112 Yale L.J. 1943 (2003)

When, if ever, may a State prosecute a federal officer for violating state criminal law while discharging his federal duties? Over the past decade, developments in the doctrines associated with "federalism" have redefined the constitutional status of federal attempts to regulate the States. The question posed here implicates the opposite, rarely examined, side of federalism's coin: the extent to which the Constitution constrains state attempts to regulate the federal government and its agents. It has been clear for over a century that federal officers enjoy some degree of immunity in this area, but the precise scope of, and basis for, that immunity--known as "Supremacy Clause immunity"--remain unclear.
 
This Article seeks clarity. Drawing on recent litigation arising out of the 1992 standoff between federal law enforcement officers and armed separatists at Ruby Ridge, Idaho, it argues that federal officers acting within the scope of their employment should be immune from state prosecution for any action taken that they reasonably believe is necessary and proper to the performance of their federal functions. State criminal law, in other words, must not be applied so as to chill federal officers in the discharge of their federal duties as they reasonably understand them. In articulating this standard, the Article draws on related doctrines like qualified immunity in the civil context and on principles of preemption as derived from foundational cases like McCulloch v. Maryland. In addition to supporting the Article's view of the proper scope of Supremacy Clause immunity as a default matter, these analogies confirm that the degree of immunity in this area is largely subject to congressional control. Congress, the Article suggests, could completely immunize federal officers from state prosecution for conduct taken in the discharge of their duties, or it could expose federal officers to the full force of state law. Either congressional choice would change what a reasonable federal officer would think about the scope of his federal authority vis- -vis contrary state law, thus recalibrating the scope of his immunity.
 
At bottom, Supremacy Clause immunity is concerned with resolving conflicts between state and federal law. Where the application of state law threatens the effectuation of federal law or policy, the Supremacy Clause provides a federal trump. This attention to actual state-federal conflict, the Article suggests, should inform courts' approaches to a whole range of issues of overlapping federal and state power. Rather than making categorical judgments about the division of sovereign power, courts should instead be attentive to the extent of actual conflict between state law and federal functions.
 

112 Yale L.J. 2261 (2003)

The first generation of cyberlaw was about what regulates cyberspace. Led by Larry Lessig's path-breaking scholarship isolating architecture as a constraint on behavior online, a wide body of work has flourished. In a recent article, I took those insights and reverse-engineered them to show how attention to architecture in realspace (such as our city streets, parks, houses, and other buildings) constrains crime. It is time to begin a new generation of work, one that applies the lessons of realspace study back to the cybernetic realm. The question will not be what regulates cyberspace, but how to do so given the panoply of architectural, legal, economic, and social constraints.

This Essay details how theories of realspace architecture inform the regulation of one aspect of cyberspace, computer crime. Computer crime causes enormous damage to the United States economy, with even a single virus causing damage in the billions of dollars and with a recent survey finding that ninety percent of corporations detected computer security breaches. Yet despite apparent metaphorical synergy, architects in realspace generally have not talked to those in cyberspace, and vice versa. There is little analysis of digital architecture and its relationship to crime, and the realspace architectural literature on crime prevention is often far too "soft" to garner significant readership among computer engineers. However, the architectural methods used to solve crime problems offline can serve as a template to solve them online. This will become increasingly obvious as the divide between realspace and cyberspace erodes. With wireless networking, omnipresent cameras, and ubiquitous access to data, these two realms are heading toward merger. Architectural concepts offer a vantage point from which to view this coming collision.

This brief Essay sketches out design solutions to the problem of security in cyberspace. It begins by introducing four principles of realspace crime prevention through architecture. Offline, design can (1) create opportunities for natural surveillance, meaning visibility and susceptibility to monitoring by residents, neighbors, and bystanders; (2) instill a sense of territoriality so that residents develop proprietary attitudes and outsiders feel deterred from entering private space; (3) build communities; and (4) protect targets of crime.

