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

The news is filled with reports of democratic movements challenging authoritarian rule in the Middle East and elsewhere, prompting a nigh unanimous outpouring of support from across the American political spectrum. But a conflict much closer to home—the crisis in Wisconsin and a growing number of states over collective bargaining rights for public-sector workers—has produced a more mixed and complex reaction. To be sure, most polls suggest that a majority of Americans opposes efforts by Republican-dominated state governments to strip public-sector employees of their bargaining rights. But a sizeable minority supports those efforts, and challenges to the role of teachers unions—the public sector’s most visible organized cohort—have been issuing from the right and left alike. And while a consensus may be emerging among the credible commentariat that Wisconsin Governor Scott Walker “overplayed his hand”—using a budget crisis as a pretext for punishing unions he views as political opponents—the frequent portrayal of teachers and other civil servants as members of a privileged and overpaid class who enjoy jobs for life and the benefits of “lavish” health care and pension plans has clearly found some traction with the viewing public, despite the considerable gap between that image and the daily lives of most of those thus portrayed.

But I want to argue here that the stakes in Wisconsin have less to do with the bona fides of budget crises and benefits packages than with something a great deal more fundamental: the struggle between democratic governance and authoritarian control in the American workplace. I don’t wish to overstate the parallel to events in the Middle East, where the courage of the men and women who have joined the unprecedented wave of antigovernment protests is nearly beyond measure. But unions give American workers something that markets and employers seldom afford them and that contemporary American law does not otherwise provide: a genuine voice in important decisions about their work lives and the power to make that voice heard. The attack on public-sector unions thus threatens to exacerbate what is already a breathtaking “democracy deficit” in U.S. labor relations and—should the effort gain traction and succeed—to cut American workers altogether out of a role in workplace governance. Indeed, now that private-sector union representation in the United States has reached a post-World War II low of under 8%, the mantra of Republican state officials that government should be “run like a business” may well portend a clean and decidedly non-union sweep for the public-sector workforce as well.

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.

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.

A Brief Defense of the Written Description Requirement

The Federal Circuit’s December 7, 2009 hearing of oral argument in Ariad v. Lilly has generated significant interest among those who follow patent policy. An en banc decision is expected within the next few months.

The dispute arises from the interpretation of 35 U.S.C. § 112, which states in relevant part:

All agree that this language includes an “enablement” rule, which requires that the specification enable a person having ordinary skill in the art (PHOSITA) to make and use the invention. More controversial is the phrase “written description of the invention” and whether that phrase entails a separate requirement apart from enabling the PHOSITA to make and use the invention. It appears that academics are split on the question, and most practitioners appear to disfavor a separate requirement.

This Essay briefly describes the dispute and then raises an important but previously undertheorized argument in favor of a separate written description requirement.

The Justice as Commissioner: Benching the Judge-Umpire Analogy

The judge-umpire analogy has become “accepted as a kind of shorthand for judicial ‘best practices’” in describing the role of a Supreme Court Justice. However, the analogy suffers from three fundamental flaws. First, courts historically aimed the judge-umpire analogyat trial judges. Second, courts intended the judge-umpire analogy as an illustrative foil to be rejected because of the umpire’s passivity. Third, the analogy inaccurately describes the contemporary role of the modern Supreme Court Justice.Nevertheless, no workable substitute for the judge-umpire analogy has been advanced. This Essay proposes that the appropriate analog for a Justice of the Supreme Court is not an umpire, but the Commissioner of Major League Baseball.

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

I. Introduction: The Need for “Political” Analysis

My participation in the excellent conference on case selection in the Supreme Court was surely based neither on my experience lawyering before the Court, nor on my systematic study of the case selection process as a methodologically sophisticated political scientist. That being said, I have studied and written about the Supreme Court, and I believe that I do have something to contribute to the discussion—I believe that the discussions tended to ignore a particular eight-hundred-pound elephant, which can basically be described as “politics.” There is, I believe, no “neutral” vantage point from which to assess the Court’s decisions as to how many cases it takes and, of course, which particular cases it chooses to hear. Instead, perspectives will inevitably reflect a series of political viewpoints. I should note that “political” in this context is not necessarily synonymous with Democrat or Republican (though on occasion it might be); rather, it refers to the answers one gives to some rather basic questions about how our political institutions should be organized.

Docket Capture at the High Court

The declining number of cases on the Supreme Court’s plenary docket may or may not be a problem. After all, there are many good reasons that such a decline could be happening, including the obvious possibility that the Court was previously hearing too many cases that did not warrant plenary review and is now doing a better, not worse, job of picking cases. But while having fewer cases is not necessarily problematic, what is worrisome is the very real possibility that the Court’s plenary docket is increasingly captured by an elite group of expert Supreme Court advocates, dominated by those in the private bar. The same way that powerful economic interests can capture an agency or any other entity that purports to exercise authority over those interests, so too may the Supreme Court’s docket be “captured” by the more powerful economic interests that know best how to influence the decisionmaking of the Justices at the jurisdictional stage. It is, accordingly, not the number of cases on the plenary docket but rather their content that is the real problem.

I. The Rising Influence of the Supreme Court Bar at the Jurisdictional Stage

The statistics are striking. While the number of merits cases has roughly declined by one half during the past three decades, the influence of the expert Supreme Court bar over the plenary docket during this same time period has increased approximately tenfold; expert practitioners now represent the successful petitioner at the jurisdictional stage in more than fifty percent of the cases. What is the basis of this measurement? I examined the petitions granted plenary review in several Supreme Court Terms, ranging back to October Term 1980 and extending to the most recently completed October Term 2008. I deliberately eliminated from consideration cases in which the Solicitor General was the petitioner or one of the petitioners because her influence is well established. And, I chose a fairly tough measure of what it means to be an “expert Supreme Court advocate”: an attorney either has to have presented at least five oral arguments before the Court or be affiliated with a practice whose current members have argued at least ten cases.Based on this measure, expert Supreme Court advocates were responsible for 5.8% (6 of 102 cases) of the petitions granted plenary review during October Term 1980. By October Term 2000, that same percentage had increased to 25% (seventeen of sixty-eight cases) and has steadily increased since—36% in October Term 2005 and 44% in October Term 2006—to boast more than 50% of the Court’s docket during both the most recently completed October Terms 2007 (53.8%) and 2008 (55.5%). I do not doubt that there is some inexactitude at the margins in counting cases and oral arguments and comparing Supreme Court Terms, but these trends are beyond marginal. They reflect a shift of an order of magnitude.

Why should we worry?Good advocacy is not a bad thing, of course, and it should not be especially surprising to discover that those who are more experienced advocates before the Court are especially successful in persuading the Court to grant their certiorari petitions. What is worrisome is the potential for an undesirable skewing in the content of the Court’s docket. The public should expect that the Court will devote its limited resources to address the legal issues that are truly the most important for the nation rather than those legal issues important to those who can secure representation of their interests by the Supreme Court bar.

II. The Environmental Law Cases of October Term 2008

It is not numbers alone that strongly suggest that the private Supreme Court bar is increasingly capturing the Court’s docket. A look at the cases themselves reinforces that suggestion. As described further below, the Court regularly grants cases at the urging of leading members of the private sector Supreme Court bar that are marginally certiorari worthy at best, at a time when the rates of granting certiorari are otherwise rapidly declining. No one may be more skilled in this respect right now than Sidley Austin’s Supreme Court practice, as underscored by the extraordinary number of cases arising under the Federal Employer Liability Act in which the firm has obtained High Court review on behalf of railroad clients.

Especially illustrative are the environmental cases from October Term 2008. For the first time, a series of industry clients last Term turned repeatedly to the expert Supreme Court bar for assistance in a host of cases arising under federal pollution control laws. The result was palpable and formed the basis of the best Term that industry has ever enjoyed before the Court in environmental cases.

The Court granted review in four cases that, absent the involvement of expert practitioners, would not have seemed to have had a remote chance of review. Two were Clean Water Act cases (Entergy Corp. v. Riverkeeper, Inc.and Coeur Alaska, Inc. v. Southeast Alaska Conservation Council) in which industry parties were merely intervenors in the lower courts and the federal agency that had lost the case declined to petition on its own and opposed Supreme Court review. Such federal opposition is almost always the death knell of a petition. If the Solicitor General is advising the Court that the federal agency that lost below is not seeking review that tends to end the matter. In one of those cases (Entergy), not only was there no circuit court conflict, but the lower court ruling was the first court of appeals ever to construe statutory language that has been on the books for more than thirty-six years. The third and fourth cases, Burlington Northern & San Francisco Railroad v. United States and Shell Oil v. United States, both arose under the federal Superfund law and raised legal issues of diminishing practical significance the Court declined to hear for decades. Not only is Superfund a retrospective liability law that has naturally dissipated in its application over time, but Congress has declined since 1995 to reauthorize the federal tax that funds the Act, so resources for the law’s administration have been running out ever since.

In all four cases, a high-profile member of the private Supreme Court bar served as lead counsel for industry petitioners: Maureen Mahoney in Entergy and Burlington Northern, Ted Olson in Coeur Alaska, Inc., and Kathleen Sullivan in Shell Oil. The bar’s coup de grâce last Term, however, was the Court’s denial of the Solicitor General’s petition in yet another Clean Water Act case, McWane, Inc. v. United States. McWane presented all the traditional criteria of a case warranting review—an express, deep, and wide conflict in the circuits regarding a legal issue of national importance; yet, the Court denied review after Ted Olson’s partner at Gibson Dunn, Miguel Estrada, filed an especially skillful brief in opposition to the government’s petition. There is hardly anything in Supreme Court advocacy as difficult as obtaining plenary review, but defeating a Solicitor General’s petition runs a close second. The Court grants the Solicitor General’s petitions for writ of certiorari about seventy percent of the time compared to between three and four percent for others.

III. The Susceptibility to Capture of the Court’s Jurisdictional Decisionmaking

Some might respond that even if the Court’s plenary docket has been captured, this is not the result of a hostile takeover. Any such development, it could be contended, results from the predilections of business-friendly members of the Court rather than the heightened skills of the advocates. Such an assessment, however, would both overestimate the role Justices play at the jurisdictional stage and underestimate the influence of the advocates. To be sure, the Justices—and not the advocates—are the ones with the votes necessary to grant certiorari. But the Justices are far more dependent on the skills of the advocates than is routinely appreciated.

Even with the introduction of the “cert” pool, neither the Justices nor their clerks can in fact spend significant time evaluating the certiorari worthiness of the literally thousands of petitions that must be reviewed. Once one subtracts the significant time necessary to decide increasingly complex merits cases and the other activities of a Justice these days, the clerks can spend on average only minutes for each cert pool memo, or at most a few hours for a handful. The Justices have, in theory, at most only a few minutes to review a petition and may in fact never read the petitions themselves. The Justices instead delegate the task to their law clerks—inexperienced recent law school graduates who lack both the requisite background and time necessary to consider the competing legal arguments on the merits, and to evaluate in a truly informed and independent manner the petitioner’s claims of circuit conflict and practical importance.

The upshot is a huge tactical advantage for those attorneys who know best how to pitch their cases to the law clerks. The expert attorneys know the trends in the Court’s recent precedent and the predilections of each individual Justice as evidenced in recent oral argument transcripts, speeches, and writings. Having once served as Supreme Court clerks themselves, the experts are also well versed in the generic limitations, susceptibilities, and tendencies of the clerks.

Their expertise extends to the securing of multiple amicus briefs at the jurisdictional stage in support of their request for the Court’s plenary review. They appreciate how amicus support substantiates their assertions regarding the importance of the legal issues proffered for review. And they have the professional connections with other members of the Supreme Court bar and the economic clout to generate the necessary amicus submissions. If news article and op-ed columns contemporaneous to the Court’s jurisdictional determination might be helpful, they can and will obtain them.

The expert advocates also invariably enjoy an advantage by dint of their sheer celebrity, at least within the confines of One First Street, N.E. The clerks know of the outstanding reputation of these expert advocates for working on important Supreme Court cases. Many of the clerks hope to and do in fact work for these experts’ law firms immediately or soon after their clerkships. And, for no reason more than the appearance of the name of the advocate on the cover of the brief, their petitions will receive more attention and respect. This is not an incidental advantage. In the barrage of petitions under review, visibility alone can make all the difference at the jurisdictional stage, especially when buttressed by multiple amicus briefs supporting plenary review.

The effect is twofold. Not only are the expert Supreme Court counsel able to make their petitions seem more compelling, but they are simultaneously able to make petitions filed by others less expert seem relatively weaker by comparison. The experts have, in practical effect, raised the bar for Supreme Court review through their outstanding presentations and significant amicus support.

IV. Reforming the Court’s Decisionmaking Process at the Jurisdictional Stage

The question is what, if anything, to do about the disproportionate influence the high Court bar increasingly has on the Court’s plenary docket. A full answer to that question, however, lies far beyond the purpose of this Essay, which seeks to initiate, and not end, the conversation. Nonetheless, I offer a few preliminary thoughts. First, part of the answer could, of course, be to improve the Supreme Court advocacy available to a wide range of interests beyond those who can afford to pay its market value. Mitigation already occurs to an extent as reflected in the private bar’s willingness to offer pro bono services, the development of expert solicitors general in many states, and the recent emergence of Supreme Court clinics in several of the nation’s leading law schools.

But, such mitigating efforts fall far short of filling the gap between those who have access to the resources of the expert Supreme Court bar and those who do not. Much of the private law firm pro bono effort occurs at the merits stage rather than at the certiorari stage and there are many subject matters (e.g.,environmental, employment discrimination) that the private bar, because of conflicts with paying clients, will not take up, including when they oversee the law school Supreme Court clinics. It is undeniably a positive development to have the states represented more effectively than in the past, but they too are limited in their perspective and, for instance, may deepen rather than reduce the advocacy gap existing in criminal cases. Finally, the Supreme Court clinics offer some promise, but law students even at schools like Harvard, Northwestern, Stanford, Texas, Virginia, and Yale are still just that: students.

The disproportionate influence that the expert Supreme Court bar exerts on the content of the Court’s plenary docket is the problem, not solved by which cases the bar takes—business or public interest—but by the Court itself asserting more control. For this reason, I expect the fuller solution to the docket capture problem will be found, by analogy, to the kinds of structural reforms that have been made in administrative agencies to reduce the risk of agency capture.

As applied to the Court, such reforms would require changes in the Court’s internal decisionmaking process at the cert stage. The place to start is questioning the existing cert pool as the primary basis for evaluating which cases warrant plenary review. As currently structured, the law clerks lack the time, experience, and resources at the jurisdictional stage to evaluate in a meaningful way the claims made by expert counsel or to make up for the deficits of below-par counsel.

At the Yale Law School Supreme Court Advocacy Clinic Conference on the Court’s case selection process, speakers and audience participants suggested several preliminary ideas. One modest recommendation would be to replace the existing single cert pool with two competing cert pools, thereby increasing the number of clerks who provide a petition with a close review. Another would be the introduction of a two-step process to jurisdictional review in which the clerks would first identify potentially cert-worthy cases and then next examine that smaller subset of petitions more closely prior to recommending in favor of certiorari.

A more ambitious reform would be for the Justices to be more willing at the jurisdictional stage to seek input from those outside the Court who are knowledgeable about the issues raised by a pending petition. The Court currently seeks such input several times a year on pending petitions, but exclusively from the Solicitor General by way of formal orders inviting the Solicitor General to express the views of the United States on a pending petition. The Court could make similar requests from other knowledgeable organizations as a method of ensuring the wisdom of the Court’s jurisdictional determinations.

An even more dramatic structural reform would be the addition to the Court of an office of seasoned, career lawyers akin in skills to assistants to the Solicitor General; the attorneys in such an office would assist the Court at the jurisdictional stage in assessing the worthiness of cases for judicial review, by both questioning the exaggerated claims of some advocates and making up for the deficiencies of other advocates. Whatever the best approach, it is increasingly likely that the current potential for capture of the Court’s docket is a significant problem that warrants the Court’s attention.

Richard J. Lazarus is the Professor of Law, Georgetown University Law Center & Faculty Director, Georgetown University Supreme Court Institute. This paper was based on a talk delivered at the Yale Law School Supreme Court Advocacy Clinic and The Yale Law Journal Online Conference on Important Questions of Federal Law: Assessing the Supreme Court’s Case Selection Process, held in Washington, D.C., on September 18, 2009.

Preferred Citation: Richard J. Lazarus, Docket Capture at the High Court, 119 Yale L.J. Online 89 (2009), available at http://yalelawjournal.org/2010/01/24/lazarus.html.

If It Ain't Broke . . .

“The most important thing we do,” Justice Brandeis once remarked, “is not doing.” Alexander Bickel showed long ago how the Supreme Court’s discretionary certiorari jurisdiction was the lynchpin of those “passive virtues” that are essential to principled government. Indeed, the cautious exercise of the certiorari jurisdiction may be as important to judicial self-restraint as the Court’s decisions on the merits. We should therefore view skeptically any attempt to alter the Supreme Court’s case selection process.Although critics in recent years have lodged various complaints about the Court’s docket, the solutions being urged upon us will neither cure the alleged ills nor avoid significant collateral damage. The reformers make two basic assertions: first, that the Supreme Court should decide more cases, and second, that the mechanism by which the Supreme Court selects cases for review should be changed. Both are wrong.

I. Searching for Dragons to Slay

The contraction of the Supreme Court’s docket over the last eighty years has been abundantly documented. In the last decade, the Court’s docket has shrunk to an average of seventy-three cases per term, down from a high of around 230 cases in the 1930s and about 150 cases as recently as the 1980s. Simply to point out the phenomenon, however, is not to condemn it, or at least, not to condemn it effectively. Our nation and our laws have both changed markedly since the days when the Supreme Court could hear a sizeable portion of all cases where its review was sought.There are four principal reasons to think that the shrunken state of the contemporary Supreme Court’s docket is no cause for alarm.

First, when the Court takes a big case, it accepts a big risk. The dangers of deciding are often vastly greater than the dangers of letting the political branches and the lower courts wrestle a question through. When the Court overreaches or otherwise errs, the impact of its errors is felt throughout the land. It is preferable, however, that the impacts of judicial mistakes be limited and localized. The Court itself understands that the fewer cases it accepts, the fewer opportunities there are for mistakes that cannot be easily corrected. This is particularly true in constitutional adjudication, where even profound errors are beyond the capacity of the elected branches to rectify.

