Predicting Utah v. Streiff's Civil Rights Impact

Securities Settlements in the Shadows

Innocence and Override

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

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

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

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

Democracy and Legitimacy in Investor-State Arbitration

Can Corpus Linguistics Help Make Originalism Scientific?

The Rise of Bank Prosecutions

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

The Fourth Amendment in the Information Age

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

Evidence-Based Sentencing and the Taint of Dangerousness

American Magisteria in the Twenty-First Century

Googling for Meaning: Statutory Interpretation in the Digital Age

Judicial Gobbledygook: The Readability of Supreme Court Writing

Bounds in Bank Regulation

Locked In: The Competitive Disadvantage of Citizen Shareholders

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

Perfect Plaintiffs

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

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

Justice Thomas and the Originalist Turn in Administrative Law

Looking Back Ten Years After Kelo

In Defense of Due Diligence in Cyberspace

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

Pixelating Administrative Common Law in Perez v. Mortgage Bankers Association

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

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

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

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

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

Roundup: Recent Developments in Criminal Justice and Mental Health Law

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

Roundup: Citizens United and Public Corruption

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

Roundup: Should We Treat Pregnant Workers Like Disabled Workers?

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

Anatomical Intent

Warning!: Self-Help and the Presidency

Ritchie v. Rupe and the Future of Shareholder Oppression

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

Riley's Implications for Fourth Amendment Protection in the Cloud

The Jurisdictional Question in Hobby Lobby

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

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

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

Storage Wars: Greater Protection for Messages in Memory

The Dominance of Teams in the Production of Legal Knowledge

Hobby Lobby and the Dictionary Act

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?

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

Superstatutory Entrenchment: A Positive and Normative Interrogatory

The National Security Constitution and the Bush Administration

Plural Constitutionalism and the Pathologies of American Health Care

Comprehensive Immigration Reform and the Dynamics of Statutory Entrenchment

How Statutes Interpret the Constitution

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

Withdrawing from International Custom: Terrible Food, Small Portions

The New Judicial Takings Construct

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

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

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

Withdrawing from Customary International Law: Some Lessons from History

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

Context Matters: Rules for Reducing Taxable Value

Corruption: Greed, Culture, and the State

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

Reversed on Appeal: The Uncertain Future of President Obama's "Empathy Standard"

Citizens United and Its Critics

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

The Costs of Consensus in Statutory Construction

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

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

A Brief Defense of the Written Description Requirement

The Justice as Commissioner: Benching the Judge-Umpire Analogy

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

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

Docket Capture at the High Court

If It Ain't Broke . . .

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

Wishing International Law Away

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

The Mess of Manifest Disregard

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

The Fog of Certainty

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.

Sonia Sotomayor's Note

Announcing The Yale Law Journal Online

The Mismatch Between Probable Cause and Partial Matching

Roberts Court Jurisprudence and Legislative Enactment Costs

My Debt to Mirjan Damaška

Protecting a Business Entity Client from Itself Through Loyal Disclosure

Regulating Federal Prosecutors: Let There Be Light

A Public Privilege

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

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

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

Virtual World Feudalism

Reputation as Property in Virtual Economies

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

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

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

Should We Tax Sovereign Wealth Funds?

Foreign Direct Investment by Sovereign Wealth Funds

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, Immigrant and Otherwise

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

Oops! Racism as Mistake: Lessons from Corporate Law

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

"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

IP Essentialism and the Authority of the Firm

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

Reconsidering the Syllabus in “Constitutional Law”

Curricula and Complacency: A Response to Professor Levinson

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

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

The Constitutional Relevance of Alleged Legislative Dysfunction

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

Summer Submissions Announcement

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

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

Call For Papers: Virtual Worlds Symposium

Call for Papers: Symposium on Sovereign Wealth Funds

Taking States out of the Workplace

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

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

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

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

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

Three Questions about Hybrid Rights and Religious Groups

Conservation Easement Tax Credits in Environmental Federalism

State Court Reform of the American Jury

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

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

Liberated Slaves

Ships

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

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?

Political Avoidance, Constitutional Theory, and the VRA

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

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

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

Promises of Nonstate Representatives

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

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

Intellectual Property as Property

Call For Papers: State Law

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

Regulating Cyberbullies Through Notice-Based Liability

Don’t Censor Search

The Legal Profession, Personal Responsibility, and the Internet

Internet Harassment

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

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

A Critique of the Efficient Performance Hypothesis

What the Efficient Performance Hypothesis Means for Contracts Scholarship

What Efficiency Demands: The Efficient Performance Hypothesis Defended

The Historical Origins of Judicial Independence and Their Modern Resonances

The Guantanamo Three-Step

Democracy, Not Statehood: The Case for Puerto Rican Congressmen

The Constitution Is Clear: Only States Vote in Congress

Two Puerto Rican Senators Stay Home

A Radical Rejection of Universal Jurisdiction

Irreparable Benefits

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

Against Irreparable Benefits

Police Pretext as a Democracy Problem

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

How Whren Protects Pretext

Unpacking the Household: Informal Property Rights Around the Hearth

Bargaining Around the Hearth

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

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

The Dangers and Demands of Cosmopolitan Law

The Quest for a Higher Law

What Booker Means for Convicted Corporations

The Organizational Guidelines: R.I.P.?

The Power of the Corporate Charging Decision over Corporate Conduct

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

Throwing Away the Key

White-Collar Defendants and White-Collar Crimes

Lawyers as Leaders

In Praise of the Supporting Cast

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

Improving Deference: Chevron as a Voting Rule

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

Treasons Return

Why We Have Judicial Review

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

The Political Theory of an Independent Judiciary

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

Save the Cities, Stop the Suburbs?

City, Heal Thyself

Beyond City and Suburb: Thinking Regionally

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

A Response to Goodwin Liu

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

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

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

Federal Judicial Supremacy on the Ballot

Can Interagency Dialogue Serve as the New Separation of Powers?

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

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

Ending Court Protection of Voters from the Initiative Process

Toward Internal Separation of Powers

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

Noticing Genocide

Removing Federal Judges Without Impeachment

Because Breaking Up Is Hard To Do

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

A Debate Between Peter Strauss and Cass Sunstein

Why Blogs Are Bad for Legal Scholarship

What the Internet Age Means for Female Scholars

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

Online Legal Scholarship: The Medium and the Message

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

Law Reviews, the Internet, and Preventing and Correcting Errors

A Blog Supreme?

The Long Tail of Legal Scholarship