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The Ghost Of John Hart Ely, Ryan D. Doerfler, Samuel Moyn
The Ghost Of John Hart Ely, Ryan D. Doerfler, Samuel Moyn
Vanderbilt Law Review
The ghost of John Hart Ely haunts the American liberal constitutional imagination. Despite the failure long ago of any progressive constitutional vision in an increasingly conservative Supreme Court, Ely’s conjectures about the superiority of judges relative to legislatures in the protection of minorities and the policing of the democratic process remain second nature. Indeed, they have been credible enough among liberals to underwrite an anxious or even hostile attitude toward judicial reform. In order to exorcise Ely’s ghost and lay it to rest, this Article challenges his twin conjectures. First, the Article argues that there is little historical and no …
What’S The Deference? Interpreting The U.S. Sentencing Guidelines After Kisor, Liam Murphy
What’S The Deference? Interpreting The U.S. Sentencing Guidelines After Kisor, Liam Murphy
Vanderbilt Law Review
For more than three decades, the U.S. Sentencing Guidelines have constrained the punishment doled out by federal judges, limiting discretion that was once nearly unlimited and bringing standardization to the penological decisionmaking process. For twice as long, the Supreme Court has constrained judges in a different way—by requiring that administrative agencies receive deference when they interpret the meaning of their own regulations. At the convergence of these two domains sits “commentary,” or interpretive notes the U.S. Sentencing Commission appends to the otherwise congressionally approved Guidelines. In Stinson v. United States, the Court made clear that commentary should be reviewed and …