The executive branch must inevitably interpret the Constitution. Although departmentalists and judicial supremacists disagree about the scope of the executive's constitutional authority, few believe the Constitution is only for the courts. But what are the practices through which the executive branch interprets the Constitution and translates those interpretations into concrete decisions? What are their histories? And what, if anything, is distinctive about them? While a rich and growing literature has examined some aspects of these questions, scholars have not broadly canvassed the most central tools by which the executive branch shapes and implements constitutional law or considered what makes them unique. This Article pursues that project. Descriptively, the Article provides a thick account of executive branch constitutional interpretation, particularly in its centralized form controlled by the president and the Department of Justice. We describe and assess executive tools and methods for interpreting the Constitution and transmitting those interpretations to different audiences. Some of these tools are well known and have obvious judicial analogs. But this Article shows how the history and contours of these practices have not been fully understood. It also excavates some unfamiliar tools that have gone unnoticed and unexplained. Our descriptive account provides a foundation for assessing executive constitutionalism. Comparing executive and judicial practices can help justify some existing arrangements while suggesting reforms for others. More broadly, a rich understanding of how executive branch constitutional interpretation has worked is critical for assessing the virtues and vices of executive constitutionalism writ large-especially in the second Trump Administration, in which expansive claims of constitutional authority loom large.

Jurisdiction stripping is seen as a nuclear option. Its logic is simple: By depriving federal courts of jurisdiction over some set of cases, Congress ensures those courts cannot render bad decisions. To its proponents, it offers the ultimate check on unelected and unaccountable judges. To its critics, it poses a grave threat to the separation of powers. Both sides agree, though, that jurisdiction stripping is a powerful weapon. On this understanding, politicians, activists, and scholars throughout American history have proposed jurisdiction-stripping measures as a way for Congress to reclaim policymaking authority from the courts. The conventional understanding is wrong. Whatever the scope of Congress's Article III power to limit the jurisdiction of the Supreme Court and other federal courts, jurisdiction stripping is unlikely to succeed as a practical strategy. At least beyond the very short term, Congress cannot use it to effectuate policy in the face of judicial opposition. Its consequences are chaotic and unpredictable, courts have tools they can use to push back on jurisdiction strips, and the judiciary's active participation is ultimately necessary for Congress to achieve many of its goals. Jurisdiction stripping will often accomplish nothing and sometimes will even exacerbate the problems it purports to solve. Jurisdiction stripping can still prove beneficial, but only in subtle and indirect ways. Congress can regulate jurisdiction to tweak the timing of judicial review, even if it cannot prevent review entirely. Jurisdiction stripping also provides Congress a way to signal to the public and the judiciary the importance of an issue-and, possibly, to pressure courts to change course. But these effects are contingent, indeterminate, and unreliable. As a tool to influence policy directly, jurisdiction stripping simply is not the power that its proponents hope or its critics fear.

For decades, Fourth Amendment protections have turned on "reasonable expecta-tions of privacy. " But a new era may be dawning. There is growing interest among judges and scholars in turning away from privacy toward property or positive law as the touchstone for Fourth Amendment protections. Yet many questions remain about how that approach should work, such as where judges should look for positive law and precisely what role positive law should play in Fourth Amendment analysis.This Article answers those questions, and in so doing lays forth a new, comprehensive theory of the Fourth Amendment. We argue that courts should interpret the Fourth Amendment's pro-tections by looking to "general law "-the common law under the control of no particular sover-eign. Courts looking to general law would draw on ancient property concepts such as trespass, license, and bailments in determining the scope of protections. But they would also draw on cus-tom, social practices, and modern legal developments to identify and flesh out common-law rules unknown at the Founding.The general-law approach has numerous advantages over competitor theories. It makes better sense of the Fourth Amendment's text and has deeper roots in its history. It is surprisingly easy to reconcile with a great deal of Fourth Amendment doctrine, while also suggesting important re-finements in various areas. And it gives courts the flexibility to protect Fourth Amendment values in a changing world while also structuring and guiding the judicial task more than an untethered inquiry into privacy expectations. Private law, then, holds the key to understanding the Fourth Amendment's limits on public power.

