Recent UW Law Faculty Scholarship: The Gravitational Force of Future Decisions, A Commentary on Treanor’s ‘Dishonest Scrivener,’ Gender Favoritism Among Criminal Prosecutors, Compassionate Release & Decarceration, & Innovative Law Courses at UW Law

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

  • “The Gravitational Force of Future Decisions” Forthcoming in Philosophical Foundations of Precedent (Oxford UP) by NINA VARSAVA, UW Law School

    In this chapter, I [Varsava] take up Dworkin’s account of law as integrity and explore some of its unrecognized implications regarding the gravitational force of judicial decisions. Under law as integrity, past judicial decisions have gravitational force over present ones for reasons of formal equality or procedural fairness. Judges have a duty to help ensure that their legal system treats like cases alike, which means that past decisions exert force over present ones. I argue that, because equality is not an exclusively past-oriented ideal but rather an a-temporal one, future judicial decisions also exert gravitational force over present ones. Whenever future decisions are reasonably foreseeable, then, judges ought to follow their best predictions of those decisions, just as they ought to follow their best understandings of past ones. Accordingly, future exercises of governmental authority have normative implications that Dworkin did not appreciate for how officials should exercise their authority today. On the bidirectional model of precedent that I propose here, compared to the conventional, exclusively backward-looking one that Dworkin hung onto, a judge takes a more expansive view of the legal practices that are relevant to the process of constructive interpretation, taking into account not only past judicial decisions but also future ones. This is necessary from the point of view of law as integrity, I argue, because under that view the law must really be constituted by both.

  • “Gouverneur Morris, The Committee of Style, and the Federalist Constitution: A Commentary on Treanor’s ‘Dishonest Scrivener'”  120 Michigan Law Review Online (2022, Forthcoming) by DAVID S. SCHWARTZ, UW Law School

    Dean William Treanor’s masterful article, The Case of the Dishonest Scrivener: Gouverneur Morris and the Creation of the Federalist Constitution, makes a major contribution to scholarship on the founding. He uncovers a body of constitutional interpretations favored by advocates of a strong national government and emphasized by the Federalist party in the early decades of politics and policy under the Constitution, raising significant questions about present-day originalism in the process. Treanor particularly emphasizes how Constitutional Convention delegate Gouverneur Morris, acting as primary draftsman on the ‘Committee of Style’ which put the finishing touches on the draft ‘Constitution’ crafted language favorable to Federalist interpretations. But Treanor disserves his otherwise compelling argument with a narrative that portrays Morris as a ‘dishonest scrivener’ who ‘smuggled in’ substantive revisions to impose his own views, presumably against the will of an inattentive Convention majority. This narrative framing ‘not sustained by the available evidence’ digresses from Treanor’s core argument, and works against it. A better interpretation of the historical evidence is that the Committee of Style draft had broad support and made no substantive revisions that escaped the notice of the Convention. The fifteen revisions by the Committee of Style cited by Treanor do not support the charge of ‘dishonest scrivening’. Ultimately, we can dismiss the ‘dishonest scrivener’ narrative, while recognizing Treanor’s valuable, core insights that Morris was a key player at the Convention and that the Committee of Style reinforced Federalist understandings of the original Constitution.

  • “Gender Favoritism Among Criminal Prosecutors”   Journal of Law and Economics (forthcoming) by STEPHANIE HOLMES DIDWANIA, UW Law School

    Prosecutors enjoy wide discretion in the decisions they make but are largely unstudied by quantitative empirical scholars. This paper explores gender bias in prosecutorial decision-making. I (Holmes Didwania) find that male and female prosecutors exhibit small and statistically insignificant differences in their treatment of defendants overall but demonstrate relative leniency towards defendants of their own gender. Such favoritism at charging translates into a sentencing gap of roughly five months of incarceration for defendants who are paired with an own-gender prosecutor versus an opposite-gender prosecutor, which represents a roughly eight percent reduction in sentence length at the mean. The estimates do not appear to be driven by differences in case assignments for male and female prosecutors.

  • “Compassionate Release and Decarceration in the States” 107 Iowa L. Rev. (forthcoming 2022) by RENAGH O’LEARY, UW Law School

    Though the U.S. prison population has declined slightly over the last decade, progress toward decarceration has been exceedingly modest. Creating or expanding mechanisms for early release from prison could help accelerate the pace of decarceration. Compassionate release early release from prison based on a serious or terminal medical condition”is the only early release mechanism available in nearly every state. This Article uses compassionate release as a case study in the possibilities and limits of early release measures as tools for decarceration in the states. So far, decarceral reforms have largely failed to reach people convicted of violent crimes, who account for over half of the state prison population. The challenge presented by the prevalence of violent convictions is particularly acute for compassionate release. People age 55 and older, who make up a significant and growing share of people in state prisons, are the age group most likely to qualify for compassionate release. They are also the age group most likely to be incarcerated for violent convictions. This Article identifies the significant barriers that people incarcerated for violent convictions face when seeking compassionate release even when they are not outright barred by their convictions. This Article argues that to be effective tools for decarceration, compassionate release and other early release measures must reduce the obstacles to release for people incarcerated for violent convictions. This Article models this approach with concrete suggestions for how states can reform their compassionate release measures to reach the hardest cases.

  • “Preface to Legal Realism to Law in Action: Innovative Law Courses at UW-Madison” Preface to LEGAL REALISM TO LAW IN ACTION: INNOVATIVE LAW COURSES AT UW-MADISON (William Clune ed., Quid Pro Books) (2021) by WILLIAM H. CLUNE, UW Law School

    This is the preface to the book LEGAL REALISM TO LAW IN ACTION: INNOVATIVE LAW COURSES AT UW-MADISON. This book is a collection of papers and interviews written for an event honoring Professor Herman Goldstein who has since passed away. It is about four innovative courses, including Goldstein’s, developed by faculty of the Wisconsin Law School from 1950-1970. These courses reflected the goals of legal realism, an emphasis on law in action, and the growing importance of social science and empirical research (law and social science).

To access all the papers in the University of Wisconsin Law School Legal Studies Research Paper Series, please use the following URL: