Volume 2010, No. 4



Reimagining Criminal Justice

By Cecelia Klingele, Michael S. Scott & Walter J. Dickey

The criminal justice system needs more than reform. It requires reimagining. In its present state, by every measure that matters, the criminal justice system is failing to deliver what can fairly be expected of it. In response to glaring deficiencies in the current system, many policymakers and advocates have demanded increased resources for more patrol officers, more prosecutors, and more prisons. We take the position that more fundamental changes are needed if the criminal justice system is to succeed in its dual goals of reducing crime and serving the ends of justice. In this Essay, we set forth the reasons for our belief that the system needs to be re-imagined, asserting that whether the measure is efficiency, effectiveness, or equity, the current system fails to deliver. We explore the meaning of public safety and point to examples of ways in which local communities have successfully tackled discrete public safety problems. From those examples, we derive three principles that link the best of these efforts. We then consider the implications of our imagined criminal justice system for its principal actors and for legal research and education. Finally, we acknowledge practical and theoretical obstacles to the change we advocate, and end with our reasons for optimism about the future of the criminal justice system.


Citizens United and the Corporate Form

By Reuven S. Avi-Yonah

In Citizens United vs. FEC, the Supreme Court struck down a Federal statute banning direct corporate expenditures on political campaigns. The decision has been widely criticized and praised as a matter of First Amendment law. But it is also interesting as another step in the evolution of our legal views of the corporation. This Article argues that by viewing Citizens United through the prism of theories about the corporate form, it is possible to see that the majority and the dissent departed from previous Supreme Court jurisprudence on the First Amendment rights of corporations. It is also possible to then predict what arguments can be expected next.

Freedom of Thought for the Extended Mind: Cognitive Enhancement and the Constitution

By Marc Jonathon Blitz

Freedom of thought is often described as the central liberty in our constitutional system. Justice Oliver Wendell Holmes said that there is no principle that “more imperatively calls for attachment” than “the principle of free thought.” The Supreme Court has likewise often placed it at the center of our First Amendment jurisprudence, saying that our “whole constitutional heritage” rebels at giving government the power to “control men’s minds,” and suggesting that the more well-known right to freedom of speech is important largely because of the support it provides for our freedom of thought.

But while the Court has often celebrated freedom of thought, it has never clearly defined it or delineated its contours. Is “freedom of mind” a liberty that operates and protects only when we express our thoughts in speech or religious action? Or does it have independent force? This Article suggests an answer by looking at a form of government regulation that arguably limits our right to think, or enhance our powers of thought, without limiting our freedom of speech or worship. More specifically, it asks whether the Constitution’s freedom of thought places limits on the extent to which officials may restrict our use of cognitive-enhancement technology. Ultimately, I argue, the power to reshape our thinking processes biologically should be recognized as merely one form of a more general power that our “freedom of mind” is intended to place firmly in our own hands, not in the hands of government officials.


Preserving a More Perfect Union: Melding Two Circuits’ Approaches to Save a Valuable Weapon in the Fight Against Political Corruption

By Thomas Rybarczyk

The federal criminal law that serves as a principal protection against local and state political corruption has been severely curtailed this year after the U.S. Supreme Court’s decision in Skilling v. United States. For the past twenty years, federal prosecutors utilized one statute—the mail and wire fraud’s prohibition against theft of a citizen’s right to honest services—to reach the most sophisticated state and local corruption schemes. The reason for 18 U.S.C. § 1346’s success: the statute’s purposely vague language. The vague language allowed prosecutors to bend and shape the law to fit the contours of fraudulent schemes that did not match the precise elemental definitions of bribery or extortion.

However, its vague language was also its biggest vice. The
vagueness invited potential prosecutorial overuse and abuse. This article advocates for Congress to enact an honest-services-fraud statute that cabins the law’s reach while preserving its ability to criminalize acts undermining the republic’s faith in its state and local representatives. This public-trust preserving, private-gain standard is a two-prong test that elevates substance over form, borrowing heavily from tests established by the Sixth and Seventh Circuits. In three state and local corruption scenarios, this Comment analyzes the likely outcomes of using the public-trust preserving, private-gain standard, the popular “state law limiting” approach, and the new Skilling standard. Comparing these three approaches reveals that the public-trust preserving, private-gain standard ensures that public officials will not face charges for minor lapses in judgment without compromising the law’s prime policy goal of protecting the public against its corrupt politicians and governors.