Last night I received the latest Cato Supreme Court Review. I stayed
up until 1 a.m. reading several of the excellent articles. If
you enjoy reading this blog, you will especially enjoy the Review,
since the authors develop in greater detail many of the cases and
themes discussed here. Here are the articles I read last night:
* Douglas W. Kmiec, "Gonzales v. Raich: Wickard v. Filburn
Displaced." Kmiec traces Commerce Clause doctrine from the Founding
through the first real exercise of Congress' commerce power through Gonzales v. Raich. Kmiec concludes that Lopez and Morrison do not survive Raich. His summary of Commerce Clause jurisprudence is worth the price of admission.
* Roger Pilon, "Town of Castle Rock v. Gonzales: Executive Indifference." Using Lockean social contract theory as a framework, Pilon demonstrates that Castle Wrong
was wrongly decided. He shows, moreover, that even the dissenters got
it wrong. Pilon's article implicitly shows why Supreme Court justices
must understand the philosophy of individual rights this country was
founded upon in order to correctly decide cases like Castle Rock.
* John Hasnas, "The Significant Meaninglessness of Arthus Andersen LLP v. United States." If Hasnas' introduction doesn't draw you in, nothing will: "Arthur Andersen
... reminds me so much of the Woody Allen line that '[s]ex without love
is an empty experience ... but as empty experiences go, it's one of the
best.' This is because ... Andersen is a meaningless decision, but as meaningless decisions go, it's one of the most significant."
* Timothy Lynch, "One Cheer for United States v. Booker."
Lynch, the directory of the Cato Institute's Criminal Justice Project,
traces the development of sentencing from the 1800's through Apprendi, Blakely, and Booker, while
making an especially interesting point I hadn't considered. He writes:
There is a sharp
philosophical split among the justices of the Supreme Court with
respect to what the Constitution has to say about the administration of
criminal law. One faction contends that the Constitution establishes a
paradigm of criminal justice that reflects the common law tradition
[where juries decide facts after hearing opposing lawyers'
The opposing faction would have trial by bureaucrat. That
is, prosecutors - by making choices from a limitless selection of
criminal laws - and judges would decide whether and how long a person
would serve prison time. I had never thought of the divide like this. Our adversarial and jury system is the classical liberal way of
addressing criminal liability. Criminal laws exist to serve the people, and to vindicate their harms. So regular citizens should be the decision makers - not
bureaucrats. Some, like Justice Breyer, would vest total discretion in
the government where as other justices would leave such decisions to
the people. UPDATE: Showing the thin line between blogging and scholarship, Professor Berman offered similar thoughts in this post.
* Jonathan H. Adler, "Looking Ahead to the 2005-2006 Term." I discussed Adler's article in this previous post.
* Tim Sandefur co-authored an article on Grokster that I haven't finished reading.
Purchase your copy of Cato's Supreme Court Review here.