Analogies between the First Amendment and the Second (and comparable state constitutional protections) are over 200 years old.  District of Columbia v. Heller itself makes them, and they can often make sense.  But Guns as Smut does something peculiar:  It analogizes a core category of private arms to one of the least protected and marginal categories of speech (obscenity).  It's hard to see any justification for such an analogy, other than a purely instrumental one.

The premise of the First Amendment's obscenity jurisprudence is that obscenity is historically recognized as one of the "limited areas" of speech that "lack any serious literary, artistic, political, or scientific value," and are thus "not protected by the First Amendment."  None of this analysis applies to guns.  Possessing guns is traditionally legal.  Guns do serve the self-defense value that the Court has found to be embodied in the Second Amendment.  And, Heller held, ordinary guns are at the core of "arms," not on the margin.

Analogies are temperamental things.  If it strikes someone wrong, no matter how scrupulously you explain yourself, no matter how defensible your position, people who may otherwise agree with you half of the time never seem to get past the analogy.  Arguments in hotly contested areas of the culture wars tend to run against how the thing is expressed, rather than what is expressed.  Race, abortion, sexual orientation:  Very often, discourse on these topics degenerates into debates about legitimate ways to talk about the thing, rather than talking about the thing itself.  The same phenomenon applies to talk of guns.  Further evidence, in my opinion, that Second Amendment discourse is not so much about guns or gun policy, but "much ado about something else."  This is how I read Professor Volokh's occasionally strident response to my recent piece, Guns as Smut:  Defending the Home-Bound Second Amendment.  Much of Professor Volokh's rebuttal is a mordant challenge to the accuracy of the analogy, rather than to arguments that underpin the analogy and independently justify the home-bound Second Amendment. 

Statistical data are powerful, if not crucial, pieces of evidence in the courtroom.  Whether one is trying to demonstrate the rarity of a DNA profile, estimate the value of damaged property, or determine the likelihood that a criminal defendant will recidivate, statistics often have an important role to play.  Statistics, however, raise a number of serious challenges for the legal system, including concerns that they are difficult to understand, are given too much deference from juries, or are easily manipulated by the parties' experts.  In this preview piece, I address one of these challenges, known as the "reference class problem," and sketch a solution that I develop at greater length in my forthcoming Essay.

On June 25, 2009, the civil rights case of Rodriguez v. City of Houston concluded with a historic verdict in the Southern District of Texas, finding that pervasive deficiencies in the City's police crime laboratory had caused George Rodriguez to be wrongly convicted on the basis of fabricated scientific evidence.  That same day, the Supreme Court held in Melendez-Diaz v. Massachusetts that the Sixth Amendment prohibits the prosecution in a criminal case from placing crime laboratory reports into evidence in lieu of live testimony by the crime lab analyst.

The decisions emerge from different remedial contexts—Rodriguez a civil damages action, Melendez-Diaz a criminal appeal—but both have the potential to generate systemic incentives for law enforcement in the use of forensic science.  Increasingly, the Supreme Court has recognized this dual role of both criminal and civil remedies in vindicating criminal procedure rights and, in turn, regulating law enforcement practices.  At the same time, however, the Court's harnessing of constitutional criminal procedure's regulatory effects has been stilted by what I call "remedial rationing," in which enforcement of a given criminal procedure right is committed either to the criminal or the civil realm.  This Essay posits that remedial rationing is misguided both in underestimating the structural limitations of criminal and civil litigation to achieve regulatory goals, and in disregarding potential synergies that may be generated by recursive criminal procedure remedies.  Part I of this Essay briefly describes remedial rationing.  Parts II and III reflect on both the potential and the limitations of the Melendez-Diaz and Rodriguez decisions for prospectively shaping law enforcement conduct in the specific area of forensic science.  The discussion demonstrates that systemic consequences of criminal or civil adjudication of criminal procedure rights are uncertain but potentially coordinate.  Part IV concludes with a preliminary critique of remedial rationing in light of the lessons of Melendez-Diaz and Rodriguez.

While on the academic job market, I presented Federalization Snowballs to several stellar law faculties.  My argument, in short, was that:  (1) federal healthcare spending allows the states to externalize onto the federal government about forty percent of the utilization costs associated with their medical malpractice policies (such as the cost of defensive medicine); (2) such an externality systematically distorts a rational state's incentive to reform medical malpractice; and (3) federalization of medical malpractice is necessary to correct the distortion.  In other words, I argued that federalization of healthcare spending through Medicare, Medicaid, and similar programs has snowballed into a need for federalization of medical malpractice.  Federalization snowballs.

As I presented this argument to faculties around the country, two questions commonly arose that I hadn't intended to—and hadn't in fact—explicitly addressed in the Essay.  (Having been warned against "theoretical drift," I limited myself to one application of my theoretical idea, applying the snowball concept only to my primary area of expertise:  healthcare law.)  The two questions were:  Given the ubiquity of federal spending, aren't federalization snowballs much more common than the Essay suggests?  And given the ubiquity of snowballs that must result from the ubiquity of spending, isn't the Essay's theoretical idea much bigger and therefore either much more important or much more implausible than the Essay suggests?  (The implied conclusion of "much more important" or "much more implausible" varied by questioner; some were highly skeptical, others much more generous.)

This companion piece addresses those two questions, further delineating the general theoretical idea of the federalization snowball.  The first part clarifies the scope of the snowball, demonstrating that the idea is indeed bigger than medical malpractice but is not (yet) as big as the federal budget.  The second part clarifies the legal underpinnings of the snowball, discussing its ties to a constitutional debate that dates back to the framing era; the snowball idea provides an important theoretical clarification for interpreting the Spending Clause.

David Ball's article, Heinous, Atrocious, and Cruel:  Apprendi, Indeterminate Sentencing, and the Meaning of Punishment, 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 and its progeny is a major contribution because, as he adventures through what Justice Scalia once called "Apprendi-land," 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.