Recent UW Law Faculty Scholarship: Meaning of the Constitution’s Preamble, Authority of the Constitutional Committee of Style, Territory as a Victim of Armed Conflict, & Plea Bargaining’s Innocence Problem

Here is the latest faculty scholarship appearing in the University of Wisconsin Law School Legal Studies Research Papers series found on SSRN.

  • Reconsidering the Constitution’s Preamble: the Words that Made Us U.S. by David S. Schwartz, UW Law SchoolThe Preamble to the U.S. Constitution is wrongly dismissed by conventional doctrine as a purely symbolic or stylistic flourish with no operative legal significance. But the drafting history of the Preamble, observable by comparing the preambles in the Articles of Confederation, the Committee of Detail draft of the Constitution, and the Committee of Style’s final version, demonstrate that the Framers considered the Preamble to be substantively meaningful. Just what the Preamble means remains ambiguous: it might be viewed as a rejection of compact theory, as an interpretive guide to the powers granted in the body of the Constitution, or as a source of implied powers. But the view that reduces the Preamble to a legally inoperative flourish has no basis as a matter of text or history.
  • The Committee of Style and the Federalist Constitution by David S. Schwartz, UW Law SchoolThe conventional interpretation of the Constitution assumes that the Committee of Style, which created the final draft of the Constitution, lacked authority to engage with substance; therefore, any arguably substantive changes it did make should be disregarded in favor of earlier draft language found in the Constitutional Convention records. This “Style doctrine” has been embraced by the Supreme Court and several leading constitutional scholars. This article argues that the Style doctrine is historically unfounded and obscures the Constitution’s original meaning. The Committee of Style was not prohibited from proposing substantive changes. In any case, most of the revisions proposed by the Committee of Style clarified or reinforced Federalist positions rather than proposing substantive changes. Ultimately, the Style doctrine is an artifact of post-ratification developments tending to disregard elements of the more nationalistic constitutional vision of the Federalist Framers.
  • Territory as a Victim of Armed Conflict by Alexandra Valeria Huneeus, UW Law School with Pablo Rueda SaizColombia’s peace jurisdiction has formally accredited the territories of indigenous and Black communities as victims of the armed conflict. But what does it mean for a territory to be treated not as the stage on which a conflict unfolds, but as its victim? The concept of territory-as-victim seeks to give a legal expression to the notion that it is not just human lives that are upended by armed conflict, but also relations with non-humans, including ‘earth beings’ such as rivers and mountains, and the spiritual world. Further, it is a tool through which indigenous peoples and Black Colombians gain greater control over their land. Transitional justice scholars and practitioners are just beginning to consider what the push to recognize non-humans in law could mean for a field that has its origins in the human rights movement. This article contributes to the debate, showing how Colombia’s peace process is transforming territory from an object to a legal subject that suffers harm and is in need of repair.
  • Plea Bargaining in the Shadow of a Retrial: Bargaining Away Innocence by Keith A. Findley, UW Law School with Camila Angulo Amaya, Gibson Hatch, and John SmithCritics of plea bargaining have long contended that it has an innocence problem – that the imbalanced and coercive nature of plea negotiations can induce even innocent defendants to plead guilty. While laboratory studies confirm that innocent individuals can indeed be induced to plead guilty, little real-world empirical evidence exists about the nature and extent of plea bargaining’s innocence problem. Utilizing original empirical data, this article begins to fill that void. Looking at cases in a post-conviction context, we study the extent to which prosecutors in real cases utilize their plea-bargaining power to preserve convictions, even when the convictions appear to be deeply flawed and the chances the defendants are innocent are high. We also examine the degree to which innocence-claiming defendants succumb to those pressures and accept the deals.

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