior.
I am hopeful that these recommendations, coupled with awareness that blockchain vocabulary is treacherous, can help regulators to discover the facts about blockchain technology and respond to them appropriately.
This Note will undertake to analyze bitcoin under the Uniform Commercial Code (UCC) and the Internal Revenue Code (IRC)—two important sources of commercial law—to see whether any existing asset categories adequately protect bitcoin’s commercial viability. This Note will demonstrate that although commercial law dictates that bitcoin should—nay must—be regulated as a currency in order to sustain its existence, the very definition of currency seems to preclude that from happening. Therefore, this Note will recommend that we experiment with a new type of asset that receives currency-like treatment, specifically designed for cryptocurrencies, under which bitcoin can be categorized in order to preserve its commercial feasibility and to give legal regulatory clarity.
I. INTRODUCTIONThe recent Great Recession soiled the credit reports of many Americans. Furthermore, advances in database technology have allowed employers and others wider access to comprehensive information about consumers, sometimes significantly narrowing the opportunities those consumers might have for employment, credit, housing, or insurance. These results have inspired some state legislatures to revise their credit reporting statutes to ameliorate the percussive effects of the economic crisis on their citizens' credit records. However, state lawmakers must navigate the thicket of the federal Fair Credit Reporting Act's preemption provisions if they are to create legislation that will be effective rather than impotent. This Article analyzes these provisions alongside recent Supreme Court decisions about preemption. The Article then provides both a theory of the intersection of state and federal credit reporting laws and describes the space remaining for state legislatures to create preemption-proof, or at least preemption-resistant, credit reporting provisions that can fairly balance the concerns of individuals and those who want access to their background information.Part II describes some recent legislative efforts in protecting consumers' financial and criminal record information. Following, Part III sets forth the framework of federal preemption generally and analyzes the Supreme Court's recent preemption decisions that are relevant to information-protection laws. Part IV describes the Fair Credit Reporting Act provisions that may overlap with state legislative activity, along with its specific preemption provisions, and analyzes the vulnerability of various state credit reporting provisions to preemption. The Article then maps out tactics for states to employ to preemption-proof their legislation and maximize the effects of their state information-protection laws.II. STATES' REGULATION OF DISCLOSURE OF CONSUMER FINANCIAL AND CRIMINAL RECORD INFORMATIONNearly every state regulates how consumers' financial and criminal record information may be collected and disclosed; these are, in essence, reputation-protecting provisions. However, given recent developments in the economy and data technology, this may be a suitable time to adjust these laws to better balance the privacy interests of consumers against the information interests of employers, banks, and insurance companies.The Great Recession inflicted tremendous damage to credit records by causing widespread unemployment and depressing housing values, putting great stress on the ability of many to repay debts.1 Those defaults and delays in payment have been duly amassed by the consumer reporting agencies that publish credit reports about consumers and compute their credit scores. Seeing this information about those hurt by economic blows may make employers less likely to hire them, landlords less likely to rent to them, and insurers less likely to insure them (or willing to insure them, but only at elevated premiums).Aside from the economic environment, advances in data technology have increased our ability to view public records across the country, leading many to be marked by visible criminal records incurred even decades ago-records that many might have thought they had surpassed.2 In addition, medical costs continue to accelerate and medical debt not only spoils many otherwise solid credit reports but has also led to a significant number of bankruptcies.3 Finally, the crime of identity theft has increased as data breaches become more common, exposing sensitive financial information to thieves who can then poison their victims' credit reports.4State legislators can ameliorate the effects of some of these historical events on their constituents' opportunities, curbing the impact of old credit, criminal, medical, and identity theft problems. However, for such record-enhancing provisions to have their intended impact, the drafters must carefully navigate the express preemption provisions staked throughout the Fair Credit Reporting Act (FCRA), the federal statute governing the creation and use of credit reports. …
Reviews and journals are currently revolving the topic of cryptocurrencies, even if, so far, the domain of law has not found the spur to adequately and univocally frame this phenomenon. Nonetheless, the US legal theory is presently debating how to include Bitcoins into pre-existing “regulatory folders”, while the country’s judiciary is dealing with the first cases pertaining to Bitcoins. The reaction of the US legal system to this radical technological innovation demonstrates that the operational rules resulting from the joint action of the legal formants may grant a legal system a first response by relying merely on its own legal tools. In light of this, the present article investigates the reactions to Bitcoin and the potentially suitable regulatory frameworks proposed by US legal theory. These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.
