Tuesday, June 21, 2011
In this response to Erik Luna and Paul Cassell’s article, Mandatory Minimalism, 32 Cardozo L. Rev. 1 (2010), I argue that the authors’ theory of federal crime legislation is misplaced – in the literal sense that it is directed to the wrong place. A minimalist strategy of finding the available legislative consensus for small reforms will usually not work in the federal legislative process. Any change to federal crime legislation faces many procedural barriers, most prominent among them the use of the filibuster in the Senate. Given this institutional landscape, it is not surprising that Congress hardly ever repeals mandatory minimum statutes. Institutional rules, rather than individual views of legislators, produced this result in the past and will dominate efforts to repeal these laws in the future. The legislative process in many states, however, is not so oriented towards inaction. One can point to a larger stockpile of repealed mandatory minimums at the state level.
The core issue, then, is the portability of minimalism. The social science foundations of the theory posit behavioral rules for individuals, but individuals work within particular institutions, with their particular decision rules and traditions. A theory about individual action, such as minimalism, does offer insights, but it must be filtered through the institutional lenses of the relevant jurisdiction.