121 Yale L.J. 350 (2011).
Not just a system of checks and balances ideally tuned to constrain collective political action, the constitutional division of authority also may be seen as a system of “prods and pleas” in which distinct governmental branches and actors can push each other to entertain collective political action when necessary. Though prods and pleas are an inversion of the assumed direction of checks and balances, they are not a radical reconfiguration of the basic structure and principles of American government. Rather, they are limited government’s fail-safe: a latent capacity inherent to a system of divided authority that does and should activate when the external pressures of a changing world threaten the sustainability of disaggregated governance. By understanding and embracing their role in the shadow logic of prods and pleas, judges and other public officials can protect limited government by, when necessary, counteracting its potential to overprefer passivity.Through the case study of climate change nuisance litigation, we examine how three potential obstacles to merits adjudication—the political question doctrine, standing, and implied preemption—should be evaluated in recognition of the significance of prods and pleas. We conclude that federal and state tort law provide an important defense mechanism that can help limited government sustain itself in the face of climate change and other dramatic twenty-first century threats, where the nature of the threat is, in large part, a function of limited government itself. As a residual locus for the airing of grievances when no other government actor is responsive to societal need, the common law of tort is a—and perhaps the—paradigmatic vehicle for the expression of prods and pleas. Although climate change plaintiffs still face long odds on the actual merits of their claims, judges would sell short their institutional role if they dismissed such claims as categorically beyond the proper domain of the courts and the common law. They would duck and weave when they should prod and plead.
121 Yale L.J. 426 (2011).
When judges sentence criminal offenders, they begin their analysis with a baseline sentence established by statutes or guidelines. Cognitive biases will likely cause this initial baseline to frame judges’ thought processes, such that judges will impose different sentences in identical cases depending on the baseline sentence from which the judge’s analysis begins. This Note shows that baseline framing will lead to disproportionately low sentences in a floor baseline regime, disproportionately high sentences in a ceiling baseline regime, and sentences disproportionately clustered around the typical sentence in a typical crime baseline regime.
In order to design the most just sentencing procedures, policymakers must consider baseline framing effects. This Note suggests that policymakers who want to minimize the number of sentences skewed by cognitive error should implement a typical crime baseline. In contrast, policymakers who want to err against inflicting unreasoned punishment should implement Tennessee’s quasi-floor baseline.