After introducing these concepts, the Essay discusses analogues to each principle in cyberspace. Naturally, the online and offline realms are not symmetric, but the animating rationales for the four principles can be translated to cyberspace. Some of the outlined modifications to digital architecture are major and will invariably provoke technical and legal concerns; others are more minor and can be implemented quickly to control computer crime. For example, we will see how natural surveillance principles suggest new virtues of open source platforms, such as Linux, and how territoriality outlines a strong case for moving away from digital anonymity toward pseudonymity. The goal of building communities will similarly expose some new advantages for the original, and now eroding, end-to-end architecture of the Internet--a design choice that eschewed barriers between computers and rejected preferences for certain types of content. Principles of community and target protection will illuminate why installing firewalls (which are simply pieces of hardware and software that prevent specified communications ) at end points will provide strong protection, why some computer programs subtly cue criminal acts, and why the government should keep some computer crimes secret. Throughout this Essay, each Section will employ the realspace architect's understanding of context to explain why many meta-claims in contemporary cyberlaw are too grand. These claims are proliferating and track the same binary formula: "open sources are more/less secure," "digital anonymity should be encouraged/prohibited," "end-to-end networks are more/less efficient," "peer-to-peer technologies are a threat/blessing," etc. Systematic predictions are possible about the benefits of open sources, end-to-end (e2e) networks, and the like, but caution is warranted before applying these predictions across the board. Such caution is a staple of crime prevention in realspace, as the four design principles are often in tension with each other. As this Essay progresses, these tensions will become evident in the cyberspace context as well.

In total, these architectural lessons will help us chart an alternative course to the federal government's tepid approach to computer crime. In February of this year, after a year and a half of promising a revolutionary approach, the White House released its National Strategy To Secure Cyberspace. Unfortunately, the Strategy consists of little beyond an unbridled faith in "the market itself" to prevent cybercrime. By leaving the bulk of crime prevention to market forces, the government will encourage private barricades to develop--the equivalent of digital gated communities--with terrible consequences for the Net in general and interconnectivity in particular. Just as safety on the street depends in part on public police and public architecture, so, too, in cyberspace.

112 Yale L.J. 2331 (2003)

As intellectual property has become increasingly important to the national economy, a consensus has emerged among academics that courts should scrutinize congressional legislation closely under the Constitution's Copyright Clause. This Essay has challenged the academic consensus about the Copyright Clause and sought to offer a more robust defense of the result reached in Eldred than is reflected in the Court's opinion itself. In so doing, it has drawn on lessons gleaned from Lochner. Defenders of Lochner-era jurisprudence, like the IP Restrictors, claimed that their position was consistent with originalism, and the two movements' conceptions of the original understanding are quite similar. The IP Restrictors and the champions of Lochnerism both portray the Founders as constitutionalizing their opposition to special-interest legislation and monopolies. Subsequent historical research challenged Lochner-era originalism as inconsistent with the original conception of judicial review and as misconceiving the Founding generation's attitude toward economic regulation. This Essay drew on precisely these two lines of argument to challenge the IP Restrictors' originalism, and we have argued that the IP Restrictors' originalism is as flawed as the Lochner-era originalism that it echoes.

The second lesson concerns the constitutionalization of a vision of the economy. Lochner is widely regarded as having constitutionalized a policy view. We argue that the IP Restrictors are trying to do precisely the same thing. In Lochner, that attempt proved unsuccessful in the long run, as the Court reversed itself and adopted deferential scrutiny of economic legislation under the Due Process Clause. We suggest that this episode is simply the most familiar manifestation of a larger historical pattern. At times of economic change, the Court has repeatedly tried to constitutionalize an economic vision, and it has repeatedly retreated and adopted deferential scrutiny. The reasons for deferential scrutiny of economic legislation--reasons sounding in judicial competence and process theory--are equally applicable here. Moreover, a holistic reading of the Constitution suggests that the deferential scrutiny that courts now employ in reviewing economic legislation under clauses of the Constitution other than the Copyright Clause should be applied in interpreting that Clause as well.

The purpose of this Essay is not to refute the IP Restrictors' policy vision. And we certainly are not writing in defense of rent-seeking. Our judgment is that the IP Restrictors' vision is not the constitutional vision of the Founders. Moreover, we believe that concerns about judicial competence, respect for the majoritarian process, and the dictates of constitutional interpretation mean that the Eldred Court was wise not to constitutionalize the IP Restrictors' vision. When courts exercise the power of judicial review under the Copyright Clause, the proper attitude is one of deference. The approach the Court now typically applies when reviewing legislation affecting property rights should apply, as well, in the intellectual property realm.

112 Yale L.J. 2465 (2003)

Government contracts with private providers for the supply of goods and services have grown in number and magnitude over the last several decades. Elected officials and other policymakers choose to privatize government functions for a variety of reasons. Politicians may want to appear to decrease the size of government by reducing the number of directly employed workers. Lawsuits challenging the quality of government services can motivate quick change, or private firms might lobby for government business. Some elected officials believe that private-sector provision of services always results in financial savings and better quality of service over public provision. Although in some instances the government unit involved conducts a serious study of the costs and benefits of privatizing, most privatization decisions in the United States result from a variety of motives and do not include serious study.
 
