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 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.

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.

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.

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.

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.

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.

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.”

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.

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.

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.

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 Journal that Booker’s logic should apply to the Organizational Sentencing Guidelines just as it does to the rest of the Sentencing Guidelines.

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.

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.

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.”

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.