Analysis proceeds in five parts. Part I sets forth the facts and central holdings of Bellotte. Part II briefly discusses the Supreme Court’s seemingly contradictory rulings on qualified immunity and the ensuing divergence among the circuits. Part II then notes how the Fourth Circuit generally addressed clearly established rights before Bellotte. Part III analyzes how Bellotte illustrates a shift in the Fourth Circuit’s approach to qualified immunity and argues that it is a proper way to handle the issue. Part IV discusses the important policy objectives this new framework promotes by allowing more legitimate claims of government abuse to survive summary judgment. Part V addresses problems this new approach may present, namely the potentially higher burden on government officers performing difficult and dangerous jobs. This Recent Development then concludes that the Fourth Circuit’s new approach, while imperfect, is still a preferable way to address qualified immunity until the Supreme Court provides further guidance.

This Recent Development argues that, despite creating a circuit split, the Fourth Circuit’s refusal to allow prosecutors to condition the extra sentence reduction on a defendant’s waiver of the right to appeal was correct. The court’s analysis is logical, clear, and furthers the Guidelines’ purpose of conserving scarce trial resources. Divens also reinforces other objectives that the criminal adjudication system values: predictability and certainty in federal sentencing. The extra acceptance of responsibility reduction is an adjustment that allows a defendant to “reduce his offense level and, ultimately, his advisory sentencing range” by assisting “authorities in the investigation or prosecution of his own misconduct by” either “timely providing complete information to the [G]overnment concerning his own involvement in the offense” or by “timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the [G]overnment to avoid preparing for trial and permitting the court to allocate its resources efficiently.” In Divens, the precise legal issue was whether the government has the power to condition a section 3E1.1 motion on the refusal by a defendant to waive appellate rights. The Fourth Circuit split with its sister circuits when it decided that section 3E1.1(b) should not be read to place near-unreviewable discretion, a la section 5K1.1, in the government over section 3E1.1 motions. The decision in Divens reflects a new analysis of section 3E1.1(b) that relies on the plain language of the Guidelines and their commentary instead of congressional intent. The Fourth Circuit’s approach has already guided the Second Circuit’s analysis in United States v. Lee, and the circuit split raises interesting questions about the acceptance of responsibility scheme that the U.S. Supreme Court should resolve.

Common wisdom has it that arbitrators neither follow nor make precedent, with potentially dire consequences. These include the failure to enforce individual rights and the possibility that, over time, widespread use of arbitration will result in the decay or destruction of the law itself. Although difficult to test directly, this common wisdom can be explored indirectly by analyzing arbitrators’ citation practices. This Article conducts such an analysis using a unique dataset of published arbitration awards from four U.S. regimes: labor, employment, class action, and securities arbitration. It explores how arbitrators use precedent and where that precedent comes from, and it attempts a tentative comparison between the citation practices of judges and arbitrators.

Outside of securities and (to some extent) labor arbitration, the arbitrators in the sample routinely wrote lengthy awards that were substantially devoted to legal analysis and that made extensive use of precedent. The vast majority of cited precedent, moreover, came from published judicial opinions. Arbitrators did cite to past arbitration awards, but primarily to fill gaps in the law created by government actors. On the whole, the evidence provides little support for the view that arbitrators and judges engage in qualitatively different kinds of decision-making or opinion-writing.

Part I presents the facts of the Cherokee Tribal Court’s order in In re Russell as the backdrop for a discussion of the interplay between contempt law and tribal court jurisdiction. Part II provides a brief overview of tribal criminal court jurisdiction under the Supreme Court’s ruling in Oliphant. Part III surveys the history of contempt law, explaining the sometimes subtle differences between the types of contempt proceedings and how they are jurisdictionally determinative in tribal courts. Part IV applies the principles of Oliphant and contempt law to In re Russell, explaining why the Cherokee Tribal Court stepped beyond its jurisdictional limitations in the case. Part IV concludes by setting forth ways in which tribal courts can, consistent with Oliphant, enforce their authority through their contempt powers.