In many circumstances, therefore, deciding not to decide shows the Court at its statesmanlike best. But the Court, of course, is capable of leading constructively—if, that is, it has the time. For this reason, a highly selective docket is not only acceptable, but desirable. In superintending the vast enterprise of judicial business falling within its jurisdiction, the Court must have the time to take into account the entire picture of federal litigation, and the ability to understand the full range of consequences that its rulings are likely to bring. However, an overloaded docket will transform the Court into a harried and reactive institution at the worst possible time. The possibilities of unanticipated effects are so huge in this complex and interconnected society that a judicial body needs nothing so much as it needs reflection time.

Some commentators seem to believe that the Court should be hearing more cases simply to busy itself. They imply that the Justices are underworked, pointing to the Court’s talented clerks and three-month-long summer vacation. In fact, Chief Justice Roberts once remarked that “only Supreme Court justices and schoolchildren are expected to and do take the entire summer off.” Former judge Kenneth Starr adds a philosophical twist to these complaints, arguing that the Court should hear more cases because the discipline and time required to do so would discourage what he sees as a pattern of judicial activism.

These criticisms misunderstand the Supreme Court’s job. The Court is not a gerbil on a treadmill, deciding cases just to keep itself occupied. Larding its docket with busywork would increase the temptation for the Court to cut corners on its most essential and important tasks. Moreover, I am confident that if the Justices are inclined to legislate from the bench, their inclinations will find an outlet, no matter how many cases they have to decide.

Second, the Supreme Court is not failing to decide cases where its intervention is needed. Perhaps the most common complaint is that the Court should be resolving more lower court conflicts. Although it is true that the Court does not resolve all circuit splits, problems of disuniformity are very much overstated. Circuit splits are often more apparent than real, and at any rate, the world will not end because a few circuit splits are left unresolved. The argument that circuit splits should lead to more prolific Supreme Court review may seem appealing in the abstract, but it breaks down when proponents are asked to inventory the actual burdens of such splits on litigants and the public. As Professor Amanda Frost points out, many circuit splits are relatively trivial and impose only minimal costs of compliance on multistate actors. Many others contribute fruitfully to the dialogic quality of federal law.

Often, too, it may be more appropriate for Congress, a democratic body, to resolve circuit splits through legislation. And even with a reduced docket, the most important circuit splits remain likely to be resolved by the Court itself. It is folly to think, however, that the pluralistic nature of American law either can or should be entirely eliminated. If that were the ideal, the large differences between the legal systems of the various states, and the inequalities and compliance costs that attach thereto, would not be countenanced. The benefits derived from regarding the states as experimental laboratories do not wholly disappear when the subject becomes one of federal law. Arriving at sound judgments often takes time, and a rush to uniformity will not invariably provide it.

Others assert that the Court should hear more cases filed by pro bonoattorneys and fewer involving business interests or that access to the Court’s docket is unduly restricted to the Solicitor General’s Office and the Supreme Court bar. Yet it can hardly be claimed that litigants in this day and age are deprived of their day in court if their claims don’t make it all the way to One First Street. It bears remembrance that even when certiorari is denied, several tiers of courts have already addressed the litigant’s case. America may have many shortages, but litigation is not among them. And the problem of unequal access to courts lies on the ground floors of the judicial edifice, not the Supreme Court.

Still others, such as Senator Arlen Specter, claim that the Supreme Court ought to be deciding more hot-button cases touching on major political issues of the day. But sniffing out political questions is not the Court’s job. Its mandate is limited to resolving “cases and controversies.” In fact, the more dry and technical the controversy, the more the Supreme Court may appear to be acting like a court of law. Conversely, an overload of hot-button issues might diminish the public’s confidence that the Court is truly upholding the rule of law. In all events, it can hardly be contended that the Court’s present docket is devoid of molten issues. The 2008 Term featured such topics as: the global War on Terror; political activity by labor unions; broadcast indecency regulations; the ability to sue pharmaceutical and tobacco companies; a post-conviction right to DNA evidence; and the Voting Rights Act. Two Supreme Court cases—one dealing with affirmative action and the other with strip-searching schoolchildren—themselves received a substantial measure of public attention, and even the treatment of creditors in Chrysler’s bankruptcy proceedings made a cameo appearance on the Court’s docket.

Third, the public clamor for Supreme Court docket reform is simply not present. Granted, the topic is not one likely to fire the public imagination, but it is still worth noting that the clamor for reform comes primarily from elite appellate lawyers and distinguished academics. I intend no disparagement of Washington’s premier appellate practice groups in noting that an expanded Court docket is not detrimental to their business. And while academia serves a valued purpose in probing the weakness of the status quo, the burden remains on the reformers to show that more Supreme Court litigation is the answer to some pressing public need.

Why in fact is the public not best served on occasion by lowering the Court’s profile and trimming the pervasiveness of at least its constitutional presence? The center of action in America need not be always at the nation’s highest court. While litigants whose certiorari petitions are denied would no doubt like the Court to hear more cases, their gripe is not with process, but with outcomes. That sort of dissatisfaction, however, is insoluble: there is no reform that has ever been devised that can make both sides in an adversarial contest come out the winner.

Finally, even if the Supreme Court’s docket really is something we should be worried about, the situation can be counted upon to resolve itself. First of all, the courts of appeal are by and large in sync with the Supreme Court. As new appointments make their way onto the circuits, that harmony may or may not fray. If more circuit courts begin to diverge from the Supreme Court in their outlook, more petitions for certiorari will be granted. Furthermore, in recent years, Congress has passed fewer pieces of sweeping legislation, presenting fewer opportunities for the Court to intervene. Again, when the need arises, the Court can be counted upon to weigh in.

At the moment, the Court is evenly balanced in terms of ideology. Thus, the outcome on the merits once certiorari has been granted is not always easy to forecast. As a result, the Justices are sometimes said to engage in “defensive denial,” choosing to deny review rather than risk finding themselves in the minority once the case is decided. Moreover, the even division of the Court leads to fractured opinions, which take more time to compose, making it harder to hear other cases. If a clear ideological majority emerges, the Court may grant review more often. Thus, the reduced Supreme Court docket seems more the product of present conditions than a permanent state of affairs. It is difficult to understand why so many complain about a problem whose causes are cyclical and whose resolution by the Court itself seems so foreordained.

II. First, Do No Harm

Even if it were true that the Supreme Court is taking too few of the cases it should be taking, the solutions that are being urged by reformers would do more harm than good. Some critics have called for radical changes to the mechanism of Supreme Court review, proposing the creation of a separate body to select the Supreme Court’s docket for it. This “Certiorari Division” would be composed of circuit court judges and would be required to select at least eighty cases each term that the Supreme Court would be obliged to decide. Others have proposed expanding the Court’s docket by increasing the Court’s membership, using three-Justice panels to decide cases, and shortening the Justices’ summer vacations. These are all bad ideas.

First, the one result they can be counted upon to produce is more litigation, with all its attendant evils. Encouraging more Supreme Court litigation will undermine the interest of litigants in finality and the interest of the public in certainty, particularly if the Supreme Court is broken up into panels. An expanded docket will create incentives to file more certiorari petitions and amicus briefs—costing clients more money. Lawyers may like that, but it is hardly good for litigants or the public. More certiorari petitions also drain Supreme Court resources, compromising the Court’s ability to give full consideration to each individual case it hears.

Expanding the Court’s docket would exacerbate the Court’s already-existing scheduling difficulties. The most difficult and significant cases will continue to be pushed back to the end of the term, no matter how long or how short the Justices’ vacations are, and an expanded docket will subject more cases to end-of-term frenzy. More hurried decisionmaking is in no one’s interest. Even on the bedrock matter of clarity, a fractured Court or unclear opinion may leave the law murkier than it was before. And, of course, the passive virtues celebrated by Bickel have no place in the stampede to decision envisioned by reformers.

Second, such proposals would lead to further politicization of the judicial process. Appointments of circuit judges to the Certiorari Division, for example, would inevitably stoke the kind of overheated political agitation that already surrounds federal judicial operations. Furthermore, whatever benefit the Certiorari Division might have for the Supreme Court, it would have collateral costs for the courts of appeal. Circuit judges do not have time to pore over hundreds of certiorari petitions, and removing them from their normal caseloads for certiorari duty would leave fewer circuit judges available for their primary job of actually deciding cases. Moreover, the speculation that would surely arise over the judges’ potential motivations in granting or denying review would distract them from their circuit court duties. For one thing, court of appeals judges would be reviewing the work of their peers and friends, and that difficulty cannot be entirely resolved by removing judges from the review of cases in their home circuits.

A bit of history may be helpful here. Several decades back, many esteemed legal commentators floated the idea of creating a National Court of Appeals between the circuits and the Supreme Court to resolve circuit conflicts and to relieve the Supreme Court of some of the burden of its work. The idea captivated many in theory, but such practical problems as selecting judges to staff the court and delineating its jurisdiction were so numerous that I can hardly begin to scratch the surface. Because certiorari would still lie from the National Court of Appeals to the Supreme Court, the new court threatened to postpone the day of finality for everyone and to turn federal litigation into a parody of Jarndyce v. Jarndyce. So the National Court died the merciful death that every white elephant deserves. The Certiorari Division is but a muted variant of the old idea of overlayering judicial systems, and it should be rejected by those opposed to bloat in judiciaries as well as bureaucracies.

History sheds a different sort of light upon the practice of the certiorari pool. I recognize that, even with Justice Stevens and now Justice Alito outside the pool, it is still decried as placing too much responsibility in the hands of the law clerk preparing the pool memorandum. The time was, however, when the certiorari pool was hailed as a salutary innovation.Even the reduced number of petitions in the late ‘60s and early ‘70sthreatened to burden the Justices substantially and to reduce the attention they could give to petitions and argued cases. The idea of the pool was to assure that most petitions had at least one hard look and that the Justices could supplement with their own internal study any cases about which they had a question. That basic concept still seems to me a sound one, and those who advocate doing away with something, such as the pool, would do well to remember the serious problem that led to its birth.

The administration of justice is a complicated matter. In the absence of clear evidence that things have run amok, we should remember that the perfect is the decided enemy of the good. After all, if we cannot trust the Supreme Court’s judgment in deciding what to decide, how can we trust its judgment in deciding what it has decided to decide? At some point, the reformers are simply going to have to let the Court be the Court.

III. Conclusion

Perhaps it is well to take a step back. I do not underestimate for a moment the Supreme Court’s timeless role in protecting individual liberties and the equal dignity of all citizens. Yet, in my respectful judgment, the judicial hand has also overreached. The great challenge for the Supreme Court is to demonstrate that a tribunal imbued with such vast and final powers can likewise exhibit a basic modesty and respect for the people and their many and varied representative institutions. It is that fundamental respect for the ability of other public and private actors to do their assigned jobs that is needed, and the docket tinkering does nothing—absolutely nothing—to ensure it. The reforms will lead, if anything, to aggrandizement and away from the truth Brandeis and Bickel sought to teach. 

The Hon. J. Harvie Wilkinson III is a Judge of the United States Court of Appeals, Fourth Circuit. 

Preferred Citation: J. Harvie Wilkinson III, If It Ain’t Broke . . ., 119 Yale L.J. Online 67 (2009), available at http://yalelawjournal.org/2010/01/07/wilkinson.html.

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

As the output of the Supreme Court shrinks, from about 150 cases per Term decided with full opinions in the mid-1980s to about seventy now, concern has grown over whether the Court is deciding too few cases and consequently leaving too many important cases and issues undecided. The extent to which the concern is justified, however, depends in part on what is meant by “important,” and in part on whether it is important that the Supreme Court decide important cases. If we distinguish publicly important from legally important cases, we see that the Court rarely takes on the former, nor has it done so to any appreciable extent since the 1930s. But as the Court’s docket shrinks, it is also deciding fewer legally important cases, a recent and unfortunate change from past practice.

I. The Strategic Importance of Unimportance

Is it important that the Supreme Court take on the important policy issues of our times? That the Court has traditionally done so is a commonplace, but whether the commonplace is true depends on how we phrase the question. Asking whether much of what the Supreme Court does is important is very different from asking whether much of what is important is done by the Supreme Court, and without knowing which we are asking, we cannot intelligently evaluate the Court’s case selection process.

The difference between how much of what the Court does is important and how much of what is important the Court does emerges upon even a casual glance at the daily newspapers. Although the Court has in recent years addressed important issues of gun control, campaign finance, burdens on interstate commerce, capital punishment, punitive damages, presidential power, detention of enemy combatants, sexual orientation, and religion in the public sphere, among many others, it has decided no cases determining the authority of a President to commit troops to combat outside of the United States, whether in Afghanistan, Iraq, Kosovo, or anywhere else. Although, of course, the Supreme Court’s structural and procedural decisions will have an indirect impact on the substance of policy, the Court has not directly decided cases involving health care policy, federal bailouts of banks and automobile manufacturers, climate change, the minimum wage, and the optimal rate of immigration. And nothing the Court has decided for years is even in the neighborhood of addressing questions involving mortgage defaults, executive compensation, interest rates, Israel and Palestine, the nuclear capabilities of Iran and North Korea, gasoline prices, and the creation of new jobs.

This list of issues the Supreme Court has not addressed was not, of course, chosen randomly. Rather, it is a list of the issues that dominate public and political discourse today, a list that might be surprising to some in terms of its distance from what the Supreme Court is actually doing. A few years ago I wrote about this gap between what the public cares about and the issues the Supreme Court engages, and updating the data three years later does not change the general picture. When asked in nonprompted fashion to name the most important issues facing the country, Americans overwhelmingly name health care and the economy first and second, and also identify as among the most important issues the wars in Iraq and Afghanistan, employment/jobs, education, and, more recently, immigration, an array of topics at the top of the “most important issues” poll that has varied little for the past eight years. In the most recent poll, from September 2009, health care was first, the economy second, employment/jobs third, budget/government spending fourth, and immigration fifth, then followed by education, the war, taxes, the environment, Iraq, homeland/domestic security, and regulation of banking and the financial services industry. Indeed, looked at more broadly, the 2009 list resembles those for much of the past three decades. Crime is occasionally more salient, as it was in the mid-1960s and mid-1990s, and the interrelated issues of pensions, retirement, and Social Security have often ranked high, but the most recent lists capture not only the long-standing importance of basic foreign policy and economic issues, but also the persistent nonappearance in the top ten (and usually even in the top twenty) of abortion, sexual orientation, race, gender, religion, free speech, and many of the other issues that represent the most salient part of the Supreme Court’s docket. In September 2009, for example, abortion ranked twenty-fourth, judicial and legal issues twenty-fifth, same sex rights twenty-eighth, crime and violence twenty-ninth, religion thirty-eighth, and gun rights forty-second.

When importance is measured by what the public and their elected representatives think is important, therefore, and by what the government actually works on, the Supreme Court’s docket seems surprisingly peripheral. That is not to say that what the Supreme Court does is not important. It is to say, however, that the Court’s actual business is less important to the public and to the public’s representatives than lawyers and law professors tend to believe. And it is hardly clear that there is anything wrong with this. By dealing either with low-controversy issues or with high-controversy, low-salience issues, and thus generally avoiding high-controversy, high-salience issues such as health care and the war in Afghanistan, the Court may possibly be attempting to retain that degree of public confidence and thus that quantum of empirical (or sociological) legitimacy that is necessary to secure at least grudging acquiescence in its most controversial decisions. We do not know the extent to which the Court’s avoidance of high-salience, high-controversy cases is deliberate, but whether deliberate or not it does seem plausible to hypothesize a relationship between the Court’s avoidance of these cases and the high esteem in which the Court continues to be held.

II. Measuring Legal Importance

It is one thing to recognize the strategic value of the Court’s avoidance of most of the publicly important issues, but quite another to see much value in Supreme Court avoidance of legally important issues—issues and question that are important in litigation and to lawyers and judges. Although even this claim requires further specification of what it means for an issue or case to be legally important, at least one measure would be the extent to which the issue frequently appears in lower court litigation. If that is the measure, however, then there is some evidence that the Supreme Court is little more inclined to take on legally important issues than to take on publicly important ones.

Limitations of space make it impossible in the present context to offer a full empirical analysis and support for this claim, but a few examples can suggest a hypothesis. Consider, therefore, the universe of litigation under the First Amendment’s Speech and Press Clauses.This is a large universe, especially in the federal courts, and a surprisingly large part of that universe is occupied by free speech issues arising in public employment and the public schools. The combination of these domains and their issues involving student and teacher speech, employee speech, organizational membership, and related topics is substantially larger than the quantity of lower court First Amendment cases dealing with the combination of obscenity and indecency, to say nothing of the even smaller domains of incitement, defamation, and the numerous other topics that dominate the casebooks. Yet although schools and public employee cases overwhelm the other categories of First Amendment litigation in the lower courts, the Supreme Court takes surprisingly few such cases. It has in roughly forty years taken only four cases involving speech in the public schools, two dealing directly with speech in colleges and universities, and eight that concern the free speech rights of various public employees. Although the quantity of litigation about speech in the schools and sexual speech is roughly the same (recognizing that there is some overlap), in the same period that the Supreme Court decided its four public school speech cases it decided at least thirty-seven dealing with obscenity, pornography, profanity, and indecency.

That the Supreme Court tends to take few cases in a number of high-litigation areas would be of less moment if the cases it did take were representative, and the decisions it issued useful in terms of providing guidance. But in fact neither of these occur. In Morse v. Frederick, for example, the “Bong Hits 4 Jesus” case, the Court, in deciding only its fourth student speech case ever and the first in more than a decade, took and decided a case that was highly unrepresentative of the student speech cases that bedevil the lower courts. And having taken the case, the majority issued an opinion that was so narrow, so case-specific, and so idiosyncratically about alleged encouragement of drug use as to provide virtually no guidance to the courts that have to deal with student speech issues.