For over forty years, South Dakota courts have presumed the Fourth Amendment does not require an officer making an arrest for drunk driving to obtain a warrant before requiring a blood Officers, acting on this presumption, have required suspects to submit to blood tests even after the suspect refuses. Recent case law shows this presumption is mistaken. The need for a warrant depends on the totality of the circumstances. The South Dakota judiciary should act to reclaim the weighty role of standing between police officers seeking evidence through a Fourth Amendment search DUI cases and the citizenry they have sworn to protect. To accomplish this, the judiciary should unequivocally articulate circumstances that require a warrant and circumstances where police officers may forego obtaining a warrant. When police officers clearly understand what the courts expect, the officers' job is made easier, the judiciary's warrant approval process becomes more efficient, and the citizens' rights are better protected. I. INTRODUCTION The Fourth Amendment (1) requires police officers obtain a warrant before a person arrested for Driving Under the Influence (DUI) can be required to submit to a blood (2) If, however, the police officer reasonably believes he faces an emergency in which the delay necessary obtaining a warrant ... threaten[s] 'the destruction of evidence,' the officer may forego the warrant requirement. (3) This exception to the general warrant requirement falls within what are known as exigent circumstances. (4) In a DUI case, the most important evidence of the crime obtaining a warrant that are not as prevalent urban jurisdictions. (176) These include: the lack of cell phone coverage to call a magistrate, distance to medical facilities, and the unavailability of a magistrate to make the warrant determination. (177) Each future determination made by South Dakota courts will help inform police officers and prosecutors about how to conform their procedures to Fourth Amendment requirements, however the courts should not wait to spell out general guidelines: too much is at stake. (178) In the meantime, courts should not exclude the BAC evidence where an officer relied on the Supreme Court of South Dakota's past decisions condoning warrantless nonconsensual blood tests DUI cases. (179) After all, the purpose of the exclusion of evidence for Fourth Amendment violations is to deter future conduct, not to penalize reasonable reliance on past judicial precedent. (180) South Dakota courts should, on the other hand, caution officers that creating exigency by artificially delaying a blood draw would be rejected. (181) C. GUIDELINES FOR OFFICERS Unfortunately, based on the most current statement of the law governing DUI blood tests, A police officer ... would have no idea--no idea--what the Fourth Amendment requires of him, once he decides to obtain a blood sample from a drunk driving suspect who has refused a breathalyzer test. (182) This confusion can, and should, be cleared up at the jurisdictional level. (183) As a starting point, police officers should get a warrant whenever possible, not just to meet Fourth Amendment requirements, but also because warrants insulate the blood test from a suppression motion and switch the burden of proof to the defendant claiming the search, i.e., blood test, was unlawful. (184) South Dakota allows telephonic warrants, but they are not streamlined. (185) This type of warrant requires an officer to fill out the warrant application and read it verbatim to the issuing magistrate. (186) Once the magistrate approves the warrant, the requesting officer can sign the magistrate's name. (187) Because the circumstances a DUI case are often routine, prosecutors and court officers should advocate for a more efficient process including creating form warrants that require less time to fill out yet still provide individualized and detailed information to the issuing magistrate. …
In equal protection jurisprudence, courts adhere to a three-tiered system of review to determine the constitutionality of laws that rely on classifications of people. Strict scrutiny is the most searching inquiry, followed by intermediate scrutiny, and then rational basis. Rational basis review is the default. The two heightened levels of scrutiny apply to only a handful of already-identified groups. As a general principle, courts are deferential to the other branches of government. However, there is a departure to that principle when it comes to individual rights. That is, rational basis review is exceptionally deferential to the government. When individual rights are at stake, courts typically require the government to prove that its action is constitutional in nature and justified in fact. But under rational basis review, courts require the challenger of a law to disprove every conceivable, possible rationale for a law, regardless of whether it was actually a motivating factor behind the legislation. This standard has been interpreted to mean that even if a judge can imagine any reason why a rationale could — even hypothetically — justify a law, then the law stands as constitutional. Often governments do not even assert a rationale for their actions. Rather challengers must disprove even the wildest, most speculative and hypothetical justifications, which could include those introduced by the judge herself.This Article begins by revealing several of the inherent shortcomings of the current rational basis standard. That standard undermines principles of adversarial adjudication, destabilizes other individual rights doctrines, leaves the rights of certain citizens with virtually no protection, and legitimizes discriminatory animus. In effect, rational basis review preserves a discriminatory status quo, meaning that as society’s values evolve, the Equal Protection Clause becomes less capable of protecting those values. Those troubling consequences need not persist. This Article proposes an alternative and improved in standard of review for the least intrusive level of judicial scrutiny in the tiered equal protection framework. This standard, which I call “rationale review,” shifts the burden of proof onto the government to show a reasonable, fact-based justification for laws that classify people. This standard would only marginally increase the burden on governments defending laws that involve classification of people, but it would require those governments to proffer at least an iota of evidence of a constitutionally permissible justification. Rationale review would not dramatically alter the current tiered equal protection framework. Those groups currently afforded heightened scrutiny would continue to receive such a standard of review. And laws concerning all other groups would continue to receive the least intrusive judicial inquiry under the tiered framework. Under rationale review, however, the government would bear the burden of proof in justifying as constitutional — with facts — those laws that make classifications of people.
