Volume 34, Issue 1

Inflation-Based Adjustments in Federal Civil Monetary Penalties

James Ming Chen

This Article will examine the Federal Civil Penalties Inflation Adjustment Act in detail. A 2003 report by the United States General Accounting Office identified the difficulties that federal agencies had encountered in their implementation of the Inflation Adjustment Act. This Article extends the analysis offered by the 2003 GAO report in multiple ways. This Article comprehensively reviews the legislative history of the Act so that it can explain the Act’s economic problems as the consequence of Congress’s extensive but ultimately flawed drafting process. Through its Mathematical Appendix and its more contextualized illustrations, this Article supplies both formal and narrative explanations of the Act’s shortcomings. This Article ultimately proposes concrete legislative solutions to each of the statutory flaws that it identifies.

Calibrating Judicial Scrutiny of Agency Enforcement Decrees

W. Hamilton Jordan

Given these recent shifts in the legal landscape, and considering that the judiciary’s role in reviewing proposed enforcement decrees is still unclear in most circuits, it’s worth asking how courts should best proceed when asked to approve enforcement decrees. This Article furthers that inquiry. Part I examines recent judicial skepticism of proposed enforcement decrees, focusing on one especially notable example: U.S. District Court Judge Jed Rakoff’s rejection of a proposed agreement between the SEC and Citigroup. It then explains how the Second Circuit, in reversing Judge Rakoff, set out a new standard of review that limits judicial oversight of proposed enforcement decrees. It also touches on other recent cases where federal district judges have declined to approve similar enforcement proposals. Part II situates this recent judicial skepticism in a more familiar framework, arguing that these district judges are engaging in something akin to “hard look” review. Part III then encourages a different approach.

Why Motive Matters: Designing Effective Policy Responses to Modern Debtors’ Prisons

Andrea Marsh and Emily Gerrick

So far, our national conversation about modern debtors’ prisons has placed the blame for their existence almost exclusively on municipalities’ interest in maximizing the revenue generated by their courts on the backs of disenfranchised communities. Revenue generation is a relatively straightforward and easy-to-grasp explanation for what is otherwise confounding, widespread illegality on the part of law enforcement and court officials. This focus on revenue generation has led to policy responses premised on the notion that modern debtors’ prisons can be eliminated if the revenue-generation motive is disrupted or controlled. While acknowledging revenue generation as one strong motive for the practices that produce modern debtors’ prisons, this Essay argues that it is an incomplete explanation. Incarceration for debt is fiscally irrational in most in-dividual cases, because governments are effectively doubling their losses by add-ing incarceration and other enforcement costs to accumulated criminal justice debts that can never be collected.

Police Power and the Scaring of America: A Personal Journey

Robin G. Steinberg

For over thirty years, I have worked in the criminal justice world, representing people in several of America’s poorest congressional districts. As the Founder and Executive Director of The Bronx Defenders, a holistic public defender office in the South Bronx that serves over 30,000 of the lowest-income residents in America every year, I thought I had a clear view of over-policing and the rapidly fraying bond between police and the poor communities of color they patrol. I didn’t. Last year, I became embroiled in a controversy that both deepened my own understanding of the problem and inexorably brought me closer to those my office represents. The controversy concerned my office’s participation in a hip-hop video that became a flashpoint in the conversation about policing and racial justice. My experience at the center of the ensuing maelstrom taught me several valuable lessons: about the power of the “hero cop” narrative that pervades the United States today, about the fragility of the defense function, and about the profound racial fears that still suffuse the American experiment.

The Geographic (Un)representativeness of the Federal Reserve Board of Governors

Clark Hildabrand

This Note examines the legislative history of Section 10 of the Federal Reserve Act, describes the relevance of geographic representativeness in recent confirmations of Board members, reveals interesting historical trends in Federal Reserve Board of Governors membership, and describes how the geographic composition of the Board may affect the Board’s implementation of monetary and financial stability policy. To correct the errors of the Office of Legal Counsel (OLC), which incompletely analyzed the legislative history of the geographic diversity requirements in an attempt to increase Executive nomination discretion, Part I analyzes the legislative history of Section 241’s geographic diversity requirements and shows that populist members of Congress viewed these requirements as essential to prevent East Coast or Wall Street interests from dominating the Board of Governors. Part II describes how these geographic requirements were applied in recent confirmation hearings of Board members, particularly the hearings that prevented Peter Diamond, a Nobel Laureate in economics, from assuming a position on the Board of Governors.

School Choice Architecture

Daniel E. Rauch

This Comment offers five behavioral-economic “fixes” to improve the school selection process at the heart of school choice: (1) default rules favoring high-performing schools; (2) enrollment ballots arranged by quality, not alphabetically; (3) ballot disclaimers next to substandard school options; (4) “box scores” with high salience information next to each ballot option; and (5) computerized selection assistance. Combined, these fixes offer crucial benefits for urban school choice.

A Case for Randomized, Double-Blinded, Sham-Controlled Class III Medical Device Trials

Megan S. Wright

In this paper, I evaluate the ethical implications of the FDA’s move to en-courage randomized, double-blinded, sham-controlled trials for Class III devices when such studies are possible. In Part I, I describe the placebo effect and how researchers control for it. In Part II, I describe the results of studies of medical procedures and devices that have used a sham control. In Part III, I de-scribe the ethical concerns surrounding the use of sham surgeries to study medical devices. In Part IV, I argue for the use of randomized, double-blinded, sham-controlled device trials, and propose an ethical framework for these studies.