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Legal Research News and Information with an Emphasis on Wisconsin

Recent UW Law Faculty Scholarship: Supervising Sentencing; Robust Electoral Competition: Rethinking Electoral Systems to Encourage Representative Outcomes; Independence Reconceived; Is the Constitution of 1787 a White Supremacist Document? Against Essentialism in Constitutional Interpretation; and May 30, 1787

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

Community supervision agencies and officers do not just supervise people on probation and parole. They also play a unique and privileged role at sentencing. In nearly every state, community supervision officers investigate and write the presentence report, which is often the judge’s primary source of information about the defendant and the crime of conviction. With minimal guidance from legislatures or courts, community supervision agencies set the policies that govern the presentence investigation and report process.

This Article offers a descriptive and theoretical account of community supervision’s sentencing role in state courts. My account is based on an analysis of statutes, court rules, and a collection of almost 200 internal community supervision agency policy documents obtained through open records requests to community supervision agencies in every state. I find that community supervision agencies and officers do not simply implement sentencing policy; in key respects, they make it.

In their sentencing role, community supervision agencies and officers take positions on highly contested first-order questions about the sentencing process itself: what goals, values, and assumptions should guide sentencing decisions? What types of facts should sentencing judges consider? How should those facts be found, and what meaning do they support? I argue that community supervision’s answers to these questions both reflect and reinforce what I describe as a punitive perspective on the sentencing process: one that sees the criminal legal system as just, criminal punishment as socially beneficial, and criminal defendants as moral failures. Community supervision’s sentencing role elevates the punitive perspective on the pretense of neutrality and, by doing so, helps to insulate it from challenge and critique.

American democracy is struggling. Political polarization has exacerbated division within the electorate, while gerrymandering and hyper-polarization mean only a handful of elections are truly competitive. Voters feel increasingly disenchanted with the major parties and starved for choice. Hungry for solutions, states have turned to a particular form of Ranked Choice Voting called Instant Runoff Voting, now adopted in two states and on the ballot on more this fall. Its promise of greater choice holds intuitive appeal to those interested in improving American democratic institutions.

This article sounds the alarm that the rush to reform by adopting Instant Runoff Voting may prove misguided. Well-intentioned advocates have backed a system that treats symptoms, not the root causes of democratic disfunction. We reframe the discussion in terms of robust electoral competition, evaluating voting systems on their incentive structures shaping the political positioning of candidates’ platforms and the extent to which those platforms are responsive to the will of the voters. On those metrics, we argue, the form of Ranked Choice Voting spreading across the country comes up short in much the same ways that our current plurality system fails.

We provide a two-part corrective. On a theoretical level, we offer a framework that ties the representativeness of an electoral system to the degree to which it promotes political competition. We show how alternative voting systems can create stronger competitive pressures resulting in more representative election outcomes. On a practical level, we show an alternative Ranked Choice system called Condorcet voting could restore lost incentives within existing constraints. Unlike our current plurality system or Instant Runoff Voting, Condorcet voting ensures that a candidate preferred by a majority over others must win, thereby creating strong competitive pressures resulting in more representative outcomes. We map a feasible path toward revived democratic responsiveness.

What makes a director independent? Scholars, regulators, and investors have grappled for decades with the fleeting notion of director independence. Originally conceived as guardians of shareholder interests that could safeguard a corporate board’s ability to check management’s power, independent directors have become a marquee feature of modern corporate governance. But do the corporate actions of directors that are considered “independent” under current standards comport with what we think independence requires? In many cases, the answer would seem to be “no.” From a lack of observable financial impact to the unabated flow of corporate scandals, independent directors seem to keep failing at the job they were championed to do.

This Article addresses this puzzling tension, offering a novel theoretical and practical reframing of the decades-old discourse around independent directors. The historical focus on the classical managerial agency costs paradigm emphasized that directors who lack ties to the management team can prevent managerial slack or value extraction. However, this approach overlooks the critical role directors also have in curbing managerial overzealousness. In today’s governance ecosystem, directors are not only tasked with preventing managerial slack. They are increasingly tasked with preventing managerial overreach and misconduct even when such overreach or misconduct is compatible with promoting shareholder value. This has important theoretical and practical implications.