Morse v. Frederick is hardly unusual. On a large number of issues of regulatory law, constitutional law, criminal procedure, and others, the Court’s cases have been similarly unrepresentative and its decisions similarly unhelpful. And thus if frequency of litigation in the lower courts combined with unanswered questions about the state of the law is some indication of legal, even if not political, importance, then the Court’s record of taking legally important cases is little stronger than its record of taking socially important cases, but with far less justification.

III. Information About Importance and the Importance of Information

When appellate courts make decisions, they engage in (at least) two tasks. First, they determine the outcome of the dispute between the actual parties to the litigation. And, second, they often set forth a rule that governs large numbers of other acts and events. In order to perform the latter task adequately, however, courts need to have some sense of the array of events that some putative rule, standard, policy, or test will control. The problem, however, is that courts find themselves suffering from a structural inability to obtain just that kind of information.

First, courts are of course not well situated to go out and actually research the field of potential application of some rule. Occasionally, one of the parties might do this in a brief, but it is rare, and even at the Supreme Court level amicus briefs seldom serve this function. None of the amicus briefs in Morse, for example, offered to tell the Supreme Court anything about the array of lower court litigation, and not even very much about the nonlitigated terrain that the Court’s decision would affect.

Second, everything we know about the availability heuristic and related phenomena tells us that a court attempting to craft a rule in the mental thrall of the particular case before it will likely assume, often inaccurately, that the case before it is representative of the larger field. And the fact that the court is obliged to decide that case as well as, often, to set forth a rule, or at least a precedent, means that the obligations to the case at hand may exacerbate the informational distorting effect.

Finally, and most importantly, the selection effect—the process by which cases with certain characteristics get to appellate courts and other cases with different characteristics do not—will almost certainly provide a serious distortion of information. Whenever the Supreme Court—or any court—sets forth a rule, standard, principle, test, or whatever, it creates the possibility of three different forms of behavior on the part of those governed by the rule. One is compliance, another is violation, and the third is what Gillian Hadfield has called “dropping out,” ceasing to engage in the behavior the rule seeks to regulate. So when the Court decided Miranda v. Arizona, for example, it created a world in which some police officers complied with Miranda by giving the required warnings before custodial interrogation, others violated by conducting custodial interrogations without giving warnings, and some stopped conducting custodial interrogations.

The selection problem arises, in part, because the courts will never see the dropout cases, and will rarely see the compliance cases. By seeing only the violations, therefore, they find themselves subject to a severe information distortion because they have not seen the cases of compliance and have not seen the dropouts. And insofar as this process is exacerbated as litigation ascends the appellate ladder, the Supreme Court, even taking into account the information provided by amicus briefs, the research done by the Justices and their clerks, and the fact that the Justices read the newspapers, will be at a severe informational disadvantage in deciding which cases to decide and how broadly or narrowly to decide them. Did the Court, when it granted certiorari in Morse, know how often student speech cases arise in the lower courts, and what kinds of cases they were? When the Court decided Morse on such idiosyncratic and narrow grounds, did it know what kinds of issues were arising in the cases below that it was not deciding? And, perhaps most importantly, did the Court know any of these things when it decided not to grant certiorari in numerous student speech cases in the almost two decades between Morse and its previous student speech cases? It is plausible that the answer to all of these questions is “no,” and plausible to suppose that the cause is a combination of structural informational disadvantage and psychological difficulty in seeing beyond the particular case and its particular parties and particular facts. More broadly, however, the problem may lie in the Court’s unwillingness to recognize fully the costs of nondecision. Judge Wilkinson applauds the Court for minimizing the number of cases it takes, arguing that such an approach reduces the “opportunities . . . for mistakes.” Such a view, however, assumes that Supreme Court mistakes are only mistakes of commission and not of omission. One way of understanding my argument in this Essay, therefore, is as a call to recognize that there can be errors of inaction as well as of action, and that it is an error to engage in a process of institutional design without taking into account the likelihood and harm of errors of mistaken inaction along with those of mistaken action.

IV. A Partial Solution?

There may not be an easy solution to this serious informational problem, but it is nevertheless the case that informational problems demand informational solutions. Putting aside important resource and resource allocation issues, we can ask whether the Supreme Court could create a process by which a few law clerks—a variation on the “cert pool”—did serious research for the use of all of the Justices about the frequency and nature of litigation below—not only for the cases in which certiorari was granted, but for the cases in which certiorari was seriously considered. Or could the Court demand such information from litigants and amici, either formally, or, more plausibly, informally, by signaling that petitions and briefs that did not contain a fair and comprehensive survey of the terrain of lower court litigation would be disfavored in the certiorari process? I do not know the answers to these questions, but they suggest that there are steps that might be taken or procedures that might be established to provide better information to the Court when it is deciding to grant or to deny certiorari, when it is deciding how broadly or narrowly to decide the cases it does take, and when the Justice writing for the majority decides how important it is, on the one hand, to write narrowly to keep the Court’s options open, or to write broadly in order to provide needed guidance, on the other. This information would go a long way towards making available the information the Court needs, or at least should need, in thinking about the legally important but publicly invisible issues it is neglecting to address, and in considering the actual nature of the legal and social terrain that will be affected by the rules it makes, the precedents it creates, the cases it decides, and the issues it ignores.

Frederick Schauer is the David and Mary Harrison Distinguished Professor of Law, University of Virginia. This Essay is based on remarks delivered at the Yale Law School Supreme Court Advocacy Clinic and The Yale Law Journal Online’s conference on “Assessing the Supreme Court’s Case Selection Process,” held at the National Press Club in Washington, D.C. on September 18, 2009. The author is grateful to Robert Blendon for assistance with poll results.

Preferred Citation: Frederick Schauer, Is It Important To Be Important?: Evaluating the Supreme Court’s Case-Selection Process, 119 YALE L.J. ONLINE 77 (2009), available at http://yalelawjournal.org/2009/12/09/schauer.html.

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

Congress is considering pension reform in the wake of the tremendous loss in market value of retirement plans during the current recession. This offers a historic moment to remedy an unintended but profound gender disparity embedded in the federal law governing retirement plans in this country.

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

The Yale Law Journal Online is reissuing Elizabeth Pollman's Citizens Not United: The Lack of Stockholder Voluntariness in Corporate Political Speech in light of recent developments at the Supreme Court.

With the Supreme Court hearing a new round of oral arguments in Citizens United v. Federal Election Commission, the Court appears poised to alter dramatically the landscape of corporate political speech law.The case concerns whether the government may limit a nonprofit political advocacy group from showing a film during election season when the film casts an electoral candidate in a negative light and is financed in part by corporate donations. 

The Fog of Certainty

In The Constitutional Power To Interpret International Law, Michael Paulsen argues that “[t]he force of international law, as a body of law, upon the United States is . . . largely an illusion.” Rather than law, international law is “policy and politics.” For all the certainty with which his argument is advanced, however, it cannot survive close scrutiny. At its foundation, Paulsen’s essay rests on a pair of fundamental misconceptions of the nature of law. Law is not reduced to mere policy, to begin, simply because it can be undone. The sources of law, meanwhile, are not singular, but plural. Even were international law not domestic law, it would still be law.

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

International law is “everywhere” in the United States: informing state CO2 emissions standards; providing inspiration for local civil rights codes; and overseeing the more than three trillion dollars in annual trade in goods, to name just a few examples. A reader of Professor Michael Stokes Paulsen’s essay, The Constitutional Power To Interpret International Law, might be forgiven for missing these important trends, because rather than focus on the ubiquity of international law and the myriad ways in which it has permeated U.S. legal, social, economic, and political life, Paulsen returns us to old arguments over whether international law is “law” or presents any binding restraints on domestic actors. This claim is based on a static, formalist approach to the foreign affairs Constitution that stands in contrast to the dynamic realities of transnational lawmaking today.

Wishing International Law Away

But for its contemporary particularities, Michael Stokes Paulsen’s essay The Constitutional Power To Interpret International Law would work comfortably as an excellent example of late-nineteenth-century legal scholarship, with all of its best and worst qualities. The piece makes for good reading; it is sweeping in scope, confident in tone, and certain of result. It is tightly argued in a self-contained order of doctrinal logics. Paulsen wears his ideology on his sleeve, not a bad thing. He is comfortable in the power of America’s constitutional faith, assuming that the United States can and should go it alone except to the extent that it serves the national interest. International law is never more than an option, he argues, and not a very appealing one at that. Paulsen believes that the Constitution should and will keep international law at bay.

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

There is much to admire in Michael Stokes Paulsen’s elegant and bold polemic on the Constitution and international law. Paulsen deserves substantial praise both for offering a clear and accessible theory of the Constitution and international law, and for then bravely taking that theory to its logical though controversial conclusions. He rightly emphasizes that the Constitution is supreme over international law and that the political branches, Congress, and the President, have an independent and dominant role in the interpretation of international law’s effect on the United States. He also properly criticizes those who have used their interpretations of international law to support highly politicized attacks on the Bush Administration’s war on terrorism policies.

The Mess of Manifest Disregard

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

Manifest disregard is a common-law exception to the limited grounds for vacatur of arbitral awards enumerated in the Federal Arbitration Act (FAA). This doctrine empowers courts to refuse to enforce awards that evince a “manifest disregard of the law,” understood to mean a willful defiance of clearly applicable law, not just garden-variety legal error. It has always been controversial for at least two reasons.

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

Supreme Court nominee Judge Sonia Sotomayor was a member of the Yale Law School Class of 1979 and an editor of The Yale Law Journal.  If confirmed by the U.S Senate, she would be the Court’s first Hispanic justice and its third woman.  Judge Sotomayor would also join two other Yale Law School graduates currently on the Court—Justice Clarence Thomas ’74 and former Journal editor Justice Samuel Alito ’75. 

While a member of the Journal, Judge Sotomayor published a student Note, Statehood and the Equal Footing Doctrine: The Case for Puerto Rican Seabed Rights.

Announcing The Yale Law Journal Online

The Yale Law Journal is pleased to announce the launch of The Yale Law Journal Online in the Fall of 2009. YLJ Online will integrate the current features of The Pocket Part with additional fora for legal scholarship. The YLJ Online Committee will continue to consider submissions under The Pocket Part's guidelines and submissions system throughout the summer. 

The Mismatch Between Probable Cause and Partial Matching

In mid-December, as one of the outgoing Bush Administration’s last minute regulations, the Department of Justice radically expanded the category of persons from whom federal officials are now required to collect DNA. The rule requires federal officials to collect and retain DNA not only from persons convicted of a federal offense, but also from those merely arrested on suspicion of being involved in a federal offense. Among its other flaws, this rule exacerbates the tension between the shared nature of genetic information and the standards justifying DNA collection and retention. By linking DNA collection to probable cause, the new regulation threatens to destabilize our understandings about what constitutes probable cause and to put millions of never-arrested individuals under perpetual genetic suspicion.

Roberts Court Jurisprudence and Legislative Enactment Costs

Professor Matthew Stephenson’s recent article highlights a crucial but overlooked function of the judiciary in crafting doctrines that discourage constitutionally problematic statutes. Rather than drawing explicit boundaries of permissible and impermissible statutory schemes, courts can and do produce constitutional doctrine that leaves these boundaries blurry, thus raising the risk of reversal for time- and resource-strapped legislators.

I seek to apply Stephenson’s theory to interpret the nature and scope of the Roberts Court’s jurisprudence—in particular, the likely impact of judicial minimalism—on statutory enactments and lower court decisions. Critics have charged that the Roberts Court’s emphasis on narrow holdings limited to specific factual circumstances undermines the Court’s guidance function for lower courts and legislators alike. Such objections are misplaced. Minimalism, or the preference for narrow decisionmaking in the exercise of judicial review, offers underappreciated benefits in deterring constitutional violations in legislative enactments. The indirect result of such jurisprudence is to raise the risk that subsequent, constitutionally problematic legislative enactments might be overturned. Legislators only can consider a finite number of bills during each session. They might be more wary to pass or even to consider constitutionally questionable legislation when factoring in the risk of judicial invalidation. Thus, the second-order benefit of judicial minimalism becomes apparent. Without making sweeping pronouncements of the constitutionality of various legislative acts, the Court can nevertheless reduce the frequency of constitutional violations while avoiding the countermajoritarian difficulty raised by judicial review.

My Debt to Mirjan Damaška

Mirjan walked into my life in the Fall of 1972. I was 29, he was 41, but both of us were at the beginning of our academic careers in America. I was a lucky guy. My DNA was programmed for standardized tests. This curious aptitude propelled me out of the Bronx to Harvard College and Yale Law School. I served as a law clerk for Henry Friendly and John Harlan, followed up by writing a couple of long articles, and, voila, this proved to be a recipe for a full professorship at the University of Pennsylvania. I was, to put it mildly, confident in my bright, shiny intellectual tools and expansive about the rich possibilities of life in America—in short, I was naïve, breathtakingly naïve.

Mirjan had come to Penn via a different route. He was a leading participant in the liberalization of communist life during the “Croatian Spring” of the 1960s—and had been bitterly disappointed by the repression that followed. With reluctance, he and his wife Maria had decided to uproot themselves from their beloved Zagreb. They were rebuilding their lives from the ground up. Mirjan looked on in disbelief as I happily babbled about the mind-blowing implications of John Rawls and Guido Calabresi for the study of law. Mirjan did not come to America to herald a decisive advance in jurisprudence. He went into exile to gain the scholarly freedom to reflect upon the great crises of legality of the twentieth century. His brooding Slav soul was a standing rebuke to my heady American optimism about the future.

A Public Privilege

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

Protecting a Business Entity Client from Itself Through Loyal Disclosure

Many attorneys are unaware of or misunderstand an important tool they can use to protect their business organization clients: the ability to disclose the client’s confidences. In jurisdictions with “loyal disclosure” rules—rules adopted by the Securities and Exchange Commission and the American Bar Association in response to Enron and other corporate scandals—counsel may disclose confidential information to protect an entity client from the harmful, illegal conduct of company constituents. In this essay, I explain that an entity client has an interest in its attorneys understanding these complicated rules and, when appropriate, disclosing confidences to protect the organization from the financial consequences of constituent misconduct.

Regulating Federal Prosecutors: Let There Be Light

The Office of Professional Responsibility (OPR), housed within the U.S. Department of Justice (DOJ), investigates alleged misconduct by federal prosecutors and other DOJ personnel. Under the Bush administration, even when OPR found serious prosecutorial misconduct, DOJ kept the disciplinary investigation and outcome private to avoid embarrassing the prosecutor. This practice superseded a public disclosure policy adopted by the previous administration. This essay submits that DOJ’s recent practice is contrary to the public interest and that the new administration should regulate its prosecutors more transparently, consistent with President Obama’s call for open government.

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

Failure to meet discovery obligations is a serious impediment to the fair, prompt and cost effective resolution of disputes and, in extreme forms, can undermine public confidence in the integrity of the process. Harsh sanctions are appropriately imposed on parties and their counsel when egregious discovery misconduct affects the progress of a case. In cases involving allegations of improper monitoring by counsel of client conduct, however, courts properly exercise restraint in determining counsel culpability in light of the burdens it places on the attorney-client relationship, including threats to the confidentiality of client communications.

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

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

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

Virtual world transactions (VWT) involve the sale or exchange of goods and services that are used exclusively within a virtual world. As participation in virtual worlds increases, both in volume and in character, the boundary between VWT and real world transactions becomes unclear. Consequently, many wonder whether the Internal Revenue Service (IRS) will tax participants in virtual worlds, even before they have converted their virtual items into real goods or services. Although IRS agents are not counting virtual earnings quite yet, they may begin to take notice of VWT on a broader scale if and when one of three events occur: (1) courts grant property rights to virtual world participants in the virtual items they amass; (2) vendors begin accepting virtual items (such as virtual currency) on a regular basis in exchange for real goods and services; or (3) Congress adopts legislation requiring owners of virtual worlds to report certain transactions to the IRS.

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

Millions of people participate in virtual worlds—immersive online forums such as Second Life and World of Warcraft (WoW). While some online activities lack significant economic implications, one of the attractions of Second Life, which is designed to be a commercial platform, is the prospect of making “real money.” This essay argues that profits received in the form of Lindens (Second Life’s currency) should be taxed in much the same way profits received via PayPal, a widely used electronic-payment system, are. Although Second Life profits could instead be taxed once the taxpayer sells for real money (“cashes out”), that would create a special exception for Second Life that doesnot exist for platforms such as eBay. It would facilitate abuse and distort economic activity.

Virtual World Feudalism

Second Life is a feudal society. No, not metaphorically. Literally.

Two problems have preoccupied scholars of virtual world law: What is the political relationship between developers and users? And: Should we treat in-world objects as property? We can make progress on both questions by recognizing that virtual politics and property are inex-tricably linked, in the same way that feudal politics and property were. It is the tenant/user’s relationship with his lord/developer that both creates the property interest and enforces it. The similarity between ownership of land in feudal England and in Second Life suggests that offline courts should protect user interests in virtual items, gradually, without treating them as full-blown modern “property.”

Reputation as Property in Virtual Economies

Economists and legal theorists have long argued that real-world economies cannot function effectively without well-defined property rights. More recently, scholars have also begun to analyze at least three kinds of “virtual” economies: the online economies exemplified by eBay and other trade-facilitating mechanisms; the economies in virtual worlds such as Second Life and World of Warcraft; and the virtual reputational economies associated with MySpace and Facebook. The first two economies generally involve the exchange of familiar forms of property. But scholars have thus far failed to fully identify or analyze the propertyunderlying the reputational economy. What that economy demonstrates, especially in its virtual form, is that reputation itself—social status and the respect of others—can usefully be understood as a form of property. Strands of this theory appear in law and scholarship, but they have not been tied together in a way that shows that reputation can be property-like even without demonstrating economic value. Virtual reputational economies show that reputation can be gained, lost, traded, protected, and shared, all in property-like fashion, without regard to whether it has independent economic value. In other words, reputation is not merely valuable; it is the new New Property.

Symposium Issue: Virtual Worlds

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

Escape Into the Panopticon: Virtual Worlds and the Surveillance Society

The Eye: that horrible growing sense of a hostile will that strove with great power to pierce all shadows of cloud, and earth, and flesh, and to see you: to pin you under its deadly gaze, naked, immovable.

