David Ball's article, Heinous, Atrocious, and Cruel:  Apprendi, Indeterminate Sentencing, and the Meaning of Punishment,[1] merits a place on any top ten list of must-read pieces concerning the Supreme Court's modern sentencing jurisprudence.  Ball's article is valuable not only for its fresh conceptual and functional perspectives on this jurisprudence, but also for its exploration of new and important regions of the sentencing universe.  In particular, Ball's take on the Supreme Court's work in Apprendi v. New Jersey[2] and its progeny is a major contribution because, as he adventures through what Justice Scalia once called "Apprendi-land,"[3] he spotlights what this jurisprudential terrain could mean for parole decisionmaking, especially in California.

It is a pleasure to travel with Ball as he seeks to better understand the topography of Apprendi-land.  I fear, however, that Ball's impressive work places undue emphasis on a particular vision of juries which, while perhaps conceptually appealing, is functionally problematic.  I am also troubled that, like other commentators and even many Justices, Ball allows an undue affinity for jury trial rights to dominate his view of Apprendi-land.  I believe Ball and others should focus much greater attention on constitutional concepts other than the jury in their efforts to articulate and advance sound procedural rules for modern sentencing decisionmaking.

In Revealing Choices:  Using Taxpayer Choice to Target Tax Enforcement, Alex Raskolnikov proposes replacing the current federal income tax compliance regime—which he describes as a "one-size-fits-all" system—with a two-track approach.[1]  When filing their annual returns, taxpayers would be required to choose between a "compliance regime" (CR) and a "deterrence regime" (DR).  The two regimes would be designed so that "gamers"[2] would choose the DR, while all other taxpayers[3] would choose the CR.  The DR "will look very similar to the current [tax compliance regime], except statutory fines . . . may be higher (perhaps much higher) than they are today."[4]  The CR would feature much lower penalties than the DR.  It would also include a number of "separating features" that would be acceptable to non-gamers but not to gamers; the separating features would drive gamers into the DR despite the DR's much higher penalties. [5] The two separating features of the CR that Raskolnikov discusses in the greatest detail are mandatory binding arbitration and the use of a strong pro-government presumption in the resolution of arbitrated disputes.[6]  Both of these features would make it much easier for the Internal Revenue Service (IRS) to win disputes in the CR than in the DR.  Non-gamers would not object to this, because they do not take tax reporting positions that they expect the IRS to contest.  Gamers, by contrast, routinely take aggressive reporting positions, and they would have to choose the DR to preserve their chances of prevailing if the IRS detects and challenges their positions.

As Raskolnikov explains in detail, the observation that different taxpayers have different attitudes towards their compliance obligations is not original with him.[7]  What is original is his proposal to respond to those differing attitudes by forcing taxpayers to reveal their compliance types, and then subjecting taxpayers to different enforcement regimes based on those revelations.  Raskolnikov’'s proposal is an important addition to the scholarly literature on tax enforcement strategies.  In my view, however, the current federal income tax enforcement regime has already slouched some considerable distance away from the one-size-fits-all model, in a manner not noted by Raskolnikov, by imposing stringent disclosure requirements on the most important category of gamers—the users of tax shelters.  Part I of this Response describes the current tax shelter enforcement regime.  Part II compares Raskolnikov'’s proposal with the current regime, and suggests that there are grounds for preferring the current regime to the proposal.