Issue 2

Beyond Statutory Elements: The Substantive Effects of the Right to a Jury Trial on Constitutionally Significant Facts

The Supreme Court’s decision in Apprendi v. New Jersey established a relatively clear rule: The Sixth Amendment’s right to a jury trial places a substantive restriction on legislatures by preventing any fact that has been deemed necessary for a particular level of punishment, either by statute or by constitutional decision, from being subject to judicial factfinding. Specifically, the Court held that the Sixth Amendment right to a jury trial requires that any fact (other than a prior conviction) that exposes a defendant to a greater level of punishment be found by the jury beyond a reasonable doubt.

This decision was nominally directed at so-called “sentence enhancements”—facts found by the judge at sentencing that increase punishment beyond the maximum allowed by the underlying statute. Some scholars have expressed concern that legislatures, deprived of the use of the increasingly popular sentence enhancements, would redefine their criminal codes so as to avoid the new Apprendi requirement by simply raising the maximum penalty authorized by the underlying statute. The judge could then use this greater discretion in sentencing to inflict the higher level of punishment desired. In light of this fear, there has been a revitalized effort to understand the boundaries that the Constitution places on the substance of criminal law.

This Note argues that the Sixth Amendment right to a jury trial, as explained in Apprendi, places a substantive restriction on legislatures by requiring that any fact deemed necessary for a particular level of punishment, either by statute or constitutional decision, be treated as an element of the crime.

Thomas Jefferson Counts Himself into the Presidency

The Constitution instructs the President of the Senate to “open” the ballots submitted by members of the Electoral College, but it provides little guidance when a ballot turns out to be defective. This article provides the first in-depth consideration of two early precedents. Both Vice-President John Adams and Vice-President Thomas Jefferson confronted problems when counting the electoral votes in 1797 and 1801, respectively. Both men were placed in the awkward position of ruling on matters involving an election in which they were leading presidential candidates, but Jefferson’s problem was more serious. In 1801, Georgia’s electors cast their votes for Jefferson and Burr, but their ballots were in plain violation of the Constitution’s explicit formal requirements. If Jefferson had ruled these votes invalid in his capacity as Senate President, one of the Federalist candidates, Adams or Pinckney, might well have emerged victorious from the House runoff required under the Constitution. But Jefferson used his authority as Senate President to exclude his Federalist competitors, restricting the runoff to a two-man race between himself and Aaron Burr. This allowed him to emerge victorious on the thirty-sixth ballot. Rumors of this episode occasionally surfaced during the nineteenth century, but this article presents indisputable documentary evidence demonstrating the irregularity of the Georgia ballot. After telling the story, we appraise its significance both as an act of constitutional statesmanship and as an enduring legal precedent that may guide future Senate Presidents as they confront the electoral college crises of the twenty-first century.

Information Costs in Patent and Copyright

Why do we have more than one form of intellectual property rights? Why are the structures of patent and copyright forms so different? What factors influence the optimal structure of each form? We can move toward addressing some of these enduring puzzles and understanding the effects of the differences between intellectual property forms by examining the presence and distribution of information costs in the propertarian relationship. In this article, I explore the relationship between the nature of protected intellectual goods and differences in the structures of patent and copyright. Intellectual property rules in patent and copyright can make it easier or more difficult for parties to gather and comprehend information regarding protected goods. The literature on the law of organizations has recognized that it is most efficient to align transactions, which differ in their attributes, with organizational forms, which differ in structural ways, so as to minimize transaction costs. I argue that similarly, when intellectual property forms are structured to minimize information costs they are more efficient, all else equal, than when they are not so structured. Examining the presence and distribution of information costs can suggest ways in which we might increase efficiency in intellectual property.

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