Copyright, Meet Antitrust: The Supreme Court’s Warhol Decision and the Rise of Competition Analysis in Fair Use

In its recent decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, the Supreme Court noted that whether defendant’s work competes with plaintiff’s is a key element of the fair-use analysis. This Essay argues that antitrust law offers valuable guidance for assessing competition in copyright law. 

A Legislative Response to 303 Creative

States should respond to the U.S. Supreme Court’s 303 Creative decision by enacting implied warranties of nondiscrimination. Making nondiscrimination a publicly disclaimable default would facilitate informed consumer choice and mitigate the dignitary harms of point-of-sale discrimination.

The Politics and Perverse Effects of the Fight Against Online Medical Misinformation

Platforms’ content moderation of medical misinformation has become one of this era’s biggest political controversies. This Essay traces how platforms’ choices during the COVID-19 pandemic became so politicized, and how the category “medical misinformation” cannot be used to skirt important questions about the legitimacy of platform power over public discourse.

AI and the Sound of Music

Today, AI enables people to create music simply by using words—fulfilling the belief that music is a universal language. This Essay analyzes how courts and Congress should respond to AI’s seismic disruptions to the music industry based on the principles of technology neutrality, expansive authorship, and rebalancing of copyright.

Bind Us Together: Coalitional Public Policy Advocacy in Medical-Legal Partnerships

The Medical-Legal Partnership (MLP) model promotes direct services and public policy advocacy by lawyers incorporated into medical teams. Drawing on personal experiences, this Essay proposes that to accomplish policy change, MLP practitioners organize and be organized into community coalitions built and maintained around a robust vision of health justice. 

Against Ventriloquizing Children: How Students’ Rights Disguise Adult Culture Wars

This Essay argues against the pursuit of students’ rights, which function mainly as a smokescreen behind which adults have advanced their own partisan agendas in our culture wars. Independent rights for students are both theoretically untenable and politically damaging to our liberal democracy.

“Safety, in a Republican Sense”:
Trump v. United States, Democracy, and an Antisubordination Theory of the Criminal Law

Democratic governance requires holding the powerful to account. This Essay therefore proposes a broad antisubordination theory of the criminal law which grapples directly with disparities in power, rather than obscuring them under the guise of formal equality. Neither formal equality nor its alternative, prison abolitionism, can adequately protect democracy.

Can We Save Our Foodways? The Inflation Reduction Act, Climate Change, and Food Justice

This Essay examines USDA programs supported by the Inflation Reduction Act and its approach toward addressing climate change and historical funding inequities for Indigenous and Black Farmers.  It also argues for how the next Farm Bill can expand upon these efforts to further address inequities and promote climate resilience.

Bankruptcy by Another Name

A recent essay in this Journal critiques bankruptcy for limiting the litigation system’s ability to promote noneconomic public-policy goals. This Response argues that bankruptcy can and does further these public values, and that it is reasonably easy to tweak bankruptcy law to accommodate these goals more effectively.

Brandeisian Banking

For much of the twentieth century, banking law used an array of carrots and sticks to create a banking system that was both very stable and highly decentralized. This history is key to understanding how banking law has, and could again, serve Brandeisian aims.

What It Takes to Write Statutes that Hold the Firearms Industry Accountable to Civil Justice

This Essay defends statutes creating public nuisance and consumer protection causes of action against firearms industry actors for their failure to take reasonable measures to control the flow of their products to criminal users. Such laws are predicate statutes under PLCAA and do not infringe the Second Amendment.

An Expansive View of “Federal Financial Assistance”

Thanks to an ambiguity in civil-rights statutes passed under Congress’s spending power, many programs enjoy ample financial benefits while avoiding the requirements of federal antidiscrimination laws. This Essay argues that the remedy lies in a statutory reading that aligns with the expansive nature of the civil-rights statutes themselves.

Against Bankruptcy: Public Litigation Values Versus the Endless Quest for Global Peace in Mass Litigation

For the first time in years, in the Purdue Pharma opioids litigation, the Court is reviewing an unorthodox bankruptcy maneuver aimed at securing global settlement. This Essay critiques corporate defendants’ increasingly common turn to bankruptcy to shut down, or avoid altogether, complex civil litigation and the public goods it generates.

“We Do No Such Thing”: 303 Creative v. Elenis and the Future of First Amendment Challenges to Public Accommodations Laws

In 303 Creative v. Elenis, the Supreme Court ruled that a business had a right to refuse to design a wedding website for a same-sex couple. But properly understood, the decision’s parameters are narrow, and the decision should have minimal effect on public accommodations laws. 

The End of Asylum Redux and the Role of Law School Clinics

The Biden Administration has perpetuated many of the prior administration’s hostile policies undermining access to asylum at the southern border. This Essay first examines these policies and then identifies emerging opportunities for law school clinics to address these new challenges, including by serving asylum seekers south of the U.S.-Mexico border.

The Continued (In)visibility of Cyber Gender Abuse

This Essay highlights the continued invisibility of cyber gender abuse. The Supreme Court in Counterman v. Colorado regrettably exacerbated this problem. Now is time to reignite the discussion around cyber gender abuse, recognize the profound harms it causes, and pursue a reform agenda to combat it.

Remedies and Incentives in Presidential Removal Cases

In Separation-of-Powers Avoidance, Z. Payvand Ahdout reconceptualizes a bevy of separation-of-powers precedents as judicial avoidance. But one of the cases she cites as a foil—Seila Law LLC v. Consumer Financial Protection Bureau—is a curious fit. The removal cases are tough to categorize in the separation-of-powers corpus.

Racial Myopia in [Family] Law

Racial myopia in law is a complex phenomenon that centers white identity as the standard. A critique of the Article Family Law for the One-Hundred-Year Life, this Response presents a concrete framework and clarion call for all scholars to address legal issues in a racially inclusive way.

The Constitution as a Source of Remedial Law

This Essay responds to Owen Gallogly’s Equity’s Constitutional Source.  It argues that it is implausible to locate the federal courts’ authority to afford equitable relief in Article III, but it defends a constitutional default rule applicable to legal as well as equitable remedies having its source in the Supremacy Clause.

The Illusory Promise of General Property Law

This Essay criticizes using “general” or federal property law to define constitutional rights, including protections against unlawful search and seizure. Federal property law is an ahistorical and indeterminate concept. Its ascendance in Takings Clause opinions illustrates its flaws and the risks it poses for beneficial variation in state property rules.

The New Public Nuisance: Illegitimate and Dysfunctional

The new public nuisance is illegitimate because it violates the rule of law and is inconsistent with norms of democratic accountability. It also ignores the dangers of over- and under-deterrence associated with joint ventures between prosecutors and  personal-injury lawyers seeking massive damages from deep-pocketed defendants.

Partisanship, Remedies, and the Rule of Law

This Essay responds to Don R. Willett and Aaron Gordon’s Review of The Collapse of Constitutional Remedies.  I show that Willett and Gordon inaccurately describe Collapse’s main argument; offer an internally inconsistent critique; and fail to understand key terms such as judicial independence and the rule of law.

The Majoritarian Difficulty

Many recent Supreme Court attacks on the administrative state have been rooted in an asserted effort to increase democratic accountability, or accountability to elected officials, whether the President or Congress. This approach neglects how the Constitution makes available a broader account of democracy that furnishes support for the administrative state. 

The Abortion Interoperability Trap

There’s a hole in efforts to create abortion “safe havens”: they fail to recognize that medical care increasingly leaves a digital trail that will easily make its way back to abortion-seekers’ home states.  Lawmakers and providers must act now to shield politicized medical records by addressing this “interoperability trap.”

Weaponizing Fear

Governor Abbott’s directive that the Texas Department of Family and Protective Services should investigate so-called “abusive sex change procedures” fits within a broader project of weaponizing fear to control marginalized families. The issue is not primarily the directive’s misuse of the family regulation system but the system itself. 

Backdoor Municipal Immunity

Although local governments aren’t entitled to qualified immunity, four circuits have held that granting an officer qualified immunity dooms a failure-to-train claim against their employer. This “backdoor municipal immunity” misunderstands the role that court decisions actually play in police policies and training, and undermines Section 1983’s deterrence and compensation goals.

Security-Clearance Decisions and Constitutional Rights

In several recent cases involving claims that security-clearance decisions violated plaintiffs’ constitutional rights, courts have seemed more willing to scrutinize these decisions, which are usually seen as unreviewable. This Essay analyzes these cases and argues that federal courts are competent to review substantiated claims of constitutional-rights violations in security-clearance decisions. 

Concerted Arbitration

With the emergence of mass arbitration, companies that once promoted arbitration now seek to block employees from arbitrating claims. This Essay argues that employees have a right to mass arbitrate their claims because mass arbitration is a concerted activity protected by the National Labor Relations Act.

A Proposed Postpandemic Framework for Ordinary Course and MAE Provisions in Merger Agreements: Reviewing Recent Market Practice Changes and Addressing Skewed Incentives

This empirical analysis of merger agreements indicates an evolution in market practice since the COVID-19 pandemic toward providing additional flexibility to targets to respond to extraordinary events that may occur pending closing. This Essay argues that relying on the buyer’s providing consent for such responses is inadequate, and proposes a new framework for ordinary course covenants and MAE provisions.

Mandatory Aggregation of Mass Tort Litigation in Bankruptcy

Nondebtor releases are the rotten core of the “bankruptcy grifter” phenomenon that Lindsey Simon’s article critiques. Such releases are an unconstitutional exercise of substantive common lawmaking by the federal courts, and they are not necessary for the bankruptcy process to facilitate efficient and fair aggregate settlements of mass tort litigation.

In Search of Good Corporate Governance

In this Forum Response, Dorothy Lund considers whether the “corporate governance gap” between large and small public companies is the product of harmful or beneficial forces, and in so doing, rejects the idea that there is a single governance framework that is optimal for all public companies.

A Counter-History of First Amendment Neutrality

InThe Emergence of Neutrality, Jud Campbell provocatively argues that courts only recently recognized the importance of neutrality to First Amendment law. In this Response I argue that this claim is wrong: that neutrality has always been important to free speech law, even if its meaning has shifted over time.

On “Confetti Regulation”: The Wrong Way to Regulate Gamified Investing

Robinhood and similar investment apps bear a disturbing resemblance to video slot machines. This kind of “gamified” product design drives investors to lose money by overtrading. But if regulators try to cure the problem by de-gamifying the software, they will pick a First Amendment fight that securities law cannot afford. 

Felon Re-Enfranchisement and the Problem of “Lost” Rights

Courts have upheld laws conditioning felon re-enfranchisement on financial repayment by reasoning that disenfranchised citizens lack the rights and protections of political equality. Drawing on legal and democratic theory, this Essay challenges that view. Because disenfranchised citizens retain cognizable interests in political participation, financial-repayment conditions are unconstitutional poll taxes. 

The Overreach of Limits on “Legal Advice”

Nonlawyers, including court personnel, are typically prohibited from providing legal advice. But definitions of “legal advice” are unnecessarily broad, creating confusion, disadvantaging self-represented litigants, and possibly raising due-process concerns. This Essay argues for a narrower, more explicit definition of legal advice that advances, rather than undercuts, access to justice.

The Ostensible (and, at Times, Actual) Virtue of Deference

Rethinking Police Expertise reveals how litigators can use police officers’ assertions of expertise against them. This Response questions the value, however, of urging judges to treat police expertise as a “professional technology” as opposed to a “professional virtue.” Insisting on this conceptual distinction may weaken the article’s considerable normative potential.  

Ordering Conduct Yet Evading Review: A Simple Step Toward Preserving Federal Supremacy

Texas’s patently unconstitutional Senate Bill 8, which effectively bans abortions and assigns enforcement to private individuals, has forced the question whether states can insulate their laws from pre-enforcement review. This piece offers a roadmap for the Court to hold that states may not engage in such procedural trickery.

Victims Versus the State’s Monopoly on Punishment?

Gabriel Mendlow rightly argues that victims deserve larger roles in criminal justice, but mistakenly hints that they deserve exclusive control. Communities are also harmed by crimes and have standing to punish them. This Essay argues that criminal procedure should return to its roots as a communal morality play.

Models, Race, and the Law

The Race-Blind Future of Voting Rights is a provocative proof of concept with an unstable empirical foundation. The Article delivers a baseline for minority electoral opportunity using the ensemble method of random district generation; this Response flags technical issues and questions the conceptual alignment of the methods with their application.

By Any Means: A Philosophical Frame for Rulemaking Reform in Criminal Law

Equitable crime policy and equity in the process of crime policymaking stand as the two goals most important to criminal-justice reform advocates. It would be a strategic mistake, however, to consider the two of equal importance. 

Supreme Court Reform and American Democracy

The current crisis of the Supreme Court is inextricable from the question of the Court’s role in our democracy. We identify three strategies for ensuring the Court maintains its proper role—internal restraint, external constraints, and structural reform—and argue that internal restraint and external constraints suffer from serious drawbacks.

The Once and Future Countervailing Power of Labor

Drawing on the law that supported labor movement’s exercise of countervailing power against 1930s plutocracy, progressive social movements can use law to create a new political economy. But, as a condition of granting labor power, law channeled unions away from radicalism. Powerful class-based movement organizations find law an unreliable ally.

The Proceduralist Inversion – A Response to Skeel

This essay assesses Distorted Choice in Corporate Bankruptcy, by David Skeel. While Skeel usefully identifies how Restructuring Support Agreements (RSAs) help debtors secure support for Chapter 11 reorganizations, this essay argues that Skeel fails to appreciate that RSAs can also short-circuit the plan process, severing plan distributions from pre-bankruptcy entitlements.

Reading the ACA’s Findings: Textualism, Severability and the ACA’s Return to the Court

Challengers are using false textualism to implode the ACA. They argue that a findings section is an “inseverability clause,” ignoring the text and location; the language is boilerplate not for severability but for the commerce power; and Congress’s actual inseverability clauses are unmistakably explicit, using language absent from the ACA.

Deadly Delay: The FDA’s Role in America’s COVID-Testing Debacle

Recently, the FDA asserted authority to regulate a type of COVID-19 diagnostics known as laboratory-developed tests, which long have been a front line of response to emerging disease. FDA did not, and should not, have authority to regulate these tests. Its intervention added minimal value while contributing to deadly delays.

State of the Art: How Cultural Property Became a National-Security Priority

Until recently, the United States did little to help repatriate looted antiquities, thanks to a powerful coalition of art collectors, museums, and numismatists who preferred an unregulated art market. This Essay explores how the United States came to treat the protection of cultural property as an important national-security issue.

The New Oil and Gas Governance

Even as the United States has become the world’s leading producer of oil and gas, U.S. oil and gas governance has changed drastically. States have amended statutes, applied existing laws, and modified common law doctrine to move beyond a once-unilateral focus on maximizing production and address environmental and social concerns.

Disability Law and the Case for Evidence-Based Triage in a Pandemic

When lifesaving medical treatments are scarce, disability law permits triage policies to consider patients’ probability of survival and post-treatment life expectancy. Evidence-based triage that considers these factors, rather than inaccurate stereotypes, can be not only legal and ethical, but consonant with the goals of disability law and advocacy.

Twenty-First-Century Contract Law Is a Law of Agreements, Not Debts: A Response to Lewinsohn

Jed Lewinsohn’s excellent article on consideration offers groundbreaking work on the concept of exchange but errs in seeing the motivational account of consideration as a bad fit with doctrine. I argue that the motivational account provides a more natural justification for both consideration and for contract law as a whole.

Reconstituting the Future: An Equality Amendment

A new constitutional amendment embodying a substantive intersectional equality analysis aims to rectify the founding U.S. treatment of race and sex and additional hierarchical social inequalities. Historical and doctrinal context and critique show why this step is urgently needed. A draft of the amendment is offered.

The Point Isn't Moot: How Lower Courts Have Blessed Government Abuse of the Voluntary-Cessation Doctrine

Should government defendants be able to more easily moot a case than private defendants? This Essay argues that a strong voluntary-cessation doctrine is important to protecting individual rights and explains why—based on both precedent and policy—government and private defendants should be subject to the same strict standard.

Did Bristol-Myers Squibb Kill the Nationwide Class Action?

This Essay presents the first comprehensive survey examining whether Bristol-Myers Squibb Co. v. Superior Court significantly limits multistate class actions in federal courts. It finds, contrary to many commenters, that a large supermajority of cases reject the argument that BMS’s constraints apply with respect to unnamed plaintiff class members.

Abolish ICE . . . and Then What?

This Essay proposes a blueprint for a new humane and effective immigration-enforcement system that could follow the dissolution of ICE. It explores the irredeemable defects of ICE and its enforcement paradigm and suggests realistic mechanisms to increase compliance with immigration laws without detention or mass deportation.

An Intersectional Critique of Tiers of Scrutiny: Beyond “Either/Or” Approaches to Equal Protection

Examining a long-overlooked passage on gender in Justice Powell’s Bakke concurrence, the Essay applies the theory of intersectionality to show that Justice Powell’s reasoning was flawed. As his “single-axis” approach reveals, tiers-of-scrutiny analysis creates a doctrinal puzzle in equal-protection law, especially when applied to Black women.

Nudges and Norms in Multidistrict Litigation: A Response to Engstrom

Multidistrict-litigation judges have invented a medley of new procedures to adjudicate the mass-tort cases before them. As plaintiff fact sheets and Lone Pine orders become widespread, however, formal rules’ built-in protections wane and procedural burdens may fall more harshly on one side.

Supreme Court as Superweapon: A Response to Epps & Sitaraman

Daniel Epps and Ganesh Sitaraman propose radical reforms to restore a moderate Supreme Court. Unfortunately, their proposals might destroy the Court’s legitimacy in order to save it. A Court unbound by legal principle is too powerful a weapon to leave around in a democracy; we should start thinking about disarmament.

Prove It! Judging the Hostile-or-Warlike-Action Exclusion in Cyber-Insurance Policies

Cyber-insurance policies often include a hostile-or-warlike action exclusion. The legal system is ill-equipped to handle the litigation that arises from coverage denials under this exclusion. This Essay explores the difficulties of accurately attributing attacks and adjudicating these insurance-coverage disputes. It concludes with four proposals to improve attribution and adjudication.

Gender-Identity Protection, Trade, and the Trump Administration: A Tale of Reluctant Progressivism

This Essay discusses the inclusion of gender-identity protections in the Trump Administration’s “new NAFTA,” hypothesizing that these provisions were initially included without consulting important executive-branch stakeholders. Intriguingly, these protections demonstrate that trade agreements can lead even powerful governments to make value-laden commitments at odds with their own domestic agendas.

The Predominance Test: A Judicially Manageable Compactness Standard for Redistricting

Most states require compact legislative districts, but courts have no framework to judge when contorted districts are legally suspect. This Essay proposes a “Predominance Test” that limits the most egregious gerrymanders by comparing challenged maps to maximally compact plans to test whether compactness predominates over lower-tier and discretionary criteria.

Law, Prison, and Double-Double Consciousness: A Phenomenological View of the Black Prisoner’s Experience

This Essay introduces double-double consciousness as a new way of conceptualizing the psychological ramifications of being a black prisoner. Based on my own experience as a black prisoner, I conclude that double-double consciousness is a mechanism through which the prisoner can maintain dignity despite living in captivity.

The Present Crisis in American Bail

This Essay reviews the recent rise of systemic injunctions against money bail systems and a major question they raise: what level of scrutiny applies to allegedly unconstitutional bail systems. It concludes that, in light of history and precedent, strict scrutiny is the appropriate standard. 

Good and Bad Patient Involvement: Implementing the Patient-Involvement Provisions of the 21st Century Cures Act at the FDA

This Essay examines the FDA’s implementation of new statutory patient-involvement requirements in light of past problems with simlar initiatives atthe FDA. Despite the risks of repeating these mistakes, the Essay concludes that the Agency’s early implementation efforts are encouraging.

Pregnancy and Living Wills: A Behavioral Economic Analysis

In most states, women are not permitted to have binding living wills during parts of their pregnancies. This Essay argues that the laws imposing these restrictions are ill-conceived and likely unconstitutional and, using behavioral economics, suggests a better alternative that respects women’s preferences and autonomy. 

A Response to Justice Goodwin Liu

Judge Jeffery Sutton responds to Justice Goodwin Liu’s Review of 51 Imperfect Solutions: States and the Making of American Constitutional Law.

The Punishment Bureaucracy: How to Think About “Criminal Justice Reform”

The “criminal justice reform” movement is in danger. Efforts to change the punishment bureaucracy are at risk of being co-opted by bureaucrats who have created and profited from mass human caging. This Essay seeks to understand the true functions of the punishment bureaucracy and to offer suggestions for dismantling it.

The Past, Present, and Future of Section 1115: Learning from History to Improve the Medicaid-Waiver Regime Today

This Essay argues that section 1115 waivers in the Medicaid program have increasingly bee misused, opening the door to ideologically motivated cuts or preconditions on coverage, and suggests a response. 

Sovereign Difference and Sovereign Deference on the Internet

This Response to Andrew Woods makes two points. First, it shows why the “fragmentation” charge frequently levied against sovereignty-based approaches to internet governance is misplaced. Second, it questions the efficacy of Woods’s normative theory of judicial comity.

Wayfair Undermines Nicastro: The Constitutional Connection Between State Tax Authority and Personal Jurisdiction

This Essay exposes connections between two controversial cases that unsettled two ostensibly distinct areas of constitutional law—Wayfair v. South Dakota and J. McIntyre Machinery, Ltd. v. Nicastro—arguing that Wayfair’s underlying logic warrants narrowing or overruling Nicastro. 

The Reach of Local Power

Recent litigation has challenged local California prosecutors’ power to seek and receive statewide relief for violations occurring outside county lines. This Essay argues against this trend and explains why it is inappropriate to apply the constitutional norms that state-versus-federal conflicts to conflicts between states and municipalities. 

The Pope and the Capital Juror

The Pope recently pronounced capital punishment impermissible. Counterintuitively, this might make capital punishment less popular but more prevalent. This Essay anticipates this dynamic, and explores how “death qualification” of juries insulates the death penalty even as community morality evolves away from it.

Impeachment: A Handbook

Charles Black’s Impeachment: A Handbook has become the authoritative guide on the subject of presidential impeachment. This year, the Yale University Press published a new edition of the classic, incorporating new material by constitutional theorist Philip Bobbitt. Bobbitt’s contribution to the new edition appears in this Essay.

In the Shadow of Child Protective Services: Noncitizen Parents and the Child-Welfare System

The noncitizen parent exists between two often-conflicting legal identities: that of an immigrant and that of a parent. This Essay argues that state child services should strive to mitigate the tension between these identities and take an active role in shielding these parents from immigration consequences of family-law proceedings.  

Presidential Power to Terminate International Agreements

Can President Trump unilaterally withdraw the United States from any and all international agreements to which the United States is a party? This Essay argues that constitutional, functional, and comparative-law considerations dictate that the answer is a resounding “no.” 

Securing Public Interest Law’s Commitment to Left Politics

Through an analysis of the challenges facing the “new working class,” this Essay argues that in order to advance their clients’ interests, progressive lawyers must redefine public interest law such that it centers on a commitment to developing left political power.

Beyond the Box: Safeguarding Employment for Arrested Employees

Most criminal system reform efforts neglect the collateral consequences experienced by individuals with pending criminal cases. This Essay argues that meaningful reform requires enhanced protections for current employees and applicants with open criminal cases.

Religious Exemptions and Antidiscrimination Law in Masterpiece Cakeshop

Conversation about Masterpiece Cakeshop has focused on the Court’s holding that decisionmakers must treat those seeking religious exemptions with respect. This Essay brings to light the case’s broader guidance on religious exemptions under the Free Exercise Clause and what that means for judicial and legislative actors going forward. 

The Limits of Professional Speech

This Essay argues that the definition of professional speech should not be expanded beyond the doctrine’s purpose: ensuring that clients receive accurate, comprehensive, and reliable advice in accordance with the insights of the relevant knowledge community. It then examines these limits of professional speech through NIFLA v. Becerra.

A Cooperative Federalism Approach to Shareholder Arbitration

Arbitration has begun to take a new form: mandatory arbitration provisions built into corporate charters and bylaws. The debate about the merits of arbitration is well worn, but its application to shareholder claims opens the door to a different set of responses. This Essay provides one, explaining why the overlapping authority of federal and state actors in this field makes cooperative federalism is a natural fit for addressing these issues. 