Introduction

Suppose that you move to a new town. To buy your home, you must allow the developer to install cameras in each room and record all interactions between you and your husband. To use the telephone, you must permit the telephone company to record and retain your conversations. To receive mail, you must allow the mail carrier to copy and index the contents. To access funds, you must permit the bank to record all purchases. Suppose, too, that much of this information can become available to government actors with a simple subpoena rather than the more stringent search warrant. It may sound incredible, but this is the reality for millions of people who live, work, and play in virtual worlds.

Imposing Tort Liability on Websites for Cyber- Harassment

Several female law students were the subject of derogatory comments on AutoAdmit.com, a message board about law school admissions. When one of the women asked the website administrator to remove certain comments, the administrator discussed her request in an online post, prompting further attacks. An undergraduate student’s rape was revealed on a gossip site, JuicyCampus.com, where posters engaged in a cruel session of “blame the victim.” Another student on that site was falsely identified, by name, as being a stalker, bi-polar, and suicidal. When officials at her university asked JuicyCampus.com to remove the most egregious posts, the company refused.

These recent examples have brought the vexing problem of cyber-harassment to the public’s attention. Under § 230 of Title 47 of the U.S. Code, websites are not liable as publishers for the content on their sites so long as they are not involved in the creation of the objectionable content. Accordingly, much of the relevant scholarship has focused on repealing § 230 or imposing liability upon posters.

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

Recently, few economic topics have received more political attention than the potential impact of Sovereign Wealth Funds (SWFs). Until recently, scholarly and political attention to SWFs was almost exclusively focused on the impact these funds may have on Western countries. The little attention paid to the impact SWFs have on countries where these funds originate has been largely negative, often characterizing such funds as products of “authoritarian regimes in semi-developed countries, where citizens don’t have a chance to demand smarter economic policies.” The failure to consider the domestic context within which SWFs operate has resulted in an incomplete understanding of the impact these funds may have on Western countries. By examining the Russian Sovereign Wealth Fund (RSWF), its interaction with domestic constituencies, and the process of its evolution, I offer a different institutional portrait of SWFs than that which has become widely accepted in Western policy circles.

Sovereign Wealth Funds: Active or Passive Investors?

Sovereign wealth funds (SWFs)—capital pools created by governments to invest surplus funds in private markets—are increasingly important global financial actors. Many fear that the economic power of SWFs, which is measured in trillions of dollars, will be used strategically and politically. Are fears that SWFs will be used as political tools justified? If political use of SWFs depends on their control of U.S. firms, the answer is almost certainly “no.” There is no significant evidence that SWFs have or will use control of U.S. firms to implement governmental policy. Indeed, American political and regulatory constraints will pressure SWFs not only to avoid control, but also to avoid exercising significant influence over U.S. companies in their portfolios. Instead, the present cycle of SWF investment is likely to be characterized by passivity.

Sovereign Wealth Funds Symposium

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

Taxing the Bandit Kings

The rise of significant inbound capital flows originating from sovereign wealth funds (SWFs) has occasioned a debate over the appropriate regulatory and tax treatment of these funds. In particular, it has been argued that the tax exemption currently enjoyed by SWFs confers an advantage on these entities as providers of capital to U.S. firms relative to private foreign investors, and that a tax should be imposed on SWFs to restore fairness. This essay argues that the distinctive nature of the portfolio choices facing SWFs negates this fairness argument. Indeed, changing the tax treatment of SWFs as has been proposed would distort choices that are otherwise efficient and would handicap U.S. firms and workers.

Should We Tax Sovereign Wealth Funds?

Important characteristics distinguish sovereign wealth fund investment, which is often troubling, from private foreign investment, which is generally beneficial. Allowing sovereign wealth funds to own equity stakes in American companies encroaches on the autonomy of U.S. industrial and foreign policy in a way that private investment does not. Moreover, because some sovereign wealth fund investment is politically motivated, this new form of investment impairs the efficient allocation of economic resources. Given these effects, one might expect U.S. tax policy to discourage state-controlled investment and encourage private investment. Instead, tax policy does just the opposite, subsidizing sovereign wealth funds that invest in the equity of U.S. companies.

In this Essay, I sketch out a few tax reform alternatives that could complement other regulatory proposals regarding sovereign wealth. First, and most modestly, the U.S. could strive for sovereign tax neutrality, eliminating the unwarranted tax subsidy that sovereign wealth funds enjoy under current law. A second, more aggressive, alternative would impose an excise tax on sovereign wealth. Additional reform alternatives are more fine tuned, linking the tax rate to a fund’s compliance with best practices or other measures of transparency, accountability, and professionalization. I fully develop the case for taxing sovereign wealth elsewhere in a longer paper. For present purposes, I merely wish to convince the reader that regardless of how one feels about regulating sovereign wealth funds, the tax exemption under current law deserves reconsideration.

Foreign Direct Investment by Sovereign Wealth Funds

Sovereign Wealth Funds (SWFs) recently have captured America’s attention. Much of that attention has been critical, with a particular focus on whether the U.S. economy is becoming vulnerable to the policy whims of foreign states. Yet SWFs face significant domestic commercial and political pressures to emphasize financial performance over policy goals. These pressures from home can protect against politically motivated U.S. investments. To the extent these motivations are insufficient, additional protections—such as the Committee on Foreign Investment in the United States (CFIUS), as well as our antitrust, banking, securities and other regulations—help assure that SWFs are likely to act pursuant to commercial interests.

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

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

Response: Corporate Law’s Distributive Design

Minorities, Shareholder and Otherwisemakes two novel claims: that corporate law places protection of minority shareholders at the heart of its endeavor; and that this minority-mindfulness should have even greater purchase in constitutional contexts. My retelling of the corporate law narrative coupled with my extension of that story to the constitutional domain puts pressure on scholars either to dispute my characterization of corporate law (or for that matter, constitutional law) or to deny the relevance of that characterization to the constitutional sphere. Alternatively and, I think, more promisingly, it allows scholars to seek to understand or resolve law’s inconsistent attitudes towards minorities in different domains.

Minorities, Immigrant and Otherwise

Anupam Chander’s article Minorities, Shareholder and Otherwise brilliantly offers a “conservative” justification for a U.S. constitutional law truly dedicated to fairness and justice for all. It does so by counterintuitively looking to the bottom-line-oriented world of corporate law. This commentary offers a most powerful example of the gulf between constitutional law and corporate law identified by Professor Chander. Modern constitutional law affords no meaningful substantive protection to immigrants to the United States. The Supreme Court has consistently held that the political branches of the U.S. government possess “plenary power” over immigration and the courts lack the power to review the substantive constitutionality of the immigration laws. The “plenary power” doctrine in operation serves as a bulwark of inequality for immigrants to the United States.

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

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

It is a very clever thesis, which is quite well executed. Most important, it is quite novel, which is what really counts. Academics do not get rewarded with tenure, promotions, or The Yale Law Journal slots for being right; they get rewarded for having smart and novel ideas. When Edmund Burke warned us to be wary of “sophisters, economists, and calculators,” however, it doubtless was because there is a positive correlation between an idea’s novelty and the likelihood it will prove wrong.

Oops! Racism as Mistake: Lessons from Corporate Law

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

For corporate law, “equal treatment can only be assured by taking minority status into account.” Indeed, solicitude toward minority interests “is an ordinary part of corporate life, mandated by law.” Outside of this sphere, however, discrimination against racial minorities has become increasingly difficult to redress.

Critical Corporate Law, Colorblind Constitutional Law

Should minority status be a relevant datum for judicial decision?

That is the question motivating my essay, Minorities, Shareholder and Otherwise, published five years ago in this journal. I am grateful to The Yale Law Journal for recalling the paper and inviting three of the nation’s leading legal scholars to comment on it. Because my essay was published at the dawn of the Web 2.0 era when, alas, The Pocket Part was not yet available, the Journal has asked me to pen an introduction to this symposium to review that paper.

In Minorities, Shareholder and Otherwise, I demonstrate that corporate law recognizes the relevance of minority status, even while constitutional law more and more insists on minority-blindness. I argue that this is precisely backwards — that the constitutional domain should require greater judicial vigilance with respect to minority status than the corporate domain. The difficulty of exit from a polity and the inability to negotiate (or at least select among) terms of entry into a polity, not to mention a history of grave injustice, call for special attention to minorities in the constitutional context.

Legal Ethics Symposium: Call for Papers

The Estate Tax Fundamentals of Celebrity and Control

We previously suggested in this Journal that post-death publicity rights could be excluded from the decedent’s estate for tax purposes if state legislation precluded the decedent from exercising post-death control. In other words, if state legislation designated who would hold these rights after the decedent’s death, the value of these rights should not be subject to estate tax. Professor Joshua Tate, in his response to our essay, argues that under current law, estate tax inclusion would be required regardless of the decedent’s ability to exercise control. So, for example, in Professor Tate’s analysis, the estate tax would apply even if the legislation vested those rights in the decedent’s oldest daughter and even if the decedent had no right to alter this outcome. Professor Tate’s analysis misconstrues fundamental estate tax principles and misunderstands the precedents on which he relies.

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

Attorney Alan R. Levy recently published an article in The Yale Law Journal Pocket Part entitled “How ‘Swingers’ Might Save Hollywood from a Federal Pornography Statute.” So eager was Levy to “save Hollywood” from having to keep records to verify that performers engaging in actual sexually explicit conduct are legally adults, that he grossly distorted the meaning and effect of 18 U.S.C. § 2257. Ironically, while exaggerating the negative impact of § 2257, he simultaneously underestimated the problematic nature of a different statutory provision potentially requiring record keeping for performers who engage in simulated sexual conduct.

Marilyn Monroe’s Legacy: Taxation of Postmortem Publicity Rights

In an April 2008 essay in The Yale Law Journal Pocket Part, Mitchell Gans, Bridget Crawford, and Jonathan Blattmachr argue that recent state legislation recognizing postmortem publicity rights fails to take into account the likely estate tax consequences. Although Gans, Crawford, and Blattmachr are correct to argue that allowing publicity rights to pass by will or inheritance could have adverse tax consequences for some estates, those ramifications are not as far-reaching as might be imagined. Moreover, their “legislative solution” will not solve the problem.

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

The behavior of the Justices during oral argument has always fascinated Supreme Court watchers. Recent studies have confirmed what experienced observers have long known: Justice Breyer talks the most, Justice Thomas says the least, and Justice Scalia gets the most laughs. What has remained somewhat of a mystery, however, is how much the Justices continue to think about oral argument after they leave the courtroom and return to their chambers. Which Justices give oral argument the most consideration? Which statements by advocates make the most lasting impressions?

Linking Ideas to Outcomes: A Response

It is a distinct pleasure to have the chance to respond to the insightful commentaries of Peter Drahos, Ruth Okediji, and Tomiko Brown-Nagin. I find much to agree with in each, but I will focus on a few areas of divergence in the hope of clarifying our differences.

Drahos’s work on the role of ideas in the field of international intellectual property (IP) has been essential to my own thinking, and we agree on two critical points: that frame mobilization matters to political outcomes, and that frame mobilization is not all that matters. But Drahos and I disagree on how framing matters, because we employ slightly different conceptions of the term. As Drahos’s reference to Cicero suggests, he treats framing as primarily a form of rhetorical intervention, one that can usually yield only symbolic or interim victories. I intend the concept in a more constitutive way, as it has been developed in the social movements literature. Framing here marks acts of dialogic, emergent interpretation that instigate, legitimate, and sustain collective action. Conceived of in this way, frames are not only rhetorical devices. They are also fundamental to the dynamics of collective action–to the very possibility and nature of “the environmental movement” or the “access to knowledge movement,” or even, I contend, the “IP industries.”

"Home Schooling" in California

Note: On August 8, 2008 the California Court of Appeals issued its decision in Jonathan L., et al. v. The Superior Court of Los Angeles County.

The recent decision of the California Court of Appeal in the Rachel L. case set off a storm of protest from the California “home school” community and drew nationwide media attention. It was understood by many as holding that it is illegal for parents without teaching credentials to teach their own children at home, thus exposing the children and parents to truancy and child dependency proceedings. In the wake of the public response, the Court of Appeal granted rehearing and solicited an amicus brief from the California Department of Education (CDE) and State Superintendent of Public Instruction Jack O’Connell, which we recently filed with the court. In the brief, we argued that home-schooled children should not be declared truant if, in the opinion of local public school officials, the parents are providing an adequate education in compliance with the laws governing private schools.

Agency Preemption Inputs in Riegel v. Medtronic

Federal administrative agencies have always had the authority to issue substantive regulations that conflict with, and therefore ultimately preempt, state law. In recent years, agencies have begun to assert a new and questionable kind of interpretative authority: taking a specific position on whether or not state law is preempted by an agency action. Later this year the Supreme Court will hear Wyeth v. Levine, a Food and Drug Administration (FDA) case that is widely expected to tackle head-on the question of agency authority to determine when its regulations preempt state law. However, little-noticed language appearing in the Court’s February 2008 decision in Riegel v. Medronic may have significant implications for the upcoming Wyeth decision.

Presidential Debates and Deliberative Democracy

Consider democracy in America through the lens of the presidential debates. It is not a pretty picture.

From a high point in the nineteenth century (for example, the lengthy Lincoln-Douglas Senate campaign debates of 1858) a declining trajectory can be traced to the present day, with a marked acceleration in the Age of Television. To our polity’s discredit, the presidential debate has long since ceased to be a dialogue that might shed light on the candidates’ true powers of deliberation. The key to reversing this long decline, I believe, lies in an unlikely place: in the structural features of the legal trial.

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

It is a fine day when I am able to fondly recall a childhood game, reflect upon social movement theory, and ponder the connections between the public interest and private law, all at once. Amy Kapczynski’s article brought me to this delightful place. The childhood game, which featured four cards, each picturing four distinct items, tested analogical reasoning. The game’s objective: to figure out which of the things “did not belong.” I found this exercise endlessly fascinating, just as I did Kapczynski’s boundary-crossing rumination on the A2K mobilization. The author links disparate actors and subjects, domestic and international developments, politics and markets, law and politics, the Third and the First Worlds, public choice and social movement theory. In her account, everything belongs. The challenge for the reader is to discriminate: to consider the discrete pieces of this sprawling intellectual mosaic and assess how well each part fits together to form a coherent theory of how law and framing mediate collective action.

IP Essentialism and the Authority of the Firm

The goal of translating the diffuse gains from domestic intellectual property (IP) protection in the global North into an international setting characterized by vast disparities in national income levels, diverse cultural and historical contexts, and distinct legal institutions has long caused pathological behavior in global IP politics. The A2K movement reflects this pathology in new ways. The paradox of the movement, well captured in Amy Kapczynski’s article, is that it depends so integrally on the core assumptions that sustain the legitimacy of the international IP system, the most essential of which is that technological innovation is a principal cause of national economic growth. Yet fostering endogenous economic growth has not occupied a central place in A2K strategies. If altering the terms and text of the debate over the global conditions of IP protection is the organizational hook to the A2K mobilization, it is striking that the fundamental theme of the debate—inducing economic growth—is not central to the movement’s internal self-legitimation. In this brief Response, I put forward a few insights highlighting the discursive nature of the movement, the entrenchment of Coase’s firm in rationalizations of the global necessity for IP protection, and the movement’s own reliance on IP and market rules to maintain its position of influence in multiple international fora.

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

How much difference does the mechanism of framing make to global regulatory outcomes? Structural explanations of regulatory globalization that are rooted in state power and self-interest would dismiss the explanatory value of framing. Put simply, words are cheap and do not matter to the final outcomes of globalization. In her recent article, Amy Kapczynski challenges these structural explanations, asserting that the theory of framing offers a better account of the politics of intellectual property (IP) than public choice theory. I am in broad agreement with Kapczynski about the importance of incorporating framing into a theory of collective action. In this Response, however, I emphasize several limits to the power of framing in determining the outcomes of global politics.

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

Once the domain of experts, intellectual property (IP) law today has become the object of popular mobilization. Activists across the globe are campaigning against strong IP laws and working together to develop new conceptual rubrics to counter the legitimacy of exclusive rights in information. This access to knowledge (A2K) mobilization is having some success, and should cause us to revisit our understanding of the tectonics of IP law. As my recent article explains, neither the recent expansion of IP law nor the new countermobilization can be adequately explained without an account of the role of interpretation in political action—and in particular, without an account of how acts of political framing both affect and are affected by law. Once we develop such accounts, we can see the special gravitational pull that law can exert on groups engaged in political contests. This pull has potentially important implications for how we understand the nature and effects of legality, especially internationally.

Reconsidering the Syllabus in “Constitutional Law”

Ernie Young has written a superb article on what he engagingly calls “the Constitution outside the Constitution.” Like analysts before him, most prominently Karl Llewellyn, he notes that our system, like all complex systems, can be understood only by considering all of the conventions that could never be found in the text of the document (and, on occasion, may even contradict the text). A subtext of his article, with which I entirely agree, is that contemporary students are disserved by what constitutes the present syllabus of the standard-model course on “constitutional law.” Yet Professor Young can’t quite liberate himself from the notion that our courses should focus on existing legal “controversies,” or on what is presented to courts in litigation, instead of on the almost literally thoughtless and optimistic assumptions we make about the benevolence of all aspects of our constitutional order as framed in 1787 and maintained, to an almost incredible degree, over two centuries later.

Curricula and Complacency: A Response to Professor Levinson

Back when my friend Sandy Levinson and I were both on the Texas law faculty, the assistant dean for communications proposed a promotional tour featuring Professor Levinson’s book Our Undemocratic Constitution and my recently published piece in this journal, The Constitution Outside the Constitution. The plan was that Levinson would say the Constitution is bad, and I would add that it isn’t really even the Constitution. In the event, we did not get to take our show on the road, so I’m grateful for the present opportunity to address the intersection of our respective projects. To the extent that criticism emerges from his many kind comments, Levinson’s main complaints have to do with “complacency” about both the law school curriculum and the merits of the canonical Constitution. The point is a fair one. As will become evident, I am even more “complacent” than Levinson gives me credit for. The question is whether such complacency can be defended.

