Rachel E. Barkow is Faculty Director of the Center. She is the Segal Family Professor of Regulatory Law and Policy at New York University School of Law. Her scholarship focuses on administrative and criminal law, and she is especially interested in applying the lessons and theory of administrative law to the administration of criminal justice.
For example, "Federalism and Criminal Law: What the Feds Can Learn from the States," published in the Michigan Law Review in 2011, is the first comprehensive empirical survey of criminal law enforcement responsibility in the states and includes a review of state codes and case law, and interviews with state prosecutors. The study reveals remarkable similarity among the states about the degree of local control that is desirable. The states are virtually unanimous in their deference to local prosecutors, the small number of categories they identify for centralized authority in a state-level actor, and their support of local prosecution efforts with resources instead of direct intervention or case appropriation. "Insulating Agencies: Avoiding Capture Through Institutional Design," published in the Texas Law Review in 2010, suggests how to design agencies to limit the threat of capture, including recommending the greater use of state Attorney General enforcement. "Categorizing Graham," published in the Federal Sentencing Reporter in 2010, addresses the future of Eighth Amendment proportionality challenges after the Supreme Court’s Graham v. Florida decision that struck down juvenile life without parole sentences for nonhomicide offenses. In "Organizational Guidelines for the Prosecutor's Office," a piece published in 2010 in the Cardozo Law Review as part of a symposium at Cardozo that was co-sponsored by the Center, "New Perspectives on Brady and Other Disclosure Obligations: What Really Works?", she makes recommendations regarding the structure and organization of prosecutors' offices, based on corporate compliance models, in order to reduce the incidence of prosecutorial misconduct. In a piece published in the Stanford Law Review in 2009, "Institutional Design and the Policing of Prosecutors," she draws from administrative law and institutional design to offer suggestions to control prosecutorial abuses of power. In "The Court of Life and Death: The Two Tracks of Constitutional Sentencing Law and the Case for Uniformity," published in 2009 in the Michigan Law Review, she argues for abandonment of the Supreme Court's two-track approach to reviewing capital sentences robustly while engaging in virtually no oversight of noncapital sentences. In "The Politics of Forgiveness: Reconceptualizing Clemency," published in the Federal Sentencing Reporter in 2009, she makes the case for rejuvenation of the executive clemency system. A recent essay in the Harvard Law Review, "The Ascent of the Administrative State and the Decline of Mercy," explored the relationship between administrative law's dominance and the increasing reluctance of scholars and experts to accept pockets of unreviewable discretion in criminal law. In "Separation of Powers and the Criminal Law," published in 2006 in the Stanford Law Review, she contrasted constitutional questions of separation of powers in the administration of criminal law with separation of powers issues in administrative contexts. In "Administering Crime," she used administrative law, political science, and a detailed review of sentencing commissions to determine what institutional model works for designing agencies that regulate criminal punishment. In "Federalism and the Politics of Sentencing," published in May 2005 by the Columbia Law Review, she drew upon insights from cost-benefit and risk tradeoff analyses to determine how the politics of sentencing might vary at the state and federal levels. She explored the relationship between separation of powers theory, sentencing, and the historical role of the jury in her article, Recharging the Jury: The Criminal Jury's Constitutional Role in an Era of Mandatory Sentencing, which appeared in the University of Pennsylvania Law Review (2003). She is also the author of "More Supreme than Court: The Fall of the Political Question Doctrine and the Rise of Judicial Supremacy;" "Delegating Punitive Power: The Political Economy of Sentencing Commission and Guideline Formation" (with Kathleen O'Neill); and numerous other works.
She has been invited to present her work in various settings. In the summer of 2009, she testified before the House Subcommittee on Commerce, Trade, and Consumer Protection regarding the proposed Consumer Financial Protection Agency and before the United States Sentencing Commission to make recommendations for reforming the federal sentencing system. In the summer of 2004, she testified before the Senate Judiciary Committee at a hearing on the future of the Federal Sentencing Guidelines. She has also presented her work on sentencing to the National Association of Sentencing Commissions Conference, the Federal Judicial Center's National Sentencing Policy Institute, and the Judicial Conference of the Courts of Appeals for the First and Seventh Circuits. In addition, she has presented papers at numerous law schools.
After graduating from Northwestern University (B.A. 1993), she attended Harvard Law School (J.D. 1996), where she won the Sears Prize, which is awarded annually to two students with the top overall grade averages in the first-year class. She served as a law clerk to Judge Laurence H. Silberman on the District of Columbia Circuit, and Justice Antonin Scalia on the Supreme Court of the United States. She was an associate at Kellogg, Huber, Hansen, Todd & Evans in Washington, D.C., from 1998-2002, where she focused on telecommunications and administrative law issues in proceedings before the FCC, state regulatory agencies, and federal and state courts. She took a leave from the firm in 2001 to serve as the John M. Olin Fellow in Law at Georgetown University Law Center.