Showing papers by "Georgetown University Law Center published in 2006"

What Does Social Justice Require For The Public’s Health? Public Health Ethics And Policy Imperatives

Abstract: Justice is so central to the mission of public health that it has been described as the field’s core value. This account of justice stresses the fair disbursement of common advantages and the sharing of common burdens. It captures the twin moral impulses that animate public health: to advance human well-being by improving health and to do so particularly by focusing on the needs of the most disadvantaged. This Commentary explores how social justice sheds light on major ongoing controversies in the field, and it provides examples of the kinds of policies that public health agencies, guided by a robust conception of justice, would adopt.

The new International Health Regulations: an historic development for international law and public health.

Abstract: The World Health Assembly (WHA) adopted the new International Health Regulations (IHR) on May 23, 2005. The new IHR represent the culmination of a decade-long revision process and an historic development for international law and public health. The new IHR appear at a moment when public health, security, and democracy have become intertwined, addressed at the highest levels of government. The United Nations (UN) Secretary-General Kofi Annan, for example, identified IHR revision as a priority for moving humanity toward “larger freedom.” This article analyzes the new IHR and their implications for global health and security in the 21st century. The WHA instructed the WHO Director-General (DG) to revise the IHR in 1995 because the Regulations did not provide an effective framework for addressing the international spread of disease. Doubts about the IHR's effectiveness had, however, been present long before 1995. The critiques identified the narrow scope of the regulations (applying only to a small number of infectious diseases), the lack of compliance by states, and the absence of a strategy for responding to rapid changes in public health's global economic and technological environments.

The World Bank's Uses of the “Rule of Law” Promise in Economic Development

Abstract: INTRODUCTION Law is at the center of development discourse and practice today. The idea that the legal system is crucial for economic growth now forms part of the conventional wisdom in development theory. This idea's most common expression is the “rule of law” (ROL): a legal order consisting of predictable, enforceable and efficient rules required for a market economy to flourish. Enthusiasm for law reform as a development strategy boomed during the 1990s and resources for reforming legal systems soared everywhere. After more than a decade of reforms of the legal systems, and particularly of the judiciaries of developing countries around the world we are in a position to analyze the theoretical premises of the programs and the strategies of implementation. By many compelling accounts, these projects have been disappointing, failing to deliver the expected results. On the one hand these critiques challenge the theory that a preordained legal institutional framework is necessary for economic growth. On the other, they review particular reforms of laws and of judicial systems carried out in a variety of countries. However, despite these critiques, the appeal to establishing the “rule of law” by the “right” combination of legal rules and institutions continues to spur hope and inspire reforms. The critical energy comes from both veterans of the “Law and Development Movement” and from contemporary scholars in the field. In addition, a number of current participants in these reforms have voiced criticisms of the strategies and projects promoted by their institutions.