When Patents are Sovereigns: The Competitive Harms of Leasing Tribal Immunity

The Hatch-Waxman Act and the AIA balance exclusive rights of pharmaceutical patent holders with entry of generic competitors. Allergan’s recent patent transfer to the Saint Regis Mohawk Tribe threatens this balance. This Essay proposes antitrust suits to sidestep sovereign immunity and prevent companies from unduly increasing their patents’ probabilistic value.

The Trump Administration and the Breakdown of Intra-Executive Legal Process

In the first year of the Trump Administration, a breakdown of intra-executive internal norms and legal processes has led to a remarkable series of losses in the courts. This Essay argues that such a breakdown can substantially damage both the viability of an administration’s policy agenda and public confidence.

Vaccine Licensure in the Public Interest: Lessons from the Development of the U.S. Army Zika Vaccine

This Essay analyzes the recent attempted exclusive licensing deal for a Zika vaccine, which would have hampered the drug’s affordability and availability. Revising the Patent Act to increase transparency and accountability in the licensing process would ultimately result in more affordable vaccines for outbreak diseases like Zika.

Nurturing Parenthood Through the UPA (2017)

This Response to Douglas Nejaime’s The Nature of Parenthood shows how the recently approved revisions to the Uniform Parentage Act (UPA)—which expand the ways in which a nonbiological parent may establish her or his parentage—address many of the critical gaps in parentage law identified by NeJaime. 

Surreply: How and Why We Should Become Un-Stuck!

David Schleicher replies to Naomi Schoenbaum, Sheila Foster, Sara Pratt, and Michelle Wilde Anderson’s Responses to his Volume 127 Article, Stuck!:The Law and Economics of Residential Stagnation.

The Agency Costs of Equal Treatment Clauses

This Essay explores the agency costs associated with equal treatment clauses, which require all share classes to receive equal consideration in the event of an acquisition. Despite these clauses’ benign appearance, they actually create another hurdle to the sale of a controlled company to the potential detriment of minority shareholders.

A Common-Law Privilege To Protect State and Local Courts During the Crimmigration Crisis

Under the Trump presidency, Immigration and Customs Enforcement (ICE) officers have been making immigration arrests in state and local courthouses. ICE’s refusal to stop these arrests raises the question: can anything more be done to stop these courthouse arrests? A common-law doctrine, the “privilege from arrest,” provides an affirmative answer. 

A Seat at the Table: New Voices Urge Farm Bill Reform

The Farm Bill is complicit in crises of public health, the environment, and rural decay.The emerging field of food law and policy can help articulate a better vision for Farm Bills, and as debate around the 2018 Farm Bill begins, new law school collaborations are beginning to do just that. 

Blatt v. Cabela’s Retail, Inc. and a New Path for Transgender Rights

Since the Supreme Court recognized marriage equality in Obergefell v. Hodges, civil rights advocates have increasingly set their sights on transgender rights as the next legal frontier. This Essay explores why, for over twenty-five years, transgender litigants have not invoked the protections of the;and why they now should.

Foreign Cyber Attacks and the American Press: Why the Media Must Stop Reprinting Hacked Material

While much ink has been shed dissecting Russia’s attempt to interfere in the 2016 presidential election, few have focused on the role played by the American media in facilitating Russia’s cyber attacks. This Essay argues that journalists should voluntarily adopt a professional norm against publishing the contents of a hack.

Clash of the Titans: Plenary Power and Habeas Corpus in Castro

The Third Circuit recently held that immigrants in expedited removal proceedings have no constitutional rights regarding their application to enter the United States. This Essay challenges that conclusion, contending that judicial review over immigration procedures remains an invaluable safeguard in our constitutional system.

New Sheriff, Old Problems: Advancing Access to Justice Under the Trump Administration

There is a crisis in access to justice in the United States. The justice gap—the gap between people’s legal needs and the legal services available—is wide and growing. Recent data from the Legal Services Corporation and the University of Chicago confirm that this gap primarily stems from a lack of information about legal rights, remedies, and resources. This information gap can be remedied by increasing public education on these topics and by improving the means of seeking legal assistance. I argue that information-centered advocacy may be the most effective means of closing the justice gap. Such advocacy may also be the most resource efficient, a critical consideration in a landscape where proponents of access to justice lack the political support to win increased federal funding for civil legal aid. However, the success of this approach will ultimately depend on a second, more challenging feature of the current American government: fundamental threats to the justice system currently emanating from the executive.

Nationwide Injunctions: Venue Considerations

A criticism of nationwide injunctions is that they engender forum shopping, with litigants seeking out a court more likely to be favorable to them in order to obtain sweeping relief. This picture, though, oversimplifies the relationship between venue and the scope of injunctive relief, particularly for lawsuits against federal actors. Cabining nationwide injunctions would shift the incentives for litigant venue choice. Limitations on nationwide injunctions would place increased weight on early lawsuits in forums in which venue is proper based on the characteristics of the defendant, because any similarly situated litigant can bring suit there. Section 1391(e) of Title 28, the statutory provision for venue against federal actors, provides for broad scope for venue, including permitting venue based on the plaintiff’s place of residence. Such limitations would lead to distortions in incentives for venue choice contrary to the purposes underlying the enactment of § 1391(e) as well as systematically disadvantage less well-resourced litigants. The debate over nationwide injunctions must take into account the effects of changes to the scope of injunctive relief on the venue choice architecture, and consider both venue and the scope of injunctive relief concomitantly in the institutional design of federal litigation.

Professional Speech and the Content-Neutrality Trap

The Eleventh Circuit’s en banc decision in Wollschlaeger v. Governor of Florida is remarkable for embracing content neutrality as a tenet of First Amendment doctrine in the realm of professional speech. It reflects a new form of aggressive content neutrality on the rise in First Amendment jurisprudence beginning with Reed v. Town of Gilbert, a seemingly innocuous case about a municipal sign ordinance. Reed ushered in what may turn out to be a dramatic shift in the way courts employ content neutrality as a core principle of the First Amendment. But content neutrality should not be thought of as axiomatic across the First Amendment. This Essay illustrates the dangers of falling into the content-neutrality trap in the context of professional speech. Professional speech communicates the profession’s insights to the client for the purpose of providing professional advice, and the value of professional advice critically depends on its content. The First Amendment therefore may not require regulation to be blind to the content of professional speech.

Insider Trading’s Legality Problem

In late 2016, in its highly-watched decision in Salman v. United States, the Supreme Court attempted once again to clarify the crime of insider trading, this time regarding the secondary and tertiary recipients of information commonly referred to as “remote tippees.” In doing so, the Court seemed to put to rest any question that a person who “gifts” a friend or family member with material non-public information for the purposes of trading on such information does in fact trigger a violation of law. As cases go, Salman is relatively straightforward. Nevertheless, it demonstrates several of the drawbacks that arise when criminal laws become the product primarily of cases and not statutes. Ordinarily, proponents of legislative law-making cast their arguments in fairness terms, as written statutes provide advance warning of what is and is not forbidden. This Essay contends that legislatively enacted statutes go further than that. Under the best circumstances, they can improve the content of criminal law precisely because they permit the legislature to differentiate similar yet morally distinct conduct. With this benefit in mind, the Essay imagines what insider trading law might look like were Congress to both define and subdivide the crime of insider trading into the kind of tiered or degreed crimes more routinely featured in state codes.

Hively’s Self-Induced Blindness

The Seventh Circuit’s en banc decision in Hively v. Ivy Tech Community College has received as much attention for its dueling views of statutory interpretation as for its historic holding: that sexual orientation discrimination is protected under Title VII’s “because of sex” prong. Yet the opinions’ divergent approaches to statutory interpretation end up doing surprisingly little work. Lacking substantive engagement with the ways sexual orientation discrimination helps police gender norms or longstanding debates over how thoroughly Title VII is meant to disrupt those norms, the opinions instead offer an originalism without history, a dynamic interpretation that lacks limits, and a textualism largely divorced from the values Title VII’s text is meant to address. As other courts consider whether to join Hively’s important holding, its gender-blind approach to equality law should give way to one that foregrounds the opportunity-limiting sex stereotyping at the heart of anti-LGBT animus.

Public Interests, Private Institutions? Public Policy Challenges to Tax-Free Universities

As the increasing concentration of wealth and property in private universities draws attention and criticism, legislators across political parties and jurisdictions are questioning the scope of broad university tax exemptions. Universities have responded by asserting that state and federal constitutional provisions offer their assets perpetual protection from taxation—assets that not only include classrooms and dormitories, but also golf courses, power plants, travel agencies, and health clinics.

In response to these arguments, this Essay proposes ways in which states and localities could clarify or challenge sweeping property tax exemptions for private universities, with a special focus on Yale University’s charter and Connecticut state law. The Essay argues that by either clarifying the boundaries of Yale’s property tax exemption or freezing it in place, the Connecticut legislature could—and should—reclaim the state’s fundamental power of taxation and gain leverage for negotiations with Yale, without running afoul of constitutional requirements. The Essay closes with a brief discussion of other universities and communities that could utilize an analogous approach.

Can New York Publish President Trump’s State Tax Returns?

Breaking from a decades-old norm of presidential tax transparency, Donald Trump has refused to make his federal income tax returns available for public inspection. Congressional leaders have blocked bipartisan legislation that would compel the President to disclose his returns. New York State, however, has a unique opportunity to ensure that the practice of presidential tax transparency endures. As a longtime New York resident, President Trump files state tax returns that contain most of the information found in his federal filings. A bill pending in the New York State Legislature would direct state tax authorities to release returns filed by the President and statewide elected officials. If the bill becomes state law, it will do much to protect the norm of presidential tax transparency from Trump’s attack.

This Essay considers the legal issues surrounding New York’s potential disclosure of President Trump’s state tax returns. It anticipates and addresses arguments that state disclosure would violate the Bill of Attainder Clause, the constitutional right to privacy, due process limits on retroactivity, restrictions on state interference in national political processes, and the doctrine of intergovernmental immunity. It also examines federal laws protecting taxpayer privacy and considers whether New York’s publication of the President’s state tax filings would violate the Internal Revenue Code’s prohibition on disclosure of returns and return information. The Essay concludes that federal law does not prevent New York from adopting and enacting legislation that would require the release of the President’s state tax returns. New York can—and, this Essay argues, should—publish the President’s state tax returns if Trump himself and his allies in Congress refuse to act.

Clarifying the Employee-Officer Distinction in Appointments Clause Jurisprudence

On May 24, the D.C. Circuit sitting en banc will hear oral argument on whether Securities and Exchange Commission (SEC) administrative law judges (ALJs) count as inferior officers rather than employees for purposes of the Appointments Clause. This Essay attempts to articulate a coherent employee-officer distinction that suits the Constitution’s text and structure, that remains consistent with the Court’s precedent, and that provides a clear legal rule for judges and for Congress. Part I traces the evolution of the doctrine from an early opinion of Justice Marshall through the nineteenth century to the modern cases of Buckley and Freytag. From this often-confused line of cases, the Essay explains the central normative and constitutional considerations that animate the Court’s doctrine. Part II draws on this doctrine and on related administrative law jurisprudence to present a legal rule that defines who must be an officer under the Appointments Clause: any person who is vested with the authority to alter legal rights and obligations on behalf of the United States. Part III applies this analysis to a recent circuit split between the Tenth Circuit and the D.C. Circuit, and it sides with the Tenth: SEC ALJs are officers of the United States who must be appointed according to the strictures of the Appointments Clause.

May Congress Abrogate Stare Decisis by Statute?

On January 3, 2017, Congressman Steve King introduced a bill that would bar federal courts, including the Supreme Court, from citing a number of the Court’s decisions on the Patient Protection and Affordable Care Act (ACA) “for the purpose of precedence [sic].” The bill cites Article 3, Section 2 of the Constitution, which allows Congress to restrict the Court’s appellate jurisdiction, as legal justification for Congress’s power to regulate rules of precedent. Not surprisingly, media commentators quickly questioned the bill’s constitutionality. What these early news stories overlooked, however, is that King’s proposal does not raise a novel legal question. On the contrary, over a decade ago, Michael Paulsen published an article in the Yale Law Journal arguing that Congress could do exactly what the bill proposes. Over the ensuing years, scholars have debated Paulsen’s argument, without resolving the core question posed by his article.

Capital Jurors in an Era of Death Penalty Decline

The state of public opinion regarding the death penalty has not experienced such flux since the late 1960s. Death sentences and executions have reached their lowest annual numbers since the early 1970s. Following decades during which the death penalty shared broad public support, over the last decade, support steadily declined in national and state polling. Today, the public appears fairly evenly split in its views on the death penalty. Still, voters in Nebraska and California recently rejected measures to end the death penalty, and in California voters instead adopted a measure intended to hasten post-conviction review of death penalty cases and executions, although the California Supreme Court has stayed that measure pending further review. In this Essay, we explore, first, whether these changes in public opinion mean that fewer people will be qualified to serve on death penalty trials as jurors, and second, whether potential jurors are affected by changes in the practice of the death penalty.

Prosecutors Respond to Calls for Forensic Science Reform: More Sharks in Dirty Water

In September 2016, the President’s Council of Advisors on Science and Technology (PCAST) released a report questioning the validity of a number of forensic science techniques routinely offered as evidence (“PCAST Report”). This report raises familiar issues and recommendations. In 2009, the National Research Council (NRC) released Strengthening Forensic Science in the United States: A Path Forward, a report on the state of forensic science (“NRC Report”). The NRC Report found that numerous forensic science disciplines relied on deficient scientific foundations, interpretative procedures lacked rigor, analysts took inadequate measures to avoid error and bias, and forensic examiners testified with unwarranted certainty. Research suggests that the NRC Report has had a marked impact on defendants’ awareness of the fallibility of “soft” forensic disciplines, which has led to a number of post-conviction challenges to forensic evidence. Unfortunately, these challenges have rarely been successful. Perhaps as a result, forensic disciplines have advanced little in the intervening seven years to address the NRC Report’s concerns.

Triptych’s End: A Better Framework To Evaluate 21st Century International Lawmaking

How does the United States enter and exit its international obligations? By the last days of the Obama Administration, it had become painfully clear that the always imaginary “triptych” of Article II treaties, congressional-executive agreements, and sole executive agreements, which has guided foreign relations scholars since the Case Act, is dying or dead. In 2013, as State Department Legal Adviser, I argued that:

In the twenty-first century . . . we are now moving to a whole host of less crystalline, more nuanced forms of international legal engagement and cooperation that do not fall neatly within any of these three pigeonholes . . . . [O]ur international legal engagement has become about far more than just treaties and executive agreements. We need a better way to describe the nuanced texture of the tapestry of modern international lawmaking and related activities that stays truer to reality than this procrustean construct that academics try to impose on a messy reality.

This Essay seeks to offer that better conceptual framework to evaluate the legality of modern international lawmaking. It illustrates that framework through two recent case studies of modern U.S. diplomacy: the Paris Climate Change Agreement and the Iran Nuclear Deal.

The Private Search Doctrine After Jones

In United States v. Jacobsen, the Supreme Court created a curious aspect of Fourth Amendment law now known as the private search doctrine. Under the private search doctrine, once a private party has conducted an initial search independent of the government, the government may repeat that search, even if doing so would otherwise violate the Fourth Amendment. The private party’s search renders the subsequent government “search” not a search in the constitutional sense.

Oral Tradition and the Kennewick Man

In April 2016, the U.S. Army Corps of Engineers confirmedthat the ancient human body discovered in 1996 near Kennewick, Washington,often referred to as the “Kennewick Man” or “The Ancient One,” is geneticallyrelated to modern-day Native Americans. Thisconfirmation ended a twenty-year-long struggle between scientists at the Smithsonian, the U.S. Department of the Interior, and Native American tribes ofthe Columbia Plateau, and will now jumpstart the process for repatriation ofthe Kennewick Man to the Native American tribes for reburial in accordance withthe Native American Graves Protection and Repatriation Act of 1990 (NAGPRA).

A Trademark Defense of the Disparagement Bar

The Supreme Court will soon hear argument over whetherCongress may forbid registering trademarks that consist of “matter which may disparage or falsely suggest aconnection with persons, living or dead, institutions, beliefs, or nationalsymbols, or bring them into contempt, or disrepute.” The disparagement bar is thebasis for the 2014 ruling by the Trademark Trial and Appeal Board (TTAB) thatordered the cancellation of trademark registrations belonging to the WashingtonNFL team because the term “redskin” disparages Native Americans. Late last year, however, theFederal Circuit ruled en banc that the disparagement bar is unconstitutional onFirst Amendment grounds in In re Tam.

Keeping the Promise of Public Fiduciary Theory: A Reply to Leib and Galoob

For centuries, prominent jurists and political theorists have looked to private fiduciary relationships such as trusteeship, agency, and guardianship to explain and justify the authority of public officials and public institutions. This tradition has attracted increasing interest over the past decade, as legal scholars have used fiduciary concepts to elucidate important features of public law, from the nature and design of constitutional government, to the legal obligations that attend public offices such as judge and legislator. We have contributed to this revival of public fiduciary theory by showing that fiduciary principles can explain and justify the structure and content of administrative law and international law. The great promise of public fiduciary theory, we have argued, lies in its powerful “criterion of legitimacy,” which links the legal authority of public officers and institutions to the principle that “state action must always be interpretable as action taken in the name of or on behalf of every agent subject to the state’s power.”

Apple and the American Revolution: Remembering Why We Have the fourth Amendment

On February 16, 2016, the U.S. Department of Justice (DOJ)obtained an unprecedented court order in the San Bernardino shooting case thatwould have forced Apple to design and deliver to the DOJ software capable ofdestroying the encryption and passcode protections built into the iPhone. The DOJasserted that this order was simply the extension of a warrant obtained by theFederal Bureau of Investigation (FBI) to search the shooter’s iPhone, which hadbeen locked with a standard passcode.

The Difference a Whole Woman Makes: Protection for the Abortion Right After Whole Woman’s Health

As the case that became Whole Woman’s Health worked its way to the Supreme Court, few were confident about how the Court would respond to a law, enacted in the name of protecting women’s health, that would predictably shut most of a state’s abortion clinics. All agreed that the governing standard was the undue burden framework the Court had adopted a quarter century earlier in Planned Parenthood v. Casey. But the meaning of “undue burden” was in doubt. Opponents of the abortion right asserted that after the Court decided Gonzales v. Carhart, upholding the Partial Birth Abortion Ban Act, the Casey framework meant little more than rational basis deference to legislative decision making. Supporters were confident that the undue burden framework provided women more constitutional protection than that—but many still worried that the standard was too indeterminate to constrain state legislatures.

Predicting Utah v. Streiff’s Civil Rights Impact

The Supreme Court’s recent Utah v. Strieff decision declined to apply the exclusionary rule to evidence seized as a result of an arrest that followed an unconstitutional stop. The opinion, in conjunction with Justice Sotomayor’s dissent, has reanimated discussions regarding when, if ever, criminal defendants can expect the exclusionary rule to apply. When applied, the exclusionary rule renders inadmissible evidence recovered through “unconstitutional police conduct”; the evidence’s exclusion reinforces the Fourth Amendment’s ban on unreasonable searches and seizures. Unlike most discussions of Strieff, which focus on its implications for criminal defendants,this Essay examines how Strieff will impact civil rights plaintiffs’ ability to recover damages for unconstitutional stops under 42 U.S.C. § 1983.

Securities Settlements in the Shadows

The Dodd-Frank Act authorized the Securities and Exchange Commission (“SEC”) to bring almost any enforcement action in an administrative proceeding. Before Dodd-Frank, the SEC could secure civil fines against registered broker-dealers and investment advisers in administrative proceedings, but had to sue in court non-registered firms and individuals, including public companies and executives charged with accounting fraud, or traders charged with insider trading violations. After the Dodd-Frank amendment, save for a few remedies that can only be obtained in court, the SEC can choose the forum in which it prosecutes enforcement actions.

Innocence and Override

For the past three decades, the practice of judicial override in capital cases has allowed Alabama judges to impose the death penalty even where the jury voted for life. However, recent developments have cast doubt on the future of override in Alabama. The United States Supreme Court struck down part of Florida’s capital sentencing scheme in January because “[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death.” In response, the Florida legislature eliminated override in March, and the Delaware Supreme Court invalidated its own state’s override system on August 2, leaving Alabama as the only state that still permits the practice. Override in Alabama has been attacked on other grounds as well; in 2013, two Justices of the United States Supreme Court expressed Eighth Amendment concerns that Alabama overrides are arbitrary and linked to political pressure.

Protecting the Fourth Amendment in the Information Age: A Response to Robert Litt

Robert Litt, General Counsel of the Office of the Director of National Intelligence, has offered a new analysis for the Fourth Amendment in the Information Age, grounded in two cases arising from the NSA’s domestic surveillance programs.1 As opposing counsel or amicus in the cases he cites in his argument, I thought it would be useful to respond.

Transcending the Youngstown Triptych: A Multidimensional Reappraisal of Separation of Powers Doctrine

The time is ripe for a reappraisal of the separation of powers as the organizing principle of our federal government. Most of the relevant doctrinal architecture has been constructed over the past seven decades. Perhaps because of Justice Robert H. Jackson’s incomparable brilliance as a writer, the two-dimensional landscape famously described in his concurring opinion condemning President Truman’s seizure of the U.S. steel industry has dominated discourse about the interaction of the three federal branches. Charting presidential conduct on the vertical axis of a map whose horizontal axis measures Congress’s position ranging from approval to disapproval gave Jackson an elegantly simple and memorable way to classify presidential actions from the most strongly defensible to the most constitutionally vulnerable.

Pre-Exposure Prophylaxis (PrEP) and Criminal Liability Under State HIV Laws

Nick Rhoades was diagnosed with HIV at the age of 23. In 2005, he began anti-retroviral therapy (ART), an increasingly effective form of treatment that can reduce the amount of HIV in blood to undetectable levels. Three years later, the treatment had done just that. Rhoades’s risk of transmitting the virus to a sexual partner had been reduced by 93%, nearly the same reduction of risk associated with condom usage. Shortly thereafter, Rhoades engaged in consensual sexual activity with a man he met on a social networking site. The two men used additional protection. But Rhoades did not disclose his HIV-positive status until several days after their encounter. Rhoades’s sexual partner did not contract the virus. He pressed charges anyway under Iowa’s HIV criminal statute, which makes it a felony to expose another person to HIV. A jury convicted Rhoades in 2008. He was sentenced to twenty-five years in prison.

Democracy and Legitimacy in Investor-State Arbitration

In January 2016, the Canadian infrastructure company TransCanada Corporation filed a notice of intent to sue the United States government in a North American Free Trade Agreement (NAFTA) Chapter 11 arbitration over the Keystone XL pipeline. At the center of this dispute is the State Department’s refusal to permit the construction of an oil pipeline between Canada and Nebraska. TransCanada claims that the State Department ignored its own favorable environmental assessments of the pipeline multiple times and rejected the proposal to placate misinformed activists and foreign governments. The State Department acknowledges that it denied the permit to enhance the Obama Administration’s credibility at the 2015 United Nations Climate Change Conference in Paris, with the long-term goal of reducing emissions through collective political action.

Can Corpus Linguistics Help Make Originalism Scientific?

James Phillips, Daniel Ortner, and Thomas Lee begin their engaging essay, Corpus Linguistics & Original Public Meaning: A New Tool To Make Originalism More Empirical, by pronouncing originalism “the predominant interpretive methodology for constitutional meaning in American history.” They then describe and attempt to justify a new tool to improve originalist methodology: a large corpus of Founding-era documents, representative of a host of genres available to educated people of that period. As their title suggests, the brand of originalism they set out to improve is the version at times dubbed “the new originalism”—an iteration that seeks to construe the Constitution in accordance with the understanding of the state constitutional convention members who read its words and heard its supporters at the time.

The Rise of Bank Prosecutions

Before 2008, prosecutions of banks had been quite rare in the federal courts, and the criminal liability of banks and bankers was not a topic that received much public or scholarly attention. In the wake of the last financial crisis, however, critics have begun to ask whether prosecutors adequately held banks and bankers accountable for their crimes. Senator Jeff Merkley complained: “[A]fter the financial crisis, the [Justice] Department appears to have firmly set the precedent that no bank, bank employee, or bank executive can be prosecuted.” Federal judge Jed Rakoff and many others asked why prosecutors brought, with one or two low-level exceptions, no prosecutions of bankers in the wake of the 2007-2008 financial crisis and whether they were too quick to settle corporate cases by merely compelling fines and “window-dressing” compliance reforms. The response from the Department of Justice (DOJ) to criticism of its approach towards corporate and financial prosecutions has ranged from stern denial that it had been remiss—as when Attorney General Eric Holder announced in a video message in 2014 that “[t]here is no such thing as too big to jail” and that no financial institution “should be considered immune from prosecution”—to reform in the face of acknowledged lack of public confidence in its approach—as when the DOJ in 2015 adopted policies designed to make corporate prosecutions more effective.

