Note

Benefits of Error in Criminal Justice

Enroll in law school and you will be taught, within the first year, a revered maxim of criminal law: “[B]etter that ten guilty persons escape, than that one innocent suffer.” This particular articulation belongs to English jurist William Blackstone, but the general notion that the criminal justice system should prefer false acquittals to false convictions predates Blackstone. Nevertheless, the maxim is generally referred to as the Blackstone principle. The ratio itself is unimportant. No one contends that we ought to ensure exactly ten guilty defendants are acquitted for every innocent defendant that is convicted. Rather, the slogan is recited to convey a more general principle: When imposing criminal punishment, we ought to tip the scales to favor false negatives (acquittals of the guilty) for the sake of minimizing false positives (convictions of the innocent), despite a likely decrease in overall accuracy.

The Note contains three Parts that proceed as follows. Part I traces the historical origins of the Blackstone principle, lays out the traditional justifications, and introduces Epps’s dynamic critique. Part II challenges the assumptions on which Epps’s analysis relies and raises significant doubts that the Blackstone principle creates negative systemic effects for defendants. Part III then introduces an affirmative rationale by arguing that the Blackstone principle benefits innocent defendants because it promotes equality

Excising Federalism: The Consequences of Baker v. Carr Beyond the Electoral Arena

Some scholars argue that, because the post-Baker political question doctrine only implicates separation of powers at the federal level, the doctrine should be subsumed into standing doctrine, as the latter is similarly grounded in separation-of-powers concerns. This Note illustrates that we should not be too quick to relegate the political question doctrine to the doctrinal dustbin. As the history of the doctrine shows, a concern with federal courts’ involvement in the affairs of state governments in-formed the Court’s application of the doctrine before Justice Brennan transformed it in Baker. And as the examples of post-Baker cases like Larsen illustrate, there are areas of state governance where federal courts could use a doctrinal hook to avoid entangling themselves in state governmental procedures.

Justice Frankfurter argued in his Baker dissent that any list of factors for deciding justiciability should include federalism. As he put it, the “reluctance to interfere with matters of state government in the absence of an unquestionable and effectively enforceable mandate,” along with factors similar to those in Justice Brennan’s list, had “been decisive of the settled line of cases” dealing with Guarantee Clause challenges to state governmental action. As this Note has shown, Justice Frankfurter’s view not only carries historical weight, but his own list of relevant factors in political question cases could better handle cases like Larsen. Justice Brennan stated in Baker, “The political question doctrine, a tool for maintenance of governmental order, will not be so applied as to promote only disorder.” Ironically, his excision of federalism from the political question doctrine could promote the disorder he feared in cases like Larsen or DeJulio. Reincorporating federalism into the political question doctrine would therefore not only adhere to historical practice, but would also promote the “maintenance of governmental order” between the federal government and the states.

Appointing Chapter 11 Trustees in Reorganizations of Religious Institutions

Over the past decade, the bankruptcy filings of Roman Catholic dioceses have brought the previously underexamined possibility of church bankruptcies to the attention of scholars. At the same time, a large and growing number of less visible churches are resorting to chapter 11 reorganization, often as a last-ditch effort to keep faith communities together or to preserve ownership interests in the physical churches that serve as the anchors for those communities. However, the case law and scholarly literature treating the religious liberty implications of subjecting churches or other religious organizations to the provisions of the Bankruptcy Code remain limited in scope. This Note considers an important tool available to parties in interest in a chapter 11 reorganization: appointing a trustee to replace the existing management of a debtor. This mechanism allows for the replacement of bad actors in the leadership of a business so that the going concern value of the debtor’s enterprise can be maximized to the benefit of creditors. Given the corporate governance concerns that attend many church bankruptcies, this represents a powerful and useful tool for implementing more effective internal controls, building credibility with creditors, and effecting reorganizations.

However, when the business in question is a religious institution, the appointment of a trustee raises concerns relating to the religious liberty interests of the debtor. I conclude that these concerns should not bar the appointment of a trustee in the chapter 11 reorganization of a religious institution. In Part I, I will describe the causes of church bankruptcies and the functioning of the chapter 11 trustee as a potential remedy in those cases. In Part II, I will articulate the potential bases of religious liberty objections to such an appointment. In Part III, I will sketch the contours of how the scope of a trustee’s authority could be cabined so as to prevent infringing on the religious liberty interests of the debtor.

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