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

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

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

The Court ruled in Georgia v. Ashcroft that states, when redistricting, could try to increase “substantive representation”—the degree of influence that minority voters have on policy outcomes—even at a possible cost to “descriptive representation”—the number of minority candidates elected to office. As reviewed in Nathaniel Persily’s article The Promise and Pitfalls of the New Voting Rights Act, Congress attempted to overrule Georgia v. Ashcroft in the 2006 Voting Rights Act Renewal Act (VRARA), claiming that the VRARA would return redistricting law to its pre-Ashcroft state and disallow tradeoffs between substantive and descriptive representation. It is still not clear how the new standards should be implemented, though, and Persily suggests that retrogression in descriptive representation be measured as the total expected number of minority candidates of choice elected to office, according to a given redistricting plan.

The Constitutional Relevance of Alleged Legislative Dysfunction

The role of an election law scholar these days is much like that of an anthropologist specializing in the study of human sacrifice. At a certain point, some of us in the field suppress natural human impulses of disgust and revulsion and replace them with fascination and curiosity. How else does one stomach the pervasive partisan greed, the wild conspiracy theories, the actual conspiracies, the pretextual arguments, and the often vicious attempts to use the law for partisan and personal gain? My article The Promise and Pitfalls of the New Voting Rights Act may appear too descriptive and anodyne to some, because of itsattempt to treat this important legislation as a phenomenon that needs to be explained before it can be judged. This Reply gives me the opportunity to offer some of the judgment that might have been lacking in the principal article and to reply to critics who have responded in print and those who have responded as part of litigation surrounding the constitutionality of the new Voting Rights Act (VRA).

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

The purpose of Professor Nathaniel Persily’s article, The Promise and Pitfalls of the New Voting Rights Act, is to present an interpretation of the discriminatory effects prong of the new section 5 that will have a greater probability of surviving constitutional scrutiny. In presenting this interpretation, Professor Persily addresses several major issues that delineate the contours of the new section 5 retrogression standard and its application to redistricting plans. Yet, upon closer examination, the proposed new interpretation is very similar to the old retrogression standard with an important difference. The proposed definition of “uniquely preferred candidate of choice” will diminish the opportunity of minority communities to prevent the implementation of redistricting plans that have a retrogressive effect on minority voting strength.

Summer Submissions Announcement

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

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

Section 2257 of title 18 of the U.S. Code requires that “producers” of photographs and films of “actual sexually explicit conduct” create and maintain records documenting the age of the performers depicted in those performances. The statute’s purpose is to ensure that the performers are not minors. This recordkeeping statute has generally been limited to the adult film industry, although recently the statute’s impact has crept into the realm of mainstream film and television. For over two decades, the statute has withstood numerous constitutional challenges by the adult film industry and civil libertarian organizations. On October 23, 2007, however, the U.S. Court of Appeals for the Sixth Circuit held that § 2257 was overbroad on its face and therefore unconstitutional.

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

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

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

Paul M. Thompson’s reply to my Comment proposing the creation of Congressional Commissioners for Standards proceeds in two steps. First, he argues that our current system of ethics enforcement, dominated by the ethics committees and the Department of Justice, is working just fine. And second, he argues that the establishment of Congressional Commissioners would create, rather than solve, problems. Both of these claims suffer from the same basic defect: they assume that congressional ethics enforcement should be just like criminal law enforcement. I suggest, however, that this assumption is fundamentally misguided. Congressional ethics is not simply about punishing rulebreakers; rather, it aims to promote public trust in Congress and its members. With this very different goal in mind, it is clear not only that our current system is in shambles, but also that the creation of Congressional Commissioners would be a useful corrective.

Call For Papers: Virtual Worlds Symposium

Call for Papers: Symposium on Sovereign Wealth Funds

State Legislatures

This week, The Pocket Part presentes 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.

Taking States out of the Workplace

It is perhaps counterintuitive to respond to a call for papers on new developments in state law by arguing that there should be no developments at all. With regard to one area of law, however, that is exactly what I am going to do. More precisely, I argue for one general development—the elimination of state authority to regulate the workplace.

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

California recently passed legislation that creates retroactive, descendible rights of publicity. The New York State Assembly is poised to enact similar legislation. Legal recognition of postmortem rights of publicity permits a decedent’s named beneficiaries or heirs to control (and financially benefit from) use of a deceased personality’s image and likeness. Legislators, proponents of these laws, and legal commentators have overlooked two significant federal estate tax consequences of these new state law property rights. First, a descendible right of publicity likely will be included in a decedent’s gross estate for federal estate tax purposes. Second, the estate tax value of rights of publicity easily could exceed the estate’s liquid assets available to pay taxes. These tax concerns could be eliminated, however, by rewriting the statutes to limit a decedent’s ability to control the disposition of any postmortem rights of publicity.

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

Recent attempts to falsely portray presidential candidate Barack Obama as a Muslim and a tool of our nation’s enemies serve as vivid reminders that many Americans doubt the loyalties of their Muslim compatriots. These smears exploit the perception that conduct expressive of Muslim identity—like attending a “Muslim” school or wearing “Muslim” garb—is inherently suspicious. Some counterterrorism profiling, even when based on “objective” intelligence, has employed similar logic by targeting activities supposedly probative of terrorism, yet which correlate reliably with little except being Muslim. Such profiling can inflict pervasive harms upon American Muslims as a group, not least by reinforcing the prejudices that make the Obama rumors so virulent.

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

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

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

In the aftermath of September 11, 2001, the government has adopted a number of counterterrorism measures that burden Muslim-Americans’ religious practices. Murad Hussain’s Note attempts to overcome the doctrinal obstacles facing individuals’ pursuit of legal claims against these measures. Because of the deference granted the government when it alleges national security interests, the immediate effects of this approach may be limited. Over time, however, Hussain’s doctrinal strategy, by alerting courts to the kinds of group harms that government action can generate, may persuade them to place more value on Muslim individuals’ religious exercise. To the extent that courts are able to conceptualize the harms at issue differently, they may be less willing to simply accede to governmental claims of a compelling state interest and more willing to counterpoise them in the balance against the forms of religious expression at stake.

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

Just hours after the Georgia General Assembly convened in January 2005, the newly Republican-led House of Representatives elected the first Republican Speaker of the House in 135 years. The House then launched its first official day of business with a dramatic change in its internal rules by passing House Rule 11.8—a rule that gives the Speaker unprecedented legal power to control the function of legislative committees. This Commentary argues that Georgia’s House Rule 11.8 is an abuse of the committee system, and that it should push legal scholars to theorize about the normative value of allowing such laissez-faire organization of our legislatures.

Conservation Easement Tax Credits in Environmental Federalism

Faced with a frustrating lack of federal leadership, environmentalists are increasingly focusing their energy on state and local efforts to protect our natural heritage. Many high profile projects, however, rely on unpopular mandatory standards and conflict with federal regulatory priorities. Consequently, programs like the California and Vermont fuel efficiency standards have met with political resistance at both the state and federal levels. As an alternative, states interested in resource preservation are increasingly reliant on tax incentives to encourage voluntary efforts. State conservation tax credits, for example, incentivize the private creation of conservation easements—restrictive covenants that permanently protect land from future development. Conservation easements have emerged as an effective tool for habitat protection, erosion control, and landscape-level resource conservation. Moreover, easement incentive programs find broad political support because they leave landowners with substantial control over their property. Thus, conservation tax credits are politically viable even among constituencies that do not traditionally embrace environmental goals.

Three Questions about Hybrid Rights and Religious Groups

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

Emerging Trends in State Law

In this Pocket Part Podcast, Chief Justice Randall T. Shepard of the Indiana Supreme Court and Chief Justice Margaret H. Marshall of the

Click here to hear Emerging Trends in State Law with Chief Justices Shepard and Marshall.

State Courts

This week, The Pocket Part presents the first of two issues on recent developments in state courts and legislatures. In this installment, we are honored to present Commentaries by two influential state jurists: Chief Justice Randall T. Shepard of the Indiana Supreme Court and Chief Justice Margaret H. Marshall of the

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

The Massachusetts Constitution of 1780, the world’s oldest, still-governing written constitution, guarantees to all “[e]quality under the law” and the “impartial interpretation of the laws . . . by judges as free, impartial and independent as the lot of humanity will permit.” It also guarantees the “impartial . . . administration of justice,” and justice obtained “completely, and without any denial; promptly, and without delay.” The reason John Adams, the principal drafter of the Massachusetts Constitution, was concerned with equally available substantive justice needs little explication. But why would Adams also concern himself with, and raise to constitutional dimension, the administration of justice, the quotidian business of filing and docketing cases, shepherding them through the court system, and delivering to the litigants final judgments and orders?

State Court Reform of the American Jury

The American jury’s prominent place on any short list of our most sacred endowments from older Western societies has tended to obscure both its tragic fall from grace and its recent renewal at the hands of state courts.

Natural-Born Citizen Clause and Presidential Eligibility

Last week, the usually obscure Natural-Born Citizen Clause of Article II of the Constitution became the subject of newfound media attention. As the New York Times reported, the candidacy of Sen. John McCain, born in the Panama Canal Zone, has revived a "musty debate": Is a person born abroad of American parents a "natural born Citizen" eligible to be president? As noted in the article, Jill Pryor, writing in the Yale Law Journal twenty years ago, examined this very issue.

Click here to read Jill A. Pryor, Note, The Natural-Born Citizen Clause and Presidential Eligibility: Resolving Two Hundred Years of Uncertainty, 97 Yale L.J. 881 (1988).

Ships

Many of the trials concerned the validity of the ships’ papers, and the courts’ records contain many bundles of original records found on the captured ships. For example, the papers certifying the ship’s nationality or ownership might have been found to be forged or otherwise irregular. During the time period when the slave trade was prohibited by some nations only north of the equator, the ship’s log was sometimes altered to suggest that the ship had been sailing in legal latitudes when it had, in fact, sailed in waters where the slave trade was prohibited. During this period of transition from legality to illegality, some ships carried passports defining where they could sail and how many slaves they could carry, like the one below, issued by the Portuguese government.

Liberated Slaves

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

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.

Correspondence

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

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.

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

The Department of Health and Human Services (HHS) recently promulgated restrictions on the State Children’s Health Insurance Program (SCHIP), which insures nearly six million children by offering matching funds for states’ health care programs. Most significantly, the restrictions prohibit states from expanding SCHIP eligibility until they meet an inflexible benchmark: ninety-five percent coverage for children whose families’ income is below twice the federal poverty level (FPL). By stifling states’ efforts to expand SCHIP coverage, these new restrictions will have adverse consequences for access to health care for low-income children. And the promulgation of stricter federal requirements has implications not only for SCHIP, but for other federally-funded health programs administered by states, including Medicaid. In order to protect state health policy initiatives from these and other harmful federal restrictions, I propose a legal strategy for advocates to (1) force federal agencies to follow more democratic processes and (2) combat the traditional deference accorded to agency interpretations in the health care context.

Congressional Representation for Puerto Rico

José R. Coleman Tió argues the current commonwealth relationship between the United States and Puerto Rico is insufficient to satisfy Puerto Rico's democratic aspirations. Coleman believes that Puerto Rico can and should be given congressional representation through federal legislation.

In response, Christina Duffy Burnett and John C. Fortier argue that Coleman cannot surmount the constitutional and normative challenges to his proposal. Taking a different perspective, Ezra Rosser argues that early treaties with Native American tribes provide historical examples of similar non-state congressional representation.

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.

In Defense of Guantanamo Bay

You have probably seen the drawing that, depending on your perspective, appears to be either a beautiful young woman or an ugly old hag. At first blush such polar opposite impressions of the same image seem illogical, but upon closer examination you see how different observers can draw starkly different conclusions. A similar phenomenon applies to impressions of the detention facility and military commissions at Guantanamo Bay, Cuba. As Senator Lindsey Graham has said, “[t]he image of Guantanamo Bay and the reality of Guantanamo Bay are completely different.” My vantage point as the chief prosecutor for the military commissions biases my perspective, so I make no claim that my views are completely objective. By the same token, the perspectives of those critical of Guantanamo Bay are probably just as biased. That said, what I offer is my perspective, which is likely to contrast sharply with the ugly picture of Guantanamo Bay that many attempt to sell to the public.

What I see is a clean, modern facility that employs humane detention practices to prevent enemy combatants from causing harm in the future and that utilizes fair trial procedures that exceed standards accepted in comparable international tribunals to adjudicate the guilt or innocence of enemy combatants alleged to have committed punishable offenses in the past. If truth be told, and often it is not, there is no compelling reason to cut and run from the detention facility or the military commissions.

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.

Political Avoidance, Constitutional Theory, and the VRA

Constitutional theory and design have been dominated by the specter of legislative and executive institutions voraciously seeking to expand their powers. But in modern political practice, the flight from political responsibility–the problem of political abdication–is at least as serious a threat. Constitutional theory has paid too little attention to this problem. And as a matter of institutional design, we are still struggling to find tools to force political actors to take responsibility they would rather avoid. Abdication, not aggrandizement, is the common thread that unites Congress’s virtual absence from any major policymaking role on terrorism-related issues in the first five years after September 11th and the Voting Rights Act (VRA) reauthorization process that Professor Persily chronicles.

Mission Accomplished?

Is Texas really worse than Ohio? Comparing the two—and, more broadly, the regions subject to the renewed Voting Rights Act with those that are exempt—provides critical support for the statute’s validity.

My study of voting rights violations nationwide suggests that voting problems are more prevalent in places “covered” by the Act than elsewhere. Professor Persily’s careful and measured defense of the renewed statute posits that this evidence is the best available to support reauthorization. The evidence matters because if, as critics charge, the regional provisions of the Voting Rights Act (VRA) are no longer needed, minority voters should confront fewer obstacles to political participation in places where additional federal safeguards protect minority interests than in places where these safeguards do not operate. In fact, minority voters confront more.

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.

The New Voting Rights Act

This week The Pocket Part is publishing the first of two issues discussing Nathaniel Persily’s article, The Promise and Pitfalls of the New Voting Rights Act. In this issue, we present Professor Persily’s summary of his article with responses by Ellen Katz and Richard Pildes.

A forthcoming issue will feature additional responses to Professor Persily’s article. In addition, Professor Persily will respond to the comments on his article and discuss issues raised in a pending constitutional challenge to section 5 of the VRA.

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

Nathaniel Persily’s article, The Promise and Pitfalls of the New Voting Rights Act, recently became a focus of attention in a pending case challenging section 5 of the VRA on constitutional grounds, Northwest Austin Municipal Utility District No. 1 (NAMUDNO) v. Gonzales, No. 1:06-cv-01284-PLF (D.D.C. Aug. 4, 2006).

The plaintiff in the case, a Texas utility district covered by section 5 of the VRA, argues that the requirement that it obtain federal preclearance for changes to its election practices is not a congruent and proportional response to current voting rights problems – and therefore that it exceeds Congress’s enforcement powers under the Fourteenth and Fifteenth Amendments.The Justice Department and defendant-intervenors argue that section 5 is a valid exercise of Congress’s enforcement powers, and that evidence of ongoing voting rights violations demonstrates the continued need for section 5.

In advance of the September 17 oral argument, the three-judge panel hearing the NAMUDNO case directed the parties to submit comments on Professor Persily’s forthcoming article.

Below you will find the parties’ briefs in the case, as well as the comments they filed regarding the Persily article in response to the court’s order.

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

Prohibition’s repeal in 1933 ended an era of lawlessness, gang wars, and heavy-handed federal regulation. The state regulatory systems that arose from Prohibition’s ashes, however, brought problems of their own. Most states adopted distribution systems designed in part to shield in-state producers, wholesalers, and retailers from out-of-state competition. In this piece, I examine one such widely enacted protectionist state law: the personal import limit. I argue that these limits, which survive essentially unchanged to this day, are inconsistent with the premises of an integrated national market and frustrate the purposes of the Twenty-First Amendment.

Suppose you are a Connecticut resident living in Hartford, and you wish to throw a New Year’s Eve party. Imagine also that a liquor store in Springfield, right across the Massachusetts border, is hosting a sale of champagne. No store in the Hartford vicinity has cut prices. Though you would naturally take advantage of the lower prices in Massachusetts, section 12-436 of the General Statutes of Connecticut stands firmly in your way: unless you wish to risk a fine of “not more than one thousand dollars” or imprisonment of “not more than one year” (or both), you may not import more than five gallons of alcohol from out-of-state. However, you may purchase and transport within Connecticut unlimited quantities of champagne from a Connecticut retailer. This is so because Connecticut employs a “three-tier distribution system,” meaning that Connecticut alcohol producers may sell only to Connecticut wholesalers, who may sell only to Connecticut retailers, who may then sell only to consumers. The system allows the state to regulate every drop of alcohol that enters its borders. Because a Massachusettsretailer does not participate in Connecticut’s three-tier system, the state of Connecticut bars the Massachusetts retailer from full access to Connecticut’s liquor market.

Laugh Track II – Still Laughin’!

Nearly two years have passed since the New York Times reported on Laugh Track, the first-ever scientific study of how funny the various Supreme Court Justices are during oral argument. For that study, published in The Green Bag, I calculated the number of times during the 2004-05 Term that each Justice said something that caused enough chuckling in the courtroom to inspire the Court Reporter to insert the notation “(Laughter)” into the transcript. Although the study was profoundly flawed in almost every respect, it clearly showed that Justice Scalia got the most laughs from the bench, followed not so closely by Justice Breyer. The least-funny Justices during the Term were Justices O’Connor, Ginsburg, and Thomas, who received seven, four, and zero laughs respectively.

A lot has happened at the Court since the study was published. Chief Justice Rehnquist passed away. Justice O’Connor retired. John Roberts became the new Chief, and Samuel Alito was confirmed as the newest Associate Justice. The Justices also accepted seven-percent fewer cases to review, presumably to spend more time working on their jokes. Has it worked? Well, the oral argument laughter data for the most recent Term are now in, and it appears that not so much has changed at the nation’s highest Court.