Corpus Linguistics & Original Public Meaning: A New Tool To Make Originalism More Empirical

Originalism has been the predominant interpretive methodology for constitutional meaning in American history: it is the methodology that has been with us since the Constitution’s birth. With its rebirth in the latter part of the twentieth century and its theoretical evolution from original intent to original public meaning, originalism has been working itself pure—almost.

The Fourth Amendment in the Information Age

To badly mangle Marx, a specter is haunting Fourth Amendment law—the specter of technological change. In a number of recent cases, in a number of different contexts, courts have questioned whether existing Fourth Amendment doctrine, developed in an analog age, is able to deal effectively with digital technologies. 

The "Supreme Board of Sign Review": Reed and Its Aftermath

First Amendment jurisprudence is fickle. Sometimes it is transformed in prominent, widely known cases, like Citizens United. At other times, it is quieter, lesser known cases that revolutionize the doctrine. One of last summer’s cases, Reed v. Town of Gilbert, falls squarely into the latter category. The Supreme Court’s redefinition of content discrimination in Reed has led to rapid changes in how courts across the country are evaluating First Amendment challenges. Many courts have…

Evidence-Based Sentencing and the Taint of Dangerousness

Today’s world is “all about the data.”1 In a variety of contexts, innovators have offered statistical models as a way to reduce or eliminate human error.2 The promise of quantitative optimization has even influenced our criminal justice system. About twenty states have developed or adopted models to predict a defendant’s risk of recidivating.3 Often used in bail determinations and pretrial diversion programs, these risk predictors are also increasingly used for sentencing.4 I…

American Magisteria in the Twenty-First Century

Introduction Federal and state courts, and especially the Supreme Court, are surrounded by grandeur, their operations impelled by an ever-present sense of duty to higher authority. These rituals and ceremonies—right down to the Latin language employed in court opinions1—evoke the religious heritage that continues to permeate American civic life. This resemblance, however, is more than a mere surface-level similarity. In many respects, the Supreme Court in its institutional capac…

Googling for Meaning: Statutory Interpretation in the Digital Age

Dictionary use has become a common practice in modern statutory interpretation at the Supreme Court.1 With the rise of the “new textualism,”2 Justices increasingly rely on dictionaries to shed light on the plain meaning of statutes—that is, the understanding that an ordinary English speaker would draw from the text.3 This trend is not limited to textualists: Justices who favor purposivist analyses of legislative intent cite dictionaries just as often.4 Scholars and prac…

Judicial Gobbledygook: The Readability of Supreme Court Writing

Introduction Writing is the conduit through which courts engage with the public.1 As such, the quality of judicial writing is an important element of the legal system—it determines the clarity of the rules that we live by. Yet, on an empirical level, we know relatively little about it. A court watcher’s gut reaction might be that judicial writing suffers from excess complexity. Indeed, the Federal Judicial Center finds it necessary to encourage judges to avoid wordiness, pompos…

Bounds in Bank Regulation

Introduction In his recent essay, Bounded Institutions,1 Yair Listokin examines bounded and unbounded structures as two alternative designs for principals to delegate regulatory authority to their agents.2 Bounds refer to numerical or quantifiable limitations that are set by the principal on some dimension of the agent’s decision-making process, and include caps, quotas or grading curves.3 Listokin shows that bounds can be used to reach ideal regulatory outcomes even in cases whe…

Locked In: The Competitive Disadvantage of Citizen Shareholders

Introduction Indirect investors—especially mutual fund investors—are often low-dollar, low-incentive, rationally apathetic investors facing enormous information asymmetries and collective action problems. These traits raise difficult corporate governance questions about how indirect investors exercise or should exercise their right to vote in fund elections, obtain fund-related information, and pursue litigation against the fund. These questions are all the more important in lig…

Asking for Directions: The Case for Federal Courts To Use Certification Across Borders

For more than a decade, the bench, bar, and commentators have disagreed as to whether judges should look to decisions of international and foreign courts for guidance in resolving disputes that appear in U.S. courts. In 2003, Justice Scalia’s dissent in Lawrence v. Texas warned darkly that the majority’s citation to foreign and international sources was “[d]angerous dicta” that risked “impos[ing] foreign moods, fads, or fashions on Americans.”1 The next year, then-Attorney…

Perfect Plaintiffs

Brown. Roe. Loving. These names evoke seminal Supreme Court decisions that instituted massive social and legal shifts.1 While it may not roll off the tongue quite as easily, Obergefell is poised to join this pantheon. Jim Obergefell and the twenty-nine other men and women named in Obergefell v. Hodges are among the most highly publicized plaintiffs in history. Thousands of videos, photographs, and articles tell their stories, emphasizing their ordinariness and approachability.2 In br…

Firearm Regionalism and Public Carry: Placing Southern Antebellum Case Law in Context

Introduction During recent oral arguments in Peruta v. County of San Diego, a case being reconsidered en banc in the U.S. Court of Appeals for the Ninth Circuit, former Solicitor General Paul Clement turned to what may appear an unusual guide for interpreting the scope of the Second Amendment in the twenty-first century. His clients had been denied permits to carry concealed handguns in San Diego because they could not demonstrate a heightened need for self-defense, and Clement was …

Dictionaries 2.0: Exploring the Gap Between the Supreme Court and Courts of Appeals

Introduction The remarkable rise in dictionary usage by the Supreme Court since the mid-1980s has been a subject of considerable scholarly and media interest. We published an article in November 2013 that explored the Court’s new dictionary culture in depth from empirical and doctrinal perspectives.1 In a Yale Law Journal Note one year later, John Calhoun embraced some of our findings, criticized others, and—importantly—broadened the inquiry to identify a sizeable gap in over…

Justice Thomas and the Originalist Turn in Administrative Law

Introduction Until this term, administrative law seemed beyond the reach of originalist scrutiny at the Supreme Court. Then, in a series of six originalist opinions, Justice Thomas called into question agency rulemaking, judicial deference to agencies, and certain agency adjudications. In Department of Transportation v. American Association of Railroads (AAR), Justice Thomas wrote a concurrence arguing that the Constitution forbids agencies from making “generally applicabl…

Looking Back Ten Years After Kelo

Dana Berliner is the Litigation Director of the Institute for Justice. Along with her colleague Scott Bullock, she represented the homeowners in Kelo v. City of New London from the inception of the case to its conclusion at the Supreme Court. This year marks the tenth anniversary of the Supreme Court’s decision. Introduction For many years, states and municipalities throughout the country routinely used eminent domain for essentially private projects. The idea was that the private …

In Defense of Due Diligence in Cyberspace

Introduction Recent events such as the attack on Sony by North Korea and revelations that Russians hacked President Obama’s e-mail have drawn attention to the dilemma of harmful transborder state and non-state cyber operations against government and private cyber infrastructure.1 Academics and practitioners have analyzed whether cyber operations violate international law, especially the sovereignty of the state where they manifest,2 and when they can be attributed to a state pursu…

Health Care Exchanges and the Disaggregation of States in the Implementation of the Affordable Care Act

Introduction Federalism scholarship and doctrine have long viewed the states as monoliths.1 It is New York that is commandeered,2 Florida’s sovereign immunity that is violated,3 and Indiana that is coerced4—not officials, agencies, or political parties within the state, but the state qua state. We assume that the federal government does not see the politically contested underbellies of the states, but instead neutrally waits for the conflicts between a state’s governor and l…

Pixelating Administrative Common Law in Perez v. Mortgage Bankers Association

In Perez v. Mortgage Bankers, the Supreme Court struck down a rule of administrative common law on the grounds that it was inconsistent with the Administrative Procedure Act (APA). But instead of simply respecting Congress’s deliberate choices, the Court continues to weigh policy considerations. The Court shows no sign of relinquishing its self-appointed position as arbiter of what is good and bad, wise and unwise in administrative law. This Essay argues that the Court should tak…

Statutory Ambiguity in King v. Burwell: Time for a Categorical Chevron Rule

Introduction The fate of the Affordable Care Act1 (ACA) may turn on the precise meaning of five words tucked into 26 U.S.C. § 36B(b)(2)(A), a once-obscure provision of the law under which tax subsidies are available for “qualified health plans . . . which were enrolled in through an exchange established by the State.”2 Does this language permit the issuance of subsidies for taxpayers enrolled through exchanges created by the federal government? On one hand, it seems that Congre…

No Good Options: Picking Up the Pieces After King v. Burwell

Introduction If the Supreme Court rules against the government in King v. Burwell,1 insurance subsidies available under the Affordable Care Act (ACA) will evaporate in the thirty-four states that have refused to establish their own health-care exchanges.2 The pain could be felt within weeks. Without subsidies, an estimated eight or nine million people stand to lose their health coverage.3 Because sicker people will retain coverage at a much higher rate than healthier people, insuranc…

How To Think About Law as Morality: A Comment on Greenberg and Hershovitz

Introduction In philosophy, we can sometimes hope to make progress just by looking at old issues in new ways. The hope is that we might see familiar facts and controversies differently and understand them better for it. In their recent Essays, Mark Greenberg and Scott Hershovitz make the case for such hope in jurisprudence: they argue that we can see the issues differently and understand them better for it. Greenberg and Hershovitz don’t see things in exactly the same way, of cour…

Claim Construction or Statutory Construction?: A Response to Chiang & Solum

Introduction “Claim construction” is the process by which a court determines the meaning of a patent’s claims—a process that in turn determines the scope of the covered invention. This process is extremely important because a court must determine what the patent covers before it can determine whether the patent is invalid or infringed.1 Uncertainty over how a given court will construe a patent’s claims is one of the main problems facing patent professionals.2 This problem …

The Sum of All Delegated Power: A Response to Richard Primus, The Limits of Enumeration

In his provocative article, The Limits of Enumeration,1 Richard Primus rejects what he calls the “internal-limits canon” and challenges the assumption that the powers of Congress do not add up to a general police power, such that “there are things Congress cannot do, even without reference to affirmative prohibitions like those in the Bill of Rights.”2 Primus does not claim that federal power actually does amount to a general police power, only that it might.3 His principal cl…

Roundup: Recent Developments in Criminal Justice and Mental Health Law

Over the past few weeks, several major developments have occurred at the intersection of criminal justice and mental health law. This Roundup briefly summarizes these matters and discusses how each reflects current trends in the criminal justice system’s approach to individuals with mental health problems. On November 25, 2014, the Supreme Court granted certiorari in City & County of San Francisco v. Sheehan.1 One of the issues presented is whether the Americans with Disabilities Ac…

Warrant Canaries and Disclosure by Design: The Real Threat to National Security Letter Gag Orders

Introduction Since the 1980s, the FBI has issued documents referred to as National Security Letters (NSLs), which demand data from companies—including financial institution records and the customer records of telephone companies and communications service providers—for foreign intelligence investigations.1 The use of the letters increased dramatically after the attacks of September 11, 2001 and the USA PATRIOT Act’s expansion of the FBI’s statutory NSL authority.2 But these …

Roundup: Citizens United and Public Corruption

Public corruption has occupied an interstitial space in American law, cutting across many different legal fields, including traditional criminal law, campaign finance regulation, special rules governing public officers, and First Amendment doctrine. When Citizens United was decided,1 its effects on campaign finance law were recognized immediately.2 But the decision also transformed the law on public corruption by shifting the relationship between some of the many different legal field…

Fighting for the "Right To Try" Unapproved Drugs: Law as Persuasion

Over the last several months, five states have passed “Right to Try” laws,1 which are designed to allow terminally ill patients to obtain experimental drugs.2 Often popularly known as “Dallas Buyers Club” laws,3 Right to Try legislation appears to bypass the FDA’s safety procedures—procedures that supporters of Right to Try legislation believe too often prevent the terminally ill from accessing drugs that might save their lives.4 The reality of Right to Try laws, howeve…

Roundup: Should We Treat Pregnant Workers Like Disabled Workers?

On December 3, the Supreme Court heard arguments in Young v. United Parcel Service, a case that asks if the Pregnancy Discrimination Act (PDA) entitles pregnant workers to receive the same accommodations as disabled workers.1 Already, the EEOC has issued Enforcement Guidance explaining that disabled pregnant workers are entitled to reasonable accommodations under the Americans with Disabilities Act (ADA).2 And in 2013, Congress considered and rejected the Pregnant Workers Fairness Act,…

"We Don't Follow, We Lead": How New York City Will Save Mortgage Loans by Condemning Them

Introduction1 Many cities across the nation have begun to consider exercising their eminent domain authority to purchase, then write-down principal on, otherwise unmodifiable home mortgage loans facing foreclosure.2 I and several others have advocated this method and cognate uses of government authority to stabilize troubled housing markets for some years now,3 but the eminent domain approach to the problem nevertheless remains unfamiliar to many people. This is likely to change in…

Anatomical Intent

Organ transplantation holds the potential to save a sick person’s life, but for a large population of hopeful transplant patients, the short supply of transplantable organs causes a delay or denial of life-saving treatment. In the United States, recent survey data revealed that almost two-thirds of respondents were registered as organ donors,1 but national transplantation statistics show that, in 2006, less than half of potentially recoverable organs were actually recovered and found…

Warning!: Self-Help and the Presidency

It may be hard to look over the current political landscape without concluding that some remedy for the current political dysfunction is in order.1 We live in a time when political polarization is so intense that some members of one party have openly stated that they would do virtually anything to block the agenda of the sitting President2—up to and including opposing members of their own caucus who suggest that some compromises with the other side might be in order.3 These politici…

Ritchie v. Rupe and the Future of Shareholder Oppression

In 1988, the Texas Court of Appeals held in Davis v. Sheerin that minority shareholders in close corporations are entitled to a buy-out of their shares if they are “oppressed” by the majority shareholders.1 Davis synthesized other states’ case law in order to arrive at a two-part test for shareholder oppression. Under this test, actions of majority shareholders are oppressive when they either (1) substantially defeat a minority shareholder’s reasonable expectations or (2) cons…

Garcia v. Google and a "Related Rights" Alternative to Copyright in Acting Performances

A recent Ninth Circuit case, Garcia v. Google, held that an actor can maintain a copyright interest in her acting performance in a film—independent of the copyright held by the filmmaker—and that this copyright can sometimes be sufficiently powerful to allow the actor to prevent public dissemination of the film.1 The decision has been widely criticized for its interpretation of the Copyright Act, its First Amendment implications, and its potential economic impact on the film and t…

Riley's Implications for Fourth Amendment Protection in the Cloud

In June 2014, the Supreme Court unanimously held in Riley v. California1 that the digital content of cell phones does not fall within the search-incident-to-arrest exception to the Fourth Amendment’s prohibition against unreasonable searches. The Court provided a clear answer “to the question of what police must do before searching a cell phone seized incident to an arrest . . . —get a warrant.”2 The Court held that any data on a cell phone requires a warrant for police to acc…

The Jurisdictional Question in Hobby Lobby

Burwell v. Hobby Lobby Stores, Inc. may well be the biggest case of the past Term.1 But by its own rules, the Supreme Court lacked jurisdiction to decide the case. An obscure statute, the Anti-Injunction Act of 1867 (AIA), imposes a pay-first requirement on federal tax challenges. The deeply held conventional wisdom is that the AIA is a jurisdictional statute,2 and there is a good argument that the AIA applies to the contraception mandate at issue in Hobby Lobby. In National Federatio…

Questioning the Use of Structure To Interpret Statutory Intent: A Critique of Utility Air Regulatory Group v. EPA

In late 2009 and early 2010, the Environmental Protection Agency promulgated a series of final agency actions that operate together to regulate greenhouse gas (GHG) emissions under the Clean Air Act (CAA). Under some CAA programs, sources of pollution are required to obtain permits based on the volume of pollutants they emit.1 GHGs, however, are emitted at much greater volumes than conventional air pollutants.2 Together, these facts led to a problem: regulating GHG emissions at the lev…

Abuse of Property Right Without Political Foundations: A Response to Katz

Suppose that Oliver owns Blackacre, a parcel adjacent to Whiteacre, owned by Teresa. Oliver erects a large sculpture on Blackacre along the shared property line. The sculpture conforms to zoning regulations. But Oliver erects it in order to block Teresa’s access to light. Is he legally entitled to do so? Common law jurisdictions standardly hold that he is: property law does not inquire into an owner’s motives or reasons for exercising his property rights.1 Put differently, the s…

Hall v. Florida and Ending the Death Penalty for Severely Mentally Ill Defendants

This Term in Hall v. Florida the Supreme Court held a portion of Florida’s death penalty statute unconstitutional under the Eighth and Fourteenth Amendments.1 Specifically, the Court invalidated Florida’s rigid system for determining whether a capital defendant is intellectually disabled and therefore categorically ineligible for the death penalty.2 Before Hall was decided, if a Florida capital defendant had an IQ of above 70 points, then his attorneys were prohibited from presen…

Storage Wars: Greater Protection for Messages in Memory

The laws governing stored communication privacy—enacted almost thirty years ago—may finally be updated to reflect contemporary needs, at least in part. The Email Privacy Act,1 proposed by Representatives Kevin Yoder (R-Kan.), Tom Graves (R-Ga.), and Jared Polis (D-Colo.), would afford greater privacy protections for stored emails, in particular by requiring a warrant for any searches of emails stored for more than 180 days. This represents a small step towards strengthening the me…

The Dominance of Teams in the Production of Legal Knowledge

Using a database that contains over 19,000 law review articles published in top 100 law reviews between 1990 and 2010, we observe that team authors dominate solo authors in the production of legal knowledge. Team research is on average more frequently cited than individual research, and teams are more likely than individuals to produce exceptionally high-impact research. These results suggest that a legal research culture that encourages cooperation and collaboration could foster an in…

Hobby Lobby and the Dictionary Act

Before the end of this month, the Supreme Court will decide Burwell v. Hobby Lobby Stores, Inc.1 and in so doing will determine whether the Religious Freedom and Restoration Act (RFRA) exempts from the Affordable Care Act’s (ACA) contraception mandate closely held, for-profit companies whose owners oppose contraception on religious grounds.2 RFRA states that “[the] Government shall not substantially burden a person’s exercise of religion.”3 A central issue in the case is whet…

Citizenship, Passports, and the Legal Identity of Americans: Edward Snowden and Others Have a Case in the Courts

In this Essay, Professor Patrick Weil reexamines the constitutional function of the passport in relation to American citizenship. The State Department recently developed apolicy of passport revocation whereby some Americans are transformed into de facto stateless persons, like Edward Snowden, or are prohibited from living abroad as citizens, like dozens of Yemeni Americans. In the Yemeni Americans’ case, the State Department confuses the legality of passports and naturalization. Revoking Snowden’s passport violates the right for acitizen to possess a passport confirming his or her legal identity—including citizenship—while abroad. This passport function, recognized since 1835, is one of the privileges and immunities of American citizens protected by the Fourteenth Amendment. The Supreme Court has never authorized its suspension by the executive for national security reasons, unlike the other function of a passport—the right to travel. New technologies offer a way to distinguish between these two functions and to make effective a constitutional right.

Why Firearm Federalism Beats Firearm Localism

Americans are increasingly polarized on gun rights and gun policy, leading some scholars to ask whether the Second Amendment provides a tool to manage disagreement and promote decentralization. Joseph Blocher’s Firearm Localism takes up this perspective and makes a case for deference to local and municipal gun control laws, including the revision or repeal of statewide firearms preemption statutes. In this Essay, Professor O’Shea argues that neither judicial tradition nor the priorities of contemporary urban gun owners support such deference. Moreover, unlike traditional federalism, Blocher’s localism would undermine the compromise value that was supposed to be decentralization’s strength: the prospect of piecemeal local regulation could threaten the practical exercise of gun rights even in generally pro-gun areas. In short, if one adopts a decentralizing approach to the Second Amendment, then its proper form is a conventional, state-based federalism backed by preemption.

Tiny Constables and the Cost of Surveillance: Making Cents Out of United States v. Jones

In United States v. Jones, five Supreme Court Justices wrote that government surveillance of one’s public movements for twenty-eight days using a GPS device violated a reasonable expectation of privacy and constituted a Fourth Amendment search. Unfortunately, they didn’t provide a clear and administrable rule that could be applied in other government surveillance cases. In this Essay, Kevin Bankston and Ashkan Soltani draw together threads from the Jones concurrences and existing legal scholarship and combine them with data about the costs of different location tracking techniques to articulate a cost-based conception of the expectation of privacy that both supports and is supported by the concurring opinions in Jones.

(Re)Solving the Tribal No-Forum Conundrum: Michigan v. Bay Mills Indian Community

Michigan v. Bay Mills Indian Community, a dispute over a controversial off-reservation Indian casino, is the latest opportunity for the Supreme Court to address the doctrine of tribal sovereign immunity. The Court could hand Michigan a big win by broadly abrogating tribal immunity, and in turn wreak havoc on modern tribal governance. Alternately, the Court could hand Bay Mills a victory by affirming the tribe’s immunity, effectively precluding judicial review of the tribe’s casino project. In this Essay, Professor Matthew L.M. Fletcher argues that neither choice is preferable to a third option that would both advance tribal self-determination and hold tribes accountable to outsiders. The Court could condition tribal immunity in federal or state court on whether the tribe has solved the no-forum problem by providing a tribal forum for the resolution of important disputes.

Syria, Threats of Force, and Constitutional War Powers

In this Essay, Professor Matthew Waxman argues that debates about constitutional war powers neglect the critical role of threats of war or force in American foreign policy. The recent Syria case highlights the President’s vast legal power to threaten military force as well as the political constraints imposed by Congress on such threats. Incorporating threats into an understanding of constitutional powers over war and peace upends traditional arguments about presidential flexibility and congressional checks—arguments that have failed to keep pace with changes in American grand strategy.

On Estimating Disparity and Inferring Causation: Sur-Reply to the U.S. Sentencing Commission Staff

In this Essay, Professors Starr and Rehavi respond to the U.S. Sentencing Commission’s empirical staff’s criticisms of their recent article, which found, contrary to the Commission’s prior work, no evidence that racial disparity in sentences increased in response to United States v. Booker. As Starr and Rehavi suggest, their differences with the Commission perhaps relate to differing objectives. The Commission staff’s reply expresses a lack of interest in identifying Booker’s causal effects; in contrast, that is Starr and Rehavi’s central objective. In addition, Starr and Rehavi’s approach also accounts for disparities arising throughout the post-arrest justice process, extending beyond the Commission’s narrower focus on disparities in adherence to the Sentencing Guidelines. Beyond these core disagreements, Starr and Rehavi point to several ways in which the reply’s other criticisms inaccurately describe their claims, their methods, and the scope of their study’s sample.

Why Judges Matter at Sentencing: A Reply to Starr and Rehavi

In this Essay, researchers at the United States Sentencing Commission respond to criticisms by Sonja Starr and Marit Rehavi, published in the Yale Law Journal, of the Commission’s past analyses of demographic differences in federal sentences. The researchers explain the legal and practical foundation of their work and why these considerations support the Commission’s methodological approach. The authors also question the representativeness of the data that Starr and Rehavi use in their alternative analyses and the assumptions they make about how the federal criminal justice system operates.

Ineffective in Any Form: How Confirmation Bias and Distractions Undermine Improved Home-Loan Disclosures

This Essay examines three experiments that tracked eye fixations as participants reviewed home-loan disclosure forms. The experiments revealed confirmation biases in which participants read to confirm what they were told (e.g., “Your loan is at 4%”) and then failed to look for contradictory evidence such as rate adjustments. Improved forms reduced confirmation biases, but that improvement was undermined when the experimenter engaged participants in distracting conversation. These results demonstrate that improving disclosure forms cannot sufficiently protect consumers. They also suggest that mortgage counseling is necessary for many borrowers.

Implementing Aggregation in Law: The Median Outcome Rule

In multiple-claim lawsuits, courts tend to address each claim separately, thereby disregarding valuable information about the defendant’s misconduct that might be gained by considering claims together. Ignoring that information may lead to the misalignment of liability with wrongdoing. To avoid such distortion, Ariel Porat and Eric Posner have argued in The Yale Law Journal that courts should adjudicate multiple-claim lawsuits in the aggregate. They do not specify the method to implement this novel idea, however, leaving it susceptible to several complications that might undermine its merits. To deal with these potential complications, this Essay introduces the concept of the “median outcome rule.”