This Article makes two key contributions to the literature. First, it reframes the question of what makes directors independent by supplementing the focus on agency costs as the driver for independence. By identifying a need to prevent boards from rubber-stamping managerial actions—even those taken in good faith—this Article suggests that a simple lack of ties to management fails as a litmus test for independence. Second, by reconceiving independence, this Article also provides tangible credence to the value of diversity on boards, the value and perils of hedge fund activism, and to the emerging discourse regarding ESG and stakeholderism.

A curious convergence is emerging in legal academia around the conclusion that the 1787 Constitution is a white supremacist document. Although most originalists would deny that contention, their methodology strongly favors, if it does not compel, an agreement with progressive, “neo-Garrisonian” scholars that the Constitution of 1787 is indeed a white supremacist document. Both the neo-Garrisonian and originalist elements of this implicit convergence stem from their “essentialism” in Constitutional interpretation: the idea that the Constitution or its terms or provisions carry a uniquely and objectively correct meaning, invariant over time, and independent of our evolving normative commitments. This essay argues that essentialism is a mistaken approach to constitutional interpretation. Contrasting Chief Justice Roger Taney’s lead opinion in Dred Scott, holding that Black people cannot be “citizens” of the United States, with Frederick Douglass’s Glasgow Speech, arguing that the Constitution is not a pro-slavery document, this essay argues that these two texts embody not simply a clash of conclusions, but also a clash of approaches to understanding what the Constitution is. Taney’s opinion is archetypally originalist and essentialist; Douglass’s speech, widely misunderstood as an essentialist, textualist argument, is in fact a powerful anti-essentialist argument that the Constitution of 1787 was an invitation to struggle over the questions of slavery and white supremacy. The essay further disputes the widely accepted neo-Garrisonian claim that originalism and living constitutionalism both fail the Dred Scott “test.” While living constitutionalism, with its embrace of evolving moral values, would today reject Dred Scott, Taney’s originalist opinion adheres to the tenets of the intentionalist and public meaning strands of originalism and meets present-day professional standards of originalist scholarship. Thus, while living constitutionalism can, originalism cannot disown Dred Scott.

In Federalist 39, James Madison characterized the proposed Constitution as “partly national, and partly federal.” The federalism debates that have dominated constitutional law and politics from the beginning of the republic to the present play out the tensions between, and relative weights of, these “national” and “federal” elements. The history of U.S. constitutional politics is one in which the nationalism of the Philadelphia Convention was rhetorically downplayed in the ratification debates, and then significantly rolled back by erstwhile Anti-Federalists who became ascendant after the election of 1800. The dominance of the Anti-Federalist-influenced Jeffersonian Republican party after 1800 habituated our constitutional order to an ideology of federalism that, to this day, exaggerates the Constitution’s original commitment to its “partly federal” character. Our understanding of U.S. federalism and its history is doomed to incompleteness, if not distortion, without a proper account of the evolution the word “federal” in our constitutional order, from its origin as a descriptor of the decentralized Confederation system to a descriptor of today’s predominantly centralized national government. This essay offers a first step toward a semantic or etymological history of the word “federal,” by describing and analyzing the first significant appearance of the words “national” and “federal” at the outset of the Philadelphia Convention. I argue that, to the Framers, “federal” referred to the Confederation system that they believed was a failure. On the first day of substantive debate “May 30, 1787” the Framers decisively rejected a “federal” constitution in favor of a “national” one. This decision guided their deliberations for the rest of the Convention, only to be swept under the rug by the rhetorical strategy of the pro-ratification “Federalists.”

For the full text of these works and additional scholarship from UW Law faculty and staff, visit the University of Wisconsin Law School Legal Studies Research Paper Series on SSRN. A free email subscription is available at the top right of the page.