Publications

PUBLICATIONS
The Fifth Amendment Privilege:  Introduction, 30 CARDOZO LAW REVIEW (forthcoming, 2008)

Two Fronts for Sentencing Reform, 20 FEDERAL SENTENCING REPORTER 343 (2008)

The Arc of the Pendulum:  Judges, Prosecutors, and the Exercise of Discretion, 117 YALE LAW JOURNAL 1420 (2008)

"No Contract," THE DARTMOUTH INDEPENDENT (2007)

"The Real Sentencing Law," http://www.scotusblog.com/ (2007)

Amicus Brief on Behalf of Law Professors and Former United States Attorneys, United States v. Rita (U.S. Supreme Court, No. 06-5754)

United States v. Mistretta: The Constitution and the Sentencing Guidelines, chapter of CRIMINAL PROCEDURE STORIES (C. Steiker, ed.) (Foundation Press,  2006)

A Sentencing Agency in the Judicial Branch, 58 STANFORD LAW REVIEW (2005)

The Story of United States v. Mistretta, chapter in CRIMINAL PROCEDURE STORIES (Foundation Press, 2005)

Crime and Punishment Under the Constitution, 2004 SUPREME COURT REVIEW 221 (2005)

Stanford Symposium on Blakely v. Washington (2004), FEDERAL SENTENCING REPORTER (2004) (transcript of law school conference)

Sense and Sensibility, NEW YORK TIMES (2004) (with W. Stuntz) (op-ed)

Criminal Law and the Supreme Court:  An Essay on the Jurisprudence of Byron White, 74 UNIVERSITY OF COLORADO LAW REVIEW 1523 (2003)

Disparity in Sentencing–Race & Gender, 15 FEDERAL SENTENCING REPORTER 160 (2003)

Justice White and the Law, 112 YALE LAW JOURNAL. 993 (2003)

Sentencing by the Book, 82 PHI KAPPA PHI FORUM 18 (2001)

Sentencing Guidelines: Lessons for the States, 44 SAINT LOUIS UNIVERSITY LAW JOURNAL 387 (2000)

Measuring Inter-Judge Sentencing Disparity Before and After the Federal Sentencing Guidelines, 42 JOURNAL OF LAW & ECONOMICS 271 (1999) (with J.M. Anderson and Jeffrey R. Kling)

FEAR OF JUDGING: SENTENCING GUIDELINES IN THE FEDERAL COURTS (U. of Chicago Press 1998) (with José A. Cabranes) (awarded the Citation of Merit by the American Bar Association)

Fear of Discretion, 1 THE GREEN BAG 209 (1998)

Judging Under the Guidelines, 91 NORTHWESTERN UNIVERSITY LAW REVIEW 1247(1997)

The Hegemony of the Sentencing Commission, 8 FEDERAL SENTENCING REPORTER 14 (1996)

The Criminal Jury in Our Time, 3 VIRGINIA JOURNAL OF SOCIAL POLICY & THE LAW 133(1995)

Juries, Society, and the Criminal Law, 1 YALE SURVEY OF CURRENT LEGAL ISSUES 1 (1995)

THE DARTMOUTH COLLEGE CASE AND THE ENDURING SIGNIFICANCE OF SELF-GOVERNANCE  (Dartmouth College, 1995)

The Government Interest In Criminal Law: Whose Interest Is it, Anyway? chapter of COMPELLING GOVERNMENT INTERESTS (S.Gottlieb, ed.) (Michigan U. Press, 1994)

Byron R. White, Last of the New Deal Liberals, 103 YALE LAW JOURNAL 19 (1993)

The Politics of Sentencing Reform: The Legislative History of the Federal Sentencing Guidelines, 28 WAKE FOREST L. REV. 223 (1993) (with Steve Y. Koh)

Government Interests in Criminal Law, 55 ALBANY LAW REVIEW 679 (1992)

The Role of Government Under the Bill of Rights, 15 HARVARD JOURNAL OF LAW ANDPUBLIC POLICY 129 (1992)

Byron R. White, ENCYCLOPEDIA OF THE AMERICAN CONSTITUTION (K. Karst & L.Levy, eds.) (1992)

Search and Seizure, ENCYCLOPEDIA OF THE AMERICAN CONSTITUTION (K. Karst & L.Levy, eds.) (1992)

THE CONSTITUTIONAL ROLES OF CONGRESS, THE EXECUTIVE AND THE COURTS IN THE CONDUCT OF U.S. FOREIGN POLICY (Woodrow Wilson International Center for Scholars)(1991) (with Harold Hongju Koh & Steve Y. Koh)

Comment: The Appropriations Power, 68 WASHINGTON UNIVERSITY LAW QUARTERLY 644 (1990)