And How: Mayo v. Prometheus and the Method of Invention

**This Essay is part of a Yale Law Journal Online series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases.**

The Mayo Court’s novel test for patent eligibility—whether or not an invention involves “well-understood, routine, conventional activity, previously engaged in by researchers in the field”—focuses on how an invention is accomplished rather than what an invention is. That concern with the method of invention poses several normative, statutory, and administrative difficulties. Taken seriously, the “how” requirement will likely have broad effects across all levels of patent practice.

Prometheus Rebound: Diagnostics, Nature, and Mathematical Algorithms

**This Essay is part of a Yale Law Journal Online series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases.**

The Supreme Court’s decision last Term in Mayo v. Prometheus left considerable uncertainty as to the boundaries of patentable subject matter for molecular diagnostic inventions. 

Escape from the “Devonian Amber”: A Reply to Voting and Vice

This Essay replies to Richard Re and Christopher Re’s Voting and Vice. That article, recently published in The Yale Law Journal, demonstrates that the inclusion of the phrase “other crime” in Section 2 of the Fourteenth Amendment was no accident, and the authors contend that widespread support for criminal disenfranchisement in the Reconstruction Congress should enhance the restriction’s status today. This Essay argues that those who wrote disenfranchisement into the U.S. Constitution did so from a context far removed from the views to which Americans adhere today when they talk about voting and political equality. Despite the fact that some Republicans made principled arguments contrasting criminal disenfranchisement with African-American enfranchisement, citizens and legislators who propose to abolish or restrict disenfranchisement neither dishonor nor render incoherent the Reconstruction Amendments.

Abandoning Objective Indicia

The Supreme Court recently held, in Miller v. Alabama, that mandatory life without parole for juveniles violates the Cruel and Unusual Punishment Clause of the Eighth Amendment. This Essay argues that, although the case’s result is important, Miller will gain long-term significance not because of what it holds, but because of what it heralds: a fundamental shift in the Court’s Eighth Amendment methodology—specifically, a move away from using “objective indicia” to determine society’s evolving standards. The Essay suggests that the Supreme Court replace its objective indicia analysis with the application of heightened scrutiny to “suspect categories” of punishment, namely, categories for which we have reason to be skeptical of the legislature’s claim that a severe punishment is proportional to the offense and offender.

A Conversation with Justice Ginsburg

This transcript is adapted from the inaugural Gruber Distinguished Lecture in Women’s Rights, hosted by the Yale Law School. The Lecture took the form of a dialogue between Justice Ginsburg and Linda Greenhouse at Yale University’s Battell Chapel on October 19, 2012.

Justice Ginsburg’s Advocacy and the Future of Equal Protection

Inequality’s Frontiers

Still Speaking in a Judicial Voice: Ruth Bader Ginsburg Two Decades Later

Equality’s Frontiers: How Congress’s Section 5 Power Can Secure Transformative Equality (as Justice Ginsburg Illustrates in Coleman)

Sex Equality’s Inner Frontier: The Case of Same-Sex Marriage

Equality’s Frontiers: Courts Opening and Closing

Courts as Managers: American Tradition Partnership v. Bullock and Summary Disposition at the Roberts Court

Summary disposition is a procedural innovation—added only belatedly to the Supreme Court’s rules—in which the Court dispenses with a case without briefing or oral argument. It presents a puzzle for students of appellate decisionmaking: how can a case be significant enough to merit the Court’s consideration, but not significant enough to warrant the benefits of adversarial procedure? Commentators have asserted that the Roberts Court is more likely than its predecessors to use summary disposition to resolve cases, but this Essay presents the first systematic look at its use of that procedure. The Essay finds that—contrary to general understanding—the Roberts Court has not used summary disposition more than its predecessors did. Rather, it has used the procedure in different and potentially dangerous ways.

Emerging Counties? Prospects for Regional Governance in the Wake of Municipal Dissolution

In Dissolving Cities, Professor Michelle Wilde Anderson suggests that municipal dissolution could enable counties to serve regionalist goals. This Essay argues that, on balance, municipal dissolution will not trigger the emergence of counties as agents of regional reform. Modern metropolitan regions span city, county, and state borders. As the scale of the region expands, state and local governments, including counties, will increasingly lack the territorial jurisdiction and regulatory capacity to respond to complex metropolitan problems. The Essay concludes by considering the role that the federal government can play, and has historically played, in facilitating regional collaboration at the appropriate scale.

A Defense of Immigration-Enforcement Discretion: The Legal and Policy Flaws in Kris Kobach’s Latest Crusade

This Essay disputes the legal claims set forth in a recent lawsuit that seeks to invalidate a policy of the Department of Homeland Security. The policy gives protection against deportation to unauthorized immigrants who came to the country as children, and the Department defends it as an exercise of prosecutorial discretion. The plaintiffs claim that no such discretion exists, because the Immigration and Nationality Act, as amended in 1996, requires that virtually all aliens who entered without inspection be detained and placed in removal proceedings whenever encountered by immigration agents. Closely examining the statutory language and drawing on the author’s own extensive involvement as General Counsel of the Immigration and Naturalization Service in the 1996 consideration of legislative amendments and administrative implementation, this Essay makes the case that the plaintiffs’ argument misunderstands both Congress’s intent and consistent agency practice before and after those amendments.

Liquid Assets: Groundwater in Texas

Introduction

As I was walking around the tonier precincts of Austin, Texas, in the summer of 2012, I noticed that some things seemed out of place. The hot, humid weather was normal, and the recent rainstorms belied the existence of one of the most severe droughts on record.¹ People were beginning to talk about the droughts of the 1950s that had produced a rash of reservoir construction.² But no one was talking about dams this time. Instead, there was a new source of water for those who could afford it, sitting right beneath their feet. In addition to the yard crews attending to the shrubs and St. Augustine grass, there were gangs of roughnecks in work clothes setting up drilling rigs on those manicured urban lawns.

The drought, no doubt, has created a market for privately controlled water. Postcard fliers are slipped under front doors announcing deals: “$6/foot—No Water—No Pay.” The Supreme Court of Texas did its part, too. In the long-awaited case of Edwards Aquifer Authority v. Day, the court decided that “land ownership includes an interest in groundwater in place.”³ Those who can are making the most of that holding by tapping the generally heavily regulated Edwards Aquifer and claiming the water as their own.⁴

Lawrence Meets Libel: Squaring Constitutional Norms with Sexual-Orientation Defamation

Introduction

Yonaty v. Mincolla¹ may have been the most anachronistic judicial ruling of 2011. In Yonaty, a New York trial court held that false imputations of homosexuality still constituted per se defamation² under New York law.³ The ruling came only a few days before the New York Times reported that the New York State Senate was one vote shy of enacting marriage equality.⁴ The legislation, which enjoyed wide popular support,⁵ was signed into law by Governor Andrew Cuomo on June 24, 2011.⁶ Despite the New York State Legislature’s efforts to advance full civil equality for LGBT New Yorkers and the public’s backing of LGBT rights in New York, it was nevertheless deemed defamatory as of 2011 to label a heterosexual person gay.

New York’s peculiar treatment of homosexuality in defamation law was not unique.

Losers’ Rules

Introduction

Each year, the United States District Court for the District of Massachusetts holds an extraordinary panel. All active judges are present to answer questions from the bar. A lawyer’s question one year was particularly provocative: “Why are the federal courts so hostile to discrimination claims?” One judge after another insisted that there was no hostility. All they were doing when they dismissed employment discrimination cases was following the law—nothing more, nothing less.

I disagreed. Federal courts, I believed, were hostile to discrimination cases. Although the judges may have thought they were entirely unbiased, the outcomes of those cases told a different story. The law judges felt “compelled” to apply had become increasingly problematic. Changes in substantive discrimination law since the passage of the Civil Rights Act of 1964¹ were tantamount to a virtual repeal. This was so not because of Congress; it was because of judges.

How (Not) To Bring an Affirmative-Action Challenge

A little-known fact about the biggest Supreme Court case of the Term is that it is botched beyond repair. This Essay describes a series of grave defects in Fisher v. University of Texas at Austin, the potentially momentous affirmative-action case, that should prevent the Supreme Court from reaching the merits.

In 2008, the University of Texas at Austin (UT) denied Abigail Fisher admission to its undergraduate class of 2012. She promptly brought suit, alleging that the university’s use of race as a factor in undergraduate admissions violates the Equal Protection Clause, 42 U.S.C. §§ 1981 and 1983, and Title VI of the Civil Rights Act of 1964. She asked the district court to command the university to admit her. She also sought an injunction preventing the university from using race in future admissions decisions and a declaration that doing so would violate federal law. Finally, she requested a refund of her application fees, as well as attorney’s fees and costs. The district court granted summary judgment to the university. The Fifth Circuit affirmed, but not before noting that Fisher’s requests for forward-looking injunctive and declaratory relief were, by then, nonjusticiable. Fisher had enrolled elsewhere and had no intention of reapplying to the university. As a result, the Fifth Circuit said, she lacked standing to make prospective requests.

This Essay takes that conclusion and runs with it.

West Coast Hotel’s Place in American Constitutional History

Introduction

This year marks the seventy-fifth anniversary of West Coast Hotel Co. v. Parrish,¹which for many years has been part of one of the central narratives of twentieth-century American constitutional history. In that narrative, West Coast Hotel represents the Supreme Court’s abandonment of a constitutional jurisprudence featuring aggressive scrutiny of legislation that regulated economic activity or redistributed economic benefits. Prior to West Coast Hotel, successive Court majorities treated state and federal minimum-wage legislation as interfering with the “liberty” of employers and employees to bargain for the terms of employee services. In West Coast Hotel, the Court upheld minimum-wage legislation in the face of this “liberty of contract” argument, and, according to the traditional narrative, the change in the Court’s posture was triggered by the introduction of a plan by the Roosevelt Administration to alter the membership of the Court.²

This Essay seeks to show that the conventional narrative is misleading and distorts the significance of West Coast Hotel.It also seeks to show that West Coast Hotel’s significance comes from its position in a different narrative, one featuring clashing views on the issue of constitutional adaptivity: how the general provisions of the Constitution are adapted to new controversies and whether the meaning of those provisions can be said to change in the process. In that narrative the interpretive postures of “originalism” and “living Constitution” jurisprudence make their appearance, serving to tie West Coast Hotel to contemporary debates about constitutional interpretation.

Service Delivery, Resource Allocation, and Access to Justice: Greiner and Pattanayak and the Research Imperative

Introduction

How should we deliver legal services to low-income clients in need?
How should we allocate scarce legal resources among deserving clients?
How can we increase access to justice more generally?

As legal services lawyers and clinical law professors who have spent the bulk of our careers in neighborhood-based antipoverty programs, we grapple constantly with these individual, institutional, and systemic challenges. Legal needs in low-income communities far outstrip our ability to meet them, so we develop gatekeeping mechanisms to manage client demand and expectations. Among eligible clients, we face seemingly intractable choices about whom to serve and how much to serve them. While we struggle with individual delivery and programmatic allocation decisions, we also strive to expand access to justice systemically.

James Greiner and Cassandra Pattanayak’s provocative article—reporting the results of a randomized controlled trial evaluating legal assistance to low-income clients at the Harvard Legal Aid Bureau (HLAB)—forces us to confront how little we know about these questions.

Frye and Lafler: No Big Deal

**This Essay is part of a Yale Law Journal Online series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases.**

The only surprise about the Supreme Court’s recent decisions in Missouri v. Frye and Lafler v. Cooper is that there were four dissents. The decisions are straightforward recognitions that the defendants in those cases received unquestionably derelict representation, to their considerable prejudice. The decisions do not represent a novelty in the law, but rather continue the longstanding recognition by the courts that “plea bargaining” is an integral part of our criminal justice system—indeed, I have argued at length that it is our criminal justice system—and that minimal competence of defense lawyers in dealing with that process is at least as important as competence in investigation or trial.

Taming Negotiated Justice

**This Essay is part of a Yale Law Journal Online series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases.**

After four decades of neglecting laissez-faire plea bargaining, the Supreme Court got it right. In Missouri v. Frye¹ and Lafler v. Cooper,² the Court recognized that the Sixth Amendment regulates plea bargaining. Thus, the Court held that criminal defendants can challenge deficient advice that causes them to reject favorable plea bargains and receive heavier sentences after trial. Finally, the Court has brought law to the shadowy plea-bargaining bazaar.

Lafler v. Cooper and AEDPA

**This Essay is part of a Yale Law Journal Online series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases.**

The Supreme Court in Missouri v. Frye¹and Lafler v. Cooper²broke new ground by holding for the first time that a defendant’s right to the effective assistance of counsel under the Sixth Amendment can be violated by the loss of a favorable plea deal. Less noted, but also worthy of attention, are Lafler’s implications for federal habeas law. Four Justices protested that the Lafler decision violated the federal habeas statute. At the least, the decision expanded habeas review in unexpected ways.

Frye and Lafler: Bearers of Mixed Messages

**This Essay is part of a Yale Law Journal Online series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases.**

In two five-to-four decisions rendered on March 21, 2012—Missouri v. Frye and Lafler v. Cooper—the Supreme Court extended the Sixth Amendment right to effective assistance of counsel to the plea-bargaining process. Viewed in a broader perspective, Frye and Lafler are but the latest reactions to the ever-more-punitive criminal penalties imposed by state and federal legislatures over the past half century.

Medicaid Preemption Claims in Douglas Avert the Astra Abyss

**This Essay is part of a Yale Law Journal Online series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases.**

The Supreme Court’s five-to-four opinion in Douglas v. Independent Living Center of Southern California, Inc.¹ is a significant court-access victory for the private enforcement of the federal Medicaid statute,² which lacks a private right of action. A year earlier, in Astra USA, Inc. v. Santa Clara County, the Court unanimously dismissed a suit seeking to enforce another statute that similarly lacked a private cause of action.³ Although both the Douglas majority⁴ and dissent⁵ cited Astra, they proffered sharply contrasting interpretations of that opinion. While the dissent would have relied on Astra to dismiss Medicaid preemption claims entirely, the majority’s analysis of Astra keeps the courthouse doors open for future litigants to bring such claims.

Preemption as a Judicial End-Run Around the Administrative Process?

**This Essay is part of a Yale Law Journal Online series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases.**

Federal agencies play a dominant role in administering federal statutory schemes. At the front lines, they are tasked with interpreting statutes, enacting regulations to implement federal programs, and enforcing federal directives. During the course of adjudication or rulemaking, federal agencies are sometimes called upon to determine whether state law conflicts with federal law. That conflict inquiry is at the heart of preemption disputes before state and federal courts. Private parties wield preemption—typically as a defense—to stave off the effects of a state law allegedly trumped by federal law under the Supremacy Clause. Courts are then called upon to decide the extent to which state law is inconsistent with federal law. Judicial review of agency action under the Administrative Procedure Act (APA) and preemption challenges thus provide parallel proceedings to resolve disputes over whether state and federal law are simpatico or at war.

Douglas v. Independent Living Center of Southern California, Inc.¹ provides an opportunity to reflect upon the relationship between these parallel tracks for adjudicating federal-state conflicts. Who is, and who should be, the ultimate arbiter of the existence of federal-state conflicts and how to resolve them—agencies or courts? In this Essay, I use Douglas to explore two questions: first, whether courts can act as “prompters,” pushing federal agencies to discharge their duty to weigh in on potential conflicts between federal and state law; and second, whether a synergistic relationship can exist between courts and agencies in making such conflict determinations.

Congress’s Authority To Enact the Violence Against Women Act: One More Pass at the Missing Argument

My “missing argument” invokes the structure of the Supreme Court’s decision in Jones v. Alfred H. Mayer Co. to explain congressional authority to enact the civil rights provisions of the Violence Against Women Act. Like the “relics” of slavery, patterns of violence against women trace to decades of state-sponsored discrimination against women, and Congress has the authority under Section 5 of the Fourteenth Amendment to take steps to repair that unhappy legacy.

I Say Dissental, You Say Concurral

Increasing numbers of circuit judges are writing dissents from, and concurrences in, orders denying rehearing en banc—colloquially known as dissentals and concurrals. Not everyone is happy about this practice, and some judges have lamented their proliferation. The authors here argue that this has become an entrenched feature of the federal appellate process, and it’s a good thing too.

In Defense of a Reasoned Dialogue About Law Firms and Their Sophisticated Clients

This Essay argues that the current ethical rules governing U.S.-based law firms are no longer adequate to meet the needs of commercial clients operating in multiple jurisdictions and that what is required is a single and uniform regulatory system for lawyers practicing in the United States. The Essay supports the Proposals submitted to the ABA 20/20 Commission by a group of law firm general counsel that sophisticated clients and their outside counsel should be able to enter binding and enforceable agreements governing such issues as advance conflicts waivers, a narrower definition of current client conflicts, and limitations of liability. The Essay broadly responds to and rejects the critique of the Proposals propounded by Larry Fox.

The Gang of Thirty-Three: Taking the Wrecking Ball to Client Loyalty

The attempts by some in the Bar to compromise client loyalty on the altar of law firm profits per partner is both unceasing and depressing. The proposals from many law firm General Counsels to change the Model Rules of Professional Conduct are particularly unflattering to the proponents and undermine this most important fiduciary duty. This Essay describes these calls for change and explains why they should be rejected.

Mistakes, Misunderstandings, and Misalignments

In a recent article appearing in The Yale Law Journal, Ariel Porat argues that the tort of negligence is beset by a range of misalignments that threaten to induce inefficient behavior. In this Response, I argue that Porat is working with an unhelpful notion of misalignment; that tort law has its own internal conception of alignment; and that once we understand the nature of alignment in torts, none of his examples are problematic. If anything, his arguments reveal problems in his understanding of the tort of negligence rather than problems in the tort itself or in its practical implementation. Many of the confusions that beset Porat’s argument are common in the law and economics of tort literature, which has for far too long run fast and loose with a confused understanding of the nature of liability in torts as well as of liability’s relationship to the elements of a tort. Porat’s article is my main focus, but my objections are intended to cut more broadly and deeply.

Bad News for John Marshall

In Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate, we demonstrated that the individual mandate’s forced participation in commercial transactions cannot be justified under the Necessary and Proper Clause as the Clause was interpreted in McCulloch v. Maryland. Professor Andrew Koppelman’s response, Bad News for Everybody, wrongly conflates that argument with a wide range of interpretative and substantive positions that are not logically entailed by taking seriously the requirement that laws enacted under the Necessary and Proper Clause must be incidental to an enumerated power. His response is thus largely unresponsive to our actual arguments.

Bad News for Everybody: Lawson and Kopel on Health Care Reform and Originalism

Gary Lawson and David Kopel’s Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate argues, on the basis of recent research, that the Necessary and Proper Clause incorporates norms from eighteenth-century agency law, administrative law, and corporate law, and that the health care mandate (and perhaps much else in the U.S. Code, though they are coy about this) violates those norms. The Necessary and Proper Clause, as the authors understand it, tightly limits the scope of implied powers to those that are less “worthy” or “dignified” than the principal powers to which they are subsidiary. These claims are obscure even on their own terms. It is mysterious how we are to know whether the power to impose a penalty for going without health insurance is less “dignified” or “worthy” than the power to regulate interstate commerce. Nor is it clear how an effort by Congress to guarantee that all Americans have adequate health care could violate a fiduciary duty of impartiality. Their logic implies the greatest revolution in federal power in American history. (And this would decidedly be a revolution from above.) There is also the larger methodological question of the role of original meaning in constitutional interpretation: they think that new evidence of original meaning is, without more, a legitimate basis for hamstringing Congress’s power to address pressing national problems. This would be an insane way to run a civilization. It is bad news for everybody.

Preventing Policy Default: Fallbacks and Fail-safes in the Modern Administrative State

**This is the third in a series of responses to Benjamin Ewing and Douglas A. Kysar's recent article, Prods and Pleas: Limited Government in an Era of Unlimited Harm, which appeared in the November issue of YLJ. For Professor Richard Epstein's response, see here. For Professor Jonathan Zasloff's response, see here.**

Benjamin Ewing and Douglas Kysar’s article, Prods and Pleas, discusses one benefit of the fragmented American governance system: the opportunity for institutions to influence the agendas of other, more powerful institutions. The authors illustrate this point with an extensive discussion of the potential for common law nuisance cases to direct congressional attention to the issue of climate change. Their general point is well taken, but they focus too heavily on the common law rather than the more important judicial role in public law, and they mention only in passing the role of states as independent policy centers. Furthermore, besides nudging Congress or the executive branch, public law litigation and state legislative activity can also help fill the gaps created by congressional or presidential policy defaults.

Courts in the Age of Dysfunction

**This is the second in a series of responses to Benjamin Ewing and Douglas A. Kysar's recent article, Prods and Pleas: Limited Government in an Era of Unlimited Harm, which appeared in the November issue of YLJ. For Professor Richard Epstein's response, see here.**

This Essay comments on Benjamin Ewing and Douglas A. Kysar’s article, Prods and Pleas: Limited Government in an Era of Unlimited Harm. Ewing and Kysar suggest that we augment the traditional conception of constitutional “checks and balances” with one of “prods and pleas,” i.e., that different branches of government can provide incentives to induce action from other branches. They use federal climate nuisance litigation as an example of how such prods and pleas can and should operate. In the existing political climate, I am skeptical that governmental branches listen to reasoned arguments from other branches; thus, I argue that “pleas” will be ineffective. Ewing and Kysar’s theory of prods, however, contains an important insight. Branches often respond to political incentives, such that when one branch reaches a decision that undermines the political goals of key actors in other branches (a “prod”), action is possible. In this Age of Dysfunction, when one of the major American political parties seeks to paralyze legislative action, I suggest three areas where judicial prodding might be appropriate: 1) where legislation is blocked by a filibuster; 2) where opposition to legislation rejects science; and 3) where the legislative process produces results that discriminate against diffuse and invisible (and thus powerless) groups. I then use Ewing and Kysar’s example of climate change policy and argue that under current circumstances, judicial prodding is, in fact, appropriate.

Outcasting, Globalization, and the Emergence of International Law

**This is the second in a series of responses to Oona Hathaway and Scott J Shapiro's recent article, Outcasting, which appeared in the November issue of YLJ. For Joshua Kleinfeld's response, see here.**

This Essay argues that we have been undergoing a profound sociocultural transformation over the last several centuries, which relates to the emergence of international law. This transformation is every bit as fundamental as those we once went through when transitioning from hunter-gatherer forms of life (which did not yet have legal systems or engage a distinctive sense of legal obligation) to more sedentary forms of agricultural life (with larger population densities, incipient domestic legal institutions, and—ultimately—an emergent distinction between morality and law). The primary mechanism that has been supporting this transformation is “outcasting”—as Oona Hathaway and Scott Shapiro have recently defined the term in their Yale Law Journal article of the same name. This Essay argues that outcasting provides the evolutionary stability conditions for a distinctive and emergent sense of international legal obligation in us. This shared sense of obligation is one of the basic preconditions for a genuine de facto system of international law—a fact that has important normative implications for how to evaluate international law.

“Early-Bird Special” Indeed!: Why the Tax Anti-Injunction Act Permits the Present Challenges to the Minimum Coverage Provision

In view of the billions of dollars and enormous effort that might otherwise be wasted, the public interest will be best served if the Supreme Court of the United States reaches the merits of the present challenges to the Patient Protection and Affordable Care Act (ACA) during its October 2011 Term. Potentially standing in the way, however, is the federal Tax Anti-Injunction Act (TAIA), which bars any “suit for the purpose of restraining the assessment or collection of any tax.” The dispute to date has mostly turned on the fraught and complex question of whether the ACA’s exaction for being uninsured qualifies as a “tax” for purposes of the TAIA. We argue that the Supreme Court need not resolve this issue because the TAIA does not apply for a distinct reason: the present challenges to the ACA do not have “the purpose” of restraining tax assessment or collection. In order for the TAIA not to bar refund suits, the TAIA must be read to bar suits with the immediate purpose of restraining tax assessment or collection. The present challenges do not have such an immediate purpose because the very authority to assess or collect will not exist until long after the litigation is concluded. Among other virtues, this resolution of the TAIA question does not predetermine whether the tax power justifies the minimum coverage provision.