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

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

Promises of Nonstate Representatives

Opponents of congressional representation for Puerto Rico emphasize the Constitution’s apparent statehood requirement: “The House of Representatives shall be composed of Members chosen . . . by the People of the several States.” Even José R. Coleman Tió, a supporter of nonstate representatives, acknowledges the “daunting legal hurdle” that the statehood requirement poses. In his comment, Coleman proposes various legal theories for surmounting this “obstacle[].” In response, Christina Duffy Burnett argues that none of Coleman’s arguments exempt Puerto Rico from the statehood requirement. Similarly, John C. Fortier uses his title to say it all: The Constitution is Clear: Only States Vote in Congress. Both Coleman and his responders frame the issue of Puerto Rican representation in a way that prioritizes statehood above all else. This focus entirely ignores, however, the United States’ history of supporting nonstate delegates for Indian tribes. The history of treaty-guaranteed congressional delegates for Indian tribes raises doubts about the power and determinative reach of the statehood requirement. U.S. negotiated treaties, particularly with the Cherokee Nation, reveal statehood to be more of a starting assumption than a determinative prerequisite for congressional representation.

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

The comment Article III En Banc is a welcome sign of increasing attention to the understudied topic of federal judicial administration. The comment alludes briefly to a project designed almost twenty years ago by the Governance Institute, a small Washington, D.C., think tank, “to increase communication between the courts and Congress and improve statutory drafting.” Courts of appeals transmit opinions that point out possible technical problems in statutes to Congress for its information and for whatever action it wishes to take. This mechanism of “statutory housekeeping,” in Justice Ruth Bader Ginsburg’s felicitous phrase, is a way for circuit courts to inform Congress about possible grammatical and drafting errors and other litigation-prompting ambiguities in federal statutes. The project, implemented first on a pilot basis in the early 1990s, has had the full support and active encouragement of congressional leaders in both chambers. Indeed, when project activity waned somewhat in recent years, the legislative drafters and the bipartisan Judiciary Committee leadership in both houses called for its reinvigoration, a work now in progress, as we describe below. The comment, however, tells the reader nothing of this project's continuing vitality. Thus, this response highlights congressional support for the initiative and shows that this project is, in fact, an island of interbranch cooperation in a sea of sometimes choppy interbranch confrontation.

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

Henry Smith’s Intellectual Property as Property: Delineating Entitlements in Information contributes to the intellectual property literature by arguing that enforcing IP with rights to exclude can mitigate the high information costs associated with information-based assets. Smith is right, as far as he goes, but perhaps he should go further. Treating IP as property has at least three additional important benefits: First, it improves socially constructive coordination that facilitates the complex process of commercializing innovation. Second, the lack of property treatment facilitates the socially destructive coordination among large players employing a “keiretsu” strategy of collusion. Third, property treatment helps to mitigate those transaction and public choice costs that are associated with political, as compared to economic, markets. In addition to perhaps not going far enough in these three respects, Smith may also go too far by overestimating the so-called “anticommons” objection to treating IP as property.

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

A virtual cottage industry of intellectual property (IP) models has sprung up in recent years. To the mix, Henry Smith adds modularity, in which there are intense interactions within, and few interactions between, components. But before displacing more traditional explanations, the theory must address six fundamental challenges: (1) explain why modularity should be IP’s defining feature; (2) account for the roles played by IP statutes and doctrine; (3) specify clear boundaries for innately imprecise patents and copyrights; (4) justify discerned differences between patent and copyright; (5) rationalize the enhanced injunctive relief suggested by the model; and (6) prove the game is worth a new empirical candle.

Intellectual Property as Property

Intellectual property is property. This may seem trivial to some and tendentious to others. Why? In my recent Article I argue that the conflict between two polar views arises in part from overlooking the nature of property rights. Commentary in intellectual property is overwhelmingly concerned with the nonrivalness of information on the one hand or the need for the creation of incentives on the other. The former makes intellectual property, and exclusion in particular, presumptively suspect: if additional consumers can use information at little or no additional cost, then the waste from exclusion rights in information could not be clearer. On the other hand, the need for incentives to create or develop information may at times require intellectual property rights to supplement or supplant other devices like lead times, fame, and academic tenure, but this tells us little about whether the incentives should take the form of regulating specific activities, as in unfair competition, or employing exclusion rights, as in patent law. What should be the contours of intellectual property rights?

Call For Papers: State Law

The Yale Law Journal Pocket Part is soliciting commentaries for two end-of-year issues: one issue will focus on new developments in state courts, and the other will focus on new developments in state legislatures.

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

Several cases concerning the National Security Agency (NSA) surveillance program have now reached the courts of appeals. In these cases, the government invoked the state secrets privilege in its motions to dismiss, and in both cases it lost at the district court level. The courts below tiptoed around the impenetrable state secrets doctrine by deciding that enough information about the NSA surveillance program existed in the public sphere that the plaintiffs could proceed without revealing any secret information. This attempt to circumvent the state secrets privilege has thus far proven unsuccessful on appeal. However, the decisions skirt the real issue pervading these cases and many other 9/11-related civil liberties cases—the fact that the state secrets privilege is outdated, misused, and out of step with the executive excesses of the current Bush Administration.

The Relative Weight of Irreparable Benefits

In his recent essay in this Journal, Professor Lichtman proposes adding two factors to Leubsdorf’s three-part test for preliminary injunctions. In this Response, I offer a refinement of Lichtman’s analysis of the relative weight that ought to be accorded to each of his five factors. I suggest that because the prospect of irreparable benefits is inherently less troubling than that of irreparable injuries, and because they pose a greater potential for miscalculation, irreparable benefits should weigh less than irreparable injuries in Lichtman’s formula.

I. “Losses Loom Larger than Gains”

The first reason why failing to correct erroneously granted irreparable benefits is less troubling than failing to correct erroneously inflicted irreparable injuries is that we simply do not care as much about gains as we do losses. People are more displeased by a loss—by about a factor of two—than they are pleased by a gain of an equivalent amount. This asymmetry where the disutility of giving something up outweighs the utility of acquiring it is known as loss aversion. One form in which loss aversion manifests itself is the endowment effect.

The endowment effect suggests that people often demand more to give something up than they would pay to acquire it. The classic illustration of the endowment effect involved an experiment distributing Cornell coffee mugs. The mugs, which sold at the bookstore for $6, were distributed randomly to some of the experiment participants. The participants without mugs were instructed to try to buy the mugs from those who had them. Few mugs actually were sold because the median seller would only sell for $5.25, whereas the median buyer would pay no more than $2.25-$2.75. As one commentator has noted, “people are attached to keeping what they already have.” Although the participants in this example displayed a strong endowment effect despite having had the mugs only a short while, additional research has suggested the effect increases over time. As Chief Justice Holmes said, “A thing which you have enjoyed and used as your own for a long time, whether property or an opinion, takes root in your being and cannot be torn away without your resenting the act and trying to defend yourself, however you came by it.”

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.

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

Although eminent domain has dominated state political debates since the controversial Kelo decision in 2005, a more influential movement has quietly attached itself to property rights reform fueled by the Kelo fire. The partial regulatory takings movement—requiring governments to pay landowners for the impacts of regulations—is rapidly growing. The movement attempts to address unfairness created by regulatory burdens. Yet as U.S. communities, particularly low-income communities, face increasing challenges to land use planning in their neighborhoods, partial regulatory takings legislation decreases their opportunities to influence planning processes. This legislation therefore fails to proportionately redistribute the unfairness associated with land use decisions.

Internet Harassment

Last spring, controversy erupted over the harassment of students, including current law students, on the website AutoAdmit.com. This month, The Yale Law Journal Pocket Part features essays that discuss the role of law and policy in regulating instances of cyber bullying, including defamatory “Google bombing.” The authors included in this symposium bring a variety of perspectives on the legal and extra-legal regimes that best address this problem.

The Legal Profession, Personal Responsibility, and the Internet

Our law students are more tech-savvy than ever. Unfortunately, they occasionally lack sense. Some of them simply fail to realize that we—professors, bar examiners, and law firms—see material they post online. Others make a game out of being intentionally, but anonymously, offensive. To avoid further injury to the reputation of our law schools and the legal profession, we must create incentives for the former students to consider consequences, and a reasonable chance that the latter students can be “caught”—i.e., tied to their online personas. To accomplish both ends, I propose that we request, in law school and bar applications, a three-year history of online aliases and related information.

Don’t Censor Search

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

Regulating Cyberbullies Through Notice-Based Liability

With the growth of the Internet’s uses and abuses, Internet harassment is making headlines. Given its immediacy, anonymity, and accessibility, the Internet offers an unprecedented forum for defamation and harassment. The salient problem with such “cyberbullying” is that victims are typically left without adequate recourse. The government should provide recourse by curtailing the near absolute immunity Internet Service Providers (ISPs) currently enjoy under the Communications Decency Act (CDA) and implementing a notice and take-down scheme—similar to that for copyright infringement under the Digital Millennium Copyright Act (DMCA)—for certain torts.

What Efficiency Demands: The Efficient Performance Hypothesis Defended

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

What the Efficient Performance Hypothesis Means for Contracts Scholarship

The standard contract remedy of expectation damages treats a promissory obligation as an option: the promisor has the option to breach or pay damages equal to the difference between the value of performance and the contract price. In his interesting essay recently published in this Journal, Richard Brooks asks, Why not give the option to the promisee rather than the promisor? If the promisee is given the option to force the promisor to perform or pay damages equal to the difference between the promisor’s gain from breach and the contract price (disgorgement damages), then the promisor has the same incentive to perform or breach as under expectation damages. So giving the promisee the option to compel performance or disgorgement is no less efficient than the expectation damages remedy. Meanwhile, the disgorgement-option remedy, as I will call it (to distinguish it from the normal remedy of disgorgement), is ethically superior if we believe that moral principles do not permit the promisor to choose to pay damages rather than to perform, and if we believe instead that the promise shouldhave the right to determine whether the promisor performs. If it is no worse on efficiency grounds, and better on non-welfarist ethical grounds, the disgorgement-option remedy may in the aggregate be superior to expectation damages.

A Critique of the Efficient Performance Hypothesis

The classic economic justification of contract law’s default remedy of expectation damages is grounded on the efficient breach hypothesis: that promisors should be permitted and encouraged to breach when the net gains from breach exceed the net gains from performance. Expectation damages ensure that all and only efficient breaches will occur because promisors will find breach profitable only if its benefits exceed the value of performance to the promisee. The efficient breach hypothesis, and the defense of expectation damages that rests on it, has long been criticized for being inconsistent with the moral intuition that promisors necessarily forfeit their right to choose not to perform their promise. In his essay, The Efficient Performance Hypothesis, Richard Brooks claims that the theory of financial options can be used to identify a new contract remedy that respects the promisee’s moral right to performance without sacrificing the efficiency goal served by expectation damages. In this Response, I argue that options theory is irrelevant to the debate Brooks engages, that the moral objection motivating Brooks’s new remedy is itself unmotivated, and that Brooks’s remedy is likely to be less efficient than expectation damages.

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

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

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

The efficient breach hypothesis is often taken as formal support for the Holmesian optional contract approach, which gives promisors the right to perform or pay. However, the efficient breach hypothesis doesn’t speak directly of rights (and indeed a promisor’s power to perform or pay would work just as well as the right to do so), but it does implicitly constrain the rights of promisees. If promisees have the right to prevent breach, it is often argued, inefficiency will result. Moreover, the efficient breach hypothesis relies on the expectation damage remedy: “If [the promisor] is forced to pay more than that, an efficient breach may be deterred.” It is broadly believed that efficiency requires the expectation remedy. Because particular rights and remedies are often viewed as associated with the efficient breach hypothesis, one might be tempted to conclude that those particular rights and remedies are required for efficiency.

The purpose of my essay, The Efficient Performance Hypothesis, is to argue against this temptation. Efficiency embraces a broader scope of rights and remedies than that implied by the standard efficient breach hypothesis. To demonstrate this point the essay considers two distinct allocations of rights –the Holmesian option, which gives the promisor the right to perform or pay, and an alternative option, which gives the promisee the right to compel performance or receive payment for non-performance. These competing allocations are combined with a variety of damage remedies and shown to produce comparably efficient outcomes.

The Historical Origins of Judicial Independence and Their Modern Resonances

Responding to Mary Sarah Bilder’s argument that the roots of judicial review can be found in corporate law of the colonial era, Scott Gerber contends that judicial review is an extension of the notion of an independent judiciary that emerged from Revolutionary Era political theory. Gerber convincingly demonstrates that the American Founders were “steeped in the history of ideas.” But his limited focus on Adams and Montesquieu obscures the deeper theoretical origins of the doctrine of an independent judiciary. Already debated in England during the sixteenth and seventeenth centuries, the concept traces back much earlier. As the works of early modern political writers indicate, the etiology of an independent judiciary lies in antiquity–not in Athens, but rather in Jerusalem.

The Guantanamo Three-Step

In a recent Response to my Comment, Geoffrey Corn, Eric Talbot Jensen, and Sean Watts take an interesting stance in defense of the combatant status review tribunals (CSRTs). Their Response does not dispute—and in fact seems to support—my central argument that CSRTs cannot serve as the “competent tribunals” required under Article 5 of the Third Geneva Convention. But Corn, Jensen, and Watts come to bury Article 5, not to praise it. They do so by recasting Article 5 as the third step in a three-part detainee-classification process whose first two steps are controlled entirely by the President. These two steps, they argue, render Article 5 tribunals unnecessary at Guantanamo. This reading raises thorny problems of executive power and undermines the purpose of Article 5.

Two Puerto Rican Senators Stay Home

José R. Coleman Tió proposes that Congress grant Puerto Rico equal representation in the House of Representatives through simple legislation. Although Puerto Rico has been subject to U.S. sovereignty since 1898 and Puerto Ricans have been U.S. citizens since 1917, they cannot vote in federal elections—not for Congressmen, not for Senators, not for the President of the United States. This is because Puerto Rico is not a state: the Constitution provides that “[t]he House of Representatives shall be composed of Members chosen . . . by the People of the several States.” But Coleman does not see this constitutional provision as an obstacle: pointing to H.R. 5388, a bill that would provide equal representation in the House for the District of Columbia, Coleman contends that the arguments in favor of such treatment for the District would be even stronger for Puerto Rico.

The Constitution Is Clear: Only States Vote in Congress

José R. Coleman Tió argues that Congress, under its power to govern territories, may grant Puerto Rico congressional representation without making it a state. This argument and a parallel argument about representation for the District of Columbia are flawed because the Constitution, not Congress, determines which entities get congressional representation, and the Constitution is clear that only states are represented.

Democracy, Not Statehood: The Case for Puerto Rican Congressmen

Congress is currently considering the District of Columbia House Voting Rights Act of 2007 (H.R. 1433), which attempts to address the disenfranchisement of District residents by granting the District representation in the House of Representatives. In a Comment recently published in this Journal, I show that the constitutional arguments supporting H.R. 1433 would also apply to a similar (hypothetical) bill granting House representation to Puerto Rico. In fact, a bill enfranchising Puerto Ricans in the House might even stand on firmer constitutional ground than H.R. 1433. Here, in this Pocket Part Essay, I briefly sketch my Comment’s legal argument and then address the moral desirability and the political difficulty of a bill to grant Puerto Rico representation in the House.

A Radical Rejection of Universal Jurisdiction

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

Against Irreparable Benefits

In a recent essay in The Yale Law Journal, Douglas Lichtman argues that courts considering preliminary injunctions should account for irreparable benefits in addition to irreparable harms.This is a provocative idea. If a preliminary injunction harms one party but benefits the other, and if both effects are equally difficult to subsequently undo, why focus on one effect (harm) and ignore the other (benefit)? There is a compelling geometric validity to this symmetry observation. But is this a valuable “flipping” exercise? Does it shed a new light and provide useful insight into the law of injunctions?

In this Response I want to suggest that the case for irreparable benefits is valid, but perhaps overstated. I have no quibble with the claim that if there are irreparable benefits, and if they are indeed overlooked, the legal doctrine ought to be corrected. But I am less sure that the existence of irreparable benefits is prevalent, and I am even less sure that they are systematically overlooked. Let me explain.

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

In Irreparable Benefits, Douglas Lichtman argues that when courts consider granting preliminary relief, they should account not only for irreparable harms but also for irreparable benefits. He reasons that gains accrued during trial to a litigating party who wins at the preliminary stage but eventually loses on the merits (the “Temporary Winner”) have undesirable distributional and incentive effects. Despite theappeal of Lichtman’s claim, I want to suggest some qualifications to it. First, the soundness of this argument depends on whether the law requires in principle that the Temporary Winner disgorge the benefits to the other party (the “Final Winner”) and on the reasons behind the law’s stance on this matter. Second,these benefits do not necessarily have undesirable distributional or incentive effects.

Irreparable Benefits

When evaluating a request for preliminary relief, courts today consider the degree to which a mistake in denying or issuing the requested injunction might cause an unintentional, irreversible reduction in one litigant’s welfare—what the courts call an “irreparable harm.” Courts do not, however, consider the opposite implication of court error: the degree to which a mistake in denying or issuing the requested injunction might cause an unintentional, irreversible increase in one litigant’s welfare. In the most recent issue of this Journal, I question this asymmetry, arguing that “irreparable benefits” of this sort should indeed enter the injunction calculus. Irreparable benefits are different from irreparable harms, to be sure, but the differences do not justify a legal regime in which the latter are carefully considered whereas the former are entirely ignored.

How Whren Protects Pretext

Funny, isn’t it, that “pretext” is a dirty word, a liability-conferring word, in an employment discrimination case, or a fraud case, but that in Fourth Amendment jurisprudence the word has been given a free pass? That, to use Eric Citron’s phrase, the word even seems to open up a “liberated space for bad intentions”?

Especially in the context of traffic stops, the pretext problem is widespread and destructive of what used to be called “police-community relations.” In the District of Columbia, it is unlawful (who knew?) to hang so much as fuzzy dice or one of those little two-dimensional pine tree air fresheners from a rearview mirror, or to have tinted windshields or front side windows that allow less than seventy percent light transmittance. Regulations like that, read together with the law of pretext crystallized by Whren and its progeny, amount to the issuance of virtually unlimited hunting licenses to Citron’s “Bad Cops.” Trial judges, bound by controlling precedent, may deplore pretextual stops, but their distaste will not be grounds for suppression.