The right to a criminal jury trial is a constitutional disappointment. Cases almost never make it to a jury because of plea bargaining. In the few cases that do, the jury is relegated to a narrow fact finding role that denies it normative voice or the ability to serve as a meaningful check on excessive punishment. One simple change could situate the jury where it belongs, at the center of the criminal process. The most important thing juries do in criminal cases is authorize state punishment. But today, when a jury returns a guilty verdict, it authorizes punishment without any idea of what is in store for the defendant. This principle of jury ignorance is a profound mistake. It is unmoored from history and the core function of the jury to authorize punishment. Worse, it exacerbates the criminal legal system's predilection for excessive severity. This Article offers and defends a proposal to replace ignorant juries with informed ones by requiring juries to be told of the statutory minimum and maximum punishment in every case before being asked to return a conviction. Informed juries would change the dynamics of criminal justice for the better. In individual cases, punishment information would make juries more careful before convicting and would sometimes lead juries to refuse to convict where punishment would be excessive and unjust. But more importantly, informed juries would provide systemic benefits. Requiring informed juries would set in motion a political feedback loop that would counteract existing incentives for legislators and prosecutors to prefer severity. In addition to being good policy, there are powerful arguments that informed juries deserve to be recognized as part of the constitutional jury-trial right.

Since the Founding, Supreme Court justices have enjoyed life tenure. This helps insulate the justices from political pressures, but it also results in unpredictable deaths and strategic retirements determining the timing of Court vacancies. In order to regularize the appointment process, a number of academics and policymakers have put forward detailed term limits proposals. However, many of these proposals have been silent on many key design decisions and there has been almost no empirical work assessing the impact that term limits would have on the composition of the Supreme Court. This Article provides a framework for designing a complete term limits proposal and develops an empirical strategy to assess the effects of instituting term limits. The framework we introduce outlines the key design features that any term limits proposal must make, including frequently overlooked decisions like what the default would be if there is Senate inaction on a president’s nominee. The empirical strategy we develop uses simulations to assess how term limits proposals would have shaped the Court if they had been in place over the last 80 years of American history. These simulations enable comparative assessments of term limit proposals relative to each other and to the historical status quo of life tenure. Using these simulations, we are able to isolate the design features of existing proposals that produce significant differences in the composition of the Supreme Court. For instance, proposals that commence appointing term-limited justices immediately could complete the transition in just 16 years, but proposals that wait until after the sitting justices leave the Court to appoint term limited justices would take an average of 52 years to complete the transition. Our results also reveal that term limits are likely to produce dramatic changes in the ideological composition of the Court. Most significantly, the Supreme Court had extreme ideological imbalance for 60 percent of the time since President Franklin Roosevelt’s effort to pack the Court, but any of the major term limit proposals would have reduced the amount of time with extreme imbalance by almost half.

The separation of powers is considered essential in the criminal law, where liberty and even life are at stake. Yet the reasons for separating criminal powers are surprisingly opaque, and the "separation of powers" is often used to refer to distinct, and sometimes contradictory, concepts. This Article reexamines the justifications for the separation of powers in criminal law. It asks what is important about separating criminal powers and what values such separation serves. It concludes that in criminal justice, the traditional Madisonian approach of separating powers between functionally differentiated political institutions legislature, executive, and judiciary bears no necessary connection to important values like preserving liberty, preventing tyranny, and safeguarding the rule of law. Not only is adhering to the traditional Madisonian approach to separation of powers insufficient to promote these values, it is likely unnecessary to protect them as well. Instead of the separation of powers, the organizing principle for the structure of the criminal justice system should be the distinct idea of "checks and balances." A checks-and-balances approach would emphasize the diffusion of decisionmaking power among different social and political interests in society; functional duplication and overlapping jurisdiction between different decisionmakers; insulation of decisionmaking power by individual actors within single institutions, along with more formal checking roles for non-state actors; and careful design to optimize electoral accountability.

We estimate the size of the U.S. Supreme Court in a world in which the political parties engage in tit-for-tat court-packing. We do so by assuming that the Supreme Court is immediately expanded by four members and that future presidents who court-pack would add enough seats to ensure that a simple majority of justices were appointed by their party. In a series of simulations, we find that median result of repeated partisan court-packing would be to increase the size of the Court to 23 justices within 50 years and to 39 justices within 100 years. We also study the incentives for justices to retire strategically in a world with repeated partisan court-packing and the resulting effects of changes in strategic retirement on the size the Court. We find that court-packing would decrease the incentives for strategic retirement, but we also find that changes in justices' retirement decisions would have little effect on the eventual size of the Court. By outlining the assumptions required to study this topic and estimating the impact different parameters would have on court expansion, we hope to generate more careful reflection on the potential consequences of this type of judicial reform.