Inflation Indicators

**This is the sur-reply to a series of responses to Jonathan Masur's recent article, Patent Inflation, which appeared in the December issue of YLJ. For Professor Arti Rai's response, see here. For Lisa Ouellette's response, see here.**

In Patent Inflation, I argued that the asymmetry in Federal Circuit review of Patent and Trademark Office (PTO) decisions would lead over time to inflation in the boundaries defining what inventions are patentable. In short essays, Professor Arti Rai and Lisa Ouellette have offered valuable commentary, including both qualitative (Rai) and quantitative (Ouellette) evidence bearing on the question of inflation. In this brief response, I explain how their evidence is consistent with—indeed, bolsters—the theory presented in Patent Inflation. Direct Federal Circuit reversals of PTO decisions make up only a small portion of that court’s caseload. But those cases have exerted outsized influence on the development of the law, particularly across a number of the most significant patent doctrines. This is just as Patent Inflation would predict.

What Are the Sources of Patent Inflation? An Analysis of Federal Circuit Patentability Rulings

**This is the second in a series of responses to Jonathan Masur's recent article, Patent Inflation, which appeared in the December issue of YLJ. For Professor Arti Rai's response, see here. For Professor Masur's sur-reply, see here.**

Professor Jonathan Masur’s recent article, Patent Inflation, argues that the expansion in the boundaries of patentability that has occurred since the creation of the Court of Appeals for the Federal Circuit is caused by cases in which the court reverses patent rejections by the U.S. Patent and Trademark Office (PTO). This Essay examines every Federal Circuit patentability ruling over five different years and shows that reversals of PTO rejections are few in number and doctrinally insignificant. Instead, patentability rulings in infringement suits—which should have no net effect under Masur’s model—likely play an important role in patent inflation because of the presumption of patent validity and the higher stakes in patent litigation. Masur also underestimates the role of the Supreme Court in redrawing patentability boundaries. Although Masur’s simple model is elegant, this Essay argues that it cannot accurately capture the complex phenomenon of patent inflation.

Who’s Afraid of the Federal Circuit?

**This is the first in a series of responses to Jonathan Masur's recent article, Patent Inflation, which appeared in the December issue of YLJ. For Lisa Ouellette's response, see here. For Professor Masur's sur-reply, see here.**

Jonathan Masur’s argument regarding “Patent Inflation” rests on the assumption that PTO behavior is determined almost entirely by a desire to avoid reversal of its patent denials by the Federal Circuit. Although the U.S. Patent and Trademark Office (PTO) is certainly a weak agency over which the Federal Circuit has considerable power, Masur overestimates the extent to which high-level PTO administrators are concerned about Federal Circuit reversals and underestimates institutional influences that are likely to operate in a deflationary direction. The PTO is influenced not only by the Federal Circuit and other inflationary forces, but also by executive branch actors, industry players, and workload concerns that push in a deflationary direction.

Beware of Prods and Pleas: A Defense of the Conventional Views on Tort and Administrative Law in the Context of Global Warming

**This is the first in a series of responses to Benjamin Ewing and Douglas A. Kysar's recent article, Prods and Pleas: Limited Government in an Era of Unlimited Harm, which appeared in the November issue of YLJ.**

In Prods and Pleas, Benjamin Ewing and Douglas Kysar claim that the American legal system needs to adopt novel solutions to deal with the question of global warming. In this Essay, I start from the premise that some form of legal response to global warming is appropriate, but then conclude that the traditional allocation of responsibility between private rights of action (for large concentrated harms) and direct government administrative action (for diffuse harms) remains the proper approach. In light of the worldwide nature of the problem, the only domestic responses to this issue should be through coordinated action at the federal level. Accordingly, I agree with the Supreme Court’s decision in American Electric Power Co. v. Connecticut and conclude further that the comprehensive powers lodged in the Environmental Protection Agency should not only block private rights of action under federal law, but under state law as well.

Enforcement and the Concept of Law

Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate

In Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform, Professor Andrew Koppelman argues that the individual mandate in the Patient Protection and Affordable Care Act is constitutionally authorized by the Necessary and Proper Clause. This view is fundamentally wrong. The Necessary and Proper Clause is based on eighteenth-century agency law, including the fundamental agency doctrine of principals and incidents. Accordingly, the Clause only allows Congress to exercise powers that are incident to—meaning subordinate to or less “worthy” than—its principal enumerated powers. The power to compel private persons to engage in commercial transactions with other private persons is not an incidental power. Thus, the mandate is not authorized by the Necessary and Proper Clause, whether or not such a power is “necessary and proper for carrying into Execution” other powers. In addition, eighteenth-century public law carried administrative law principles—including the fiduciary norms at the heart of agency law—into delegations of power to political actors. One of the most basic of these fiduciary norms is the obligation to treat multiple principals equally. That equal treatment requirement is violated by the individual mandate, which compels transactions with a favored oligopoly of insurance companies. In short, the mandate is not an exercise of incidental power within the scope of the Necessary and Proper Clause, nor is the mandate “proper.”

The Myth of Prosecutorial Accountability After Connick v. Thompson: Why Existing Professional Responsibility Measures Cannot Protect Against Prosecutorial Misconduct

This Essay takes the Supreme Court’s recent decision in Connick v. Thompson as a point of departure for examining the efficacy of professional responsibility measures in combating prosecutorial misconduct. John Thompson, the plaintiff in Connick, spent fourteen years on death row because prosecutors concealed exculpatory blood evidence from his defense attorneys. In rejecting Thompson’s attempt to hold the New Orleans District Attorney’s Office civilly liable for failing to train its prosecutors in proper discovery procedures, the Connick Court substantially narrowed one of the few remaining avenues for deterring prosecutorial misconduct. Implicit in the Court’s reasoning was a belief that district attorneys' offices should be entitled to reasonably rely on professional responsibility measures to prevent prosecutorial misconduct. This Essay subjects that premise to a searching critique by surveying all fifty states’ lawyer disciplinary practices. Our study demonstrates that professional responsibility measures as they are currently composed do a poor job of policing prosecutorial misconduct. However, we also take seriously the Supreme Court’s insistence that those measures should function as the primary means of deterring misconduct. Accordingly, in addition to noting the deficiencies of professional responsibility measures, we offer a series of recommendations for enhancing their effectiveness.

When Machines Are Watching: How Warrantless Use of GPS Surveillance Technology Violates the Fourth Amendment Right Against Unreasonable Searches

Introduction

Federal and state law enforcement officials throughout the nation are currently using Global Positioning System (GPS) technology for automated, prolonged surveillance without obtaining warrants. As a result, cases are proliferating in which criminal defendants are challenging law enforcement’s warrantless uses of GPS surveillance technology, and courts are looking for direction from the Supreme Court. Most recently, a split has emerged between the Ninth and D.C. Circuit Courts of Appeal on the issue. In United States v. Pineda-Moreno, the Ninth Circuit relied on United States v. Knotts—which approved the limited use of beeper technology without a warrant—to uphold warrantless use of GPS surveillance technology. However, in United States v. Maynard, the D.C. Circuit held that warrants are required for law enforcement use of GPS tracking devices. In distinguishing Knotts, the D.C. Circuit pointed to the vast differences between the relatively primitive beeper technology used almost thirty years ago and the unprecedented power of GPS surveillance technology used today. The Seventh Circuit Court of Appeals and various state courts are similarly divided. In light of this confusion, the Supreme Court has recently agreed to review the issue, granting certiorari from the decision of the D.C. Circuit in Maynardand leaving the Pineda-Moreno petition in a holding pattern. On November 8, the Supreme Court will hold oral arguments in the case, which was docketed under the new name United States v. Jones.

The Supreme Court’s Fourth Amendment doctrine, including its cases evaluating new surveillance technologies, has always been informed by one of the Amendment’s animating principles: its mandate to prevent abuse of police power. While the Court has not always articulated this theory of the Fourth Amendment as clearly as it could have, a careful review of the case law reveals a concern about abuse and “a too permeating police surveillance.” This reading demands that, in any review of new surveillance technology, courts must evaluate the technology’s potential for abuse.

The Supreme Court (of Baseball)

“No man in this country is so high that he is above the law.”
—United States v. Lee, Dec. 4, 1882

“[N]o individual is superior to the game.”
—Commissioner A. Bartlett Giamatti, Aug. 24, 1989

Introduction

At his 2005 confirmation hearing, Chief Justice Roberts explained that he viewed the job of a Supreme Court Justice as similar to that of an umpire, declaring, “Umpires don’t make the rules; they apply them. . . . They make sure everybody plays by the rules. . . . And I will remember that it’s my job to call balls and strikes, and not to pitch or bat.” That analogy was an “instant success” and has become the dominant paradigm in media accounts of the judicial role. In a 2010 essay, I traced the history of the judge-umpire analogy from 1888 to the present and found that the judge-umpire analogy was originally intended to apply to trial court judges and was advanced as a model expressly to be rejected. In place of the judge-umpire analogy, I proposed that a Supreme Court Justice is more appropriately analogized to the Commissioner of Baseball.

This Essay reinforces the Justice-Commissioner analogy in two ways. First, it traces the Justice-Commissioner analogy back over a century, finding that the Commissioner of Baseball has been compared to the Supreme Court since the Office of the Commissioner was created. This is no coincidence: both Justices and Commissioners play the same structural roles in their respective systems. Neither a Justice nor a Commissioner is a fact-finder searching for a clear right answer to a specific question—for example, was the ball in the strike zone? Rather, both make inherently difficult, controversial, and value-influenced decisions at high levels of abstraction; both interact with and modify the rules of their respective systems in order to preserve their respective institutions’ core values, such as fair play and due process. In short, being a Justice and a Commissioner is hard: there are not always clear right and wrong answers.

Second, this Essay illustrates the similarity of Justices and Commissioners through nine paired case studies where Justices and Commissioners have, in their respective capacities, (1) provided guidance, (2) refrained from error correction, (3) undertaken rulemaking, (4) exercised countermajoritarian powers, (5) provided explanations for their decisions, (6) protected the fundamental values of their respective institutions, (7) employed special masters for fact-specific inquiries, (8) decided on statutes of limitations, and (9) exercised finality. This Essay concludes that Chief Justice Roberts had the right sport but the wrong position: Justices are not umpires; they are Commissioners.

What Litigation of a Climate Nuisance Suit Might Look Like

**In May 2011, The Yale Law Journal Online introduced a new series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases. This Essay is part of the second symposium in that series.**

In American Electric Power Co. v. Connecticut (AEP), the Supreme Court explicitly left ajar the door to litigation under state (as opposed to federal) common law for greenhouse gas (GHG) emissions. Some plaintiffs’ lawyers are also arguing that the decision leaves room for seeking money damages (rather than injunctive relief) even in a federal common law case.

For purposes of this Essay, let’s imagine a world in which the courthouse doors are swung open to common law claims for damages for GHG emissions, and the courts have rejected all defenses based on displacement, preemption, political question, and standing. In other words, the plaintiffs finally are able to litigate the merits. What would that litigation look like?

Because I have spent thirty years as a practicing environmental litigator (sometimes acting for plaintiffs, sometimes for defendants) prior to entering academia, my head swims with the challenges such a case would pose. Most of the voluminous commentary on the common law GHG cases looks at the threshold issues; let’s now peer across the threshold and see what’s on the other side. What we’ll find is an extraordinary number of open questions that would face the parties and the courts; in this Essay I attempt to enumerate them, without undertaking the daunting task of answering them.

AEP v. Connecticut and the Future of the Political Question Doctrine

**In May 2011, The Yale Law Journal Online introduced a new series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases. This Essay is part of the second symposium in that series.**

Whether and how to apply the political question doctrine were among the issues for which the Supreme Court granted certiorari in American Electric Power Co. v. Connecticut (AEP). This doctrine holds that federal courts should not resolve certain kinds of claims better left to other branches. Here, the question was whether the doctrine barred review of plaintiffs’ federal common law claims for climate change. The Court, however, declined to engage the issue. Nonetheless, this Essay argues that the doctrine is still very relevant in the context of common law causes of action for climate change, and does so in three parts. Part I briefly explains the doctrine’s historical backdrop, observing the limited extent to which it has been applied. Part II explains the role that the doctrine played in AEP and that the Court declined to address the issue directly. Part III discusses the implications that AEP may have on the doctrine going forward.

Standing on Hot Air: American Electric Power and the Bankruptcy of Standing Doctrine

**In May 2011, The Yale Law Journal Online introduced a new series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases. This Essay is part of the second symposium in that series.**

Article III standing has three seemingly simple components: (1) the plaintiffs must suffer an actual injury, (2) the injury must be caused by the defendant, and (3) the courts must be able to provide a remedy for that injury. In American Electric Power Co. v. Connecticut (AEP), the Justices deadlocked over the application of the test to a common law action for nuisance. As AEP illustrates, the apparent simplicity of the test is misleading.

The claims were brought against utilities by states complaining that carbon emissions from power plants were contributing to harm from climate change. The Court devoted only a few cryptic sentences to the issue of standing. Four Justices found standing based on Massachusetts v. EPA, the Court’s path-breaking opinion on climate change, while four others rejected standing, either “adhering to a dissenting opinion in Massachusetts or regarding that decision as distinguishable.” As a result, the lower court’s finding of standing was affirmed by an equally divided Court.

This disposition may leave the reasoning of the Justices mysterious, but AEP is a powerful illustration of the deep flaws in current doctrine: first, its incoherent application; second, its injection of merits issues into a supposedly jurisdictional determination; third, its manipulability in the hands of creative, well-resourced lawyers; and fourth, its resulting failure to advance any intelligible vision of the proper role of the federal judiciary.

Climate Justice and the Elusive Climate Tort

**In May 2011, The Yale Law Journal Online introduced a new series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases. This Essay is part of the second symposium in that series.**

The Supreme Court’s decision in American Electric Power Co. v. Connecticut (AEP) closes another door for those most vulnerable to climate change. The corrective justice goals of tort law and the associated possibilities for redress—particularly vital to the most vulnerable—remain elusive due to the Court’s restricted view of tort law’s relevance to climate change. This Essay analyzes these climate justice implications of AEP.

The field of “climate justice” (CJ) is concerned with the intersection of race and/or indigeneity, poverty, and climate change. It also recognizes the direct kinship between social inequality and environmental degradation. The term “climate vulnerable,” the subject of CJ, describes those communities or nation-states that have a particularly acute exposure to present and forecasted climatic changes. That increased vulnerability is due to either the nature and degree of climate impacts’ forecast and/or the preexisting socioeconomic vulnerabilities that climate impacts amplify. Underscoring the “justice” element, these most vulnerable populations are also the least responsible for the emissions that fuel anthropogenic climate change.

The Essay argues that the common law nuisance claims rejected by the Court in AEP provide an important mechanism for the climate vulnerable to achieve corrective justice. Corrective justice is one of the most important goals of tort law because of its focus on the relationship between the tortfeasor and victim. While there are myriad interpretations of corrective justice theory and its application, this approach at its core counsels simply that individuals who are responsible for the wrongful losses of others have a duty to repair those losses. Further, rectification of harms suffered can help restore the moral balance upset by the externalized costs that climate change inflicts on individuals and communities. The corollary, therefore, is that tort law should provide a venue and possible damages remedy for CJ plaintiffs whose claims—namely, injuries to life and property—demand compensation from the worst offenders.

A Tale of Two Climate Cases

**In May 2011, The Yale Law Journal Online introduced a new series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases. This Essay is part of the second symposium in that series.**

In July 2004, eight states, the City of New York, and a number of conservation organizations filed suit against several of the nation’s largest electric power producers, alleging that the power companies’ greenhouse gas (GHG) emissions contributed to the public nuisance of global warming under federal common law. Simultaneously, several of the same states sued the U.S. Environmental Protection Agency (EPA), alleging that GHG emissions constituted “pollutants” subject to regulation under the Clean Air Act (CAA). Both cases sought to impose GHG emission controls, and both were a reaction to the federal government’s steadfast refusal to adopt such policies on its own.

Although the cases raised different legal arguments, their fates were intertwined. It was well understood that prevailing in one case would likely preclude victory in the other. Indeed, the point of parallel litigation was to make it more difficult for industry and the EPA to stave off action. The EPA had determined GHGs were not subject to regulation under the CAA. If that were so, the states argued, the CAA could not preclude common law-based claims against GHG emissions. Thus, when the states prevailed in Massachusetts v. EPA and the Supreme Court declared that GHG emissions “fit well within the Clean Air Act’s capacious definition of ‘air pollutant,’” the outcome of American Electric Power Co. v. Connecticut (AEP) was all but assured.

AEP v. Connecticut’s Implications for the Future of Climate Change Litigation

**In May 2011, The Yale Law Journal Online introduced a new series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases. This Essay is part of the second symposium in that series.**

In American Electric Power Co. v. Connecticut (AEP), the Supreme Court held that “the Clean Air Act and the EPA actions it authorizes displace any federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants.” This set of commentaries explores several of the interesting and controversial issues that the opinion addresses (or largely sidesteps). These essays analyze the complexities of the context in which the core displacement holding takes place, the opinion’s environmental justice implications, its interaction with current standing doctrine, the political question doctrine issues briefed in the case but not addressed in detail by the decision, and common law nuisance actions as an approach to addressing climate change. My commentary situates these essays in relation to one another and adds to this dialogue by considering the decision’s implications for the future of climate change litigation in the United States.

Judges in Jeopardy!: Could IBM’s Watson Beat Courts at Their Own Game?

Introduction

February 16, 2011 was a day of reckoning for humankind. A new computer, appropriately dubbed “Watson,” beat the world’s best Jeopardy! players at their own game. At first blush this may not seem so surprising: after all, computers are notoriously better than humans at “recalling” factual knowledge. But Jeopardy! is a game show known for the nuance of its clues, which often contain puns, ambiguities, and other curiosities. Watson’s ability to understand and quickly respond to Jeopardy! questions thus reveals that computers have made great strides in emulating how humans think.

Watson is a computer built for a very specific purpose: to beat humans at Jeopardy!. Since his victory, pundits and IBM staffers have suggested that the technology powering Watson might have many uses—in the gaming world, for example, or improving customer service from much-maligned automated call centers. Only a week after winning the Jeopardy! title, Watson’s creators proclaimed to the annual Healthcare Information and Management Systems Society meeting that “Watson could dramatically improve health care delivery by offering, in minimal time, solutions that have a high level of certainty.” Here I propose how Watson could apply his skills in a legal environment: by helping textualists interpret statutes. New textualists believe in reducing the discretion of judges in analyzing statutes. Thus, they advocate for relatively formulaic and systematic interpretative rules. How better to limit the risk of normative judgments creeping into statutory interpretation than by allowing a computer to do the work?

This Essay considers whether judges might share the job of statutory interpretation with computers like Watson. First, it briefly lays out how new textualists approach statutory interpretation. Second, it describes how Watson’s aptitudes lend themselves to textualist-style statutory interpretation. Finally, the Essay pulls the threads together, discussing how Watson might both aid textualist interpretation and perhaps perform such interpretation on his own.

Off-Contract Harms: The Real Effect of Liberal Rescission Rights on Contract Price

Introduction

In their recent article in The Yale Law Journal, Professors Richard R.W. Brooks and Alexander Stremitzer make the case for a liberal allowance of rescission and restitution—an “off the contract” remedy that allows a party to a contract to rescind following breach by a counterparty and to receive back the contract price. This Essay argues that Brooks and Stremitzer’s recommendations are based on an incomplete analysis of the effects of rescission rights on the marketplace and are ultimately misplaced.

Brooks and Stremitzer argue that liberal rescission rights will lead to two socially desirable effects: “First, foreseeing the possibility of rescission by counterparties, promisors will invest to enhance the quality of performance . . . . Second, promisors can also make rescission less desirable for counterparties by reducing the price that they charge, implying a lower, less attractive remedy in restitution.” The threat of rescission can thus lead to higher investments in quality and lower prices.

This Essay challenges the second of these claims. Once we broaden Brooks and Stremitzer’s analysis of a single buyer-seller relationship to include multiple buyers, the effect of liberal rescission rights on price might be the opposite of what they predict for two principal reasons. First, promisors will not be incentivized to reduce their prices because lower prices do not lead to a drop in the number of counterparties that opt for rescission. This is because a drop in prices allows low-value buyers to enter the market—an effect Brooks and Stremitzer critically neglect. These buyers have a relatively high probability of opting for rescission, and their entrance can therefore increase the overall number of returns that a seller faces. Second, liberal rescission rights, because they serve a valuable insurance function for the counterparty and are costly to the seller, might actually lead to higher prices. I do not contend that liberal rescission rights will never induce sellers to lower their prices but rather that, under many circumstances, they will either have no effect on sellers’ incentives or may actually induce sellers to raise their prices. Without any evidence as to the likelihood of the differing effects on price, Brooks and Stremitzer cannot enlist the price effect of rescission as an argument in favor of a regime that provides for a more liberal allowance of rescission rights.

“Running the Government Like a Business”: Wisconsin and the Assault on Workplace Democracy

Introduction: Democratic Spring

A Winn for Educational Pluralism

**This Essay is part of a new Yale Law Journal Online series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases.**

Over the past decade, scholarship tax credit programs, like the one at issue in Arizona Christian School Tuition Organization v. Winn, have emerged as a popular education policy tool. While details vary by state, scholarship tax credit programs allow individuals or corporations (and in some cases, including Arizona, both) to receive a state income tax credit for donations to charitable organizations—called “scholarship tuition organizations” in Arizona—that provide scholarships for children to attend private schools. Currently, seven states—Arizona, Florida, Georgia, Indiana, Iowa, Pennsylvania, and Rhode Island—have such programs in place. During the 2010-2011 school year, the scholarship organizations participating in these programs awarded nearly $290 million through over 123,000 scholarships. With two exceptions, scholarship tax credit programs exclusively target low-to-moderate-income students. For example, in Florida—the state with the largest scholarship tax credit program in the nation—eligibility is limited to students qualifying for free or reduced-price lunches, and scholarships are disproportionately awarded to Latino and African-American students. And the most recent evidence suggests that even the non-means-tested tax credit program at issue in Winn—Arizona’s individual scholarship tax credit program—disproportionately benefits low-income kids. Thus, scholarship tax credit programs help open the doors of high-quality private schools to thousands of children of modest means who might otherwise languish in failing public schools.

Winn and the Inadvisability of Constitutionalizing Tax Expenditure Analysis

**This Essay is part of a new Yale Law Journal Online series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases.**

In Arizona Christian School Tuition Organization v. Winn, the U.S. Supreme Court decided, by the thinnest of margins, that Arizona taxpayers cannot mount an Establishment Clause challenge to Arizona’s state income tax credits for “contributions to school tuition organizations.” Writing for a five-Justice majority, Justice Kennedy held that Flast v. Cohen only bestows standing upon taxpayers contesting direct monetary outlays on Establishment Clause grounds. Flast, the majority held, does not extend standing to taxpayers objecting under the Establishment Clause to tax provisions such as the Arizona income tax credit. In dissent, Justice Kagan, joined by three of her colleagues, concluded that Flast does afford standing to the Arizona taxpayers challenging the state’s tax credits for contributions to school tuition organizations. Central to Justice Kagan’s dissent was her invocation of the academic doctrine of “tax expenditure” analysis. That analysis, Justice Kagan wrote, recognizes that “targeted tax breaks . . . are just spending under a different name.”

The Court has often confronted the question of whether direct public outlays and tax subsidies are equivalent for constitutional purposes. However, Justice Kagan’s dissent in Winn is only the second time that tax expenditure doctrine has formally played such an explicit, prominent role in the Court’s decisionmaking.

Mandatory Versus Default Rules: How Can Customary International Law Be Improved?