Part I of this essay briefly reviews the federal statute that authorizes DNA extraction and the Fourth Amendment principles that underlie the current constitutional challenges to it. Part II identifies the various, and sometimes competing, rationales offered to justify the constitutionality for collecting DNA from individuals before they have been convicted of a crime. Then, Part III argues for a recalibration of the weight that courts currently place on the privacy interest in, and the government’s need for, DNA samples from individuals who are presumed innocent. Finally, Part IV identifies four issues yet to be addressed regarding pre-conviction DNA extraction. The holdings of the current cases leave open questions about whether the government’s interest in pre-conviction DNA extraction can trump the Fourth Amendment in the absence of a judicial or grand jury finding of probable cause, or when the arrestee is not detained or is charged with only a misdemeanor. Such cases quickly strain the current rationales of circuit courts and cast serious doubt on the constitutionality of the broadly worded statute.

Recent cases such as Brown v. Pena and Graham v. Florida demonstrate the utility and wisdom of judicial nudges when penal politics are mired in incapacitation stagnation. Ultimately, however, guides and constraints governing the political branches are needed for sustainable change.  The Article analyzes the potential of what it terms “rehabilitation pragmatism” to anchor reforms. Rehabilitation pragmatism is cautious and selective in choosing beneficiaries and attentive to the need for evidence of efficacy, cost-effectiveness and success. The Article argues that as we turn to such data-driven approaches in decision-making, the distribution of benefits and burdens across historically disadvantaged groups should be an important component of efficacy assessments. Performance measures should take into account human and community as well as fiscal costs. The Article also advocates penal impact analysis to curb the tendency to enact a thicket of criminal laws without consideration of systemic costs.  Penal impact analysis provides for front-end examination of the fiscal consequences of criminal legislation, curbing the pathological politics of crime.

This Article uses a case study of the Earned Income Tax Credit (EITC) to explore one particularly promising target for such reforms: the administration of tax expenditures. Scholars have long contended that the EITC’s high rate of noncompliance (i.e., payments made to ineligible taxpayers) shows that the tax system is a flawed platform for the administration of complex programs with real-world goals unrelated to revenue collection. But such critiques have generally assumed that, regardless of their policy objectives, tax expenditures will be implemented with the same administrative tools used for revenue collection. This Article argues that tax expenditures need not rely on unmodified tax administration, but rather that policymakers can address the tax system’s administrative limitations by implementing “hybrid” administrative practices borrowed from nontax arenas. It illustrates this analytical approach by examining the adjudication of EITC noncompliance in the United States Tax Court. Currently, those suspected of EITC noncompliance are expected to vindicate their claim for the credit via the same formal, adversarial Tax Court procedures used to adjudicate claims of tax underpayment. But as an analysis of EITC claims in Tax Court reveals, such ordinary tax procedures are not well-suited for the EITC context, which features low-income and usually unrepresented taxpayers who are poorly positioned to vindicate their claim in a formal, adversarial setting. Policymakers should thus consider deviating from traditional tax administration and, in recognition of the EITC’s welfare objectives, adopting the collaborative, inquisitorial adjudicative approaches associated with traditional welfare programs. Such hybrid practices would better reflect the EITC’s objectives and clientele, and could significantly improve the fairness and efficiency of EITC adjudication.

And what’s true for EITC adjudication is true also for other aspects of the EITC, as well as for tax expenditures more generally. Where a tax expenditure has a real-world objective not well-served by traditional tax administration, administrative practices that are specifically tailored to reflect that objective will improve policy outcomes. This Article thus concludes by illustrating the broad potential of hybrid tax administration, tentatively identifying a number of opportunities for the use of hybrid administrative practices to improve both the EITC and other tax expenditures.

Whitehead pled guilty to burning personal property and to felony animal cruelty. The crime of burning personal property carried a sentence of six to eight months in prison; however, the crime of felony animal cruelty brought only a sentence of probation, with a possible sentence of four to five months in prison if the terms of probation are violated. This trivial sentence sparked a wave of controversy and debate. Citizens sent letters and emails to state legislators, resulting in Susie’s Law. This new law increases penalties for certain animal cruelty acts in North Carolina.

To view the official announcement, click here.