The Risk of Legal Error in Criminal Cases: Some Consequences of the Asymmetry in the Right to Appeal, 57 UNIVERSITY OF CHICAGO LAW REVIEW 1 (1990)

Criminal Sanctions in Connecticut, 65 CONNECTICUT BAR JOURNAL 360 (1989)

Congress' Power of the Purse, 97 YALE LAW JOURNAL 595 (1988)

Rewriting the Fiscal Constitution: The Case of Gramm-Rudman-Hollings, 76 CALIFORNIA LAW REVIEW 593 (1988)

Comment: Federal Spending and the Deficit:  Is a Constitutional Remedy Necessary? 11 GEORGE MASON UNIVERSITY LAW REVIEW 119 (1988)

Case Comment, Discrimination Against Illegitimate Children, 90 HARVARD LAW REVIEW 123 (1977)

Note, Taxation of Employee Fringe Benefits, 89 HARVARD LAW REVIEW 1141 (1976)

Case Comment, Arbitration of Severance Pay, 89 HARVARD LAW REVIEW 812 (1976)

 

SELECTED LECTURES AND ADDRESSES

"The Woman Who Defied the Odds," Women's Campaign School at Yale (July 2007)

"Rita and Booker and the Courts of Appeals," First Circuit Judicial Conference (June 2007)

Third Annual Criminal Justice Roundtable, Yale Law School (May 2007)

"What International Law?" (Yale Law School, March 2007)

"Informed Consent and Professional Responsibility" (Connecticut Bar Association, New Britain, CT, January 2007)

"Israel and Sentencing Guidelines" (before the Committee on Law and Justice, Israeli Knesset, July 2006)

"The Revolution in Plea-Bargaining and Sentencing" (Harvard Law School Conference on CRIMINAL PROCEDURE STORIES, April 2006)

"Criminal Law in the 21st Century" (New Haven LEAP, February 2006)

"Justice by the Numbers" (Whitney Humanities center Fellowship, February 2006)

"What Booker Portends" (Federalist Society of Yale Law School, February 2006)

"The Reporter as Witness for the Prosecution" (Yale Law School Program on Journalism, February 2006)

"High Crimes or Misdemeanors: The Role of Criminal Law and Civil Enforcement in the Post-Enron Environment" (Yale Law School Alumni Association, New York, NY, October 2005)

“Sentencing and Mitigation” (Yale Medical School, Seminar on Forensic Psychiatry, September 2005 & September 2004)

“The Real PATRIOT Act” (Address at U.S. Coast Guard Academy, New London, CT, March 2005)

“What Booker Wrought” (U.S. Court of Appeals for the Fourth Circuit, Federal Judicial Conference Workshop, Williamsburg, VA, March 2005)

United States v. Booker: The Supreme Court and the Sentencing Guidelines” (panel discussion, Yale Law School, February 2005

“Theories of Punishment and State Sentencing Guidelines” (Columbia Law Review Symposium, January 2005)

“Federal Law and Federal Courts” (Discussion with Hartford Chapter, Federalist Society of Connecticut, January 2005)

“Whither the Federal Sentencing Guidelines” (Conference of the U.S. Court of Appeals for the Third Circuit, Hershey, PA, November 2004)

“The End of the Sentencing Guidelines?” (Benjamin N. Cardozo Law School, November 2004)

“Reimagining Sentencing Guidelines” (Conference on Blakely v. Washington, Stanford Law School, October 2004)

Blakely: The Academic Perspective” (American Constitution Society, Yale Law School, October 2004)

“Honoring the Founders” (Connecticut Bar Association, 10th Anniversary Celebration ofthe James W. Cooper Fellows Program, September 2004)

“Sentencing and Mitigation” (Yale Medical School, Seminar on Forensic Psychiatry, September 2004)

“Determinant Sentencing and the Supreme Court” (Conference of Federal Judges and Practitioners, District of Connecticut, September 2004)

“The Future of Federal Sentencing” (Administrative Office of the U.S. Courts, Defender Services Division, Washington, DC, July 2004)

“The Criteria of Judicial Independence” (Party School of the People, Beijing, China; conference co-sponsored by China Law Center of Yale Law School, January 2004)

“Investigating Financial Scandals” (Federal Bar Council Symposium, Yale Law School, December 2003)

“The Feeney Amendment and the PROTECT Act” (co-authored submission to Senate Judiciary Committee,  April 2003)

“Prosecutorial Discretion, Screening Cases, and Plea-Bargaining” (commentary for Conference on Plea Bargaining, Tulane Law School, April 2003)

“Judges and Politics” (with José A. Cabranes) (Yale Law School Association, Boston, MA, January 2003)

“The Supreme Court, Justice White, and the Criminal Law” (U. of Colorado School of Law, January 2003)

“Justice White’s Judicial Legacy” (Memorial Service, United States Supreme Court, Washington, DC, November 2002)