This brief on behalf of Professor Daniel Epps argues that the Supreme Court should grant the petition for certiorari in Pon v. United States as this case presents an excellent opportunity for the Court to clarify the doctrine of harmless constitutional error and provide needed guidance for lower courts. Although this Court established a rule for harmless constitutional errors in Chapman v. California, it has never answered a set of fundamental questions raised by that decision. For example, the Court has never explained what source of law generates the Chapman rule or what its relationship is to the governing federal statute, 28 U.S.C. § 2111. The leading view is that harmless error is part of the law of remedies. Others believe that it is mandated by constitutional due-process guarantees. Amicus’s own theory is that harmless error flows directly from the underlying constitutional rights at issue in an appeal. This larger debate about harmless constitutional error is of more than merely academic interest. Trying to understand harmless error’s foundations is necessary if the Court is to explain how harmless-error analysis should work in practice. If harmless constitutional error is a wholly remedial doctrine, then an approach like the Eleventh Circuit’s—which looks to “overwhelming evidence of guilt”—may well be permissible. But as opinions from jurists ranging from Justice Brennan to Justice Scalia show, powerful intuitions about harmless error contradict the Eleventh Circuit’s approach. Rather than asking about whether a jury in an alternate universe would have convicted the defendant had the error never occurred, courts instead must ask “whether the guilty verdict actually rendered in this trial was surely unattributable to the error.”

In my remarks, I will focus on three points. First, I will address what I see as a set of pressing problems with the current system governing the composition of the Supreme Court. Second, I will discuss in general terms the various kinds of reforms that might address those problems, and some of the tradeoffs that they involve. Third, I’ll briefly discuss why I hope the Commission will not attempt to foreclose future reform efforts by declaring any particular proposal constitutionally out of bounds.

In his article, “Does It Matter Who Objects? Rethinking the Burden to Prevent Errors in Criminal Process,” Darryl Brown challenges the venerable rule that a defendant must preserve objections to erroneous rulings at trial in order to perfect them for later appeal. Brown ably convinced me that conventional wisdom about who should bear the burden of bringing errors to a court’s attention is woefully under-theorized. In particular, Brown’s move to analyze adjudicative error from the perspective of accident prevention in other legal contexts is both clever and generative of insights. Moreover, Brown made a persuasive case that normative judgments about fairness, rather than a careful cost–benefit analysis, may better explain the status quo. What I am less certain of, though, is whether Brown has met his burden of persuading us that we should adopt his proposed rule: that the law should place the duty to avoid errors on the party that benefits from the error. In this short Response, I explain why I am not fully persuaded. In Part I, I discuss why Brown’s rule may not necessarily prevent errors as much as he hopes, and may instead significantly increase reversals and retrials. In Part II, I question whether that cost is worth bearing, by interrogating the concept of “error” and its multiple possible meanings. That inquiry leads me to a limited defense of our system’s current approach to forfeited legal errors. I conclude by suggesting more modest reforms that, in my view, follow from Brown’s significant insights.

The United States needs a Defender General—a public official charged with representing the collective interests of criminal defendants before the Supreme Court of the United States. The Supreme Court is effectively our nation’s chief regulator of criminal justice. But in the battle to influence the Court’s rulemaking, government interests have substantial structural advantages. As compared to counsel for defendants, government lawyers—and particularly those from the U.S. Solicitor General’s office—tend to be more experienced advocates who have more credibility with the Court. Most importantly, government lawyers can act strategically to play for bigger long-term victories, while defense lawyers must zealously advocate for the interests of their clients—even when they conflict with the interests of criminal defendants as a whole. The prosecution’s advantages likely distort the law on the margins. If designed carefully, staffed with the right personnel, and given time to develop institutional credibility, a new Office of the Defender General could level the playing field, making the Court a more effective regulator of criminal justice. In some cases—where the interests of a particular defendant and those of defendants as a class align—the Defender General would appear as counsel for a defendant. In cases where the defendant’s interests diverge from the collective interests of defendants, the Defender General might urge the Court not to grant certiorari, or it might even argue against the defendant’s position on the merits. In all cases, the Defender General would take the broad view, strategically seeking to move the doctrine in defendant-friendly directions and counteracting the government’s structural advantages.

