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This Article interrogates a critical, yet understudied, regulatory design choice the Supreme Court makes in each criminal case raising constitutional questions about law enforcement conduct: not what the Constitution requires but how to implement its requirements. In particular, the Court must decide whether to address its decision directly to rank-and-file officers or instead to political policy makers, such as legislators and police administrators, who in turn will regulate officers on the street. In the former, dominant modeltermed here first-order regulation-the Court tells officers precisely what they can and cannot do. In the latter model-second-order regulation-the principal objective instead is to enunciate constitutional values and create incentives for political policy makers to write the conduct rules. Framed differently, the Court, as INTRODUCTIONTwo police officers arrest a robbery suspect and drive him to the stationhouse. They orchestrate a lineup, and the lone eyewitness fingers the suspect as the robber. The accused maintains his innocence, but he is prosecuted and convicted on the basis of the eyewitness identification. On appeal, the defendant argues that the lineup procedure was suggestive and therefore violated due process. His conviction is affirmed but the U.S. Supreme Court grants certiorari. All nine Justices vote to reverse and overturn the conviction. As it sets out to generate an opinion, with the case's outcome resolved, the Court faces a critical, but understudied, question of regulatory design: To whom should its commands be addressed?One option is for the Court to speak directly to the arresting officers, identifying the impermissible aspects of the lineup procedure. Although pronounced in the context of an individual dispute, such a decision has obvious prospective regulatory consequences.1 Alternatively, the Court could aim its 1. For the view of criminal procedure decisions as substantive regulation of law enforcement officers and other state actors, see Carol S. Steiker, Counter-Revolution in Constitutional Criminal Procedure? Two Audiences, Two Answers, 94 MICH. L. REV. 2466, 2470(1996 William J. Stuntz, The Uneasy Relationship Between Criminal Procedure and Criminal Justice, 107 YALE L.J. 1, 12, 16-22 (1997); see also Richard H. Fallon, Jr. & Daniel J. Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104 HARV. L. REV. 1731, 1739(1991 ("[I]n the context of criminal procedure, the Warren Court's decisions . . . had a broad, regulatory quality difficult to assimilate . . . with a traditional conception of the judicial function as limited to deciding discrete disputes between particular parties." (footnote omitted)). 208CALIFORNIA LAW REVIEW [Vol. 103:205 commands at political policy makers-legislators and law enforcement administrators. Here it would enunciate the constitutional values at stake and create incentives for political actors to develop measures to safeguard those values, subject to judicial review. For example, the Court might require eyewit...
This Article interrogates a critical, yet understudied, regulatory design choice the Supreme Court makes in each criminal case raising constitutional questions about law enforcement conduct: not what the Constitution requires but how to implement its requirements. In particular, the Court must decide whether to address its decision directly to rank-and-file officers or instead to political policy makers, such as legislators and police administrators, who in turn will regulate officers on the street. In the former, dominant modeltermed here first-order regulation-the Court tells officers precisely what they can and cannot do. In the latter model-second-order regulation-the principal objective instead is to enunciate constitutional values and create incentives for political policy makers to write the conduct rules. Framed differently, the Court, as INTRODUCTIONTwo police officers arrest a robbery suspect and drive him to the stationhouse. They orchestrate a lineup, and the lone eyewitness fingers the suspect as the robber. The accused maintains his innocence, but he is prosecuted and convicted on the basis of the eyewitness identification. On appeal, the defendant argues that the lineup procedure was suggestive and therefore violated due process. His conviction is affirmed but the U.S. Supreme Court grants certiorari. All nine Justices vote to reverse and overturn the conviction. As it sets out to generate an opinion, with the case's outcome resolved, the Court faces a critical, but understudied, question of regulatory design: To whom should its commands be addressed?One option is for the Court to speak directly to the arresting officers, identifying the impermissible aspects of the lineup procedure. Although pronounced in the context of an individual dispute, such a decision has obvious prospective regulatory consequences.1 Alternatively, the Court could aim its 1. For the view of criminal procedure decisions as substantive regulation of law enforcement officers and other state actors, see Carol S. Steiker, Counter-Revolution in Constitutional Criminal Procedure? Two Audiences, Two Answers, 94 MICH. L. REV. 2466, 2470(1996 William J. Stuntz, The Uneasy Relationship Between Criminal Procedure and Criminal Justice, 107 YALE L.J. 1, 12, 16-22 (1997); see also Richard H. Fallon, Jr. & Daniel J. Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104 HARV. L. REV. 1731, 1739(1991 ("[I]n the context of criminal procedure, the Warren Court's decisions . . . had a broad, regulatory quality difficult to assimilate . . . with a traditional conception of the judicial function as limited to deciding discrete disputes between particular parties." (footnote omitted)). 208CALIFORNIA LAW REVIEW [Vol. 103:205 commands at political policy makers-legislators and law enforcement administrators. Here it would enunciate the constitutional values at stake and create incentives for political actors to develop measures to safeguard those values, subject to judicial review. For example, the Court might require eyewit...
Relying on the corporate personhood doctrine, the U.S. Supreme Court has increasingly expanded the scope of rights granted to corporations and other forms of collective entities. While this trend has received widespread attention in legal scholarship and the media, there is no empirical research examining how people think about the rights of corporations. We investigated this issue in a series of three studies, each exploring a different constitutional right (religious liberty, privacy, and freedom of speech). In each study, we examined people's willingness to grant rights in several types of business contexts (i.e., a 'closely held' family business, a large national corporation, for-profit and non-for-profit companies) and to different types of targets (i.e., employees, owners, and the company as a separate entity). We also looked at whether perceptions of corporate (versus individual) rights are affected by political ideology. Our results demonstrate that people are significantly and consistently less willing to grant the same scope of protection to companies versus people, particularly if these companies are for-profit large corporations. This tendency persisted among both liberals and conservatives. We identified ideological differences in the relations between employee and company rights: these were positively related among conservatives and more conflicting among liberals. Importantly, we found some evidence that people grant rights to companies because they want to protect the rights of individuals. Taken together these results indicate that, psychologically speaking, individuals (and not corporations) are the appropriate recipients of rights.
The plurality and dissenting opinions in McCutcheon v. FEC seem unreal. These opinions, which considered a series of strategies for circumventing federal limits on contributions to candidates, failed to notice that these limits were no longer breathing. The D.C. Circuit's 2010 decision in SpeechNow.org v. FEC created a far easier way to evade the limits than any of those the Supreme Court discussed. SpeechNow held all limits on contributions to super PACs unconstitutional.This Article contends that SpeechNow was wrongly decided. It also considers what can be said for and against a bumper sticker's declarations that money is not speech and that corporations are not people. It proposes a framework for evaluating the constitutionality of campaign-finance regulations that differs from the one currently employed by the Supreme Court. And it proposes a legislative scheme of campaign-finance regulation that would effectively limit contributions while respecting the Supreme Court's campaign-finance decisions.
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