Although customary international law (CIL) has historically been one of the principal forms of international law, it is plagued by debates and uncertainties about its proper sources, its content, its usefulness, and its normative attractiveness. While some of these debates and uncertainties are longstanding, they have intensified in recent years, in part because of the rise of multilateral treaty-making, which allows nations collectively to negotiate and codify broad areas of international law i…

The Taxing Power, The Affordable Care Act, and the Limits of Constitutional Compromise

After a quiet century or so, the scope of Congress’s power “[t]o lay and collect taxes” is once again in the news. The taxing power was at issue when the Supreme Court issued a decision that President (and Chief Justice) Taft would later call the worst injury to the Court’s reputation ever, Pollock v. Farmers’ Loan & Trust, striking down the Income Tax Act of 1894. That decision was largely reversed by the 1913 enactment of the Sixteenth Amendment. Today the taxing power is one of thre…

Superstatutory Entrenchment: A Positive and Normative Interrogatory

William Eskridge, Jr., and John Ferejohn’s magnum opus on “small ‘c’” constitutionalism and the republic of statutes is an unusually wide-ranging work of legal and political analysis, one that defies comprehensive summary. In this Essay, we bore in on a central element of their thesis: the idea of entrenchment. In A Republic of Statutes, legal entrenchment is used to tether the authors’ normative theory of American constitutionalism to a positive political theory of law. Entrenchment…

The National Security Constitution and the Bush Administration

There is a widespread intuition that the Constitution provides much less than a full blueprint of the structure and powers of the contemporary federal government. Even if we regard judicial doctrine as part of the “Large ‘C’” Constitution, the intuition still seems valid. In particular, it is hard to account for the extraordinary increase in presidential power that Arthur Schlesinger has described as the “imperial presidency,” and which is critiqued in Bruce Ackerman’s most recent …

Plural Constitutionalism and the Pathologies of American Health Care

I. America’s Two Health Care Constitutions The United States has two health care constitutions, and the old is the enemy of the new. The recently enacted Patient Protection and Affordable Care Act (PPACA) is the latest step in the federal government’s incremental efforts over the past half century to construct and entrench a modern constitution of health security similar to those enjoyed by citizens in most other advanced democracies. At present, this constitution of health security is wobb…

Comprehensive Immigration Reform and the Dynamics of Statutory Entrenchment

In his 2008 campaign, then-Democratic presidential candidate Barack Obama promised “comprehensive immigration reform.” Two years into his Administration, and despite continued efforts to promote reform, there has not even been a vote in Congress on a comprehensive bill. President Obama’s predecessor, Republican George W. Bush, also promised comprehensive immigration reform, which was not produced during his eight years in office. Despite their differing parties, the two Presidents’ propo…

How Statutes Interpret the Constitution

In A Republic of Statutes, William Eskridge and John Ferejohn argue convincingly that statutes represent basic components of our constitutional structure. Statutes lie at the center of “administrative constitutionalism,” defined as “the process by which legislative and executive officials, America’s primary governmental norm entrepreneurs, advance new fundamental principles and policies.” At one level, this notion is uncontroversial: everyone agrees that the written Constitution author…

Introduction to The Yale Law Journal Online Symposium on Eskridge and Ferejohn's A Republic of Statutes: The New American Constitution

A Republic of Statutes: The New American Constitution is a landmark collaboration of two preeminent scholars, law professor William N. Eskridge, Jr. and political scientist John Ferejohn. Nearly a quarter century ago, Professor Eskridge, with the late Professor Philip Frickey, sparked the revival of legislation as a field of study. Commenting on the seminal Eskridge-Frickey casebook on legislation, Judge Richard Posner prophetically wrote: “[I]t has the potential to alter the law school curric…

Withdrawing from International Custom: Terrible Food, Small Portions

Curtis A. Bradley and Mitu Gulati’s Withdrawing from International Custom brings to mind the old joke recounted by Woody Allen in Annie Hall: “Two elderly women are at a Catskill mountain resort, and one of ’em says, ‘Boy, the food at this place is really terrible.’ The other one says, ‘Yeah, I know; and such small portions.’” Similarly, while Bradley and Gulati attack international law’s current prohibition of unilateral withdrawal from custom, they propose an alternative that…

The New Judicial Takings Construct

[To] halt the law's evolution... would be to sever property's link to the culture it serves. In time, a static property regime would inevitably become an anachronism and would gradually be perceived as an obstacle to progressIn Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, a four-Justice plurality endorsed a novel theory that would make the Takings Clause applicable to a wide collection of state court interpretations of state property law. Writing for the …

CAFA and Federalized Ambiguity: The Case for Discretion in the Unpredictable Class Action

A statute pointedly described as an “opaque, baroque maze of interlocking cross-references” is unlikely to represent an intelligent response to a fundamental failing in one of the most complicated and divisive areas of law. Yet, the Class Action Fairness Act (CAFA), ostensibly enacted by Congress to remedy purported abuses in class action litigation, created precisely such an uncertain rubric. This Essay considers and attempts to resolve CAFA’s profound and previously unaddressed shortcomi…

Treaty Denunciation and "Withdrawal" from Customary International Law: An Erroneous Analogy with Dangerous Consequences

In their recent article in The Yale Law Journal, Professors Curtis Bradley and Mitu Gulati argue for a sweeping reformulation of international law relating to the legal force of customary norms. The model that they propose (the “Default View”) has the highly counterintuitive feature that states would be entitled to unilaterally opt out of customary norms with which they disagree, even long after the norm in question became an accepted part of international customary law and even if they had …

Snyder v. Phelps, the Supreme Court’s Speech-Tort Jurisprudence, and Normative Considerations

The Supreme Court’s forthcoming decision in Snyder v. Phelps will address the clash between two fundamental and longstanding American values: freedom of speech and “the right to be let alone.” Freedom of speech is a cherished and distinguishing characteristic of American democracy, while the right to be left alone has been acclaimed as “the most comprehensive of rights and the right most valued by civilized men.” The facts of Snyder v. Phelps present a direct conflict between these two…

Withdrawing from Customary International Law: Some Lessons from History

The modern view is that “[c]ustomary international law results from a general and consistent practice of states followed by them from a sense of legal obligation.” General and consistent practice can generate a rule of customary international law (CIL) that is binding on all nations even if that practice is not universal. New states are bound by existing rules, and no state may unilaterally withdraw from a rule of CIL. As the International Court of Justice put it, CIL rules, “by their very…

Opting out of the Law of War: Comments on Withdrawing from International Custom

Professors Curtis Bradley and Mitu Gulati have written a rich and interesting paper with a bold conclusion supported by historical and normative arguments. I find myself unpersuaded by either set of arguments. Most of my comments concern their reading of the historical sources, which they use to show both that the Default View was indeed the traditional doctrine of customary international law (CIL) and that the Mandatory View carries a disagreeable colonialist legacy. I criticize the former argu…

Context Matters: Rules for Reducing Taxable Value

Parents often create a family limited partnership (FLP) or similar entity to provide a vehicle for cohesive management of assets, secure some measure of creditor protection, or create a common pool for investment in marketable securities. FLPs generally encumber their members’ interests with restrictions for various reasons. The Internal Revenue Service in turn attacks FLP restrictions because encumbrances reduce estate and gift tax value when FLP interests transfer. In two cases in the spring…

Corruption: Greed, Culture, and the State

Introduction To lawyers, corruption is mainly a problem of law enforcement. Bribes and other types of corrupt dealings are hard to observe and to prosecute if both sides gain from the transaction, because even clear losers may risk retaliation if they report a transaction. The economic analysis of bribery frequently views it only as a special case of the economic analysis of criminal behavior more generally.1 This focus on law enforcement begs some interesting questions. The ver…

Tremors of Things To Come: The Great Split Between Federal and State Pleading Standards

On June 24, 2010, the Washington Supreme Court issued its opinion in McCurry v. Chevy Chase Bank, declining to follow nonmandatory but highly persuasive federal pleading standards. In doing so, Washington State became the first state supreme court post-Iqbal to abandon the ideal of national procedural uniformity over the contentious issue of plausibility pleading. Other states will have to decide the same issue in the months and years to come. This Essay explains the history and stakes of this d…

Reversed on Appeal: The Uncertain Future of President Obama’s “Empathy Standard”

Words have a way of coming back to haunt you, especially those you bother to print. Just ask Elena Kagan. In a 1995 book review, she famously skewered the Senate Judiciary Committee hearings for Supreme Court nominees as “a vapid and hollow charade, in which repetition of platitudes have replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis.” Those are strong words, the kind that young professors truck in when the favor of a tenure committee is foremost in t…

Citizens United and Its Critics

Testifying before the Senate Judiciary Committee regarding her confirmation as a Supreme Court Justice, Solicitor General Elena Kagan summed up in a cool and even-handed manner the arguments she and her opponents in the Citizens United v. FEC case had made to the Supreme Court. The “strongest argument of the government,” she said, “was the very substantial record that Congress put together” demonstrating that money spent by corporations and unions “could have substantial corrupting eff…

Tinker’s Tenure in the School Setting: The Case for Applying O’Brien to Content-Neutral Regulations

The Costs of Consensus in Statutory Construction

Finding methodological consensus for statutory interpretation cases is all the rage these days. Some in the academy sing the praises of a singular judicial approach to questions of statutory interpretation and bemoan the frustrations associated with judges implementing a mélange of interpretive techniques. And now, thanks to Abbe Gluck’s authoritative article, Laboratories of Statutory Interpretation, proponents of interpretive uniformity have evidence that some state courts seem to be applyi…

Slow and Steady: David Souter's Life in the Law

David Souter stepped down from the Supreme Court one year ago, making way for the carefully choreographed nomination and confirmation of his successor, Justice Sonia Sotomayor. This summer will feature a similar transition dance as Elena Kagan, the nominee for Justice Stevens’s now-vacant seat, appears before the Senate Judiciary Committee for her confirmation hearings. While the preponderance of commentary on Supreme Court confirmation hearings laments the tightly scripted, unenlightening exchanges with inscrutable nominees, Justice Souter’s appearance before the Committee is an underappreciated success of the confirmation process. This Essay reflects on the Souter hearings as a transparent account of a nominee’s philosophy of judging, an account that remained predictive of Souter’s views nearly two decades later, in his final days as a Justice.

Conditional Taxation and the Constitutionality of Health Care Reform

The recent enactment of major health care reform legislation has brought with it a welter of constitutional challenges to the legislation and its key provisions. Attorneys General in more than a dozen states have already filed suits seeking to enjoin the operation of the statute, arguing that its requirement that most individuals either purchase health insurance or pay a penalty tax exceeds Congress’s enumerated powers. And several prominent scholars have argued similarly that this “individu…

Addressing Political Captive Audience Workplace Meetings in the Post-Citizens United Environment

Citizens United has wrought widespread changes in the election law landscape. Yet, a lesser-known consequence of this watershed case might have a significant impact in the workplace: it may permit employers to hold political captive audience workplace meetings with their employees. Under Citizens United’s robust conception of corporate political speech, employers may now be able to compel their employees to listen to their political views at such meetings on pain of termination. To eliminate …

A Brief Defense of the Written Description Requirement

The Federal Circuit’s December 7, 2009 hearing of oral argument in Ariad v. Lilly has generated significant interest among those who follow patent policy. An en banc decision is expected within the next few months. The dispute arises from the interpretation of 35 U.S.C. § 112, which states in relevant part: "The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to en…

The Justice as Commissioner: Benching the Judge-Umpire Analogy

Is It Important To Be Important?: Evaluating the Supreme Court’s Case-Selection Process

As the output of the Supreme Court shrinks, from about 150 cases per Term decided with full opinions in the mid-1980s to about seventy now, concern has grown over whether the Court is deciding too few cases and consequently leaving too many important cases and issues undecided. The extent to which the concern is justified, however, depends in part on what is meant by “important,” and in part on whether it is important that the Supreme Court decide important cases. If we distinguish publicly impo…

Assessing the Supreme Court’s Current Caseload: A Question of Law or Politics?

I. Introduction: The Need for “Political” Analysis My participation in the excellent conference on case selection in the Supreme Court was surely based neither on my experience lawyering before the Court, nor on my systematic study of the case selection process as a methodologically sophisticated political scientist. That being said, I have studied and written about the Supreme Court, and I believe that I do have something to contribute to the discussion—I believe that the discussions ten…

Docket Capture at the High Court

The declining number of cases on the Supreme Court’s plenary docket may or may not be a problem. After all, there are many good reasons that such a decline could be happening, including the obvious possibility that the Court was previously hearing too many cases that did not warrant plenary review and is now doing a better, not worse, job of picking cases. But while having fewer cases is not necessarily problematic, what is worrisome is the very real possibility that the Court’s plenary docket i…

If It Ain't Broke . . .

“The most important thing we do,” Justice Brandeis once remarked, Alexander Bickel showed long ago how the Supreme Court’s discretionary certiorari jurisdiction was the lynchpin of those “passive virtues” that are essential to principled government. Indeed, the cautious exercise of the certiorari jurisdiction may be as important to judicial self-restraint as the Court’s decisions on the merits. We should therefore view skeptically any attempt to alter the Supreme Court’s case selection process. …

Marriage, Property and [In]Equality: Remedying ERISA’s Disparate Impact on Spousal Wealth

Citizens Not United: The Lack of Stockholder Voluntariness in Corporate Political Speech

The Yale Law Journal Online is reissuing Elizabeth Pollman's Citizens Not United: The Lack of Stockholder Voluntariness in Corporate Political Speech in light of recent developments at the Supreme Court. With the Supreme Court hearing a new round of oral arguments in Citizens United v. Federal Election Commission, the Court appears poised to alter dramatically the landscape of corporate political speech law. The case concerns whether the government may limit a nonprofit political advocacy group…

Wishing International Law Away

But for its contemporary particularities, Michael Stokes Paulsen’s essay The Constitutional Power To Interpret International Law would work comfortably as an excellent example of late-nineteenth-century legal scholarship, with all of its best and worst qualities. The piece makes for good reading; it is sweeping in scope, confident in tone, and certain of result. It is tightly argued in a self-contained order of doctrinal logics. Paulsen wears his ideology on his sleeve, not a bad thing. He is …

The Prospects for the Peaceful Co-Existence of Constitutional and International Law

There is much to admire in Michael Stokes Paulsen’s elegant and bold polemic on the Constitution and international law. Paulsen deserves substantial praise both for offering a clear and accessible theory of the Constitution and international law, and for then bravely taking that theory to its logical though controversial conclusions. He rightly emphasizes that the Constitution is supreme over international law and that the political branches, Congress, and the President, have an independent an…

The Mess of Manifest Disregard

A circuit split is in the making, and it could signal a shift with significant implications for federal arbitration law. Just eighteen months after the U.S. Supreme Court’s March 25, 2008 decision in the controversial case of Hall Street Associates v. Mattel, Inc., three circuits are already in ripe disagreement as to whether Hall Street abrogates the half-century old, judicially-created doctrine of “manifest disregard.” Manifest disregard is a common-law exception to the limited grounds …

Old W(h)ine, Old Bottles: A Reply to Professor Paulsen

International law is “everywhere” in the United States: informing state CO2 emissions standards; providing inspiration for local civil rights codes; and overseeing the more than three trillion dollars in annual trade in goods, to name just a few examples. A reader of Professor Michael Stokes Paulsen’s essay, The Constitutional Power To Interpret International Law, might be forgiven for missing these important trends, because rather than focus on the ubiquity of international law and the my…

The Fog of Certainty

In The Constitutional Power To Interpret International Law, Michael Paulsen argues that “[t]he force of international law, as a body of law, upon the United States is . . . largely an illusion.” Rather than law, international law is “policy and politics.” For all the certainty with which his argument is advanced, however, it cannot survive close scrutiny. At its foundation, Paulsen’s essay rests on a pair of fundamental misconceptions of the nature of law. Law is not reduced to mere po…

Responses to "The Constitutional Power To Interpret International Law"

Four authors respond to Michael Stokes Paulsen's The Constitutional Power To Interpret International Law, printed in Volume 118, Issue 8 of the Journal. Robert Ahdieh, Julian Ku, Margaret McGuinness, and Peter Spiro contributed their reactions to, and critiques of, this Essay for YLJ Online.

Announcing The Yale Law Journal Online

The Yale Law Journal is pleased to announce the launch of The Yale Law Journal Online in the Fall of 2009. YLJ Online will integrate the current features of The Pocket Part with additional fora for legal scholarship. The YLJ Online Committee will continue to consider submissions under The Pocket Part's guidelines and submissions system throughout the summer. For questions regarding YLJ Online and The Pocket Part, please contact our Managing Online Editor, Jeffrey K. Lee, here.

The Mismatch Between Probable Cause and Partial Matching

Roberts Court Jurisprudence and Legislative Enactment Costs

My Debt to Mirjan Damaška

Mirjan walked into my life in the Fall of 1972. I was 29, he was 41, but both of us were at the beginning of our academic careers in America. I was a lucky guy. My DNA was programmed for standardized tests. This curious aptitude propelled me out of the Bronx to Harvard College and Yale Law School. I served as a law clerk for Henry Friendly and John Harlan, followed up by writing a couple of long articles, and, voila, this proved to be a recipe for a full professorship at the University of Pennsy…

Protecting a Business Entity Client from Itself Through Loyal Disclosure

Many attorneys are unaware of or misunderstand an important tool they can use to protect their business organization clients: the ability to disclose the client’s confidences. In jurisdictions with “loyal disclosure” rules—rules adopted by the Securities and Exchange Commission and the American Bar Association in response to Enron and other corporate scandals—counsel may disclose confidential information to protect an entity client from the harmful, illegal conduct of company constitue…

Regulating Federal Prosecutors: Let There Be Light

The Office of Professional Responsibility (OPR), housed within the U.S. Department of Justice (DOJ), investigates alleged misconduct by federal prosecutors and other DOJ personnel. Under the Bush administration, even when OPR found serious prosecutorial misconduct, DOJ kept the disciplinary investigation and outcome private to avoid embarrassing the prosecutor. This practice superseded a public disclosure policy adopted by the previous administration. This essay submits that DOJ’s recent pract…

A Public Privilege

If a rule is only as good as its exceptions, and a reporter is only as good as her sources, then according to a recent Pennsylvania Supreme Court opinion, Pennsylvania’s reporter’s privilege is the best of privileges and the worst of privileges. In that opinion, the court failed to carve a crime-fraud exception out of Pennsylvania’s reporter’s privilege—or its “Shield Law”—despite having previously read a similar exception into every other evidentiary privilege. Ironically, this …

Legal Ethics Symposium

The Pocket Part is proud to present our final symposium issue of the academic year, examining reoccuring and novel issues surrounding the ethical responsibilities faced by lawyers. 

Deterring E-Discovery Misconduct with Counsel Sanctions: The Unintended Consequences of Qualcomm v. Broadcom

The Continuing Viability of Medicaid Rights After the Deficit Reduction Act of 2005

In a recent note in The Yale Law Journal, Jon Donenberg argued that (1) program changes in Medicaid ushered in by the Deficit Reduction Act of 2005 (DRA) sub silentio rendered Medicaid’s basic availability provision unenforceable under 42 U.S.C. § 1983, and (2) state fair hearing procedures constitute the best alternative for enforcement of beneficiary rights. Donenberg misreads both the DRA and § 1983 jurisprudence, overstates the usefulness of fair hearings, and overlooks the better altern…

Why the IRS Has Not Taxed Income from Virtual World Transactions . . . Yet

Virtual world transactions (VWT) involve the sale or exchange of goods and services that are used exclusively within a virtual world. As participation in virtual worlds increases, both in volume and in character, the boundary between VWT and real world transactions becomes unclear. Consequently, many wonder whether the Internal Revenue Service (IRS) will tax participants in virtual worlds, even before they have converted their virtual items into real goods or services. Although IRS agents are no…

EBay’s Second Life: When Should Virtual Earnings Bear Real Taxes?

Millions of people participate in virtual worlds—immersive online forums such as Second Life and World of Warcraft (WoW). While some online activities lack significant economic implications, one of the attractions of Second Life, which is designed to be a commercial platform, is the prospect of making “real money.” This essay argues that profits received in the form of Lindens (Second Life’s currency) should be taxed in much the same way profits received via PayPal, a widely used electro…

Virtual World Feudalism

Second Life is a feudal society. No, not metaphorically. Literally. Two problems have preoccupied scholars of virtual world law: What is the political relationship between developers and users? And: Should we treat in-world objects as property? We can make progress on both questions by recognizing that virtual politics and property are inex-tricably linked, in the same way that feudal politics and property were. It is the tenant/user’s relationship with his lord/developer that both creates th…

Reputation as Property in Virtual Economies

Economists and legal theorists have long argued that real-world economies cannot function effectively without well-defined property rights. More recently, scholars have also begun to analyze at least three kinds of “virtual” economies: the online economies exemplified by eBay and other trade-facilitating mechanisms; the economies in virtual worlds such as Second Life and World of Warcraft; and the virtual reputational economies associated with MySpace and Facebook. The first two economies ge…

Symposium Issue: Virtual Worlds

The Pocket Part is proud to present our second symposium issue of the academic year, which examines  legal issues surrounding the growing presence and influence of virtual worlds.  This week presents the second and final part of the two issue symposium.

Escape Into the Panopticon: Virtual Worlds and the Surveillance Society

The Eye: that horrible growing sense of a hostile will that strove with great power to pierce all shadows of cloud, and earth, and flesh, and to see you: to pin you under its deadly gaze, naked, immovable. Introduction Suppose that you move to a new town. To buy your home, you must allow the developer to install cameras in each room and record all interactions between you and your husband. To use the telephone, you must permit the telephone company to record and retain your conversations. To r…

Imposing Tort Liability on Websites for Cyber- Harassment

We Don’t Want To Conquer You; We Have Enough To Worry About: The Russian Sovereign Wealth Fund

Recently, few economic topics have received more political attention than the potential impact of Sovereign Wealth Funds (SWFs). Until recently, scholarly and political attention to SWFs was almost exclusively focused on the impact these funds may have on Western countries. The little attention paid to the impact SWFs have on countries where these funds originate has been largely negative, often characterizing such funds as products of “authoritarian regimes in semi-developed countries, where …

Sovereign Wealth Funds: Active or Passive Investors?

Sovereign Wealth Funds Symposium

The Pocket Part is pleased to announce the publication of a symposium on legal issues surrounding the growth and use of sovereign wealth funds as an international investment tool.  This week presents the second of the two part symposium issue.

Taxing the Bandit Kings

The rise of significant inbound capital flows originating from sovereign wealth funds (SWFs) has occasioned a debate over the appropriate regulatory and tax treatment of these funds. In particular, it has been argued that the tax exemption currently enjoyed by SWFs confers an advantage on these entities as providers of capital to U.S. firms relative to private foreign investors, and that a tax should be imposed on SWFs to restore fairness. This essay argues that the distinctive nature of the por…

Should We Tax Sovereign Wealth Funds?

Important characteristics distinguish sovereign wealth fund investment, which is often troubling, from private foreign investment, which is generally beneficial. Allowing sovereign wealth funds to own equity stakes in American companies encroaches on the autonomy of U.S. industrial and foreign policy in a way that private investment does not. Moreover, because some sovereign wealth fund investment is politically motivated, this new form of investment impairs the efficient allocation of economic …

Foreign Direct Investment by Sovereign Wealth Funds

Sovereign Wealth Funds (SWFs) recently have captured America’s attention. Much of that attention has been critical, with a particular focus on whether the U.S. economy is becoming vulnerable to the policy whims of foreign states. Yet SWFs face significant domestic commercial and political pressures to emphasize financial performance over policy goals. These pressures from home can protect against politically motivated U.S. investments. To the extent these motivations are insufficient, addition…

Responses and Reactions to "Minorities, Shareholder and Otherwise" by Anupam Chander: Comparing Corporate and Constitutional Minority Protections

In a 2003 essay in The Yale Law Journal entitled Minorities, Shareholder and Otherwise, Anupam Chander compared corporate law’s special protections for minority shareholders with the increasingly colorblind position of constitutional law, arguing that the former has much to teach the latter.In this edition of The Yale Law Journal Pocket Part we revisit this controversial essay with reactions from three constitutional and corporate law scholars and, finally, a response from Anupam Chander addressing these perspectives on his work.