My article “Harmless Errors and Substantial Rights” challenged conventional wisdom about the harmless constitutional error doctrine in criminal procedure. Specifically, I contended that the traditional way of understanding harmless error as a remedial doctrine rooted in so-called “constitutional common law” created significant anomalies. Instead, harmless constitutional error doctrine can only be understood as part of the definition and judicial enforcement of constitutional rights. Few legal scholars have thought as deeply about the mysteries of harmless error as Professor John M. Greabe, and he is well equipped to give the remedial perspective the best possible defense. Nonetheless, despite Professor Greabe’s able efforts in his response piece “Criminal Procedure Rights and Harmless Error: A Response to Professor Epps,” I remain persuaded of the correctness of the rights-based approach to harmless error laid out in my article. In this short Reply, I explain why. First, I respond to Professor Greabe’s most significant criticisms of my rights-based approach, and show why I think they miss the mark. Second, I explain why Professor Greabe’s own remedy-based theory is itself problematic and unable to solve the enduring riddles of harmless error.

In these brief remarks, delivered at the Hastings Law Journal's Symposium on the Jurisprudence of Justice Kennedy, I discuss Justice Kennedy's impact on American law. I reflect on the events that led to Justice Kennedy's appointment to the Supreme Court and discuss his vision of the Justices as teachers for the nation and how that vision seems to have informed his view of judicial review.

The harmless constitutional error doctrine is as baffling as it is ubiquitous. Although appellate courts rely on it to deny relief for claimed constitutional violations every day, virtually every aspect of the doctrine is subject to fundamental disagreement and confusion. Judges and commentators sharply disagree about which (and even whether) constitutional errors can be harmless, how to conduct harmless error analysis when it applies, and, most fundamentally, what harmless constitutional error even is - what source of law generates it and enables the Supreme Court to require its use by state courts. This Article offers a new theory of harmless constitutional error, one that promises to solve many of the doctrine's longstanding mysteries. There is widespread consensus that harmless constitutional error is a remedial doctrine, in which the relevant question is the appropriate remedy for an acknowledged violation of rights. But harmless error is in fact better understood as an inquiry into the substance of constitutional rights: a purported error can be harmless only if the defendant's conviction was not actually obtained in violation of the defendant's rights. That approach can help solve the doctrine's longstanding riddles. It explains why harmless error is binding on state courts; it clears up confusion about the relationship between the doctrine and statutory harmless error requirements; it shows which errors can never be treated as harmless without effectively being eliminated; and it provides useful guidance for how courts should conduct harmless error analysis where it applies. Most importantly, it reflects a more realistic understanding of the right-remedy relationship that makes it harder for courts to surreptitiously undermine constitutional values.

The 2016 election was a turning point in constitutional criminal procedure. Donald Trump’s victory, and its accompanying opportunity to reshape the Supreme Court, will have effects that will likely reverberate for decades. This Essay, written as the Foreword for the Loyola of Las Angeles Law Review's issue dedicated to October Term 2016, takes stock of where constitutional criminal procedure stands today and offers some predictions on how the shape and tenor of criminal procedure might evolve in the years to come. The future that looms is one where the Supreme Court will be even less willing to meaningfully regulate criminal justice than it has been in recent decades. At best, the Court will adhere to a narrow formalism, one that enforces constitutional text without meaningfully implementing larger constitutional values. Present circumstances will dismay those eager for reform in criminal justice. But they provide an overdue occasion for criminal-procedure scholars to reexamine fundamental assumptions. For too long, scholars have looked to courts as the solution to democratic failure on criminal justice issues. But where we stand today, and the history that has led us here, show why this belief ultimately amounts to little more than magical thinking. Courts cannot, and should not, be expected to stand against strong political will, at least for any sustained period. Going forward, criminal procedure scholars should draw their gaze away from courts, and should instead devote renewed energy to structure, politics, localism, and power in criminal justice. That inquiry are important even for those whose goal is social change, and not merely deepening our understanding, because it can help reformers understand where their efforts can be most effectively directed.

We propose supplementing the Supreme Court’s caseload with a “lottery docket” of cases selected at random from final judgments of the circuit courts. The Court currently possesses almost unfettered authority to set its own agenda through its certiorari jurisdiction. By rule and custom, the Court exercises that discretion by selecting cases that it sees as important, in a narrow sense of that term. The Court’s free hand in agenda setting has obvious benefits, but it has drawbacks as well. It deprives the Court of critical information about how the law operates in ordinary cases. It signals to circuit courts that their decisions are unreviewable—and thus unaccountable—in unimportant cases. And it passes over many cases that are important in a less narrow sense. The Court uses the existence of a circuit split to identify cases as important, but splits are merely proxies for, not measures of, importance. While many issues selected through the certiorari process are important, not all important issues are selected by certiorari. More fundamentally, we question the premise that only “important” cases deserve the Court’s attention. The legal system would be improved if every Term, the Supreme Court were forced to decide some unquestionably unim- portant cases—run-of-the-mill appeals dealing with the kinds of legal questions that the lower courts resolve every day. Over the long run, a lottery docket would offset the pathologies of the certiorari system without depriving the Court of its ability to resolve questions that have divided the lower courts.