The Problematic Value of Mathematical Models of Evidence

Abstract: Legal scholarship exploring the nature of evidence and the process of juridical proof has had a complex relationship with formal modeling. As evident in so many fields of knowledge, algorithmic approaches to evidence have the theoretical potential to increase the accuracy of fact finding, a tremendously important goal of the legal system. The hope that knowledge could be formalized within the evidentiary realm generated a spate of articles attempting to put probability theory to this purpose. This literature was both insightful and frustrating. Much light was shed on the legal system, but it also quickly became evident that the tools of probability theory were in many ways ill-constructed for the task. Fundamental incompatibilities between the structure of legal decision making and the extant formal tools were identified, and it became evident that many of the purported explanations of legal phenomena were internally inconsistent. As a consequence, interest in this type of formal modeling declined, and attention was directed toward different kinds of explanations of the phenomena. Perhaps under the influence of a recent trend toward various types of formal modeling in legal scholarship, a recent burst of articles, rather than attempting to explain the macro structure of trials, which was the previous object of interest, attempts to quantify the probative value of various items of evidence in ways consistent with the formal features of various probability theories, and then to study decision making from that perspective. For example, the value of evidence is often purported to be its likelihood ratio, that is, the probability of discovering or receiving the evidence given a hypothesis (e.g., the defendant did it) divided by the probability of discovering or receiving the evidence given the negation of the hypothesis (the defendant didn't do it). Alternatively, the value of evidence is purported (more contextually) to be the information gain it provides, defined as the increase in probability it provides for a hypothesis above the probability of the hypothesis based on the other available evidence. Both conceptions then assume that all of the various probability assessments conform or ought to conform to the dictates of Bayes' theorem (that maintains consistency among such assessments); empirical studies are then done testing the extent to which this is so and proposing how the law can increase the probability that it is so. The general criticisms of using Bayes' theorem as a formal model of juridical proof are well known and were integral to the last wave of interest in formal modeling of the evidentiary process. This paper thus for the most part puts aside that more general issue, and focuses specifically on mathematical modeling of the value of particular items of evidence. The paper demonstrates that formal modeling has only limited value in explaining the value of legal evidence, much more limited than those constructing and discussing the models assume, and thus that the conclusions they draw about the value of evidence are unwarranted. This is done through a discussion of four recent examples that attempt to quantify evidence relating to, respectively, carpet fibers, infidelity, DNA random-match evidence, and character evidence used to impeach a witness. This article thus makes two contributions. First, and most importantly, it is another demonstration of the complex relationship between algorithmic tools and legal decision making. Second, at a minimum it points out serious pitfalls for analytical or empirical studies of juridical proof.

Public Symbol in Private Contract: A Case Study

Abstract: This article revisits a recent shift in standard form sovereign bond contracts to promote collective action among creditors. Major press outlets welcomed the shift as a milestone in fighting financial crises that threatened the global economy. Officials said it was a triumph of market forces. We turned to it for insights into contract change and crisis management. This article is based on our work in the sovereign debt community, including over 100 interviews with investors, lawyers, economists, and government officials. Despite the publicity surrounding contract reform, in private few participants described the substantive change as an effective response to financial crises; many said it was simply unimportant. They explained their own participation in the shift as a mix of symbolic gesture and political maneuver, designed to achieve goals apart from solving the technical problems for which the new contract terms offered a fix. Contract terms were adopted for what they said, instead of or in addition to what they did.

Is it Time for a New Legal Realism

Abstract: This Foreword introduces a Symposium issue of the Wisconsin Law Review devoted to the New Legal Realism Project. The NLR Project is aimed at developing a sophisticated interdisciplinary approach for translating social science in legal settings. One core focus is combining qualitative and quantitative research to yield a more accurate picture of law and how it operates - from the ground-level up as well as from the top down. Another feature is NLR's insistence that we deal more systematically with the issue of translation among disciplines, rather than assume (generally incorrectly) that we share identical assumptions, epistemologies, and practices. Problematizing translation implies a more careful assessment of the impact of the sociology of knowledge itself. The co-authors of this Foreword also ask about global dimensions to studying law. They call for a new form of optimistic engagement between social science research and legal policy issues, based in pragmatism (of several varieties). The Foreword proceeds to demonstrate the pragmatic orientation of NLR by using two examples of the approach being advocated. The first example provided is Larson's research on the colonias, squatter settlements on the border between Texas and Mexico. This research moved from detailed ethnographic and in-person household survey research through policy recommendations and eventually to monitoring of the implementation of those recommendations. Wilkins' in-depth interviewing of black attorneys in large law firms forms the basis of the second example, which demonstrates how on-the-ground research can shed light on the complexities involved in integrating the legal profession. In a third section, the authors explore the possible role of pragmatist theory in formulating a new legal realism. This section is followed by a discussion of how interdisciplinary empirical research might be integrated into law teaching. A final section of the Foreword outlines the Symposium articles. The New Legal Realism Project received its start from a collaboration between the American Bar Foundation and the Institute for Legal Studies at the University of Wisconsin Law School, both long-time leaders in the effort to bring truly interdisciplinary empirical research to bear on legal problems.

Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within

Abstract: The standard conception of separation of powers presumes three branches with equivalent ambitions of maximizing their powers. Today, however, legislative abdication is the reigning modus operandi. Instead of bemoaning this state of affairs, this piece asks how separation of powers can be reflected within the Executive Branch when that branch, not the legislature, is making much law today. The first-best concept of legislature v. executive checks-and-balances has to be updated to contemplate second-best executive v. executive divisions. A critical mechanism to promote internal separation of powers is bureaucracy. Much maligned by both the political left and right, bureaucracy serves crucial functions: it creates a civil service not beholden to any particular Administration and a cadre of experts with a long-term institutional worldview. Executives and academics routinely malign bureaucracy as inefficient, but the inefficiency presumed in the Founders' design of three overlapping branches needs some internal replication given the seismic shift in power to the Executive Branch. This Article therefore proposes a set of mechanisms that can create checks and balances within the Executive Branch. The apparatus of these restraints is familiar - separate and overlapping cabinet offices, mandatory review of government action by different agencies, civil-service protections for their workers, reporting requirements to Congress, and an impartial decisionmaker to resolve inter-agency conflicts. The idea is to create a more textured conception of the Presidency than either the unitary executivists or their critics espouse.

Exclusionary Conduct, Effect on Consumers, and the Flawed Profit-Sacrifice Standard

Abstract: There is currently great intellectual ferment over the proper antitrust liability standard governing allegedly exclusionary conduct under Section 2. This article (which is forthcoming in the Antitrust Law Journal) focuses on the two main competing liability standards: the profit-sacrifice standard (and the no economic sense variant of the test) and the consumer welfare effect standard. The central thesis of this article is that the use of the profit-sacrifice test as the sole liability standard for exclusionary conduct, or as a required prong of a multi-pronged liability standard is fundamentally flawed. The profit-sacrifice test may be useful, for example, as one type of evidence of anticompetitive purpose. In unilateral refusal to deal cases, it can be useful in determining the non-exclusionary benchmark. However, the test is not generally a reliable indicator of the impact of allegedly exclusionary conduct on consumer welfare - the primary focus of the antitrust laws. The profit-sacrifice test also is prone to several significant pitfalls and often would be complex and subjective to implement in practice. As a result, relying on the profit-sacrifice test as the legal standard would lead to significant legal errors. Instead, a better standard to govern exclusionary conduct is the consumer welfare effect test which is focused directly on the anticompetitive effect of exclusionary conduct on price and consumer welfare. This standard can be described in various ways: for example, as conduct that is "unreasonably exclusionary" or "unnecessarily restrictive", or simply as conduct that causes "consumer harm on balance". This can be implemented without causing excessive false positives that might lead to over-deterrence or a welfare-reducing diminution in innovation incentives. Many of the criticisms of the consumer welfare standard are based on a misunderstanding of the workings of the standard relative to the profit-sacrifice test. In fact, the consumer welfare standard exhibits fewer potential over-deterrence and under-deterrence errors in implementation.