Response: Corporate Law’s Distributive Design

Minorities, Shareholder and Otherwise makes two novel claims: that corporate law places protection of minority shareholders at the heart of its endeavor; and that this minority-mindfulness should have even greater purchase in constitutional contexts. My retelling of the corporate law narrative coupled with my extension of that story to the constitutional domain puts pressure on scholars either to dispute my characterization of corporate law (or for that matter, constitutional law) or to deny the…

Minorities, Immigrant and Otherwise

Anupam Chander’s article Minorities, Shareholder and Otherwise brilliantly offers a “conservative” justification for a U.S. constitutional law truly dedicated to fairness and justice for all. It does so by counterintuitively looking to the bottom-line-oriented world of corporate law. This commentary offers a most powerful example of the gulf between constitutional law and corporate law identified by Professor Chander. Modern constitutional law affords no meaningful substantive protection t…

There Is No Affirmative Action for Minorities, Shareholder and Otherwise, in Corporate Law

In Minorities, Shareholder and Otherwise, Anupam Chander argues that, unlike constitutional law, “corporate law places minorities at the heart of its endeavor.” Central to his project is an empirical claim that corporate law has an “elaborate framework” for “protecting minority interests in the corporation.” In Chander’s view, it thus is corporate law, not constitutional law, that is truly equipped to deal with issues such as fairness, oppression, and power. It is a very clever th…

Oops! Racism as Mistake: Lessons from Corporate Law

In Minorities, Shareholder and Otherwise, Anupam Chander points out that the law treats discrimination by corporate insiders against minority shareholders with suspicion. Yet discrimination against ordinary minorities, in buying or selling a house or applying for a job, for example, receives increasingly lax treatment from color-blind courts uninterested in delving into the thickets of intent, history, and complex causation. For corporate law, “equal treatment can only be assured by taking mi…

Critical Corporate Law, Colorblind Constitutional Law

Legal Ethics Symposium: Call for Papers

The Estate Tax Fundamentals of Celebrity and Control

Why Hollywood Does Not Require “Saving” From the Recordkeeping Requirements Imposed by 18 U.S.C. Section 2257

Marilyn Monroe’s Legacy: Taxation of Postmortem Publicity Rights

Citing the Transcript of Oral Argument: Which Justices Do It and Why

Linking Ideas to Outcomes: A Response

It is a distinct pleasure to have the chance to respond to the insightful commentaries of Peter Drahos, Ruth Okediji, and Tomiko Brown-Nagin. I find much to agree with in each, but I will focus on a few areas of divergence in the hope of clarifying our differences. Drahos’s work on the role of ideas in the field of international intellectual property (IP) has been essential to my own thinking, and we agree on two critical points: that frame mobilization matters to political outcomes, and that…

"Home Schooling" in California

Agency Preemption Inputs in Riegel v. Medtronic

Presidential Debates and Deliberative Democracy

The Access to Knowledge Mobilization and the New Politics of Intellectual Property

Does Dialogue Make a Difference? Structural Change and the Limits of Framing

How much difference does the mechanism of framing make to global regulatory outcomes? Structural explanations of regulatory globalization that are rooted in state power and self-interest would dismiss the explanatory value of framing. Put simply, words are cheap and do not matter to the final outcomes of globalization. In her recent article, Amy Kapczynski challenges these structural explanations, asserting that the theory of framing offers a better account of the politics of intellectual proper…

IP Essentialism and the Authority of the Firm

"One of These Things Does Not Belong”: Intellectual Property and Collective Action Across Boundaries

It is a fine day when I am able to fondly recall a childhood game, reflect upon social movement theory, and ponder the connections between the public interest and private law, all at once. Amy Kapczynski’s article brought me to this delightful place. The childhood game, which featured four cards, each picturing four distinct items, tested analogical reasoning. The game’s objective: to figure out which of the things “did not belong.” I found this exercise endlessly fascinating, just as I …

Reconsidering the Syllabus in “Constitutional Law”

Curricula and Complacency: A Response to Professor Levinson

Back when my friend Sandy Levinson and I were both on the Texas law faculty, the assistant dean for communications proposed a promotional tour featuring Professor Levinson’s book Our Undemocratic Constitution and my recently published piece in this journal, The Constitution Outside the Constitution. The plan was that Levinson would say the Constitution is bad, and I would add that it isn’t really even the Constitution. In the event, we did not get to take our show on the road, so I’m grate…

A Dialogue on Teaching the Constitution: A Reply to Ernest Young's "The Constitution Outside the Constitution"

In this issue of The Pocket Part Sanford Levinson writes a response to Ernest Young's recent article in The Yale Law Journal, The Constitution Outside the Constitution, and discusses the needs and challenges inherent to teaching the Constitution. In the second piece of this issue Professor Young writes a rebuttal to Professor Levinson's response, continuing the dialogue about the breadth of constitutional law and what it should encompass in legal education.

The Paradox of Retrogression in the New VRA: Comment on Persily

The Court ruled in Georgia v. Ashcroft that states, when redistricting, could try to increase “substantive representation”—the degree of influence that minority voters have on policy outcomes—even at a possible cost to “descriptive representation”—the number of minority candidates elected to office. As reviewed in Nathaniel Persily’s article The Promise and Pitfalls of the New Voting Rights Act, Congress attempted to overrule Georgia v. Ashcroft in the 2006 Voting Rights Act Rene…

Renewing the Promise of Ending Voting Discrimination: A Return to an Effective Section 5 Retrogression Standard

The purpose of Professor Nathaniel Persily’s article, The Promise and Pitfalls of the New Voting Rights Act, is to present an interpretation of the discriminatory effects prong of the new section 5 that will have a greater probability of surviving constitutional scrutiny. In presenting this interpretation, Professor Persily addresses several major issues that delineate the contours of the new section 5 retrogression standard and its application to redistricting plans. Yet, upon closer examinat…

The Constitutional Relevance of Alleged Legislative Dysfunction

The role of an election law scholar these days is much like that of an anthropologist specializing in the study of human sacrifice. At a certain point, some of us in the field suppress natural human impulses of disgust and revulsion and replace them with fascination and curiosity. How else does one stomach the pervasive partisan greed, the wild conspiracy theories, the actual conspiracies, the pretextual arguments, and the often vicious attempts to use the law for partisan and personal gain? My …

How “Swingers” Might Save Hollywood from a Federal Pornography Statute

Section 2257 of title 18 of the U.S. Code requires that “producers” of photographs and films of “actual sexually explicit conduct” create and maintain records documenting the age of the performers depicted in those performances. The statute’s purpose is to ensure that the performers are not minors. This recordkeeping statute has generally been limited to the adult film industry, although recently the statute’s impact has crept into the realm of mainstream film and television. For ove…

Summer Submissions Announcement

The Yale Law Journal Pocket Part will conclude its weekly submissions considerations Thursday May 8th and will consider submissions submitted over the summer on a monthly basis.

First, Do No Harm: Why a Commissioner for Standards Is Unhealthy for the American Body Politic

Recently, Senator Robert Bennett expressed a sentiment that aptly summarizes my reaction to Josh Chafetz’s call to change ethics enforcement in Congress. “Washington is the only place I know where, when people break the law, our reaction is . . . [to] make the law tougher.” In recent years, several members of Congress have violated ethics rules, and a few have broken the law. Unlike Chafetz, however, I don’t view these events as evidence of a system in disrepair. Instead, they are proof …

Curing Congress’s Ills: Criminal Law as the Wrong Paradigm for Congressional Ethics

Paul M. Thompson’s reply to my Comment proposing the creation of Congressional Commissioners for Standards proceeds in two steps. First, he argues that our current system of ethics enforcement, dominated by the ethics committees and the Department of Justice, is working just fine. And second, he argues that the establishment of Congressional Commissioners would create, rather than solve, problems. Both of these claims suffer from the same basic defect: they assume that congressional ethics enf…

Call For Papers: Virtual Worlds Symposium

Call for Papers: Symposium on Sovereign Wealth Funds

Taking States out of the Workplace

It is perhaps counterintuitive to respond to a call for papers on new developments in state law by arguing that there should be no developments at all. With regard to one area of law, however, that is exactly what I am going to do. More precisely, I argue for one general development—the elimination of state authority to regulate the workplace. Current governance of the workplace originates from local, state, and federal governments. In some areas, such as private-sector labor law under the Na…

State Legislatures

This week, The Pocket Part presents the second of two issues on recent developments in courts and legislatures. In this installment, we survey a variety of interesting trends among state legislatures.

Postmortem Rights of Publicity: The Federal Estate Tax Consequences of New State-Law Property Rights

California recently passed legislation that creates retroactive, descendible rights of publicity. The New York State Assembly is poised to enact similar legislation. Legal recognition of postmortem rights of publicity permits a decedent’s named beneficiaries or heirs to control (and financially benefit from) use of a deceased personality’s image and likeness. Legislators, proponents of these laws, and legal commentators have overlooked two significant federal estate tax consequences of these…

Reweighting the Balance: Religious Groups, Mortal Threats, and “Hybrid Situations”

Recent attempts to falsely portray presidential candidate Barack Obama as a Muslim and a tool of our nation’s enemies serve as vivid reminders that many Americans doubt the loyalties of their Muslim compatriots. These smears exploit the perception that conduct expressive of Muslim identity—like attending a “Muslim” school or wearing “Muslim” garb—is inherently suspicious. Some counterterrorism profiling, even when based on “objective” intelligence, has employed similar logic by…

Group Harms in Antiterrorism Efforts: A Pervasive Problem with No Simple Solution

In Defending the Faithful: Speaking the Language of Group Harm in Free Exercise Challenges to Counterterrorism Profiling, Murad Hussain moves beyond the longstanding concern with governmental profiling on the basis of racial or religious group status. Hussain contends that antiterrorism profiling on the basis of religiously inspired conduct or cultural practices may also inflict “pervasive dignitary and stigmatic harms upon the Muslim American community.” Hussain proposes a doctrinal remedy …

Religious Expression in the Balance: A Response to Murad Hussain's Defending the Faithful

In the aftermath of September 11, 2001, the government has adopted a number of counterterrorism measures that burden Muslim-Americans’ religious practices. Murad Hussain’s Note attempts to overcome the doctrinal obstacles facing individuals’ pursuit of legal claims against these measures. Because of the deference granted the government when it alleges national security interests, the immediate effects of this approach may be limited. Over time, however, Hussain’s doctrinal strategy, by …

A Procedural Rule and a Substantive Problem: Legislative Hawks and the Concentration of Power in Georgia’s Speaker of the House

Just hours after the Georgia General Assembly convened in January 2005, the newly Republican-led House of Representatives elected the first Republican Speaker of the House in 135 years. The House then launched its first official day of business with a dramatic change in its internal rules by passing House Rule 11.8—a rule that gives the Speaker unprecedented legal power to control the function of legislative committees. This Commentary argues that Georgia’s House Rule 11.8 is an abuse of t…

Three Questions about Hybrid Rights and Religious Groups

Murad Hussain argues that the courts should adopt a theory of hybrid rights to protect religious minority groups engaged in civic-minded speech. Why extend this protection only to religious minority groups; aren’t secular minorities just as vulnerable? And why only to religious groups who engage in civic dialogue; isn’t private religious expression just as meaningful? And why, of all conceptual possibilities, would one choose hybrid rights to protect anything; do such rights even exist in co…

Conservation Easement Tax Credits in Environmental Federalism

Faced with a frustrating lack of federal leadership, environmentalists are increasingly focusing their energy on state and local efforts to protect our natural heritage. Many high profile projects, however, rely on unpopular mandatory standards and conflict with federal regulatory priorities. Consequently, programs like the California and Vermont fuel efficiency standards have met with political resistance at both the state and federal levels. As an alternative, states interested in resource pre…

State Court Reform of the American Jury

The American jury’s prominent place on any short list of our most sacred endowments from older Western societies has tended to obscure both its tragic fall from grace and its recent renewal at the hands of state courts. I. The Jury Tradition Lawyers and judges regularly remind potential jurors that they are about to participate in a legal tradition enshrined by the signing of the Magna Carta. If anything, these exhortations typically understate the antiquity of the exercise. The Athenians, f…

Justice “Promptly, and Without Delay”: Court Reform and Judicial Independence

The Massachusetts Constitution of 1780, the world’s oldest, still-governing written constitution, guarantees to all “[e]quality under the law” and the “impartial interpretation of the laws . . . by judges as free, impartial and independent as the lot of humanity will permit.” It also guarantees the “impartial . . . administration of justice,” and justice obtained “completely, and without any denial; promptly, and without delay.” The reason John Adams, the principal drafter of t…

State Courts

Emerging Trends in State Law

Natural-Born Citizen Clause and Presidential Eligibility

Court Proceedings

Like British admiralty courts and courts in many civil law countries, the international slave trade courts did not rely on live, in-court testimony, but instead on written depositions from witnesses taken in advance of the hearing. The registrar of the court would administer a detailed, fixed list of questions to the witnesses and record their answers. Ships documents, such as logs and registration papers, would fill out the dossier.

Antislavery Courts

In my article Antislavery Courts and the Dawn of International Human Rights Law in the January edition of this Journal, I discuss the role of international courts in the suppression of the transatlantic slave trade in the nineteenth century.

As the article explains, between 1817 and 1871, bilateral treaties between Britain and several other countries (eventually including the United States) led to the establishment of international courts for the suppression of the slave trade. Though all but forgotten today, these antislavery courts were the first international human rights courts. They were made up of judges from different countries. They sat on a permanent, continuing basis, and they applied international law. The courts explicitly aimed to promote humanitarian objectives. Though the courts were extremely active for only a few years, over the treaties’ lifespan, the courts heard more than 600 cases and freed almost 80,000 slaves found aboard illegal slave trading vessels. During their peak years of operation, the courts heard cases that may have involved as many as one out of every five or six ships involved in the transatlantic slave trade.

The history of the antislavery courts reveals a more complex interrelationship between state power, moral ideas, and domestic and international legal institutions than many contemporary theories of international law and relations acknowledge, and has important implications for modern attempts to enforce human rights standards on an international basis.

Correspondence

The British judges carried on an active correspondence with the Foreign Office in London, with British colonial officials, foreign governments, and ships captains. Topics ranged from the mundane—illnesses, budgetary and administrative matters—to the profound, including reflections on the inhumanity of the slave trade.

Liberated Slaves

Like British admiralty courts and courts in many civil law countries, the international slave trade courts did not rely on live, in-court testimony, but instead on written depositions from witnesses taken in advance of the hearing. The registrar of the court would administer a detailed, fixed list of questions to the witnesses and record their answers. Ships documents, such as logs and registration papers, would fill out the dossier. The court’s decisions were usually fairly brief, quickl…

Ships

Many of the trials concerned the validity of the ships’ papers, and the courts’ records contain many bundles of original records found on the captured ships. For example, the papers certifying the ship’s nationality or ownership might have been found to be forged or otherwise irregular. During the time period when the slave trade was prohibited by some nations only north of the equator, the ship’s log was sometimes altered to suggest that the ship had been sailing in legal latitudes when…

Overcoming Deference to Administrative Regulation: Expanding the State Children’s Health Insurance Program (SCHIP)

The Pocket Part: 2007 Highlights

This week, The Pocket Part is bringing back some of our most popular and influential issues of the year. We chose three different issues that represent the diverse array of scholarship that The Pocket Part has published. We hope that you have enjoyed reading The Pocket Part in the past year, and we look forward to publishing new and interesting pieces in 2008.

White Collar Criminals

In a controversial essay, Ellen Podgor argues that the Federal Sentencing Guidelines for white collar crimes are too harsh. Fraud is not comparable to aiding terrorist organizations. Furthermore, white collar criminals are less likely to recidivate than other criminals. Finally, white collar criminals simply do not threaten our sense of security in the way that violent criminals do.

In response, Andrew Weissmann and Joshua A. Block attack Podgor's assertion that white collar criminals are severely punished. Although there are high profile outliers, the average white collar criminal does not serve jail sentences comparable to murders or terrorists. Furthermore, Podgor's suggestion that white collar criminals are more deserving of leniency is problematic and potentially discriminatory.

Congressional Representation for Puerto Rico

José R. Coleman Tió argues the current commonwealth relationship between the United States and Puerto Rico is insufficient to satisfy Puerto Rico's democratic aspirations. Coleman believes that Puerto Rico can and should be given congressional representation through federal legislation. In response, Christina Duffy Burnett and John C. Fortier argue that Coleman cannot surmount the constitutional and normative challenges to his proposal. Taking a different perspective, Ezra Rosser argues that …

The Promise and Pitfalls of the New Voting Rights Act (VRA)

The story of the 2006 reauthorization of the Voting Rights Act (VRA) is one that should interest scholars of legislation and constitutional law, as well as the expected and ever-burgeoning audience of election law enthusiasts. The Promise and Pitfalls of the New Voting Rights Act attempts to tell this story by identifying the constitutional and political constraints on the legislative process that led the law to take the form that it did, and to provide an interpretation of the law’s central provision for which surprisingly little legislative history exists.

Mission Accomplished?

Is Texas really worse than Ohio? Comparing the two—and, more broadly, the regions subject to the renewed Voting Rights Act with those that are exempt—provides critical support for the statute’s validity. My study of voting rights violations nationwide suggests that voting problems are more prevalent in places “covered” by the Act than elsewhere. Professor Persily’s careful and measured defense of the renewed statute posits that this evidence is the best available to support reautho…

Political Avoidance, Constitutional Theory, and the VRA

Constitutional theory and design have been dominated by the specter of legislative and executive institutions voraciously seeking to expand their powers. But in modern political practice, the flight from political responsibility–the problem of political abdication–is at least as serious a threat. Constitutional theory has paid too little attention to this problem. And as a matter of institutional design, we are still struggling to find tools to force political actors to take responsibility t…

Northwest Austin Municipal Utility District No. 1 (NAMUDNO) v. Gonzales

Nathaniel Persily’s article, The Promise and Pitfalls of the New Voting Rights Act, recently became a focus of attention in a pending case challenging section 5 of the VRA on constitutional grounds, Northwest Austin Municipal Utility District No. 1 (NAMUDNO) v. Gonzales, No. 1:06-cv-01284-PLF (D.D.C. Aug. 4, 2006). The plaintiff in the case, a Texas utility district covered by section 5 of the VRA, argues that the requirement that it obtain federal preclearance for changes to its election pra…

The New Voting Rights Act

Uncorking a Seventy-Four-Year-Old Bottle: A Toast to the Free Flow of Liquor Across State Borders

Laugh Track II – Still Laughin’!

The Capabilities Approach and Ethical Cosmopolitanism: A Response to Noah Feldman

In a world filled with unjust inequalities, it is fitting that theorists should be turning their attention to the ethical ideal known as “cosmopolitanism,” a view that holds that our loyalties and our ethical duties ought to transcend the local and even the national, focusing on the needs of human beings everywhere. In a world in which reasonable people differ about religious and secular values, however, this new theoretical attention will prove productive for the practical political debate …

Interbranch Communication: A Note on “Article III En Banc”

Promises of Nonstate Representatives

Why Modularity Does Not (and Should Not) Explain Intellectual Property

A virtual cottage industry of intellectual property (IP) models has sprung up in recent years. To the mix, Henry Smith adds modularity, in which there are intense interactions within, and few interactions between, components. But before displacing more traditional explanations, the theory must address six fundamental challenges: (1) explain why modularity should be IP’s defining feature; (2) account for the roles played by IP statutes and doctrine; (3) specify clear boundaries for innately imp…

On Coordinating Transactions in Intellectual Property: A Response to Smith’s Delineating Entitlements in Information

Henry Smith’s Intellectual Property as Property: Delineating Entitlements in Information contributes to the intellectual property literature by arguing that enforcing IP with rights to exclude can mitigate the high information costs associated with information-based assets. Smith is right, as far as he goes, but perhaps he should go further. Treating IP as property has at least three additional important benefits: First, it improves socially constructive coordination that facilitates the compl…

Intellectual Property as Property

Intellectual property is property. This may seem trivial to some and tendentious to others. Why? In my recent Article I argue that the conflict between two polar views arises in part from overlooking the nature of property rights. Commentary in intellectual property is overwhelmingly concerned with the nonrivalness of information on the one hand or the need for the creation of incentives on the other. The former makes intellectual property, and exclusion in particular, presumptively suspect: if …

Call For Papers: State Law

The Yale Law Journal Pocket Part is soliciting commentaries for two end-of-year issues: one issue will focus on new developments in state courts, and the other will focus on new developments in state legislatures. Our goal is to bring critical focus to an area of lawmaking that deserves greater attention in the legal literature, and we invite you to submit a commentary on a state law topic of your choosing. Commentaries may explore a legal development at the state level that has not been ext…

Protecting National Security or Covering Up Malfeasance: The Modern State Secrets Privilege and Its Alternatives

The Relative Weight of Irreparable Benefits

Partial Regulatory Takings: Stifling Community Participation Under the Guise of Kelo Reform

New Actions or New Arguments over Regulatory Takings?

Hannah Jacobs’s note seeks to establish a basis for balance among the competing parties to the renewed social conflict over regulatory takings. I argue that she is misled in this search. Proponents of regulatory takings initiatives are not interested in balance. They are interested in winning. Proponents want to delegitimate and dismantle the current system of local and state regulation. Instead of seeking balance, which concedes the validity of regulation’s critics, I argue that the task is for regulatory taking opponents—planners, environmentalists, neighborhood activists—to find a language and a strategy that presents a persuasive case for the social utility and functionality of regulation and the social disruption of regulatory takings.

Defusing a Google Bomb

AutoAdmit has its problems—racism, sexism, and bigotry quickly come to mind—but we would not care nearly as much about its more vicious content were it not for Google. In this essay, I sketch a framework for a statutory solution to the Google bomb problem derived from the notice-and-takedown provisions of the Digital Millennium Copyright Act (DMCA). The purpose of this framework is to eliminate defamatory anonymous speech from Google search results. It would require search engines to remove …

Regulating Cyberbullies Through Notice-Based Liability

With the growth of the Internet’s uses and abuses, Internet harassment is making headlines. Given its immediacy, anonymity, and accessibility, the Internet offers an unprecedented forum for defamation and harassment. The salient problem with such “cyberbullying” is that victims are typically left without adequate recourse. The government should provide recourse by curtailing the near absolute immunity Internet Service Providers (ISPs) currently enjoy under the Communications Decency Act (C…

Don’t Censor Search

When search engines lead thousands of searchers to anonymous online harassment, it may seem only natural to look for legal ways to make the harassment disappear from search results. This initially attractive idea is in fact deeply dangerous. It pressures the wrong intermediary, invites abuse by spammers and censors, and misunderstands the relationship between search engines and search users. Search-engine amplification is part of the problem of online harassment, but laws targeting search engine…

The Legal Profession, Personal Responsibility, and the Internet

Our law students are more tech-savvy than ever. Unfortunately, they occasionally lack sense. Some of them simply fail to realize that we—professors, bar examiners, and law firms—see material they post online. Others make a game out of being intentionally, but anonymously, offensive. To avoid further injury to the reputation of our law schools and the legal profession, we must create incentives for the former students to consider consequences, and a reasonable chance that the latter students …

Internet Harassment

Who Chooses and Who Gets What: Efficient Breach and Efficient Performance Hypotheses

The efficient breach hypothesis is often taken as formal support for the Holmesian optional contract approach, which gives promisors the right to perform or pay. However, the efficient breach hypothesis doesn’t speak directly of rights (and indeed a promisor’s power to perform or pay would work just as well as the right to do so), but it does implicitly constrain the rights of promisees. If promisees have the right to prevent breach, it is often argued, inefficiency will result. Moreover, th…

Some Reflections on Richard Brooks’s “Efficient Performance Hypothesis”

Though falling comfortably in the genre of economic analysis of contract, Professor Brooks’s essay nevertheless provides some relief from the excesses of economic theorizing about the law. I will confine my comments to the conceptual and normative features of the economic analysis of contract, leaving it to others more versed in economic analysis than I to assess the success of his objections to the conventional view. It would be something of an understatement to say that economists of law s…

A Critique of the Efficient Performance Hypothesis

The classic economic justification of contract law’s default remedy of expectation damages is grounded on the efficient breach hypothesis: that promisors should be permitted and encouraged to breach when the net gains from breach exceed the net gains from performance. Expectation damages ensure that all and only efficient breaches will occur because promisors will find breach profitable only if its benefits exceed the value of performance to the promisee. The efficient breach hypothesis, and t…

What the Efficient Performance Hypothesis Means for Contracts Scholarship

The standard contract remedy of expectation damages treats a promissory obligation as an option: the promisor has the option to breach or pay damages equal to the difference between the value of performance and the contract price. In his interesting essay recently published in this Journal, Richard Brooks asks, Why not give the option to the promisee rather than the promisor? If the promisee is given the option to force the promisor to perform or pay damages equal to the difference between the p…

What Efficiency Demands: The Efficient Performance Hypothesis Defended

I appreciate the comments and thoughtful engagement by Professors Coleman, Kraus, and Posner on my essay “The Efficient Performance Hypothesis.” A few words of clarification may be helpful with regard to these comments, as well as the original essay. Let me begin with Professor Kraus’s comment—the most critical of the three in both tone and substance. Regrettably, Professor Kraus’ comment misses the point of the essay and his tangents contain a number of mistakes. I will attempt to cla…

The Historical Origins of Judicial Independence and Their Modern Resonances

Responding to Mary Sarah Bilder’s argument that the roots of judicial review can be found in corporate law of the colonial era, Scott Gerber contends that judicial review is an extension of the notion of an independent judiciary that emerged from Revolutionary Era political theory. Gerber convincingly demonstrates that the American Founders were “steeped in the history of ideas.” But his limited focus on Adams and Montesquieu obscures the deeper theoretical origins of the doctrine of an in…