It is a common lament that prosecutors in our criminal justice system are too adversarial. This Article argues that in a deeper sense, prosecutors may not be adversarial enough. The issue which I call adversarial asymmetry is that, as political actors, prosecutors have no inherent desire to seek maximal punishment, at least in any consistent way. While commentators tend to see this as a good thing, adversarial asymmetry helps explain a range of seemingly disparate pathologies in the criminal process. A number of problems including the coerciveness of plea bargaining; pretextual prosecution; discriminatory charging practices; the proliferation of overly broad criminal statutes; the difficulty in deterring prosecutorial misconduct; and use of the grand jury as political cover for unpopular decisions would not exist, or at least could be more easily solved, in a world where prosecutors were more single mindedly focused on maximizing victory in the criminal process. In fact, a more consistently adversarial system might have surprising advantages over our own, providing more accountability for prosecutors while being more consistent with the rule of law. And while heightened adversarialism unquestionably poses risks, alternative institutional structures could minimize those dangers. Even if actually implementing such a system is unrealistic or unappealing, the proposal has value as a thought experiment, for it exposes deep fault lines in the theoretical foundation of our system of criminal prosecution. Our current approach combines an adversarial process with politically accountable prosecutors yet we lack a compelling account of what precise level of adversarialism is optimal or why political accountability is the right tool for producing good behavior from prosecutors. It should thus be unsurprising that our system often works poorly in practice. Absent a better reason to think that our current approach is the only option, we should be more willing to reconsider basic structural arrangements in criminal justice.

In "The Consequences of Error in Criminal Justice," I analyzed and critiqued the "Blackstone principle" — shorthand for the common intuition that a criminal justice system should strive to minimize false convictions, even at the expense of creating more false acquittals and more total errors overall. Joel Johnson's "Benefits of Error in Criminal Justice" is a thoughtful and well-crafted response to my article. In this short reply, I offer some thoughts on Johnson’s arguments, while also addressing two other recent responses by Laura Appleman and by John Bronsteen and Jonathan Masur. While I use this opportunity to clarify and defend some of my earlier claims, my goal is to help frame further conversations about the Blackstone principle while also offering some larger thoughts on criminal justice scholarship. The reply focuses on three main points: first, I address criticism of my argument about the costs and benefits of the Blackstone principle for innocent defendants. Second, I explore the implications of my critique for criminal procedure rules. Third, I discuss the relationship between the Blackstone principle, equality, and political structure in our criminal justice system.

“Better that ten guilty persons escape, than that one innocent suffer” is a revered adage in the criminal law. It serves as shorthand for an important rule about punishment: minimizing wrongful convictions is more important than overall accuracy. This “Blackstone principle” accords with most people’s deeply felt intuitions about criminal justice. This Article challenges that fundamental precept. It begins by situating the Blackstone principle in the history of Anglo-American criminal law. That history shows how the principle gained prominence — most notably, because in Blackstone’s time and earlier death was the exclusive penalty for many crimes — but provides no compelling justification today. The leading modern argument for the Blackstone principle is that false convictions are simply more costly than false acquittals. But that argument is incomplete, because it focuses myopically on the costs of errors in individual cases. A complete analysis of the Blackstone principle requires taking stock of its dynamic effects on the criminal justice system as a whole. The Article conducts that analysis, which reveals two significant but previously unrecognized drawbacks of the Blackstone principle: First, its benefits to innocent defendants are smaller than usually assumed; it could even make those defendants worse off. Second, the principle reinforces a widely recognized political process failure in criminal justice, hurting not just defendants but society as a whole. The magnitude of these effects is uncertain, but they could more than cancel out the principle’s putative benefits. The Article then analyzes alternative justifications for the Blackstone principle. None is satisfactory; each rests on dubious empirical assertions, logical errors, or controversial normative premises. There is thus no fully persuasive justification for the principle. Rejecting the Blackstone principle would require us to rethink — although not necessarily redesign — various aspects of our criminal-procedure system.