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Most legal analysis of Bitcoin has addressed public-law and regulatory matters, such as taxation, securities regulation, and money laundering. This essay considers some questions that Bitcoin raises from a private-law perspective, and it aims to show that technological innovation may highlight problems with conceptualistic, classical rules of private law.
This chapter critiques environmental agencies' use of cost-benefit analysis (CBA) in the context of a concrete case study: the U.S. Environmental Protection Agency's (EPA's) recent regulation of mercury emissions from coal-fired utilities under the Air Mercury Rule (CAMR). It identifies seven issues for regulatory impact analysis (RIA) that the CAMR brings to the fore. Rather than informing the decisionmaking process, the CAMR RIA served to obscure the range and contours of the regulatory options on the table. Rather than providing a neutral tally of are obviously and of the rule, the CAMR RIA enlisted value judgments to assign the impacts of mercury contamination to one side of the ledger or the other. Rather than permitting a complete accounting of these impacts, the CAMR RIA provided an accounting that was partial - in both senses of the term. Rather than laying bare the answer to the question what is at stake, for whom?, the CAMR RIA assessed only those impacts that had been monetized. Its bottom line, moreover, told us nothing about how the costs and benefits would be distributed. Rather than affording enhanced oversight by elected officials and the public, the CAMR RIA dazzled with detail but often obfuscated the considerations relevant to EPA's decision. Finally, rather than helping EPA satisfy its legal mandates, the CAMR RIA provided information that was unconnected to the relevant Clean Air Act provisions, treaties with the fishing tribes, and other legal obligations that constrained EPA's decision. Having identified these shortcomings, the chapter closes with recommendations for reforming regulatory impact analysis - suggestions that echo other recent efforts to envision a more pragmatic orientation for analysis of health, safety, and environmental regulations.
This Article explores, and ultimately embraces, a new exception to the complete diversity rule in removal cases: the doctrine of procedural misjoinder. We argue that the doctrine offers federal courts a vital tool with which to police joinder gamesmanship. Absent this power, plaintiffs may preclude defendant access to federal courts by the relatively simple expedient of joining in state court largely unrelated claims against or on behalf of non-diverse parties. The resulting lawsuit thus fails the complete diversity test, rendering such cases removal-proof. Like fraudulent joinder, the long-standing practice of ignoring non-diverse parties against whom no valid claim may be asserted, the doctrine of procedural misjoinder would permit federal courts to disregard any diversity-destroying parties who have been improperly added to the state lawsuit. Because access to federal courts is at stake, we believe federal courts should adopt this new doctrine, applying federal joinder standards to test the legitimacy of plaintiffs’ party alignments before denying removal jurisdiction.
