Article - Virginia Law Review

The Rationality of Rational Basis Review

Through the “rational basis” test, the Supreme Court asserts the authority to assess whether laws are “rationally related to a legitimate governmental interest.” Although it gives the Court an effective substantive veto over all legislation, rationality review is poorly understood and under-theorized. Developed haphazardly over time, rationality review is not the product of either a considered formula or a particular theory of constitutional law, and though it is clothed in the language of rationality, it represents the Court’s own decidedly intuitive understanding of the proper sphere of state regulation. At one time, that understanding was based in a widely held conception of the “police power,” but the connection to the police power was severed after the Court’s decision in United States v. Carolene Products. Since then, the Court has developed ad hoc a conception of the proper role of government that has become almost entirely utilitarian in nature.

This Article examines the Court’s view of how rationality should (and by virtue of the power of judicial review must) feature in legislation by tracing the development of rationality review and comparing it to more rigorous understandings of political rationality. Comparison reveals the Court’s limited conception of rationality, which allows the Court to avoid difficult questions in pursuit of seemingly uncontroversial instrumental ends. Examination of the Court’s approach to rationality demonstrates the need for a broader conception of legislative rationality – one that includes “constitutive ends.” Recognizing constitutive legislative ends, combined with an information-forcing rule for revealing those ends, can both improve democratic discourse in the legislature and lead to a richer and more intellectually honest form of rationality review.

The Common Law of Contract and the Default Rule Project

The common law developed over centuries a small set of default rules that courts have used to fill gaps in otherwise incomplete contracts between commercial parties. These rules can be applied almost independently of context: the market damages rule, for example, requires a court only to know the difference between market and contract prices. When parties in various sectors of the economy write sales contracts but leave terms blank, courts fill in the blanks with their own rules. As a consequence, a judicial rule that many parties accept must be “transcontextual”: parties in varied commercial contexts accept the courts’ rule by writing contracts that contain just the gap the rule could fill. A long-standing project of academics and lawyers attempts to supplement common law contract rules with substantive default rules and default standards. This project has produced Article 2 of the UCC and the Second Restatement of Contracts and the project plans to produce more privately created contract law. We show that the “default rule project” could not create substantive default rules because the contract terms for which the rules would substitute are commonly context dependent: the terms’ content either is a function of particular parties’ circumstances or a particular trade’s circumstances. Members of the default rule project, whom we call “drafters,” could not access the information needed to create efficient rules that require such local knowledge. Instead, the drafters supplied commercial parties with default standards that courts can apply transcontextually in addition to or as replacements for the common law rules. Contracts sometimes do contain standards, but only when the standards are accompanied by substantive terms from which courts can infer the parties’ contracting goals and thus apply the standards to advance them. The drafters’ decision to adopt unmoored standards was a mistake because commercial parties do not accept, and thus contract out of, the statutory and restatement default standards. In contrast, the common law’s transcontextual default rules continue to stand. Our analysis explains the default rule project’s past failures and their current consequences: the Article thus illuminates the contract law we have even as it cautions that the default rule project must materially change else it risk repeating past errors.

What’s Wrong With Sentencing Equality?

Equality in criminal sentencing often translates into equalizing outcomes and stamping out variations, whether race-based, geographic, or random. This approach conflates the concept of equality with one contestable conception focused on outputs and numbers, not inputs and processes. Racial equality is crucial, but a concern with eliminating racism has hypertrophied well beyond race. Equalizing outcomes seems appealing as a neutral way to dodge contentious substantive policy debates about the purposes of punishment. But it actually privileges deterrence and incapacitation over rehabilitation, subjective elements of retribution, and procedural justice, and it provides little normative guidance for punishment. It also has unintended consequences for the structure of sentencing. Focusing on outcomes centralizes power and draws it up to higher levels of government, sacrificing the checks and balances, disaggregation, experimentation, and localism that are practically baked into sentencing’s constitutional framework. More flexible, process-oriented notions of equality might better give effect to a range of competing punishment considerations while still policing punishments for bias or arbitrariness. They also could bring useful nuance to equality debates that swirl around restorative justice, California’s Realignment experiment, federal use of fast-track plea agreements, and other contemporary sentencing practices.

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