Article

Rethinking Proportionality Under the Cruel and Unusual Punishments Clause

Although a century has passed since the Supreme Court started reviewing criminal punishments for excessiveness under the Cruel and Unusual Punishments Clause, this area of doctrine remains highly problematic. The Court has never answered doubts about the legitimacy of proportionality review, leading a controlling plurality of the Court to insist that such review be limited to a narrow class of cases. The Court has also adopted an ever-shifting definition of excessiveness, making the very concept of proportionality incoherent. Finally, the Court’s method of measuring proportionality is unreliable and self-contradictory. As a result, very few offenders have benefitted from the Court’s decision to engage in proportionality review. This area of doctrine needs rethinking.

This article is the first to establish that the Cruel and Unusual Punishments Clause was originally meant to prohibit excessive punishments as well as barbaric ones, and that proportionality review is therefore unquestionably legitimate. This article also demonstrates that proportionality is a retributive concept, not a utilitarian one. Punishments are unconstitutionally excessive if they are harsher than the defendant deserves as a retributive matter. Finally, this article shows that proportionality should be measured primarily in relation to prior punishment practice. The proposed approach will align the Court’s proportionality jurisprudence more closely with the core purpose of the Cruel and Unusual Punishments Clause, and will enable the Court to expand proportionality review to a much larger class of cases.

The (Willingly) Fettered Executive: Presidential Spinoffs in National Security Domains and Beyond

We typically think of the Executive as power aggrandizing. For that reason, we believe it engages in institutional re-design efforts primarily for instrumental gain – to maximize authority and discretion where the President lacks control over particular agencies or responsibilities; or, where she simply wants more.

It would therefore defy conventional wisdom were the Executive to take pains to restructure the institutional architecture in the absence of limitations placed on presidential control in administrative or regulatory contexts already largely exempt from the APA, civil-service protections, public scrutiny, and judicial review. Even more surprising would be were the Executive to engage in re-design efforts that resulted in less presidential control and greater accountability safeguards.

Yet two increasingly important examples – neither of which has been carefully studied or well understood – suggest exactly that (and much more). The Executive already enjoyed unfettered discretion with respect to (1) the CIA developing new technologies for its spies and (2) the President scrutinizing and blocking foreign investments that threaten U.S. national and economic security. Nevertheless, it created In-Q-Tel, a private venture-capital firm to incubate intelligence technologies; and, it empowered the Committee on Foreign Investment in the United States (CFIUS) to handle most responsibilities associated with screening proposed foreign investments. In doing so, the Executive incurred a host of legal and organizational constraints on its ability to direct and control these two critical functions.

This Article sees In-Q-Tel and CFIUS as embodiments of a counterintuitive and often overlooked trend: the Executive relinquishing control over essential national-security responsibilities, and doing so on its own initiative. Delegating responsibility to In-Q-Tel and CFIUS – rather than retaining it within the CIA and the Oval Office, respectively – serves to limit presidential discretion in contexts where political stewardship would be destructive and illegitimate. Whether this was the Executive’s intent all along or an unintended consequence of institutional reorganization, the ways in which In-Q-Tel and CFIUS bear the marks of novel forms of accountability and self-restraint are innovative, compelling, and, most importantly, suggestive of a new chapter of thinking about institutional design, separation of powers, and the optimal amount of Executive control.

The Limits of Procedural Private Ordering

The rules of civil procedure are traditionally conceived of as immutable and inalienable with limited carve-outs—most commonly, forum selection and choice of law provisions. I argue that these instances of procedural contracting are a broader, unified phenomenon of procedural private ordering, in which civil procedure is no longer irrevocably defined by law, but instead is a mere default that can be waived or modified ex ante by contract. This conversion of procedural rules from publicly-created guarantors of procedural justice to privately-bargained commodities alters the nature and function of civil procedure at the most fundamental level, requiring reassessment of the public and private roles of civil procedure.

Courts broadly enforce contract terms not only electing between systems of procedure but also modifying individual procedural rights and procedures applied by the court. I argue that the recent turn toward enforcement fails to address the inherent link between substance and procedure. I contend that this approach creates hydraulic pressure toward the use of procedure to contract around substantive law and fails to correct for unique information cost asymmetries inherent to contracting for procedure in specified bargaining situations, which increase the likelihood of market failure. Based upon these considerations, I elaborate the symmetrical theory of procedure, in which the degree of procedural modification permitted is a function of the contracting parties’ right to modify or waive the underlying substantive right that gives rise to the claim at issue; the procedural contract is then treated as an ex post stipulation, for purposes of determining the judicial enforceability of the modification.

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