The Dilemma of Odious Debts

Abstract: Public international law requires that states and governments inherit ("succeed to") the debts incurred by their predecessors, however ill-advised those borrowings may have been. There are situations in which applying this rule of law strictly can lead to a morally reprehensible result. Example: forcing future generations of citizens to repay money borrowed in the state's name by, and then stolen by, a former dictator. Among the purported exceptions to the general rule of state succession are what have been labeled "odious debts", defined in the early twentieth century as debts incurred by a despotic regime that do not benefit the people bound to repay the loans. The absconding dictator is the classic example. The removal of Iraq's Saddam Hussein in 2003 sparked a resurgence of interest in this subject. By enshrining a doctrine of odious debts as a recognized exception to the rule of state succession, some modern commentators have argued, a successor government would be able legally to repudiate the loans incurred by a malodorous prior regime. This, they contend, would have two benefits: it would avoid the morally repugnant consequence of forcing an innocent population to repay debts incurred in their name but not for their benefit, and it would simultaneously force prospective lenders to an odious regime to rethink the wisdom of advancing funds on so fragile a legal foundation. The authors argue that in this recent debate the adjective "odious" has quietly migrated away from its traditional place as modifying the word "debts" (as in "odious debts"), so that it now modifies the word "regime" (as in "debts of an odious regime"). This is a major shift. If this new version of the odious debt doctrine is to be workable, someone must assume the task of painting a scarlet letter "O" on a great many regimes around the world. Who will make this assessment of odiousness and on what criteria? The stakes are high. An unworkable or vague doctrine could significantly reduce cross-border capital flows to sovereign borrowers generally. The authors are skeptical that this definitional challenge can be met. Rather than jettison the whole initiative as quixotic, however, the authors investigate how far principles of private (domestic) law could be used to shield a successor government from the legal enforcement of a debt incurred by a prior regime under irregular circumstances. A wholesale repudiation of all contracts signed by an infamous predecessor may be more emotionally and politically satisfying for a successor government, but establishing defenses to the legal enforcement of certain of those claims based on well-recognized principles of domestic law may be the more prudent path. The authors believe that such defenses exist under U.S. law (and presumably elsewhere) and could be used to address many, although admittedly not all, cases of allegedly odious debts.

The Social Construction of Sarbanes-Oxley

Abstract: Since its adoption in 2002, the legitimacy of the Sarbanes-Oxley Act has been heavily contested. This paper first examines criticism of the Act from an economic perspective: how likely is it that investors are well or poorly served? Concluding that there is more ambiguity here than either proponents or critics acknowledge, it then turns to the social construction of Sarbanes-Oxley, i.e., how it is perceived, and why. The debate could be simple politics and rent-seeking, or reflect deeper ideological beliefs about the legitimacy of corporate governance and its regulation. To this end, the paper suggests that the Act may have been partially motivated by a desire to move the proper boundaries between the public and private domains in corporate governance, and may be construed in such a light. It then turns to current issues under Sarbanes-Oxley such as the authority of independent directors and the scope of the Act as applied to smaller companies and foreign issuers and considers how various interest groups and other "interpretive communities" (including employees and the financial media) might negotiate its proper meaning regarding those issues.

Medical Malpractice Litigation and Tort Reform: It's the Incentives, Stupid

Abstract: Health care providers and tort reformers claim that the medical malpractice litigation system is rife with behaviors that are irrational, unpredictable, and counter-productive. They attack civil juries, asserting that verdicts are skyrocketing without reason, are highly variable, and bear little or no relation to the merits of plaintiffs' claims. They complain about patients, arguing that the few with valid claims sue rarely, while the many who receive non-negligent treatment sue all the time. They attack greedy lawyers, alleging that they rake in obscene profits by routinely filing frivolous complaints. Many of the preceding claims are facially implausible. The medical malpractice liability system is an enormous market whose principal trading partners - trial lawyers and liability insurers - are sophisticated, economically-oriented repeat players. They run the system, and they have the knowledge and incentives to select efficient means to accomplish their respective ends. Given this backdrop, their behavior and the behavior of the system they administer should not be random, or even particularly hard to explain. Nor, given the absence of market power and barriers to entry, should attorneys earn more than market-driven returns on the services they provide. Most of the preceding claims are also inconsistent with empirical studies of the medical malpractice liability system. These studies depict a system that is stable and predictable, that sorts valid from invalid claims reasonably well, and that responds mainly to changes in the frequency of errors and the cost of dealing with them. The system does have a number of pathologies, however, including its loading costs, the snail's pace at which it processes claims, and its failure to compensate patients injured by medical negligence as fully and as often as it should. It is possible to reform the liability system to address these shortcomings, but tort reform proposals like caps on non-economic damages and attorneys fees will not do so. The goal of these proposals is to reduce insurance prices by making the system less remunerative for claimants. If implemented, these measures will predictably worsen the problem of under-compensation, and weaken providers' incentives to protect patients from avoidable perils.

