Professor Bartlett has written a bold article pushing back against what might be called inchoate or half-hearted empiricism. The half-hearted empiricist recognizes the value of empirical evidence to help solve a legal problem but, for whatever reason, fails to acknowledge the complexity and uncertainties of the evidence and as a result offers haphazard prescriptions. Professor Bartlett’s article demonstrates what a whole-hearted commitment to empiricism looks like: it involves an engagement with primary sources rather than a reliance on secondary sources (or tertiary sources in the form of law review summaries of secondary sources), a review of research relevant to a problem rather than a review of a subset of research focused on one particular aspect of a problem, and a struggle to find usable prescriptive lessons in a literature that ranges from basic-level research with little obvious real-world application to applied research that can be so situation-specific that its generalizability can be questioned. Whole-hearted empiricism is hard, messy work, as well as a frustrating undertaking. Unlike theory- or model-based approaches to policy that self-consciously simplify the world and avoid many empirical complications, an evidence-based approach must confront empirical complexities and try to find meaning in the midst of ever-changing empirical evidence, imperfect studies, and contradictory findings located among the fragmented social sciences. Consequently, rarely will consensus exist on the prescriptive meaning of the assembled evidence. It should thus not be surprising that, after saying a few words on the dangers of half-hearted empiricism, I raise some questions about the empirical conclusions and recommendations offered by Professor Bartlett and suggest that her attempt to foster good intentions might more usefully be focused on firms rather than managers.
Online
Reading Arizona
BOTH sides in our nation’s ongoing immigration disputes are spinning the Arizona v. United States ruling as a victory—plus an occasion to appeal to supporters for more money to battle through the fall election cycle and the predictable next rounds of litigation and legislation. It’s the federal side, however, that has the better claim to success.
On Proportionality and Federalism: A Response to Professor Stinneford
John Stinneford’s latest article sheds fresh light on the original public meaning of the Eighth Amendment. Stinneford provides a cogent rejoinder to Justice Scalia’s position that the Cruel and Unusual Punishments Clause contains no proportionality principle. But to show that the Clause contains some proportionality requirement gets us only part of the way to an understanding of what that proportionality principle demands. And Stinneford’s work falters in its articulation of the proportionality requirement of the Cruel and Unusual Punishments Clause as understood in 1791. He claims, in essence, that the Clause was understood as generally constraining Congress from inflicting punishments that were significantly harsher than those imposed at common law for the same offense. While Stinneford’s assertion that the Clause imposed common-law constraints on Congress’s power to punish is well supported, he incorrectly assumes a consensus in 1791 about the nature of the common law. To the contrary, the conceptions of the common law in 1791 were far from homogenous. Specifically, around that time, a more modern, Realist notion of the common law began to emerge and was championed by the Anti-Federalists, who conditioned ratification of the Constitution on the inclusion of a Bill of Rights and whose views are therefore critical to an understanding of the Cruel and Unusual Punishments Clause. Thus, while Stinneford is probably correct that the Clause was widely understood in 1791 as imposing common-law constraints on the federal government’s power to punish, it is unlikely that there was any consensus as to what that meant. In particular, the Anti-Federalists—and their political heirs, the Republicans—took a more state-centered approach than Stinneford would allow.