In the 2004 presidential election, the United States came much closer to electoral meltdown, violence in the streets, and constitutional crisis than most people realize. Less than a 2% swing among Ohio voters toward Democratic candidate for President John Kerry and away from incumbent Republican President George W. Bush would have placed the Ohio - and national - election for president well within the margin of litigation, and it would have gotten ugly very quickly. Allegations of voter fraud and voter suppression were rampant on both sides, and even though Kerry conceded the election on the day after Election Day, public confidence in the U.S. system of American administration is now quite low. Previously unpublished data demonstrate that there is a growing partisan divide over views of the fairness of the election process.The bad news from the story of Election 2004 is that things likely won't get better in 2008. As Part I details, the extreme partisanship and close division of the American electorate, coupled with the Electoral College system, make the possibility of another razor-close presidential election in one or more battleground states fairly likely. Add to that mix election administration incompetence and a widely decentralized system of election administration with a patchwork of inconsistent rules. What's worse, since Bush v. Gore, losing candidates have become more willing to resort to election law as part of a political strategy: the number of election-law related cases in the lower courts has risen dramatically compared to the period before the case. It all adds up to a recipe for electoral meltdown.In Part II of this Article, I argue for three reforms that could significantly lower the risk of electoral meltdown. First, I advocate registration reform, in particular universal voter registration conducted by the government coupled with a voter identification program. There has been a wide partisan divide in the election administration debate between Democrats who have expressed concern about voter suppression and Republicans who have expressed concern about voter fraud. The registration reform I advocate can alleviate both of those concerns, minimize the potential for and political rhetoric regarding voter fraud, and eliminate a great majority of potential litigation surrounding presidential election administrationSecond, I advocate a transition to nonpartisan election administration. The nonpartisan solution aims to create both the actuality and appearance of neutrality in election administration, thereby bolstering the public's faith in the process. Australia and Canada serve as good models for reform in this regard, though not necessarily their nationalization of election administration. I consider how to assure that U.S. election administrators are truly nonpartisan, and contrast arguments for nonpartisan election administration with calls for nonpartisan redistricting commissions and campaign finance enforcement.Third, I discuss the role of the courts in minimizing electoral meltdown. The key here is to encourage courts to be more willing to entertain pre-election litigation and much more chary of entertaining post-election litigation. To the extent election administration problems can be recognized in advance, pre-election judicial review prevents future harm from occurring, rather than putting courts in the position of trying to undo the bad effects of a past harm. The costs of post-election review are large: the pressure put on courts to decide arcane election law questions when the outcome of an election - especially a presidential election - is huge, and the appearance of partisan decisionmaking is inevitable.
In Inside Appellate Courts: The Impact of Court Organization on Judicial Decision Making in The United States Courts of Appeals (Michigan 2002), Jonathan Matthew Cohen, a sociologist and practicing attorney, asks a question that has received scant attention in the academic commentary on appellate judging: If we accept the dominant conception of appellate court judging as a process of atomistic contemplation, how do federal circuit court judges continue to maintain high quality opinions in the face of pervasively growing judicial dockets? Cohen advances the provocative thesis that increasing workloads have not prevented appellate judges from producing high quality outputs, but rather, that the dominant image of appellate judging as an isolated contemplative task is conceptually flawed. A better approach, Cohen argues, is to compare the task of appellate court judging to production within a multi-divisional private firm. While Cohen recognizes the inherent limits of his analogy, and in particular, that unlike private firms, circuit courts lack a central coordinating authority, he nonetheless contends that it is more fruitful to consider the judges in the manner of workers in a complex organization than as autonomous actors reflecting in isolation on the legal issues presented on appeal. In this review essay, Stearns considers three complementary methodologies for analyzing appellate courts that yield insights of particular interest to lawyers and legal scholars. Such questions include how appellate courts transform preferences into doctrine; the nature of cases that are likely susceptible to further appellate process through en banc, mini-en banc, or Supreme Court review; and how best to evaluate appellate court opinions. While organizational theory provides a useful starting point, Stearns contends that insights drawn from other methodologies, including economics (demonstrating how decentralized informational processes can provide more meaningful data), probability analysis (demonstrating the quality of data drawn from subsets of a larger group), and social choice (demonstrating the nature and limits of group decision making), might prove more fruitful in evaluating at least some of these questions. Stearns concludes that a comprehensive understanding of federal appellate judging requires not only an understanding of the circuit courts' internal organizational structure, but also an analysis of the edifice of circuit court decision making from inside and out.