Transforming Public Health Law: The Turning Point Model State Public Health Act

Abstract: Law is an essential tool for improving public health infrastructure and outcomes; however, existing state statutory public health laws may be insufficient. Built over decades in response to various diseases/conditions, public health laws are antiquated, divergent, and confusing. The Turning Point Public Health Statute Modernization National Collaborative addressed the need for public health law reform by producing a comprehensive model state act. The Act provides scientifically, ethically, and legally sound provisions on public health infrastructure, powers, duties, and practice. This article examines (1) how statutory law can be a tool for improving the public's health, (2) existing needs for public health law reform, (3) themes and provisions of the Turning Point Act, and (4) how it is being used by public health practitioners.

Domestic and External Debt: The Doomed Quest for Equal Treatment

Abstract: Until recently, governments borrowed from domestic residents and foreign investors using very different instruments. Residents bought "domestic debt" - paper denominated in local currency and governed by domestic law. Foreign investors preferred "external debt", which offered foreign currency and foreign law. Because there was virtually no overlap between resident and nonresident holdings, it mattered little that lawyers and economists defined domestic and external debt differently: lawyers focused on features such as governing law and jurisdiction, economists on the holder's residence and currency of denomination. The legal and economic definitions of domestic and external debt were effectively bundled: "domestic debt" meant local-currency, local-law instruments held by local residents; "external debt" meant foreign-currency, foreign-law instruments held by foreign investors. In the end, lawyers and economists spoke of the same paper. Liberalization of the international capital markets has changed this. Foreigners now routinely invest in local currency, domestic law debt, and residents often dominate international sovereign bond issues. With these changes, the legal and economic definitions of domestic and external debt have unbundled. This change in the pattern of sovereign borrowing demands a new way of framing the core issues that arise in a financial crisis. Most existing approaches focus disproportionately on one set of legal instruments: foreign currency sovereign bonds governed by foreign law. Our essay argues that this focus is misplaced. It is the product of an analytic prism that no longer reflects reality well enough to offer a useful guide to crisis management.

Differential item functioning related to education and age in the Italian version of the Mini-mental State Examination.

Abstract: Background: Differential item functioning (DIF) exists when test item responses by members of different demographic groups are statistically different when controlling for ability. DIF may indicate item bias. Our objective was to determine whether items from the Italian Mini-mental State Examination (MMSE) had DIF related to educational attainment, age, gender and occupation. We were also interested in exploring the significance of DIF in screening tests. Methods: In a two-stage study from Granarolo, Italy, residents over age 61 (n =495) were evaluated with the Italian MMSE. Those with MMSE scores of 28 or lower were further evaluated for dementia. MMSE results were coded in 10 item bundles. We used ordinal logistic regression to determine whether item bundles had DIF. Results: Six of the 10 MMSE item bundles had DIF in educational attainment subgroups. Four of these six bundles also had DIF related to age. Items that required literacy were much harder for those with lower educational attainment. Conclusions: DIF related to education appeared at as few as 3 years of formal schooling. These findings suggest cautious interpretation of data from studies using the Italian MMSE in populations with heterogeneous educational

Institutional Review Boards: Is this the Least Worst We Can Do?

