The new issue is out with a wonderful sex-crimes-focused lineup of articles. Wayne Logan, who does excellent work in this area put together a symposium of three very important articles.
Federal concern over the perceived national menace of crime is of course not new. What is new, however, is the federal government's resolve to impose a national solution and the lack of any meaningful countervailing resistance to it. Just as the U.S. has increasingly moved to nationalize and render more uniform heretofore disparate state approaches to commercial law, such as products liability, and environmental policy, it has done so with criminal justice policy—in particular that relating to sex offender registration and community notification. That the shift has occurred via federal use of the "Trojan horse" of conditional spending power authority, rather than through the more controversial method of Commerce Clause authority, does not alter the outcome. The nationalization of registration and notification, systematically achieved by the federal government over a fifteen-year period, has had major effect on constitutional federalism and the states themselves. It may be that the unique social and political dynamic inspired by sex offenders is unique, limiting the broader implications of the story chronicled here. However, given the high political salience and potency of crime control more generally, and the disdain felt for criminal offenders, this might well not be the case. If indeed the essence of federalism lies, as William Livingston asserted over fifty years ago, "not in the institutional or constitutional structure but in [the attitudes of] society itself" then the transformation recounted here may well have broader implications for other criminal justice policy areas in the years to come.
I agree/ I am working my way through it too.
"It may be that the unique social and political dynamic inspired by sex offenders is unique, limiting the broader implications of the story chronicled here."
That MAY be the case but I don't think so. It's easy to forget that rum used to be called "Demon Rum" and was vilified every bit as much as sex offenders are today. When they said demon they meant it; it wasn't just hyperbole.
Posted by: Daniel | December 03, 2008 at 09:59 PM
The article on civil commitment by Janus and Brolin is excellent in its criticism of how statutes may appear to be constitutional and are actually unconstitutional in their application. The article aptly points out how fact and law are conflated to obscure what is, in effect, unconstitutional. The stakes are quite high in civil commitment, but some of the ideas apply to other areas of state civil regulation. This includes such areas as professional licensure, substantiation of abuse, enviromental regulation, and worker's compensation.
Posted by: lawdoc | December 04, 2008 at 02:13 PM