Almost fifty years ago, Herbert Wechsler famously argued that congressional legislation requiring individual states to fulfill federal mandates should be given great deference by the Supreme Court because state interests were better by the legislative process.' All federal laws, Wechsler noted, had to gain the approval of the Senate, which by design represents states rather than individuals; the House, which is composed of districts drawn by state legislators; and the President, who is elected by the Electoral College, an institution also designed to protect in part the interests of states. Because the Constitution ensured that state interests were represented in the two elected branches of the federal government, Wechsler argued, it obviated the need for the Court to subject congressional legislation to judicial review on behalf of the states. In 1980, Jesse Choper extended Wechsler's emphasizing the importance of congressional committees and party leadership in the Senate and House of Representatives, as well as the emergence of state lobbies that formed in the nation's capital to combat federal power during the Great Society.2 Five years later, a majority of the Supreme Court adopted this line of argument, which has come to be called the safeguards thesis, in Garcia v. San Antonio Metropolitan Transit Authority: Me are convinced that the fundamental limitation that the constitutional scheme imposes on the Commerce Clause to protect the as is one of process rather than result. Any substantive restraint on the exercise of the Commerce Clause powers must find its justification in the procedural nature of this basic limitation, and it must be tailored to compensate for possible IMAGE FORMULA4 failings in the national political process rather than dictate a sacred province of state autonomy.'3 In recent years, however, the Court has largely abandoned the political safeguards thesis,4 aggressively overturning federal legislation on the grounds that it infringes upon the constitutional interests of individual states.' The Court has argued that Congress and other national political institutions have not-and perhaps cannot-protect the interests of states, particularly state officials. There is, the Court has claimed, a fundamental conflict between national and state institutions: to avert blame for the difficult choices they face, congressional members attempt to accomplish national goals while deflecting the responsibility of policy enforcement, implementation, and financing onto the states through the passage of unfunded mandates.6 Many law professors agree with the Court, arguing that Congress cannot be trusted with the representation of state actors and that there is little legal precedent for providing the national legislative branches with the opportunity to tread on state government terrain in the absence of IMAGE FORMULA7 judicial review.7 Even one of Wechsler's sympathizers, Mark Tushnet, has recently written, It seems fair to say that no one today believes that Wechsler's arguments retain much force.118 Through recent decisions, the Court has made emphatically clear that it believes it more effectively protects and advances state interests than does Congress or other national political institutions? In the face of these Court decisions and supporting legal scholarship, Larry Kramer has attempted to revive the Wechsler but with a twist.10 States are by the legislative process, claims Krameralthough not by constitutionally created institutions like the Senate or the Electoral College. Instead, he argues, the party system has protected the states by making national officials politically dependent upon state and local party organizations. Kramer asserts that because American parties are highly decentralized and responsive to voter interests, they do an excellent job of channeling the concerns of state and local voters and officials into national party platforms and agendas. …
INTRODUCTION The Constitution requires that prosecutors prove a reasonable every element that constitutes the crime charged against a criminal defendant.1For many years, legislatures have sidestepped this constitutional requirement by denying that certain aspects of a crime are elements. Legislatures have instead labeled these aspects defenses2 or presumptions3 and thus transferred to the defendant the burden of proving their presence or absence. More recently, state legislatures and Congress have used the term factors4 to shift fact-finding responsibility regarding certain aspects of a crime from the jury to the judge, effectively lowering the required standard of proof from beyond reasonable doubt to preponderance of evidence.5 The Supreme Court has struck down some of these constructions as violating the criminal defendant's constitutional rights,6 and has upheld others.7 Until recently, however, the Court had not offered a clear rule or principle by which legislatures and lower courts could evaluate these criminal statutes.8 In Apprendi v. New Jersey,9 the Court announced such a rule: is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof a reasonable doubt.10 Apprendi is the most definitive statement in a quarter-century of Supreme Court decisions11 assessing the limits on a legislature's authority to define criminal offenses in ways that circumvent the constitutional protections guaranteed to criminal defendants. This Comment defines the issues at stake in this series of decisions and discusses how the Court's analysis has shifted, especially over the course of the four most recent decisions.12 This Comment contends that the majority's analysis in Apprendi should prompt reconsideration of the constitutionality of statutes that impose mandatory minimum sentences based on factors not submitted to the jury or proven a reasonable doubt.13 Part I presents