Abstract: Institutional Review Boards ("IRBs") are polarizing institutions. IRB supporters view them as the best thing since sliced bread. Detractors believe IRBs impose costs and have no benefits. Supporters point to the good faith and hard work of those who volunteer to serve on an IRB. Detractors suggest that IRBS emphasize bureaucratic busy-work. Supporters ask for more money and more staff so they can do an even more thorough job reviewing research protocols. Detractors point out that the IRB framework of research oversight would never be approved by an IRB. Supporters counter that notorious examples of abuse (e.g., Tuskegee and Nuremberg) show that IRBs are necessary. Detractors respond with anecdotes of IRB stupidity and incompetence. Supporters argue that conducting research is a privilege, not a right. Detractors complain about censorship, restrictions on academic freedom, and the chilling of constitutionally protected free speech. Both sides then return to their respective camps, secure in the knowledge that they are right and those on the other side are self-righteous zealots. The controversy over IRBs arises from differing preferences, methodological commitments, and risk tolerances. Both sides believe fundamental principles (academic freedom/censorship v. the protection of vulnerable human subjects) are at stake, so the dispute is not readily subject to compromise. Even King Solomon would find it difficult to solve the controversy in a way that makes everyone happy - and the original Solomonic strategy (cutting the director of each IRB in half) seems unlikely to do the job. This article offers some perspective on the dispute, and some modest strategies for improving on the status quo.

Bond Covenants and Creditor Protection: Economics and Law, Theory and Practice, Substance and Process

Abstract: This article examines contractual protection of unsecured financial creditors in US credit markets. Borrowers and lenders in the United States contract against a minimal legal background that imposes the burden of protection on the lender. A working, constantly updated, set of contractual protections has emerged in response. But actual use of available contractual technology varies widely, depending on the level of risk and the institutional context. The credit markets sort borrowers according to the degree of the risk of financial distress, imposing substantial constraints only on the borrowers with the most dangerous incentives. At the same time, the contracting practice is sticky and lumpy, never quite managing to conform to the predictions of first generation agency theory. Levels of protection vary with institutional contexts. Exhaustive contracts providing something approaching complete protection against agency costs prove feasible only in relational contexts conducive to ongoing renegotiation over time due to small numbers of lenders operating under reputational constraints. The public bond markets do not hold out such a process context, and accordingly shut out the riskiest borrowers. The larger, less risky firms that do gain access to the bond markets borrow under contracts offering incomplete protection, with the level of protection roughly correlating to the borrower’s risk level. This leaves bondholders confronting a residuum of agency costs and relying on secondary protections like monitoring, exit, diversification, and hedging. This has worked reasonably well in practice, subject to an historical exception concerning the risk of high-leverage restructuring. The bond markets searched for two decades for a stable solution to this problem, finally settling on across-the-board contractual protection only in recent years.

The Poverty of the Moral Stimulus

Abstract: One of the most influential arguments in contemporary philosophy and cognitive science is Chomsky's argument from the poverty of the stimulus. In this response to an essay by Chandra Sripada, I defend an analogous argument from the poverty of the moral stimulus. I argue that Sripada's criticism of moral nativism appears to rest on the mistaken assumption that the learning target in moral cognition consists of a series of simple imperatives, such as "share your toys" or "don't hit other children." In fact, the available evidence suggests that the moral competence of adults and even young children is considerably more complex and exhibits many characteristics of a well-developed legal code, including abstract theories of crime, tort, contract, and agency. Since the emergence of this knowledge cannot be explained by appeals to explicit instruction, or to any known processes of imitation, internalization, socialization and the like, there are grounds for concluding it may be innate. Simply put, to explain the development of intuitive jurisprudence in each individual, we must attribute unconscious knowledge and complex mental operations to her that go well beyond anything she has been taught.

