When the Supreme Court decides a controversial issue, does it generate a distinctive public backlash? Or would a similar decision by Congress generate a similar reaction? Surprisingly, although these questions pervade debates over constitutional law, little direct empirical research exists about this question. Indeed, very little in the way of empirical research exists about which institution citizens prefer to make a given constitutional decision, let alone how citizens go about contemplating these issues. To help remedy this, we conducted an experiment. Half of study subjects were assigned to a condition in which a constitutional right to gay marriage was protected, and the other half were assigned to a condition in which a constitutional right to carry a concealed weapon was protected. Half of each of those groups of subjects was told that the Court, and the other half that Congress, had decided the issue. We hypothesized that people develop beliefs about the competence of institutions and generate preferences for institutions by assessing whether that institution will reach a decision that supports or threatens their worldview. We also hypothesized that citizens would become more extreme in their beliefs about the underlying constitutional issue in reaction to a Supreme Court decision. The study results support these hypotheses. Conducted just prior to the midterm congressional elections in the fall of 2010, the study also provided evidence of distinctive effects on voting intentions. Our results complicate standard accounts of institutional choice that purport to rely on preferences independent of a particular outcome on controversial constitutional matters. Our results also have important implications for government actors, advocates in social movements, and constitutional theorists.

Citizens United upends much of campaign finance law, but it maintains at least one feature of that legal regime: the equal treatment of corporations and unions. Prior to Citizens United, that is, corporations and unions were equally constrained in their ability to spend general treasury funds on federal electoral politics. After the decision, campaign finance law leaves both equally unconstrained and free to use their general treasuries to finance political expenditures. But the symmetrical treatment that Citizens United leaves in place masks a less visible, but equally significant, way in which the law treats union and corporate political spending differently. Namely, federal law prohibits a union from spending its general treasury funds on politics if individual employees object to such use—employees, in short, enjoy a federally protected right to opt out of funding union political activity. In contrast, corporations are free to spend their general treasuries on politics even if individual shareholders object—shareholders enjoy no right to opt out of financing corporate political activity. This Article assesses whether the asymmetric rule of political opt-out rights is justified. The Article first offers an affirmative case for symmetry grounded in the principle that the power to control access to economic opportunities—whether employment or investmentbased— should not be used to secure compliance with or support for the economic actor’s political agenda. It then addresses three arguments in favor of asymmetry. Given the relative weakness of these arguments, the Article suggests that the current asymmetry in opt-out rules may be unjustified. The Article concludes by pointing to constitutional questions raised by this asymmetry, and by arguing that lawmakers would be justified in correcting it.

Congress has directed federal regulators to oversee banker pay. For the first time, these regulators are now scrutinizing the incentives of risk-takers beyond the bank’s top executives. Like most public company managers, these bankers are increasingly paid in stock rather than cash. The ostensible reason is that stock-based pay aligns manager and shareholder interests. But portfolio theory predicts that managers will diversify away, or “unload,” stock-based pay unless they are restricted from doing so. One way to deter unloading may be to require managers to disclose it, as investors and colleagues will assume that managers are unloading because they are unmotivated or think their stock is overvalued. Using rare data on stock unloading at Goldman Sachs, this Essay provides the first empirical study of incentives throughout a bank’s managerial hierarchy. I find that bankers paid in stock soon sell a nearly equivalent amount, unless they have to disclose, in which case they sell much less. These findings suggest that regulators concerned about incentives need information on bankers’ overall equity holdings, including the effects of unloading. They also suggest that pre-crisis disclosure rules encourage executives to maintain dangerously concentrated positions in their bank’s stock.

The recent reductions in the guideline range for federal crack cocaine offenses have spurred tens of thousands of motions for sentence modifications under 18 U.S.C. § 3582(c)(2) by individuals sentenced pursuant to the old, harsher crack cocaine guidelines. This deluge of § 3582(c)(2) motions has forced courts to grapple with difficult eligibility questions for many defendants whose sentences were impacted by the old crack cocaine guidelines. These eligibility questions revolve around the requirement that amendments to the United States Sentencing Guidelines (“Guidelines”) reduce a defendant’s “applicable guideline range” in order to qualify for a retroactive sentence modification. This Note examines a circuit split regarding the eligibility for § 3582(c)(2) sentence modifications of “nominal career offenders”—defendants who were subject to the increased penalties of the Guidelines’ career offender provision, but received sentences within the crack cocaine guideline range because career offender status significantly overstated the seriousness of their criminal history. After examining this complex circuit split, this Note argues that nominal career offenders are not eligible for § 3582(c)(2) sentence modifications because their applicable guideline range is the career offender range, not the crack cocaine range.

Sexually Violent Predator (“SVP”) civil commitment statutes have been adopted by a number of states and by the federal government. The statutes provide for the indefinite post-incarceration detention of individuals whom the state determines have a strong potential for committing violent sex acts if released. Thus, when an individual convicted of a violent sex crime has finished serving his sentence for that crime, the state may retain custody over him by proving that he is an SVP. The Supreme Court has held that these statutes are constitutional and, in particular, that they satisfy substantive due process. A number of questions still remain as to what procedural protections might be constitutionally required in SVP commitments. This Note addresses one of those questions: whether or not an accused individual has a right to be determined mentally competent before the state may commit him as a sexually violent predator.