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

Eric Citron’s piece, Right and Responsibility in Fourth Amendment Jurisprudence: The Problem with Pretext, gets some things quite wrong, but it gets one important thing right—that our Fourth Amendment law is all about what suspects do and very little about what police do.

Citron starts from the proposition that Whren v. United States makes impermissible any consideration of pretextual justifications for police conduct. Citron overstates the significance of Whren, arguing that “Whren and its progeny broadly condemn any subjective inquiry into the motivations of individual officers.” Whren should more accurately be characterized as holding that, when police action is based on individualized suspicion, the existence of the appropriate level of individualized suspicion justifies the action, without inquiry into the officer’s subjective intent. This is why Justice Scalia stated in Whren that “subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.”

Police Pretext as a Democracy Problem

Democracy, at the very least, requires that the dangerous branches of government—like the executive and law enforcement—be accountable to the people or their representatives. Ignoring claims of police pretext, as our Fourth Amendment jurisprudence currently does, creates a barrier to that accountability because it shields bad police purposes from inquiry. We cannot with confidence grant limited powers to the police, or trust that they will not use their powers for totalitarian ends, if a police officer’s purpose, by rule, forms no part of any Fourth Amendment inquiry into his actions. Without a purposive inquiry, his ends need not be ours, though democracy would dictate that they should be. This is what it means to say that police pretext poses a democracy problem.

Unpacking the Household: Informal Property Rights Around the Hearth

Editor’s Note: This Essay is adapted from Robert C. Ellickson, Unpacking the Household: Informal Property Rights Around the Hearth, 116 Yale L.J. 226 (2006).

Lawyers and legal scholars understandably tend to focus on domains of life where law is central. There is much to be learned, however, from domains where people deliberately structure their affairs to minimize formalities such as written contracts and legal entanglements. Just as studying conditions of anarchy helps illuminate the effects of government, so studying domains that people intentionally keep casual can shed light on the merits of more legalized arrangements. In an article recently published in this Journal, I analyze one of the most important human institutions in which informality traditionally has prevailed: the household.

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

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

Bargaining Around the Hearth

In Unpacking the Household: Informal Property Rights Around the Hearth, Robert Ellickson argues that as long as members of a household expect their relationship to continue, norms, rather than law, will determine allocations among them. More specifically, Ellickson argues that in “midgame” household members either ignore the “endgame” completely or, if they do take endgame considerations into account, the relevant endgame considerations are determined by norms rather than by law. In this Response to Ellickson, I examine the fit between Ellickson’s claims and four bargaining models that economists have used to understand interactions within households and families.

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

In a brief but pointed critique recently published in this Journal, Joseph Blocher claims that the Combatant Status Review Tribunals (CSRTs), established to determine whether Guantánamo detainees were “enemy combatants,” were inadequatebecause they were not authorized to determine whether detainees qualified as prisoners of war (POWs). Blocher asserts that the Third Geneva Convention obligated the United States to vest the CSRTs with such authority. While we concur that the CSRTs did not have authority to make POW classifications, we maintain that under the circumstances, the United States’ decision to deny individual consideration of POW status is appropriate and consistent with the Geneva Convention Relative to the Treatment of Prisoners of War. In our view, because predicate analysis identified no qualifying POW groups to which detainees could claim membership, the CSRTs were appropriately precluded from determining POW status. Accordingly, the CSRTs served the distinct function of determining whether continued detention was justified.

The Dangers and Demands of Cosmopolitan Law

In a recent essay in this Journal, Noah Feldman describes his conception of a “cosmopolitan law” and offers several theories of how such law could be applied. These theories explain when a liberal state may—and should—apply its law to the acts of foreigners in foreign lands. In this Response, I draw on my own experience conducting ethnographic interviews in the Netherlands to address what I see as the greatest obstacle to Feldman’s theories in practice: to succeed, cosmopolitan law would require wise leaders to interpret it and skillful diplomats to apply it. Without extraordinary wisdom and tact in its execution, I fear Feldman’s conception of cosmopolitan law may do the world more harm than good.

The Quest for a Higher Law

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

Compare Feldman’s suggestion that in Rasul v. Bush the Supreme Court “did not want to accept the government’s argument that Guantanamo is a place where no law applies,” with the argument that Robert Bolt gives Thomas Cromwell in A Man for All Seasons:

The Power of the Corporate Charging Decision over Corporate Conduct

Timothy Johnson argues that the organizational sentencing guidelines should remain advisory because these guidelines, when mandatory, were no better at shaping companies’ behavior than they are now. Long before a company faces sentencing at the hands of a judge, though, it has already confronted another government decision that influences corporate conduct even more fundamentally: the federal prosecutor’s initial decision to bring criminal charges against the company. In this Essay, we describe the Justice Department’s efforts to make prosecutors’ charging decisions more consistent, transparent, and predictable, and we suggest that the initial threat of corporate criminal charges has far broader and deeper effects on American businesses’ behavior than does the prospect of sentencing itself.

The Organizational Guidelines: R.I.P.?

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

What Booker Means for Convicted Corporations

Much has been written on how the Supreme Court’s decision in United States v. Booker affects individual sentencing. Little attention, however, has been paid to Booker’s impact on organizational sentencing. Booker holds that courts violate individuals’ right to a jury trial when they sentence individuals using judge-found facts in combination with mandatory sentencing guidelines. Though Booker’s implications for organizations are not immediately clear from the Supreme Court’s opinion itself, I argue in a recent issue of this Journalthat Booker’s logic should apply to the Organizational Sentencing Guidelines just as it does to the rest of the Sentencing Guidelines.

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

Next week, the U.S. Supreme Court will hear argument in Morse v. Frederick. At issue is whether a public high school principal violated a student’s First Amendment rights by suspending him for displaying a banner reading “BONG HiTS 4 JESUS” at an outdoor school rally for the 2002 Winter Olympics torch relay. The school petitioners, represented pro bono by Kenneth Starr, have urged the Court to give educators wide latitude to proscribe drug-themed speech so they can “foster and encourage a drug-free student lifestyle.” Such broad authority would likely chill vital discourse within the school community. This Commentary suggests that the Court could endorse the power to punish students who turn school events into their personal public soapboxes without also letting schools suppress certain messages regardless of context. The Court could decide Frederick on narrower grounds, less threatening to expressive freedoms, by applying Hazelwood School District v. Kuhlmeier—the Court’s only decision on censorship of student speech in school-sponsored activities that might reach audiences outside the school.

White-Collar Defendants and White-Collar Crimes

At the margins, the current Federal Sentencing Guidelines for fraud and other white-collar offenses are too severe. Even when a corporate leader has engaged in massive fraud affecting thousands of people, such as what occurred at Enron, sentences of twenty or more years hardly seem necessary to satisfy the traditional sentencing goals of specific and general deterrence—or even retribution. But we disagree with Professor Podgor’s essay Throwing Away the Key to the extent it contends that white-collar defendants are subjected to uniquely harsh penalties under the current Guidelines and that incarceration is inappropriate for such defendants because it does not make us feel “safer” when we walk down the street.

Throwing Away the Key

The problem today is not only the draconian sentences that white-collar offenders are receiving, but the fact that because of the elimination of parole they will actually have to serve them. For example, if Michael Milken had been sentenced under today's sentencing regime, and if he had been made to serve his entire sentence, he might not have been able to found the Prostate Cancer Foundation or FasterCures, two organizations that have made serious inroads in the treatment of diseases. Without the freedom to undertake this extraordinary work in the fight against cancer, he might never have earned Fortune Magazine’s title of “The Man Who Changed Medicine.”

In Praise of the Supporting Cast

F.S. Oliver observed almost a century ago that a typical lawyer’s professional “experience of human affairs is made up of an infinite number of scraps cut out of other people’s lives.” Even as the lawyer’s professional life is immensely various, it remains at the same time absolutely vicarious—even as she encounters a wide range of clients and problems, she always acts for and through others rather than on her own behalf. This made Oliver a skeptic about lawyers’ capacities for true leadership. Lawyers, he wrote, “see too much of life in one way, too little in another, to make them safe guides in practical matters.”

Lawyers as Leaders

In this Essay, I argue that graduates of law schools should aspire not just to be wise counselors but wise leaders; not just to dispense “practical wisdom” but to be “practical visionaries”; not just to have positions where they advise, but where they decide. Put another way, I wish to re-define (or at least to re-emphasize) the concept of “lawyer” to include “lawyer as leader.” The profession and the law schools should more candidly recognize the importance of leadership and should more directly prepare and inspire young lawyers to seek roles of ultimate responsibility and accountability than they do today.Why do I advance this thesis? First, our society is suffering from a leadership deficit in public, private, and non-profit spheres. The core competencies of law are as good a foundation for broad leadership as other training. Second, the legal profession, by many accounts, is suffering from a crisis of morale, from a disconnect between personal values and professional life. Providing leadership can affirm—and test—our vision and core values. Third, other professional schools—business and public policy—have as their explicit mission the training of leaders for the public, private, and non-profit sectors. The graduates of our law schools are at least as talented as those who enter other professional and graduate schools. And law schools should have a similar vision to enhance the careers of their outstanding students, thus serving society and addressing the values crisis that affects portions of the profession. But today’s law schools are muted or ambivalent about leadership (Yale Law School has no mission statement on its web-site).

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

Athough Mark Kressel’s proposal is novel, provocative, and even enticing, it is ultimately unnecessary and unworkable to suggest that a corporation and its high-level executives should agree, at the very commencement of their relationship, to waive the corporation’s attorney-client privilege when reliance on corporate counsel’s work is necessary to defend the executive against allegations of wrongdoing. Mr. Kressel’s proposal is unnecessary because corporate directors and officers rarely, if ever, need to rely on a defense of advice of counsel when the company does not. The proposal is unworkable because it borders on reckless to agree to delegate to a third party the right to effect even limited waivers of the privilege if the impact of those waivers on the fortunes of the company, its shareholders, and other employees cannot be evaluated properly.

Making the Advice of Counsel Defense Available for Corporate Directors

Imagine that the Department of Justice suspects a hospital and its former CEO of Medicare fraud related to billing practices. Imagine further that the CEO protests that because the hospital’s lawyers assured her that the billing practices were legal, she never had the intent to defraud. If the hospital refuses to waive its attorney-client privilege, as it has the absolute right to do, then the government cannot know whether the CEO really sought the advice of the hospital’s counsel, and cannot know if the advice she received was reasonable. The CEO faces a problem of her own: if the government does indict her, and if the hospital never waives its privilege, how will she defend herself? In a Note recently published in this Journal, I suggest that to avoid this problem corporate directors should insist, as part of their employment contracts, that their employers agree to waive the privilege if necessary to the directors’ defense.

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

Professors Gersen and Vermeule argue that we should replace “doctrinal Chevron,” which instructs courts to defer to an agency’s reasonable interpretation of a statute the agency administers, with “voting rule Chevron.” Under voting rule Chevron, judges would not defer to agency views. Instead, voting rule Chevron would induce deference at the aggregate level by requiring a supermajority vote to reverse an agency. Gersen and Vermuele’s argument is novel, provocative, and ingeniously developed. It also has a certain aesthetic appeal: the elusive, imprecise, “soft” Chevron standard is supplanted by a clear, rigorous, “hard” voting rule. Nonetheless, I am not (yet) persuaded of the practical wisdom of the proposal.

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

Jacob Gersen and Adrian Vermeule urge the Supreme Court to convert the Chevron doctrine into a voting rule. In Chevron, the Supreme Court instructed reviewing courts to reject an agency interpretation of an agency-administered statute if the court concludes that Congress clearly resolved the question in a manner inconsistent with the agency’s interpretation, but to uphold any reasonable agency interpretation of an ambiguous statutory provision. Gersen and Vermeule propose to replace the two-step Chevron test with a single-step test—de novo review of all agency statutory interpretations—coupled with a super-majority requirement to overturn an agency interpretation.

Improving Deference: Chevron as a Voting Rule

Of central importance to administrative law and theory is the question whether, and when, courts will defer to agency interpretations of law. In Chevron v. Natural Resources Defense Council, the Supreme Court replaced earlier answers to that question with a new framework: courts should defer to an agency interpretation unless the relevant statute is clear or the agency interpretation is unreasonable. In the past two decades, however, the Chevron framework has come under increasing strain. Doctrinally, there are many ambiguities and uncertainties about the nature of the inquiry at the first and second steps of Chevron, including questions about the admissibility and weight of various legal sources. In practice, recent evidence suggests that Chevron’s effect varies markedly with the ideological and political preferences of the judges who apply it.

Treasons Return

On October 11, 2006, the Department of Justice indicted Adam Gadahn on charges of treason and giving material support to a designated foreign terrorist organization. The indictment alleged that Gadahn, an American citizen, “knowingly adhered to an enemy of the United States, namely, al-Qaeda, and gave al-Qaeda aid and comfort . . . with intent to betray the United States.” Gadahn allegedly betrayed the United States by appearing in five al Qaeda videos in which he ranted in English against the United States, praised the September 11 attacks, and touted al Qaeda’s ability to attack again. Because Gadahn’s alleged crimes consist solely of participating in propaganda videos, his case strongly resembles the last wave of treason prosecutions of American civilians, many of which targeted citizens who served as propagandists for Germany and Japan during World War II. In those prosecutions, the government employed an “aid and comfort” theory of treason; today, that theory raises First Amendment problems. Instead, the government should prosecute Gadahn under the “levying war” prong of the Treason Clause on the basis of his participation in a campaign of psychological warfare against the United States.

The Political Theory of an Independent Judiciary

Many of the nation’s most influential constitutional law scholars have argued recently that judicial review should be sharply limited or eliminated altogether. The list includes such notable thinkers as Larry D. Kramer, Cass R. Sunstein, William M. Treanor, and Mark V. Tushnet.

Mary Sarah Bilder’s article is a powerful corrective to this mounting opposition to the doctrine made famous by Chief Justice John Marshall in Marbury v. Madison. Professor Bilder concludes that judicial review is an integral part of the American constitutional order with deep historical roots. I agree. However, Professor Bilder and I disagree on the nature of those roots. She traces the origins of judicial review to corporate law, whereas I locate them in political theory.

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

For more than one hundred years, legal scholars have endlessly and heatedly debated whether judicial review of federal legislation was part of the original understanding of the Constitution. The stakes of the debate are high. If judicial review was part of the original understanding, then there is a strong argument that the practice is grounded in the majority’s will, just as the Founders’ Constitution is. But if it is not—if, as Alexander Bickel and others have claimed, judicial review was a sleight-of-hand creation of Chief Justice Marshall in Marbury v. Madison—then judicial review is either counter-majoritarian or else must find its popular grounding somewhere other than in the ratification of the Constitution by “We the People.”

Why We Have Judicial Review

Judicial review in the United States is controversial largely because, as Daniel Farber and Suzanna Sherry explain, there exists among the public “a sense of innate conflict between democracy and judicial review.” The standard account of judicial review, which describes the practice as invented by Chief Justice John Marshall in Marbury v. Madison, only contributes to that sense of concern. The origins of judicial review, however, do not lie in judicial creativity or even in the history of judicial power, but, as my Yale Law Journal article demonstrates, in the commitment to limited legislative authority. Not until 1910 did “judicial review” become the popular label for the judiciary’s practice of invalidating legislation contrary to the Constitution. For decades after the Founding, what we think of as “judicial review” was described not as judicial lawmaking, but rather as the practice of voiding legislation repugnant to the Constitution.

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

Shortly after the popularization of the World Wide Web in 1996, Professor Bernard Hibbitts proclaimed that “[t]he next decade could witness the end of the law review as we know it,” for cyberspace would allow law professors to “finally escape the straitjacket of the law reviews by publishing their own scholarship directly on the World Wide Web.” Earlier this fall, Professor Stephen Vladeck made an equally bold—and equally erroneous—prediction in stating that “[t]he days of the case note . . . may well be numbered.” Ten years later, we now know that Professor Hibbitts’s prediction did not come true. In this Response, I will explain why Professor Vladeck’s prediction will also not come to pass.

Beyond City and Suburb: Thinking Regionally

“City” and “suburb” as they were known and debated in the twentieth century are no more. Increasingly, the key urban unit in metropolitan America is the region. Robert Bruegmann’s Sprawl: A Compact History, a chronicle of the melding of city and suburban land use patterns, illustrates this development. Joel Kotkin’s The City: A Global History, which expresses concern about the loss of traditional urban distinctiveness, also reflects this. In her review of both books, Nicole Stelle Garnett appropriately raises issues of interlocal competition and equity, and the quality of urban life in metropolitan America, but she errs in framing them in terms of the fading differences between city and suburb. With the ongoing regionalization of urban life, we need regional strategies to check the fierce interlocal struggles for tax base; to provide for more equitable financing of local services; and to promote the intraregional cooperation necessary for regional growth.

City, Heal Thyself

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

Save the Cities, Stop the Suburbs?

The fact that the word “sprawl” is uttered by curling the upper lip into a snarl captures some of the emotion generated by the current debate over American land use policy. Two recent books—Robert Bruegmann’s defense of sprawl and Joel Kotkin’s ambitious but short history of great cities provide an opportunity to consider sprawl’s costs and benefits, and also to examine the case for legal efforts to curtail it in order to save our cities. These are important questions because, as Bruegmann demonstrates, calls for “stopping” sprawl may proceed from serious misconceptions about its extent, causes, and consequences; they also may systematically underestimate the risks that attend growth management.

Conclusion

Editor's Note: This is the last of seven installments on the electronic discovery rules. To view an index of the installments, click here.

Much has been written on the expense, burden, and delay that responding to requests for electronic discovery entails. Some cost and complexity exists because many litigants, lawyers, and—some would say—especially judges are new to the problems created by the intersection of litigation and modern information technology. The result is the unusual circumstance of problems that are simultaneously ubiquitous and unfamiliar. Discovery problems are likely to remain unfamiliar because technology will change in ways we cannot predict with any confidence.

Sanctions

Editor's Note: This is the sixth of seven installments on the electronic discovery rules. To view an index of the installments, click here.