Securities Litigation and its Lawyers: Changes During the First Decade After PSLRA

Abstract: Congress enacted the Private Securities Litigation Reform Act of 1995 (PSLRA or the Act) to address problems plaguing securities class action litigation. This Article surveys the empirical evidence on the impact of the PSLRA, examining the specific categories of reforms introduced by the Act. We look at the existing evidence relating to: substantive changes in the definition of fraud necessary to bring a securities class action; the Congressional efforts to empower lead plaintiffs relative to the plaintiffs' attorney bar; and the direct sanctioning of lawyers authorized in the Act. Given the PSLRA's focus on changing the incentives and behavior of plaintiff lawyers, we also provide preliminary data on the role of the lead plaintiff law firm. We report that while the market concentration of plaintiff law firms based on settlement amounts did not change appreciably after the enactment of the PSLRA, the tendency of top tier law firms to associate with lower tier firms did increase significantly in the post-PSLRA period. We also report that institutional investors taking on the role of lead plaintiffs in the post-PSLRA period tended to develop repeat relationships with select top tier law firms. Our survey of the existing evidence and study of new evidence relating to the role of plaintiff law firms leads us to raise several questions for possible new lines of research into the effectiveness of the PSLRA.

Calling Genocide by its Rightful Name: Lemkin's Word, Darfur, and the UN Report

Abstract: When the United Nations commission investigating Darfur issued its report in January 2005, it concluded that the Darfur atrocities represented war crimes and crimes against humanity, but not genocide. This had the harmful effect of deflating efforts to mobilize political support to halt the Darfur atrocities. But the Commission's conclusion was based entirely on technicalities in the legal definitions of the international crimes, not on denial that extermination is going on in Darfur. In this paper, I argue that the legal and popular meanings of genocide have diverged in harmful ways: where laymen understand that mass killings and rapes that are exterminating a civilian population simply are genocide, lawyers also require a specific intent to destroy a "protected" group as such. The original motivation for defining genocide differently from extermination (a crime against humanity) lay in a theory that religious, racial, and national groups have value over and above the value of the individuals in them. But, I argue, subsequent developments have thinned the connection between the crime of genocide and the theory of group pluralism. Hence, there is no longer a good reason to draw a sharp legal distinction between genocide and extermination, which today functions to provide a fig leaf for inaction by the world community. I propose adding the crime against humanity of extermination to the other crimes in the definition of genocide.

Scalia's Infidelity: A Critique of "Faint-Hearted" Originalism

Abstract: In this essay, based on the 2006 William Howard Taft lecture, I critically evaluate Justice Antonin Scalia's famous and influential 1988 Taft Lecture, entitled Originalism: The Lesser Evil. In his lecture, Justice Scalia began the now-widely-accepted shift from basing constitutional interpretation on the intent of the framers to relying instead on the original public meaning of the text. At the same time, I explain how Justice Scalia allows himself three ways to escape originalist results that he finds to be objectionable: (1) when the text is insufficiently rule-like, (2) when precedent has deviated from original meaning and (3) (when the first two justifications are unavailing) just ignore originalism to avoid sufficiently objectionable results. While Justice Scalia describes his approach as faint-hearted originalism, I contend that he is not really an originalist at all as evidenced by this lecture and also by his stances as a justice in several important cases. This leaves Justice Thomas as the only justice who seems at all bound by originalist conclusions with which he may disagree. I then summarize why the courts ought to adhere to original public meaning originalism, why this form of originalism is preferable to the principal alternative - which I call the underlying principles approach - and why originalism, properly understood, does not lead to the types of grossly objectionable results that lead Justice Scalia to be faint of heart.

Pervasively Distributed Copyright Enforcement

Abstract: In an effort to control flows of unauthorized information, the major copyright industries are pursuing a range of strategies designed to distribute copyright enforcement functions across a wide range of actors and to embed these functions within communications networks, protocols, and devices. Some of these strategies have received considerable academic and public scrutiny, but much less attention has been paid to the ways in which all of them overlap and intersect with one another. This article offers a framework for theorizing this process. The distributed extension of intellectual property enforcement into private spaces and throughout communications networks can be understood as a new, hybrid species of disciplinary regime that locates the justification for its pervasive reach in a permanent state of crisis. This hybrid regime derives its force neither primarily from centralized authority nor primarily from decentralized, internalized norms, but instead from a set of coordinated processes for authorizing flows of information. Although the success of this project is not yet assured, its odds of success are by no means remote as skeptics have suggested. Power to implement crisis management in the decentralized marketplace for digital content arises from a confluence of private and public interests and is amplified by the dynamics of technical standards processes. The emergent regime of pervasively distributed copyright enforcement has profound implications for the production of the networked information society.

