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.