This Essay advances a new understanding of the controversial doctrine of strict criminal liability. While the conventional view holds that strict criminal liability aims at alleviating the administrative burden of proving defendants’ mental state, this Essay argues that this doctrine also can induce genuinely ignorant offenders to acquire information. The predominant mens rea standard assures ignorant offenders that they can engage in the prohibited conduct without being penalized. This drawback, however, is mitigated when offenders find that the market imposes too high a cost on ignorance. If ignorance is sufficiently costly, offenders will take steps to become (or remain) informed notwithstanding the adverse incentive created by the mens rea standard. The Essay thus predicts that, other things being equal, strict liability is likely to be especially useful in those elements of a criminal offense for which ignorance is virtually costless. The Essay demonstrates the illuminating power of this explanation by analyzing the application of strict liability to liquor sale to minors, statutory rape, child pornography, regulatory offenses, criminal liability of corporate officers, and mistakes of law and fact. The Essay concludes by exploring whether alternative doctrines may induce offenders to acquire information without producing the harsh and unfair consequences often attributed to strict liability.
Essay
Why Summary Judgment is Unconstitutional
Summary judgment is cited as a significant reason for the dramatic decline in the number of jury trials in civil cases in federal court. Judges extensively use the device to clear the federal docket of cases deemed meritless. Recent scholarship even has called for the mandatory use of summary judgment prior to settlement. While other scholars question the use of summary judgment in certain types of cases (for example, civil rights cases), all scholars and judges assume away a critical question: whether summary judgment is constitutional. The conventional wisdom is that the Supreme Court settled the issue a century ago in Fidelity & Deposit Co. v. United States. But a review of that case reveals that the conventional wisdom is wrong: the constitutionality of summary judgment has never been resolved by the Supreme Court. This Essay is the first to examine the question and takes the seemingly heretical position that summary judgment is unconstitutional. The question is governed by the Seventh Amendment which provides that “[i]n Suits at common law, . . . the right of trial by jury shall be preserved, and no fact tried by jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.” The Supreme Court has held that “common law” in the Seventh Amendment refers to the English common law in 1791. This Essay demonstrates that no procedure similar to summary judgment existed under the English common law and also reveals that summary judgment violates the core principles, or “substance,” of the English common law. The Essay concludes that, despite the uniform acceptance of the device, summary judgment is unconstitutional. The Essay then responds to likely objections, including that the federal courts cannot function properly without summary judgment. By describing the burden that the procedure of summary judgment imposes upon litigants and the courts, the Essay argues that summary judgment is not necessary to the judicial system but rather, by contrast, imposes significant costs upon the system.
Plenary Power Preemption
This essay responds to the Supreme Court’s recent decision in Arizona v. United States, which struck down all but one of the disputed sections of Arizona’s S.B. 1070 immigration law. It advances the theory that although the Arizona Court purported to apply classic conflict and field preemption analyses, it was actually using a different form of preemption, one that gives particular weight to federal interests where questions of national sovereignty are at stake. The Court did so through doctrinal borrowing of the “plenary power doctrine,” which gives the political branches special deference when passing or executing immigration legislation, even where doing so would otherwise violate individual constitutional rights. This Essay labels the form of preemption used in Arizona and other alienage cases “plenary power preemption.” It shows how this doctrine developed over time, as the scope of the legitimate exercise of state police power and federal immigration changed, and federal and state regulation of noncitizens became more complex and enmeshed. It argues that plenary power preemption has two important effects: it allows courts to evade the thorny question of the scope of executive—as opposed to legislative—power over immigration, and it substitutes for the lack of an equal protection doctrine that adequately protects unauthorized aliens from discrimination.