Most discussions of e-discovery-related sanctions have been about alleged failures to meet preservation obligations, although sanctions also apply if parties intentionally destroy electronically stored information. The dynamic nature of electronically stored information and the complexity of electronic information systems make preservation obligations less clear and spoliation allegations more likely than was true of conventional discovery. A party can save most electronically stored information indefinitely, but that does not mean that they must—or should—preserve everything. In an ideal world, individuals and organizations would save what they need for legal, business, or personal purposes and be free to discard everything else.

Metadata and Issues Relating to the Form of Production

Editor's Note: This is the fifth of seven installments on the electronic discovery rules. To view an index of the installments, click here.

Among the choices to be made in deciding what form or forms to use in producing electronically stored information is whether to delete, or “scrub,” the metadata. This category of electronically stored information does not have a direct paper counterpart. Metadata is described as “data about data” or “information describing the history, tracking, or management of an electronic document,” although it is increasingly used to describe a variety of “hidden” information that accompanies electronic files, such as “track changes.” Courts have struggled with whether parties may produce electronically stored information without metadata included. The rules do not specifically address metadata but do provide a procedure and guidance that courts are already using.

Privilege Review

Editor's Note: This is the fourth of seven installments on the electronic discovery rules. To view an index of the installments, click here.

One of the areas to be discussed in the Rule 26(f) meet-and-confer is whether the parties can agree on a procedure for asserting claims of attorney-client privilege or work-product protection after production. The amended Rule encourages parties to consider whether they can agree to nonwaiver agreements such as “quick peeks,” which would permit production before a full-blown, expensive, time-consuming privilege review. These and similar protocols are not new but are newly important, given the volume, nature, and variety of such information. These characteristics of electronically stored information both increase the costs and burdens of already expensive and slow preproduction privilege reviews and the likelihood of inadvertent disclosures even when the responding party conducts a full blown review.

Not Reasonably Accessible Information and Allocating Discovery Costs

Editor's Note: This is the third of seven installments on the electronic discovery rules. To view an index of the installments, click here.

A recurring problem in electronic discovery involves information stored on sources that are not reasonably accessible. Amended Rule 26(b)(2)(B) is designed to address this problem with a two-tiered solution. In the first tier, a party must provide discovery of relevant, nonprivileged, reasonably accessible, electronically stored information without a court order. In the second tier, however, a party need only identify sources of electronically stored information that are not reasonably accessible. Information stored on such sources may be discoverable, but only if the requesting party can show good cause for a court to order production.

Meeting and Conferring

Editor's Note: This is the second of seven installments on the electronic discovery rules. To view an index of the installments, click here.

The new amendments that provoked the least controversy, the expansion of the meet-and-confer under Rule 26(f) and the initial conference with the court under Rule 16, may turn out to be the most important. The amended meet and confer requirements serve crucial purposes: to identify potential problems early in litigation and to establish workable electronic discovery protocols. Courts are already expecting parties to come to the meet-and-confer prepared to discuss the details of electronic discovery and can be demanding in what they require counsel to know. One judge described the obligations under new Rule 26(f) as follows:

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

An Overview of the E-Discovery Rules Amendments

Editor's Note: This is the first of seven installments on the electronic discovery rules. To view an index of the installments, click here.

The electronic discovery amendments are an interrelated package. The amendments address five broad areas: (1) the parties’ obligations to meet and confer about electronic discovery early in litigation; (2) discovery of information that is not reasonably accessible and allocating costs of that discovery; (3) privilege review; (4) form of production; and (5) sanctions. An overarching change is the introduction of the term “electronically stored information” to the rules. This new term describes a distinct category of information subject to discovery rights and obligations, in addition to “documents” and “things.” The word “documents” no longer has to be distorted to accommodate the myriad ways in which computers create and store information, many bearing no resemblance to words fixed on pieces of paper. The amendments distinguish documents from electronically stored information because the categories are different in ways important to managing discovery. The distinction allowed the rules drafters to write provisions specifically addressing electronic discovery.

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

In two articles—one recently published in this Journaland another forthcoming in the NYU Law Review—Professor Goodwin Liu argues that the federal government should play a greater role in financing public education, should distribute more fairly among states its funds targeted to the neediest schools, and should establish national standards to measure student achievement. Would Liu’s specific policy proposals—the subject of the NYU piece—be enough to close the achievement gaps between underprivileged students and their more advantaged peers? As he acknowledges, probably not. But Liu’s emphasis on federal leadership is just what is needed if we are finally to reform our highly decentralized system of public education. In this brief response essay, I mean to suggest how Liu’s proposals might, with a few tweaks, motivate states and counties to make reforms of their own that would improve our nations’ schools.

A Response to Goodwin Liu

Professor Liu’s article convincingly shows that the Fourteenth Amendment can be read, and has been read in the past, to confer a positive right on all citizens to a high-quality public education and to place a correlative duty on the legislative branches of both state and federal government to provide for that education. Specifically, the United States Congress has an obligation under the Fourteenth Amendment’s Citizenship Clause, Liu argues, to ensure that the public education provided by states meets minimal standards so that citizens possess the competencies requisite to meaningful participation in civic life. Liu’s argument is not simply that Congress may, within the grant of power of the Fourteenth Amendment, address educational inequality, if it sees fit to do so (thus withstanding federalism challenges). Rather, Liu’s claim is that the states, and Congress, jointly must do so. The Constitution imposes a duty on government to educate, and confers a positive right to an education upon the citizenry. A decent education, Liu argues, is part of what it means to be a citizen under the United States Constitution.

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

Goodwin Liu’s inspiring article mines a rich vein of the history of American education. He revives and re-interprets congressional attempts to create a national system of public schools in the years following the Civil War. Professor Liu’s work is a signal contribution to the national movement for fiscal equity in education. I share with Liu—and with the senators and presidents whose efforts he describes—a strong belief that the federal government has a constitutional duty to ensure that each child gets the education needed to become a full citizen of this country.But in the spirit of “knowing thine enemy,” I will use this brief essay to emphasize the importance of the traditions and arguments that have stood in the way of similar proposals ever since the ink was wet on the Constitution.

National Citizenship and Equality of Educational Opportunity

Fifty years after Brown v. Board of Education, school desegregation and school finance litigation have made modest strides toward remedying the separate and unequal opportunities too long afforded to our poor and minority schoolchildren. However, it is a striking yet often neglected fact that the most significant component of educational inequality across the nation is not disparities within states, the traditional concern of equal protection doctrine, but rather disparities between states. To address this latter problem, I propose a federal education policy rooted in legislative enforcement of the Fourteenth Amendment guarantee of national citizenship. Such enforcement animated sustained efforts by members of Congress, soon after the Fourteenth Amendment was adopted, to establish a strong federal role in narrowing interstate disparities in public education. Current federal policies, unlike that early ambition, are largely indifferent to or complicit in the perpetuation of interstate inequality. Recovering the historical vision of a genuinely national education policy and adapting it to contemporary norms of cooperative federalism are vital steps toward realizing the constitutional promise of equal citizenship.

To Young People, Dont Ask, Dont Tell Means Dont Enlist

In the next few months, the First Circuit will consider Cook v. Rumsfeld, the first post-Lawrence v. Texaslegal challenge to the constitutionality of the military’s “Don’t Ask, Don’t Tell” policy. Given the deference that federal courts afford to congressional judgments about military policy, “Don’t Ask, Don’t Tell” will be upheld unless the plaintiffs can convince the court to apply some form of heightened scrutiny to the government’s claim that excluding homosexuals from the military serves legitimate military purposes. Ironically, however, the very arguments used to defend the rationality of “Don’t Ask, Don’t Tell” have a cost of their own: they impair the military’s ability to recruit young people, regardless of their sexuality.

Please Dont Cite This Case! The Precedential Value of Bush v. Gore

As Americans turn out to vote today, the ghost of the 2000 Presidential elections will hover over the voting booths. According to The New York Times, this will be the first midterm election in which the “Democratic Party is mobilizing teams of lawyers and poll watchers” to check for voting irregularities. Where there are “teams of lawyers” mobilized, can lawsuits be far behind? According to election law expert Dan Tokaji, any number of things “can cause problems on election day,” from problems with voting machines to the use of so-called “provisional ballots,” which allow people to cast votes on election day despite questions about their eligibility.

Federal Judicial Supremacy on the Ballot

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

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

We lawyers are committed to reason. A process founded on the exchange of reasoned argument, we want to believe, will produce the right decisions. Professor Katyal profoundly disagrees with the legal decisions reached by the Bush Administration in the aftermath of September 11. In response, he proposes to remake the executive branch into a debating society—or, one should say, even more of a debating society than it already is. Each segment of the bureaucracy would be given a right to speak, and matters in dispute would be adjudicated by a fair-minded judge. Professor Katyal believes that such a process would produce results more to his liking. His faith is appealing, but because he mistakes process for substance, it is also misplaced.

Can Interagency Dialogue Serve as the New Separation of Powers?

In Internal Separation of Powers, an essay recently published in this Journal, Neal Katyal adds his own distinctive twist to the debates about the growth of presidential power by suggesting reforms within the executive branch that would cabin executive discretion without violating the Constitution’s commitment to a unitary executive. I commend him for taking separation of powers principles seriously, rather than excoriating them as an obstruction or as a pretext for presidential aggrandizement. At the same time, one can view the same landscape and draw strikingly different conclusions about both the scope of the problem and the appropriate remedies.

Ending Court Protection of Voters from the Initiative Process

When journalists write their stories about state ballot propositions in the 2006 election, they likely will focus on South Dakota’s abortion rights referendum, Michigan’s affirmative action measure, or the variety of eminent domain measures reacting to the Supreme Court’s Kelo decision. But there’s also a story about measures that courts have kept off the ballot in a misguided effort to protect voters from making hard or bad choices. In this short essay, I argue that states should repeal their “single subject” rules because judicial enforcement leads to arbitrary, perhaps result-oriented decisions that don’t benefit voters.

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

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

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

Frustrated by Congress’s apparently feeble efforts to check presidential war powers and unconvinced that another round with the War Powers Resolution will do much good, Neal Katyal recommends, in an essay recently published in the Journal, the promotion of an “internal separation of powers.” Professor Katyal suggests that we look to divisions within one branch of government—rather than divisions across multiple branches of government—to restore some semblance of balance to our political system. Don’t count on Congress or the courts to reign in Bush’s war on terror, Katyal counsels. Administrative agencies constitute the nation’s best hope for limiting presidential power in a policy arena that other branches of government have done their best to avoid.

Toward Internal Separation of Powers

The standard American conception of separation of powers presumes three branches of government, each replete with ambition to maximize its power. But due to a complicated interplay of party dynamics and executive branch assertiveness, Congress has often been content to stay at the sidelines of regulating the executive. Particularly when it comes to legal issues in the aftermath of the horrible attacks of September 11, 2001, Congress has passed open-ended legislation that fails to check the executive or has passed no legislation at all. The result is an executive that subsumes much of the tripartite structure of government.

Noticing Genocide

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

Removing Federal Judges Without Impeachment

Behold Judge Jailbird. Duly convicted of receiving bribes or tax evasion, the not-so-honorable judge now makes his chambers in a cell. But until Congress manages to impeach and convict him, Judge Jailbird continues to draw his six-figure salary and remains a judge. A grotesque spectacle, you say, but one mandated, alas, by the constitutional guarantee that federal judges can be removed solely by impeachment? Well, . . . no. Contrary to the orthodoxy, nothing in the Constitution mandates that impeachment be the exclusive method for removing misbehaving judges.

Because Breaking Up Is Hard To Do

[Editor's Note: Breaking Up Is Hard To Do is a Response to Jeannie Suk, Criminal Law Comes Home, 116 Yale L.J. 2 (2006).]

Just about everyone has been in a romantic relationship that, in hindsight, should have ended sooner than it did. Why do people stay? Hope, or commitment, or because they share a lease or she owns the car. Life and love are complicated, and, as Neil Sedaka sang, “Breaking up is hard to do.” That’s true even for those who are abused by their partners.

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

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

A Debate Between Peter Strauss and Cass Sunstein

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

Within Marbury: The Importance of Judicial Limits on the Executive’s Power To Say What the Law Is

[ Full Text (PDF) ]

Anyone reading the newspapers today must be aware of our President’s repeated insistence that he is the constitutional “decider”—that in many contexts (such as national security) he needs to be the one in charge of determining what the law is. Even in the more mundane context of domestic legislation and regulation, distinguished scholars have argued that a dominant presidential role in determining legal outcomes is appropriate as a matter of policy if not commanded by the Constitution. That these claims remain controversial is suggested by this summer’s considerable flap over the President’s use of signing statements to limit the reach of legislation he was formally approving—a flap that was highlighted by the ABA’s condemnation of the practice and that extended as well to blogs like Balkinizationand The Georgetown Law Faculty Blog. Professor Cass Sunstein’s recent essay in The Yale Law Journal, discussing the Supreme Court’s sensible decision in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., finds in that decision a basis for preferring executive over judicial interpretations, even when the former are made informally and without the benefit of public procedures. While he does not discuss the recent presidential claims of authority to determine legal issues, elements of his analysis appear to endorse them, in ways that in my judgment threaten the very foundations of our culture of legality.

The Virtues of Simplicity

[ Full Text (PDF) ]

I. Agreements and Concerns

Simplicity has vices as well as virtues. If the law consists of simple rules, it may badly misfire as compared with a more flexible, less rule-bound approach. But in many areas, simple rules are best. When courts are setting out doctrines to govern scope of review of executive action, they usually do well to favor simplicity. Complexity can have unfortunate systemic effects, and those effects cannot easily be justified by the effort to ensure greater accuracy. A clear formula, informing courts and litigants about the proper approach, reduces the risk of interminable debates over threshold issues. Sophisticated multifactor tests might well disserve the legal system, simply because they create undue complexity.

Exploiting Simplicity

[ Full Text (PDF) ]

One disagrees with a scholar as respected as Cass Sunstein at risk; and he is right that there is much we agree on. In the brief format that remains (our readers will be glad to know that we now are to observe a word limit), I focus on checks-and-balances considerations that in my judgment he mistakenly puts aside.

Costing Mead

[ Full Text (PDF) ]

To know whether Professor Strauss’s arguments are right, we need to know exactly what is lost and what is gained by the lower level of judicial deference required by United States v. Mead Corp. Let me explain why more might be lost than gained, even or perhaps especially when the agency is responding to the will of the President.

The Virtue of Checks

[ Full Text (PDF) ]

In another of the provocative essays in the Symposium featured in this Journal’s current issue, Professor Neal Kumar Kaytal reminds us that, with Chevron in place, Congress is severely handicapped should it disagree with an executive judgment to which courts will defer—any rejoinder must survive not only the internal veto-gates of Congress, but also the veto itself. Thus, congressional checks on executive action are sharply limited. That leaves the courts and—his contribution to the dialogue—the professionalized civil service who within the executive branch can provide an expert counterweight to presidential politics. Eliminating the holding of United States v. Mead Corp. would prejudice both these remaining checks on presidential will.

What the Internet Age Means for Female Scholars

As a female law professor, I can’t help asking: is the Internet-driven transformation of legal scholarship good for the girls, or bad for the girls?

Will it remove some of the handicaps that have dogged women’s efforts to join the ranks of scholarly “superstars”? Or will it only increase the professional obstacles still faced by women in legal academia? In this short Essay, I try to predict some of the promises and perils that the Internet holds for women in the legal academy.

Why Blogs Are Bad for Legal Scholarship

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

The Future of Legal Scholarship

Legal scholars’ work has moved beyond law journals’ printed pages. This month, The Yale Law Journal Pocket Part features essays that discuss, celebrate, and critique the ways in which legal scholarship is changing. Professor Paul Caron describes how professors download articles from the Internet long before they appear in the law journals. Legal weblogs critique slip opinions months before students’ case notes reach the printer, as Professor Stephen Vladeck observes. A quicker publication process and a freer medium permit a jazzier style of writing, as Professor Christopher Bracey shows. And changes of pace and of style permit—indeed, encourage—changes of substance as well, as Professor Jack Balkin describes in an account of how his blog, Balkinization, helped scuttle Senator Arlen Specter’s recent bill on domestic spying. Professor Ann Althouse celebrates scholars’ online work but warns student editors not to “tart up” our websites, while Professor Eugene Volokh proposes three innovative ways to do just that. Professors Rosa Brooks and Brian Leiter have added their thoughts— Brooks discusses what the Internet will mean for female professors, and Leiter cautions against the dangers that unmediated public blogs can pose to scholarly debate. We thank these authors for their contributions and offer here a few words in response.

The Long Tail of Legal Scholarship

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

A Blog Supreme?

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

Law Reviews, the Internet, and Preventing and Correcting Errors

Law reviews work hard to prevent and correct errors. They exert prodigious cite-checking, editing, and proofreading efforts to make sure their articles are as error-free as possible. They also try to prevent errors by readers: they publish articles aimed at correcting existing errors, and they edit articles with an eye toward eliminating misleading statements that might unintentionally lead readers into error. Yet new technologies can let law reviews do more to prevent and correct errors, without a vast amount of extra work.

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

The days of the case note—and of student scholarship focusing on current developments in the law more generally—may well be numbered. With the proliferation of “legal development” blogs (for example, SCOTUSblog for the Supreme Court, the venerable How Appealing for appellate litigation, Decision of the Day for the work of the thirteen U.S. Courts of Appeals, more localized efforts along the lines of the not-very-confusingly named Southern District of Florida Blog, and field-specific blogs such as Doug Berman’s Sentencing Law and Policy), rare indeed is the important legal development that goes unnoticed in its immediate aftermath. The debate over the viability and utility of such instant legal commentary notwithstanding, it is beyond question that law blogs have accelerated the pace at which we learn about new issues in the law. But at what cost?

Online Legal Scholarship: The Medium and the Message

On July 13, 2006, my fellow blogger, Marty Lederman, sent me a copy of a proposed surveillance bill drafted by Senator Arlen Specter’s office. For months, Marty and I had been covering the controversy over the National Security Agency’s (NSA) domestic surveillance program on our group blog, Balkinization. We argued repeatedly that the NSA program was illegal. The Supreme Court’s Hamdan v. Rumsfeld decision in June only seemed to confirm our conclusions.