Regardless of the motivation for privatization, the public and the relevant constituency retain an interest in monitoring privatized activities. Traditional legal checks on the procedural regularity and substantive rationality of government functions often do not apply to privatized services. Private contractors do not necessarily need to comply with statutory constraints on government, and even the process of privatizing often does not require formal procedures or reviews.
 
In much of the literature on government contracts and in the views of many policymakers, these accountability concerns are not too troubling because competition for government contracts will provide the solution to these problems. Adherents to this model believe that the market for contracts will promote efficiency and that other methods of accountability are of minor importance, beyond legal enforcement of the contract terms. However, gaps in the existing analyses of government contracting compromise this theory. Studies of government contracting often fail to define accountability--and the structures that can promote or hinder accountability--with the depth necessary for analyzing the complex provision of government goods. Moreover, many of these analyses lack detailed empirical studies of the actual workings of contracting structures.
 
This Note analyzes the accountability structures that do and should exist in contracting for government services and argues that the dominant competition model is extremely limited. The Note does not directly address the wisdom of privatizing as compared to government provision of goods and services. The use of contractors to provide government services is now widespread. This Note does present a caution to decisionmakers who believe that privatization simplifies the functions of government. The failure of a true market that promotes the efficient achievement of government goals requires an involved set of alternate accountability mechanisms that government must structure and administer.
 
To support the claim of the limits of the competition model in government contracting, this Note uses the case of New York City's recent $800 million in contracts for child welfare services. New York City contracts out 20% to 25% of its production of goods, services, and City infrastructure to private bidders. In fiscal year 2000, the City spent $9.9 billion on just under 7000 procurement contracts. The City's child welfare agency, the Administration for Children's Services (ACS), awarded the largest amount of New York City contracts that year, with more than $800 million in contracts awarded for child welfare services.
 
This Note has four Parts. Part II sets up a framework for analyzing accountability in government contracts. This Part analyzes what scholars and practitioners, struggling to shape new ways to hold private service providers accountable, call "multiple" and "overlapping" checks on the regularity and rationality of decisions. The Part presents a definition of accountability using public and constituent input to shape reasonable, timely, and fair decisions leading to reasonably effective service outcomes. It also outlines the competition model in which the market cabins agency and contractor discretion. This Part then reviews other potential sources of accountability including legal constraints, hierarchical requirements, professional norms, public and constituent participation, and political processes. The Part creates a working typology that exposes the redundancy of some of these structures and begins to discuss the ways these structures have worked in other studies, stopping short of drawing conclusions about the operation of such structures in a large, complicated procurement system.
 
After developing a framework for determining accountability, the Note uses the case of child welfare services in New York City to analyze the way these accountability structures do and should work in an actual procurement. Part III of this Note examines New York City's recent child welfare procurement and attempts to fit ACS's system into a competitive model. The procurement process at ACS involved an unusually high number of bidders for government contracting and an extraordinarily experienced and knowledgeable bidding community. Even with the presence of formal elements of competition exceeding that found in many other studies of government procurement, the "market" for most of the services solicited by the City remained closed to new competitors.
 
The primary claim of this Note is a challenge to the dominant competition model of government contracting. However, this Note does not abandon the question of accountability in government contracts after making this pessimistic claim. After analyzing the limits of the competition model using a case that contains many of the formal elements of competition, Part III analyzes other potential sources of accountability in public contracting systems and argues for an integrated accountability system that does not depend on any one structure for system-wide accountability.
 
Part IV concludes this analysis by summarizing the challenges that the case of ACS poses to the competitive model of government contracting and by presenting, in a unified manner, the ideal framework of accountability structures argued for in this Note. The Note resists picking one structure of accountability as a cure-all. Such a simple conclusion would repeat the failure of the competition model, which purports to be a closed system without need for other structures of accountability.
 
Rather, this Note argues that an accountable public contracting system must rely on the interaction of multiple structures of accountability. An accountable system would promote professionalism among agency staff and among contractors, create structures for meaningful public input, and engineer measurable evaluations of contracts. Hierarchical and political structures of oversight are necessary in minimal amounts, and are often unavoidable, but would be streamlined and cabined in an ideal system of accountability. The precise implications for law and policy of the ideal framework of accountability proposed here depend on the context of the particular contracting system. The framework argued for in this Note, however, provides a background for structuring systems of accountability that do not depend solely on the dubious promise of competition in public contracts.