“The PATRIOT Act” (Knight Fellowship Symposium, Yale Law School, April 2002)

“Free Speech in High School” (Federal Bar Council Annual Meeting, San Juan, Puerto Rico, February 2002)

“The Jury in Terrorism Trials” (Horace Mann School, New York, NY, January 2002)

“Capital Punishment in Connecticut” (Yale Law School and Connecticut Bar Foundation Symposium, February 2002)

“Terrorism and the Criminal Law” (Yale Law School,  September  2001)

“Multi-Jurisdictional Practice: Old Rules in a New Game” (Connecticut Bar Foundation Symposium, December 2000)

“Daniel Webster and University Governance” (Dartmouth College, Hanover, NH, August 2000)

“Criminal Sentencing, State and Federal” (St. Louis University Law School, January 2000)

“The Corporation and the Grand Jury” (Federal Bar Council, Stamford, CT, June 1999)

“Privileges in the Federal Courts” (Federal Bar Council Annual Meeting, Kona, HA, February 1999)

“Congress and the Criminal Law” (address as Distinguished Visiting Lecturer, University of Nevada School of Law, January 1999)

“Alternative Dispute Resolution: Issues and Prospects” (Connecticut Bar Foundation Symposium, October 1998)

“The Present Crisis and the Independent Counsel” (Yale Law School, September 1998)

“Violence Against Women and the Criminal Law” (Annual Capitol Conference, Hartford, CT, May 1998)

“Inter-Judge Sentencing Disparity” (University of Chicago, Conference of the JOURNAL OF LAW & ECONOMICS, November 1997)

“The Shibboleth of Disparity” (New York University School of Law Fortunoff Colloquium, New York, NY, January 1997)

“The Unsung Heroes” (Dartmouth College, Opening Ceremony Celebrating Twenty-Five Years of Coeducation, Hanover, NH, October 1996)

“Global Constitutionalism from the American Perspective” (Conference on Democracy in the Former Soviet Union, Dartmouth College, Hanover, NH, September 1996)

“Juries, O.J. Simpson, and Rodney King” (Federal Bar Council Annual Conference, Nevis, January 1995)

“The Rodney King Case and the Future of Double Jeopardy Law” (Federal Bar Council Forum, Yale Law School May 1994)

“Investigating the Executive Branch: Congress and the Independent Counsel” (Yale LawSchool, April 1994)

“Reconsidering the Dartmouth College Case” (Old Supreme Court Chamber, U.S. Capitol, Washington, DC,  February 1994)

“Crime, Punishment and Politics” (Georgetown Law School Faculty Workshop, Washington, DC, March 1993)

“Criminal Process Reform in Italy?”  (Yale Law School Forum on the Italian Constitutional Court, September 1992)

“Child Abuse and Neglect: Constitutional Considerations” (Connecticut Bar Foundation,University of Connecticut School of Law, May 1992)

“Mandatory Federal Sentencing” (YALE LAW JOURNAL Conference on the Federal Sentencing Guidelines, March 1992)

“Criminal Law and the Constitution” (Conference on Compelling Government Interests, Albany Law School, September 1991)

“The Bill of Rights as a Constitution” (Federalist Society Conference on the Bill of Rights, Yale Law School, March 1991)

“Separation of Powers and the Conduct of Foreign Policy” (Co-organizer and Moderator of Symposium, Yale Law School and the Woodrow Wilson International Center for Scholars, Smithsonian Institution, Washington, DC, January 1991)

“The Appropriations Power and the Separation of Powers” (Federalist Society Conference on Constitutional Separation of Powers, Washington, DC, January 1990)

“The Future of Gramm-Rudman-Hollings” (Annual Research Conference of the Association of Public Policy and Management, Arlington, VA,  November 1989)

“Legal Error and Criminal Appeals” (Legal Theory Workshop, Columbia Law School, February 1989)

“The Supreme Court and the Fifth Amendment” (American Bar Association Annual Meeting, Toronto, August 1988)

“Who Controls Government Spending?” (Law and Economics Workshop, University of  Toronto Faculty of Law, Toronto, April 1988)

“The Constitutional Role of Special Prosecutors” (Federal Bar Council Annual Meeting, Maui, HA, February 1988)

“Government Spending Without Taxes or Deficits: Is There an Executive Power of the Purse?” (Address as Distinguished Scholar in Residence, Valparaiso University Law School, Valparaiso, IN, October 1987)

“Why a Balanced Budget Amendment is a Bad Idea,” (Federalist Society Conference on Constitutional Law, Arlington, VA, October 1987)

“Cross-Disciplinary Perspectives on Constitutional Law” (AALS Workshop on  Constitutional Law, Washington, DC, October 1987)

“Gramm-Rudman: Constitutional Status and Budgetary Impact” (Wesleyan University, Middletown, CT, March 1986)