118 Yale L.J. 392 (2008).
In Philip Morris USA v. Williams, the Supreme Court held that the Constitution does not permit the imposition of punitive damages to punish a defendant for harm caused to third parties. This Article critiques the reasoning, but seeks ultimately to vindicate the result, of that landmark decision. It argues that, although the Court’s procedural due process analysis does not stand up to scrutiny, punitive damages as punishment for third-party harm do indeed violate procedural due process, but for reasons far more profound than those offered by the Court. To reach that conclusion, the Article confronts the most basic and fundamental questions about punitive damages—questions that the Supreme Court has studiously avoided for more than a century: what, exactly, is the purpose of punitive damages, and how is it constitutional to impose them as a form of punishment in a judicial proceeding without affording the defendant the protection of the Constitution’s criminal procedural safeguards? The Article argues that punitive damages are properly conceptualized as a form of punishment for
118 Yale L.J. 480 (2008).
Rationalist analysis of policymaking, exemplified by cost-benefit analysis, ignores the variance in outcomes associated with policies and seeks to maximize expected outcomes. Burkeans, by contrast, view policy outcome uncertainty negatively. The Burkean approach is echoed in the precautionary principle, which argues that policies with hard-to-determine or high-variance outcomes should be avoided. Both approaches are the subject of vast literatures. This Article argues that both approaches are wrong. When policies can be reversed in future periods, variation in the outcomes associated with a policy is a good thing. Reversibility means that the downside risk of high-variance policies is limited; policies with unexpectedly bad outcomes can be changed in the next period. The upside of high-variance policies, by contrast, may last indefinitely, since policies with unexpectedly good outcomes will be retained. Thus, when policies are reversible, policymakers should deliberately choose policies with uncertain outcomes, other things equal. The Article also examines the assumption of policy reversibility. It shows that the most important source of irreversibility for policy analysis is irretrievable “sunk costs” rather than the potential for catastrophic outcomes or policy inertia. As a result, policies are more reversible than commonly appreciated. The Article then examines optimal policymaking under irreversibility. Under extreme irreversibility, conservatism of a particular sort, called the “real options” approach, constitutes the best policy. More generally, the Article argues that the appropriate attitude toward policy variance depends upon the reversibility of policy. This analysis illuminates many puzzles in constitutional law and institutional design, such as the puzzling difference between entrenched statutes, which are unconstitutional, and sunset clauses, which are permitted. The Article concludes with recommendations to encourage policymakers to use variance more effectively.
118 Yale L.J. 554 (2008).
Recently, religious groups have sought to become charter school providers. Scholarship and popular commentary dispute the desirability of this prospect. Religious charter schools can address unmet needs of religious groups and keep them invested in the public school system. But the balkanization of school districts, oppression of nonadherents, and entanglement between church and state remain important concerns. This Note argues that there is a place for religious charter schools primarily in districts best able to ameliorate these concerns—those that have sufficient resources and the diversity of religious groups necessary to create a variety of religious and nonreligious school options.