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Under the selective incorporation doctrine, provisions in the Bill of Rights are applied against the states if they are fundamental to the American scheme of ordered liberty or deeply rooted in this nation's history. By focusing solely on the importance of rights, this doctrine fails to account for the effect of incorporating a right on the states. This Article challenges this approach. It identifies a category of rights whose incorporation most deeply intrudes on state sovereignty. These rights do not simply create individual entitlements; they also have structural features by dictating which government institutions may exercise which government powers. These "structural rights" comprise the Fifth Amendment right to a grand jury, the Sixth Amendment right to a criminal jury, and the Seventh Amendment right to a civil jury. The Article argues that these rights should not be incorporated because the prerogative to allocate government powers is one of the core powers of state sovereignty, and the Fourteenth Amendment does not purport to strip the states of that power. In addition to protecting the state power to arrange government, adopting a theory against incorporating structural rights would explain the Court's refusal to incorporate the grand jury and civil jury rights, as well as doctrinal anomalies surrounding incorporation of the criminal jury right. Adopting the theory against incorporating structural rights would have several implications. The most significant is that it would result in the deincorporation of the Sixth Amendment right to a criminal jury. The consequence of this deincorporation is not only that the U.S. Constitution would not oblige states to provide juries in criminal cases but also that the doctrine announced in Apprendi v. New Jersey, which prohibits sentencing schemes that allowed judges to make factual findings altering the range of punishment, would no longer apply against the states. [ABSTRACT FROM AUTHOR]

Courts often create redundant doctrines. Yet doctrinal redundancies have received little attention. Although courts and scholars have written extensively about other types of redundancy, they have hardly discussed doctrinal redundancies. This Article remedies that oversight. It begins by defining when doctrines are redundant, providing a number of examples of doctrinal redundancy, and presenting a typology of doctrinal redundancy. It then identifies various benefits and costs of doctrinal redundancy. Drawing on psychology, behavioral economics, and social choice theory, it shows that doctrinal redundancy may serve important roles in strengthening and developing the law, but that it also risks distorting the law, leading to inconsistent outcomes, and providing a basis for judicial manipulation. The Article argues that, despite the benefits, the costs of doctrinal redundancies are significant enough that courts should avoid creating doctrinal redundancies except in limited circumstances. [ABSTRACT FROM AUTHOR]

An essay is presented on Structure of Standing doctrine. Topics discussed include doctrine of standing as a threshold jurisdictional requirement imposed by Article III, application of state standing law giving assurance of federal courts enforcement of rights to the same degree as state courts and several objections to dispensing with the injury-in-fact test in diversity cases. It also discusses the court case Erie Railroad Co. v. Tompkins of the U.S Supreme Court.

In Booker v. United States, the Supreme Court granted district courts broad discretion in imposing sentences in an effort to create a sentencing scheme complying with the Sixth Amendment. At the same time, however, to achieve the sentencing uniformity intended by Congress, the Court authorized circuit courts to review sentences for reasonableness. These two objectives--requiring district court discretion and cabining that discretion through reasonableness review--are in tension with each other. This Article argues that, in an effort to satisfy these conflicting goals, the Court has in subsequent cases sacrificed the central functions of appellate review: error correction and lawmaking. It has undermined the error-correction function by permitting appellate courts to presume that within-Guidelines sentences are reasonable, and it has impaired the lawmaking function by directing appellate courts to defer to district courts' sentencing policy determinations. Moreover, the Court's failure to describe how to balance these two conflicting objectives, or even to acknowledge the conflict, has resulted in confusion in the circuit courts. [ABSTRACT FROM AUTHOR]