The Supreme Court and the Politics of Death

This article explores the evolving role of the U.S. Supreme Court in the politics of death. By constitutionalizing the death penalty in the 1970s, the Supreme Court unintentionally set into motion political forces that have seriously undermined the Court’s vision of a death penalty that is fairly administered and imposed only on the worst offenders. With the death penalty established as a highly salient political issue, politicians�legislators, prosecutors, and governors�have strong institutional incentives to make death sentences easier to achieve and carry out. The result of this vicious cycle is not only more executions, but less reliable determinations of who truly deserves the ultimate sanction.

The Supreme Court has recently begun to chart a different�and more promising�approach to death penalty reform. In two key areas, the Court has recently reinterpreted prior constitutional doctrines in ways that seem designed to counteract death’s politics. These rules determine the type of offenses for which death is a “cruel and unusual” sanction (the Eighth Amendment’s capital proportionality standard) and the quality of representation defendants must receive in capital cases (the Sixth Amendment’s guarantee of effective assistance of counsel). Each of these rules has been transformed from doctrines that had little effect on the administration of the death penalty into potent weapons for counteracting the politics of death and promoting the fairness and rationality of the capital sentencing process. 

Authorized Generics: A Prescription for Hatch-Waxman Reform

Authorized generics present the latest controversy in the perennial battle between pioneer and generic drug manufacturers. Under these arrangements, a pioneer firm will “authorize” a generic version of its brand-name drug to enter the market during another generic competitor’s 180-day exclusivity period. This practice has generated intense debate within the pharmaceutical industry regarding its potential impact on Paragraph IV patent challenges, in addition to the proper operation and intent of the Hatch-Waxman Act. Because of the immense economic and public health consequences at stake, and previous patterns of Hatch-Waxman abuse, the Federal Trade Commission has recently launched an investigation of authorized generics.

This Note explores the qualitative nature of pharmaceutical competition, specifically focusing on the interaction between pharmaceutical supply chain economics and consumer behavior. From these observations, I propose a theory of competitive harm and conclude that authorized generics are an anticompetitive strategic behavior which violate the antitrust laws by deterring Paragraph IV entry. I find normative support within the Hatch-Waxman and patent law regimes to corroborate my antitrust analysis. Finally, I recommend potential solutions to the authorized generics controversy, including Hatch-Waxman legislative reform.

Mens Rea and the Cost of Ignorance

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.