several key decisions in the last quarter-century in which the Court has considered challenges to legislatures' definitions of criminal elements. Subpart A discusses the Maine statute at issue in Mullaney v. Wilbur, the analysis used by the Court to evaluate the constitutionality of the statute's rebuttable presumption of malice aforethought, and the guiding principle that emerged from the decision. Subpart B describes the statute at issue in Patterson v. New York and the distinctions the Court drew between the affirmative defense requirement in Patterson and the rebuttable presumption in Mullaney. It concludes that, although the effect of the two statutes was similar, the principle derived from Mullaney logically led the Court to reach a different result on the constitutionality of the statute in Patterson. Subparts C and D present, respectively, the mandatory minimum sentencing statutes at issue in McMillan v. Pennsylvania and Almendarez-- Torres v. United States, and discuss how the focus of the Court's analysis shifted from the legislature's authority to define proscribed activity to its role in determining how the proscribed activity should be evaluated. Subpart E describes the Court's reinterpretation in Jones v. United States of the rule articulated in Almendarez-Torres, and presents the language in Jones that foreshadowed the coming shift in the Court's analysis of sentencing factors. Finally, Subpart F discusses the enhancement statute at issue in Apprendi, and shows how the Court analyzed the statute's purpose and effect to conclude that it infringed on the defendant's constitutional right to trial by jury and proof reasonable of the elements of the offense. Part II compares the analysis and guiding principle of Apprendi to those of the other cases discussed in Part I, and concludes that the analysis in Apprendi should be followed in the future. …
I. INTRODUCTION The exclusionary rule has been under near-constant attack (1) since its inception as a federal constitutional device more than forty years ago. (2) The Supreme Court has consistently limited the rule's operation in criminal cases (3) and has refused to extend it to most contexts outside the criminal trial. (4) In Pennsylvania Board of Probation and Parole v. Scott, (5) the Court's most recent case addressing the exclusionary rule's application in a non-criminal proceeding, the Court refused to apply the rule to parole revocation hearings even though they might result in longer periods of incarceration than many criminal trials. (6) The Court concluded that police officers would not be sufficiently deterred by the suppression of evidence at revocation hearings to justify the relatively high costs that suppression would inflict. (7) This conclusion raises a fundamental question--if the exclusionary rule does not produce enough deterrence to police when illegally seized evidence puts a person at risk of going to jail, why would the rule produce any more deterrence when mere property is at stake? Scott suggests that the Court might retreat from its prior decision in One 1958 Plymouth Sedan v. Pennsylvania, (8) in which the Court applied the exclusionary rule to civil forfeiture. (9) One Plymouth Sedan remains the only Supreme Court case to apply the rule outside the criminal trial context. (10) Under the analysis employed in Scott, however, the application of the exclusionary rule in civil forfeiture hearings is in serious doubt. (11) If police officers are not sufficiently deterred by the prospect of evidence being suppressed at a hearing where a person's liberty is in jeopardy, it is a fortiori that they will not be deterred by the possibility of suppression at a civil forfeiture hearing where only the person's property is in jeopardy. Law enforcement officials have much to gain in the outcome of the issues raised in Scott, and will likely bring challenges to the exclusionary rule in civil forfeiture. While the court's trend is moving away from applying the exclusionary rule in civil contexts, law enforcement agencies are increasingly relying on civil tools to attack crime. (12) At the forefront of this movement is the use of civil forfeiture to seize the fruits and instrumentalities of the narcotics trade. (13) Civil forfeiture statutes allow law enforcement officers to seize privately held assets that have been used in a crime, a practice that not only frustrates narcotics traffic, but also fills public coffers. (14) Moreover, most civil forfeiture statutes carry with them low burdens of proof and few defenses, (15) thus providing governments with a powerful device that is far more streamlined than the time-consuming process of prosecuting a criminal. With so much at stake, law enforcement officials are likely to use Scott to mount challenges to the exclusionary rule in civil forfeiture. In fact, lower courts have not been silent on the vulnerability of One Plymouth Sedan. (16) A California appellate court has outright rejected the exclusionary rule in civil forfeiture: [The] application of the exclusionary rule in civil forfeiture actions is unnecessary and of little additional benefit, particularly when the property is owned by a third party claimant who has not been convicted of any offense. To date the United States Supreme Court has rejected application of the exclusionary rule to civil cases, and we decline to do so as well in this civil forfeiture case. (17) A Maryland court put it more bluntly: Has One 1958 Plymouth Sedan, whatever it stood for, retained its vitality over the thirty-three years since it was handed down? No, it has not. (18) This Article presents a counterargument to the encroachments on the continued use of the exclusionary rule in civil forfeiture proceedings. Part II examines briefly the Supreme Court's existing exclusionary rule case law. …