The Guantanamo Three-Step

Democracy, Not Statehood: The Case for Puerto Rican Congressmen

Congress is currently considering the District of Columbia House Voting Rights Act of 2007 (H.R. 1433), which attempts to address the disenfranchisement of District residents by granting the District representation in the House of Representatives. In a Comment recently published in this Journal, I show that the constitutional arguments supporting H.R. 1433 would also apply to a similar (hypothetical) bill granting House representation to Puerto Rico. In fact, a bill enfranchising Puerto Ricans i…

The Constitution Is Clear: Only States Vote in Congress

Two Puerto Rican Senators Stay Home

A Radical Rejection of Universal Jurisdiction

I want to look at the universal jurisdiction principle of Noah Feldman’s proposed minimum legal cosmopolitanism from the following hypothetical perspective. Suppose I were a voting member of an international organization considering whether to recognize this principle as binding international law, which would authorize any judge anywhere to exercise jurisdiction over every heinous crime, regardless of the defendant’s nationality. Would I vote to recognize the principle? To consider this qu…

Irreparable Benefits

When Do Irreparable Benefits Matter? A Response to Douglas Lichtman on Irreparable Benefits

In Irreparable Benefits, Douglas Lichtman argues that when courts consider granting preliminary relief, they should account not only for irreparable harms but also for irreparable benefits. He reasons that gains accrued during trial to a litigating party who wins at the preliminary stage but eventually loses on the merits (the “Temporary Winner”) have undesirable distributional and incentive effects. Despite the appeal of Lichtman’s claim, I want to suggest some qualifications to it. First…

Against Irreparable Benefits

In a recent essay in The Yale Law Journal, Douglas Lichtman argues that courts considering preliminary injunctions should account for irreparable benefits in addition to irreparable harms. This is a provocative idea. If a preliminary injunction harms one party but benefits the other, and if both effects are equally difficult to subsequently undo, why focus on one effect (harm) and ignore the other (benefit)? There is a compelling geometric validity to this symmetry observation. But is this a val…

Police Pretext as a Democracy Problem

Democracy, at the very least, requires that the dangerous branches of government—like the executive and law enforcement—be accountable to the people or their representatives. Ignoring claims of police pretext, as our Fourth Amendment jurisprudence currently does, creates a barrier to that accountability because it shields bad police purposes from inquiry. We cannot with confidence grant limited powers to the police, or trust that they will not use their powers for totalitarian ends, if a pol…

On Rights and Responsibilities: A Response to The Problem with Pretext

Eric Citron’s piece, Right and Responsibility in Fourth Amendment Jurisprudence: The Problem with Pretext, gets some things quite wrong, but it gets one important thing right—that our Fourth Amendment law is all about what suspects do and very little about what police do. Citron starts from the proposition that Whren v. United States makes impermissible any consideration of pretextual justifications for police conduct. Citron overstates the significance of Whren, arguing that “Whren and i…

How Whren Protects Pretext

Funny, isn’t it, that “pretext” is a dirty word, a liability-conferring word, in an employment discrimination case, or a fraud case, but that in Fourth Amendment jurisprudence the word has been given a free pass? That, to use Eric Citron’s phrase, the word even seems to open up a “liberated space for bad intentions”? Especially in the context of traffic stops, the pretext problem is widespread and destructive of what used to be called “police-community relations.” In the Distr…

Unpacking the Household: Informal Property Rights Around the Hearth

Lawyers and legal scholars understandably tend to focus on domains of life where law is central. There is much to be learned, however, from domains where people deliberately structure their affairs to minimize formalities such as written contracts and legal entanglements. Just as studying conditions of anarchy helps illuminate the effects of government, so studying domains that people intentionally keep casual can shed light on the merits of more legalized arrangements. In an article recently pu…

Bargaining Around the Hearth

In Unpacking the Household: Informal Property Rights Around the Hearth, Robert Ellickson argues that as long as members of a household expect their relationship to continue, norms, rather than law, will determine allocations among them. More specifically, Ellickson argues that in “midgame” household members either ignore the “endgame” completely or, if they do take endgame considerations into account, the relevant endgame considerations are determined by norms rather than by law. In this…

Repack the Household: A Response to Robert Ellickson’s Unpacking the Household

In the United States and many other industrialized countries, there is much concern that younger generations fail to invest the amount of household production time that is needed for society to reproduce itself and for children to receive the education that will make them into productive citizens. In either instance, levels of household production of socially desirable goods and services may be suboptimal. Robert Ellickson’s emphasis on conditions optimal for capital supply, but not for the su…

Understanding the Distinct Function of the Combatant Status Review Tribunals: A Response to Blocher

The Dangers and Demands of Cosmopolitan Law

In a recent essay in this Journal, Noah Feldman describes his conception of a “cosmopolitan law” and offers several theories of how such law could be applied. These theories explain when a liberal state may—and should—apply its law to the acts of foreigners in foreign lands. In this Response, I draw on my own experience conducting ethnographic interviews in the Netherlands to address what I see as the greatest obstacle to Feldman’s theories in practice: to succeed, cosmopolitan law wou…

The Quest for a Higher Law

Noah Feldman’s “cosmopolitan law” is, I think, a revised version of what has been sometimes called the law of nations, international law, and transnational law. Each, as originated, was a quest for a higher law that would interpret, supplement, and sometimes limit the law and power of states. This quest goes back further: Aristotle’s equity was the “corrective of what is legally just.” The quest has a literary, as well as a legal and philosophical, face; for example, when T.S. Eliot…

What Booker Means for Convicted Corporations

The Organizational Guidelines: R.I.P.?

In a recent issue of this Journal, Timothy A. Johnson argues that Congress may not make the Federal Sentencing Guidelines provisions on the sentencing of organizations (the “Organizational Guidelines”) mandatory because United States v. Booker guarantees the constitutional right of corporations to a jury trial. Johnson’s argument, while convincing, may be somewhat beside the point. The time has come to bury the Organizational Guidelines now that prosecutors can achieve the goal of reformi…

The Power of the Corporate Charging Decision over Corporate Conduct

The "Bong" Show: Viewing Frederick's Publicity Stunt Through Kuhlmeier's Lens

Next week, the U.S. Supreme Court will hear argument in Morse v. Frederick. At issue is whether a public high school principal violated a student’s First Amendment rights by suspending him for displaying a banner reading “BONG HiTS 4 JESUS” at an outdoor school rally for the 2002 Winter Olympics torch relay. The school petitioners, represented pro bono by Kenneth Starr, have urged the Court to give educators wide latitude to proscribe drug-themed speech so they can “foster and encourage …

Throwing Away the Key

The problem today is not only the draconian sentences that white-collar offenders are receiving, but the fact that because of the elimination of parole they will actually have to serve them. For example, if Michael Milken had been sentenced under today's sentencing regime, and if he had been made to serve his entire sentence, he might not have been able to found the Prostate Cancer Foundation or FasterCures, two organizations that have made serious inroads in the treatment of diseases. Without t…

White-Collar Defendants and White-Collar Crimes

At the margins, the current Federal Sentencing Guidelines for fraud and other white-collar offenses are too severe. Even when a corporate leader has engaged in massive fraud affecting thousands of people, such as what occurred at Enron, sentences of twenty or more years hardly seem necessary to satisfy the traditional sentencing goals of specific and general deterrence—or even retribution. But we disagree with Professor Podgor’s essay Throwing Away the Key to the extent it contends that whit…

Lawyers as Leaders

In Praise of the Supporting Cast

F.S. Oliver observed almost a century ago that a typical lawyer’s professional “experience of human affairs is made up of an infinite number of scraps cut out of other people’s lives.” Even as the lawyer’s professional life is immensely various, it remains at the same time absolutely vicarious—even as she encounters a wide range of clients and problems, she always acts for and through others rather than on her own behalf. This made Oliver a skeptic about lawyers’ capacities for tru…

Making the Advice of Counsel Defense Available for Corporate Directors

Executives Do Not Need Waivers and Companies Should Not Offer Them: A Response to Mark Kressel

Although Mark Kressel’s proposal is novel, provocative, and even enticing, it is ultimately unnecessary and unworkable to suggest that a corporation and its high-level executives should agree, at the very commencement of their relationship, to waive the corporation’s attorney-client privilege when reliance on corporate counsel’s work is necessary to defend the executive against allegations of wrongdoing. Mr. Kressel’s proposal is unnecessary because corporate directors and officers rarel…

Improving Deference: Chevron as a Voting Rule

Of central importance to administrative law and theory is the question whether, and when, courts will defer to agency interpretations of law. In Chevron v. Natural Resources Defense Council, the Supreme Court replaced earlier answers to that question with a new framework: courts should defer to an agency interpretation unless the relevant statute is clear or the agency interpretation is unreasonable. In the past two decades, however, the Chevron framework has come under increasing strain. Doctri…

Chevron Should Not Be Converted into a Voting Rule: A Response to Gersen and Vermeule's Proposal

The Costs of Voting Rule Chevron: A Comment on Gersen and Vermeules Proposal

Professors Gersen and Vermeule argue that we should replace “doctrinal Chevron,” which instructs courts to defer to an agency’s reasonable interpretation of a statute the agency administers, with “voting rule Chevron.” Under voting rule Chevron, judges would not defer to agency views. Instead, voting rule Chevron would induce deference at the aggregate level by requiring a supermajority vote to reverse an agency. Gersen and Vermuele’s argument is novel, provocative, and ingeniously d…

Treasons Return

Why We Have Judicial Review

Judicial review in the United States is controversial largely because, as Daniel Farber and Suzanna Sherry explain , there exists among the public “a sense of innate conflict between democracy and judicial review.” The standard account of judicial review, which describes the practice as invented by Chief Justice John Marshall in Marbury v. Madison, only contributes to that sense of concern. The origins of judicial review, however, do not lie in judicial creativity or even in the history of j…

Original Understanding and the Whether, Why, and How of Judicial Review

For more than one hundred years, legal scholars have endlessly and heatedly debated whether judicial review of federal legislation was part of the original understanding of the Constitution. The stakes of the debate are high. If judicial review was part of the original understanding, then there is a strong argument that the practice is grounded in the majority’s will, just as the Founders’ Constitution is. But if it is not—if, as Alexander Bickel and others have claimed, judicial review w…

The Political Theory of an Independent Judiciary

Many of the nation’s most influential constitutional law scholars have argued recently that judicial review should be sharply limited or eliminated altogether. The list includes such notable thinkers as Larry D. Kramer, Cass R. Sunstein, William M. Treanor, and Mark V. Tushnet. Mary Sarah Bilder’s article is a powerful corrective to this mounting opposition to the doctrine made famous by Chief Justice John Marshall in Marbury v. Madison . Professor Bilder concludes that judicial review i…

Much Ado About Nothing: Why Student Scholarship Has Nothing To Fear from Blogs

Shortly after the popularization of the World Wide Web in 1996, Professor Bernard Hibbitts proclaimed that “[t]he next decade could witness the end of the law review as we know it,” for cyberspace would allow law professors to “finally escape the straitjacket of the law reviews by publishing their own scholarship directly on the World Wide Web.” Earlier this fall, Professor Stephen Vladeck made an equally bold—and equally erroneous—prediction in stating that “[t]he days of the cas…

Save the Cities, Stop the Suburbs?

The fact that the word “sprawl” is uttered by curling the upper lip into a snarl captures some of the emotion generated by the current debate over American land use policy. Two recent books—Robert Bruegmann’s defense of sprawl and Joel Kotkin’s ambitious but short history of great cities provide an opportunity to consider sprawl’s costs and benefits, and also to examine the case for legal efforts to curtail it in order to save our cities. These are important questions because, as Bru…

City, Heal Thyself

In Save the Cities, Stop the Suburbs, Nicole Stelle Garnett perceptively ruminates about the future of American metropolitan areas. She rightly praises Robert Bruegmann for putting forward a steadfastly contrarian set of views on issues of suburban sprawl. Even readers who ultimately reject Bruegmann’s implicit defense of the status quo will admire his impressive compilation and careful description of the fractious literature on metropolitan form. Professor Garnett is troubled by Bruegmann’…

Beyond City and Suburb: Thinking Regionally

“City” and “suburb” as they were known and debated in the twentieth century are no more. Increasingly, the key urban unit in metropolitan America is the region. Robert Bruegmann’s Sprawl: A Compact History, a chronicle of the melding of city and suburban land use patterns, illustrates this development. Joel Kotkin’s The City: A Global History, which expresses concern about the loss of traditional urban distinctiveness, also reflects this. In her review of both books, Nicole Stelle Ga…

A Few Thoughts on Electronic Discovery After December 1, 2006

Editor's Note: On December 1, 2006, electronic discovery amendments to the Federal Rules of Civil Procedure go into effect. In this seven-part series, Judge Lee H. Rosenthal, chair of the Judicial Conference's Advisory Committee on Civil Rules, offers an introduction to the new amendments and describes challenges they present for lawyers, litigants, and judges.

The last time the Federal Rules of Civil Procedure were amended to acknowledge computers was 1970, when the words “data and data compilations” were added to Rule 34. Thirty-six years later, long after the computer has become both ubiquitous and essential, it is time to do much more. On December 1, amendments will go into effect to make the discovery rules better able to accommodate the vast changes in information technology that have already occurred and that will inevitably continue.

The need for the guidance the e-discovery rule amendments provide is reflected in the fact that courts have been applying the new rules since they were proposed, years before their effective date. Because the amendments have to be flexible enough to apply to all federal cases that could involve electronic discovery and general enough to accommodate the inevitable changes in information technology, there are a number of issues the new rules do not address. Instead, the rules present procedures and guidelines targeted at the distinctive features of electronically stored information, to help resolve those issues when they arise. In this seven-part series, I discuss a few issues likely to arise under the new rules and the challenges they may present, not only for lawyers and litigants, but for judges.

• Installment 1: An Overview of the E-Discovery Rules Amendments
• Installment 2: Meeting and Conferring
• Installment 3: Not Reasonably Accessible Information and Allocating Discovery Costs
• Installment 4: Privilege Review
• Installment 5: Metadata and Issues Relating to the Form of Production
• Installment 6: Sanctions
• Installment 7: Conclusion

National Citizenship and Equality of Educational Opportunity

Equal Educational Opportunity and the Federal Government: A Response to Goodwin Liu

Goodwin Liu’s inspiring article mines a rich vein of the history of American education. He revives and re-interprets congressional attempts to create a national system of public schools in the years following the Civil War. Professor Liu’s work is a signal contribution to the national movement for fiscal equity in education. I share with Liu—and with the senators and presidents whose efforts he describes—a strong belief that the federal government has a constitutional duty to ensure that…

A Response to Goodwin Liu

Professor Liu’s article convincingly shows that the Fourteenth Amendment can be read, and has been read in the past, to confer a positive right on all citizens to a high-quality public education and to place a correlative duty on the legislative branches of both state and federal government to provide for that education. Specifically, the United States Congress has an obligation under the Fourteenth Amendment’s Citizenship Clause, Liu argues, to ensure that the public education provided by s…

Federal Nagging: How Congress Should Promote Equity and Common High Standards in Public Schools

In two articles—one recently published in this Journal and another forthcoming in the NYU Law Review—Professor Goodwin Liu argues that the federal government should play a greater role in financing public education, should distribute more fairly among states its funds targeted to the neediest schools, and should establish national standards to measure student achievement. Would Liu’s specific policy proposals—the subject of the NYU piece—be enough to close the achievement gaps between …

To Young People, Don't Ask, Don't Tell Means Don't Enlist

In the next few months, the First Circuit will consider Cook v. Rumsfeld, the first post-Lawrence v. Texas legal challenge to the constitutionality of the military’s “Don’t Ask, Don’t Tell” policy. Given the deference that federal courts afford to congressional judgments about military policy, “Don’t Ask, Don’t Tell” will be upheld unless the plaintiffs can convince the court to apply some form of heightened scrutiny to the government’s claim that excluding homosexuals from t…

Please Don't Cite This Case! The Precedential Value of Bush v. Gore

As Americans turn out to vote today, the ghost of the 2000 Presidential elections will hover over the voting booths. According to The New York Times, this will be the first midterm election in which the “Democratic Party is mobilizing teams of lawyers and poll watchers” to check for voting irregularities. Where there are “teams of lawyers” mobilized, can lawsuits be far behind? According to election law expert Dan Tokaji, any number of things “can cause problems on election day,” fr…

Federal Judicial Supremacy on the Ballot

The 2006 campaign season has witnessed an onslaught of challenges to one of our nation’s longest serving incumbents: federal judicial supremacy. On Tuesday, voters across the country will decide the future of this notion—that the decisions of the United States Supreme Court bind the decisions of state courts—in the form of ballot initiatives proposing term limits, recall measures, and citizen suits against judges who make unpopular decisions. The issue has garnered attention from commentat…

Can Interagency Dialogue Serve as the New Separation of Powers?

In Internal Separation of Powers, an essay recently published in this Journal, Neal Katyal adds his own distinctive twist to the debates about the growth of presidential power by suggesting reforms within the executive branch that would cabin executive discretion without violating the Constitution’s commitment to a unitary executive. I commend him for taking separation of powers principles seriously, rather than excoriating them as an obstruction or as a pretext for presidential aggrandizement…

Can Process Cure Substance? A Response to Neal Katyals Internal Separation of Powers

We lawyers are committed to reason. A process founded on the exchange of reasoned argument, we want to believe, will produce the right decisions. Professor Katyal profoundly disagrees with the legal decisions reached by the Bush Administration in the aftermath of September 11. In response, he proposes to remake the executive branch into a debating society—or, one should say, even more of a debating society than it already is. Each segment of the bureaucracy would be given a right to speak, and…

The South Dakota Referendum on Abortion: Lessons from a Popular Vote on a Controversial Right

Earlier this year, the South Dakota legislature passed a stiff anti-abortion bill, H.B. 1215, designed to test the durability of Roe v. Wade. Soon thereafter, the bill’s opponents collected enough signatures to put the Act on the South Dakota ballot. South Dakota voters will reject or affirm the Act by a popular vote on November 7. The Act’s legislative history and effects on public discourse merit investigation and offer two valuable lessons for other states. The declared purpose of the So…

Ending Court Protection of Voters from the Initiative Process

When journalists write their stories about state ballot propositions in the 2006 election, they likely will focus on South Dakota’s abortion rights referendum, Michigan’s affirmative action measure, or the variety of eminent domain measures reacting to the Supreme Court’s Kelo decision. But there’s also a story about measures that courts have kept off the ballot in a misguided effort to protect voters from making hard or bad choices. In this short essay, I argue that states should repeal…

Toward Internal Separation of Powers

The standard American conception of separation of powers presumes three branches of government, each replete with ambition to maximize its power. But due to a complicated interplay of party dynamics and executive branch assertiveness, Congress has often been content to stay at the sidelines of regulating the executive. Particularly when it comes to legal issues in the aftermath of the horrible attacks of September 11, 2001, Congress has passed open-ended legislation that fails to check the execu…

Political Checks on a Politicized Presidency: A Response to Neal Katyals Internal Separation of Powers

Frustrated by Congress’s apparently feeble efforts to check presidential war powers and unconvinced that another round with the War Powers Resolution will do much good, Neal Katyal recommends, in an essay recently published in the Journal, the promotion of an “internal separation of powers.” Professor Katyal suggests that we look to divisions within one branch of government—rather than divisions across multiple branches of government—to restore some semblance of balance to our politica…

Noticing Genocide

On June 16, 2006, the Appeals Chamber for the International Criminal Tribunal for Rwanda (“ICTR”) took judicial notice of the Rwandan genocide as a “fact of common knowledge” in Prosecutor v. Karemera. Though this unprecedented move originated from good intentions, it will prove to be a harmful precedent. The ICTR’s decision to take judicial notice of genocide is conceptually flawed, internally contradictory, and has the potential to alter ICTR jurisprudence, and perhaps the totality o…

Removing Federal Judges Without Impeachment

Because Breaking Up Is Hard To Do

Just about everyone has been in a romantic relationship that, in hindsight, should have ended sooner than it did. Why do people stay? Hope, or commitment, or because they share a lease or she owns the car. Life and love are complicated, and, as Neil Sedaka sang, “Breaking up is hard to do.” That’s true even for those who are abused by their partners. It’s within this context that we ask the criminal law to respond aggressively to domestic violence while respecting the victim’s unique …

The New Line Item Veto Proposal: This Time Its Constitutional (Mostly)

When President Bush asked Congress to enact a line item veto in his 2006 State of the Union Address, it sounded like a story we had heard before, one that didn’t have a happy ending. But it turns out that this proposed sequel differs from the 1996 Line Item Veto Act that the Supreme Court struck down in Clinton v. City of New York. This time the law is constitutional, if only because it isn’t really binding. The proposal, passed last summer by the House and endorsed by a Senate committee, w…

A Debate Between Peter Strauss and Cass Sunstein

In Beyond Marbury: The Executive’s Power To Say What the Law Is, 115 Yale L.J. 2580 (2006), Professor Cass Sunstein argues that Chevron is the Marbury v. Madison of our age, and that it is now the province of the executive branch to "say what the law is." Professor Peter Strauss responds that Chevron deference must remain "within" Marbury, and that the duty of the courts to set limits on executive claims of authority is as vital now as it has ever been. Check back through the coming week for i…

What the Internet Age Means for Female Scholars

As a female law professor, I can’t help asking: is the Internet-driven transformation of legal scholarship good for the girls, or bad for the girls? Will it remove some of the handicaps that have dogged women’s efforts to join the ranks of scholarly “superstars”? Or will it only increase the professional obstacles still faced by women in legal academia? In this short Essay, I try to predict some of the promises and perils that the Internet holds for women in the legal academy. Begin wi…

Why Blogs Are Bad for Legal Scholarship

The best legal scholarship is increasingly interdisciplinary in nature, and its successful production, evaluation, and distribution generally requires multi-disciplinary expertise at a reasonably high level. Unfortunately, the Internet in general, and blogs in particular, eviscerate and obscure expertise because the Internet’s most distinctive feature is the elimination of mediating boundaries: of distance, experience, education, and intelligence. While the elimination of the first is an advan…

That's So Six Months Ago: Challenges to Student Scholarship in the Age of Blogging

The days of the case note—and of student scholarship focusing on current developments in the law more generally—may well be numbered. With the proliferation of “legal development” blogs (for example, SCOTUSblog for the Supreme Court, the venerable How Appealing for appellate litigation, Decision of the Day for the work of the thirteen U.S. Courts of Appeals, more localized efforts along the lines of the not-very-confusingly named Southern District of Florida Blog, and field-specific blog…

Law Reviews, the Internet, and Preventing and Correcting Errors

Law reviews work hard to prevent and correct errors. They exert prodigious cite-checking, editing, and proofreading efforts to make sure their articles are as error-free as possible. They also try to prevent errors by readers: they publish articles aimed at correcting existing errors, and they edit articles with an eye toward eliminating misleading statements that might unintentionally lead readers into error. Yet new technologies can let law reviews do more to prevent and correct errors, withou…

A Blog Supreme?

American writer and poet laureate Amiri Baraka once remarked that jazz music is “essentially the expression of an attitude, or a collection of attitudes, about the world, and only secondarily an attitude about the way music is made.” The same can be said of the burgeoning field of online scholarship. Many rearguard academics view online scholarship as a perversion or threat to conventional modes of scholarly production. By contrast, those in the academic vanguard appreciate online scholarsh…

The Long Tail of Legal Scholarship

Chris Anderson’s book, The Long Tail: Why the Future of Business Is Selling Less of More, has attracted enormous attention since its publication in July 2006. His insight is that technology and the Internet have transformed the focus of America’s culture and economy. Whereas pre-Internet firms turned out a small number of “hits” or blockbuster products (the “head” of the demand curve), today’s Internet-era firms offer a broader range of niche products (the “tail”). This Essay a…

The Future of Legal Scholarship

Let the Law Journal Be the Law Journal and the Blog Be the Blog

I’m asked how the Internet will change what law journals do, but why are we assuming there should be any change at all? Law journals, distinguished by depth of scholarship and dedication to detailed and accurate support and citation, occupy a unique niche within the legal profession, and to preserve this important tradition may take all the energy you law students have. You are now seeing some glittering things luring you away from this difficult and worthy path. Law professors seem to be amu…