Restricting the Marketing of Junk Food to Children by Product Placement and Character Selling

Abstract: This Article argues that certain marketing practices — specifically product placements and the use of popular characters to promote products — are deceptive when used to market to children. It argues that such practices should therefore be prohibited by federal law and further, that such a law is consistent with the First Amendment.

Anglo-American Privacy and Surveillance

Abstract: The United States’ Terrorism Surveillance Program represents just one of many expansions in surveillance since 9/11, as legal controls previously introduced to protect citizens’ privacy and to prevent the misuse of surveillance powers have been relaxed. What makes the situation qualitatively different now is not just the lowering of the bar: digitization and the rapid advancement of technology mean that the type and volume of information currently available eclipse that of previous generations. The issue is not confined to the United States. Despite the incorporation of the European Convention of Human Rights into British law, the United Kingdom also appears to be losing privacy in its battle against terrorism. Part I of this article looks at the American institution of legal controls on the executive branch and their subsequent erosion post-9/11. It explores three changes incorporated in the USA PATRIOT Act: alterations to the Foreign Intelligence Surveillance Act; the introduction of Delayed Notice Search Warrants; and the expansion of National Security Letters. Outside of this legislation, the weakening of the Attorney General guidelines increased the FBI's ability to collect information. The article highlights the Department of Defense's ("DOD") movement into the domestic surveillance realm. It discusses a number of operations both inside and outside the DOD, such as TALON, Echelon, Carnivore, Magic Lantern, TIPS, and the use of watch lists. Part I concludes with a discussion of the data mining efforts underway. The article argues that Total Information Awareness, ADVISE, and other projects catapult surveillance into another realm. Moreover, while any one program, such as the NSA initiative, may be considered on narrow grounds, the sheer breadth of current powers raises important concerns. Part II notes that, until recently, no laws governed police and intelligence service information-gathering authorities in the UK. Extraordinary stop and search powers for terrorist-related offences, and warrants for police interference with property provided exceptions. But physical searches of property conducted by the intelligence services, the interception of communications by law enforcement and intelligence agencies, the use of covert surveillance or "electronic bugs," and the running of covert human intelligence sources operated under the legislative and judicial radars. Beginning in the mid-1980s, the European Court began to raise objections to the lack of safeguards and statutory framework. But each time the Court handed down a significant finding against the United Kingdom, the state responded not just by, at least on the surface, meeting the demands of the European Convention of Human Rights, but, it appears, by expanding executive surveillance authorities. Moreover, the warrant system introduced retained control within the executive branch. Not subject to judicial review, the standard applied is reasonable suspicion — considerably less robust than probable cause. Like the United States, Britain draws on new technologies; the country leads the world in its use of public surveillance systems. Having laid out legal developments on both sides of the Atlantic, Part III moves to policy concerns: it begins by briefly exploring the substantive, political, legal, social, and economic risks posed by such measures. It then considers six approaches that would help to mitigate the risks. First is the possibility of creating a property right in personal information. The second centers on the regulation of access, transfer, use, and retention of data. Such efforts would satisfy demands for accountability and transparency in both the public and private sector. A third possibility centers on scaling back the existing powers of the state. Fourth, both countries may contemplate placing limits on what constitutes national security. Fifth, alternative safeguards and oversight structures deserve attention — such as reporting requirements, random audits, the creation of ombudspersons, the insertion of the judiciary, and (in the UK) allowing intercepted communications to be used as evidence. Sixth, preventing countries from introducing ever greater powers of surveillance under the claim that they are only temporary in nature would force legislatures to consider the long-term impact of provisions beyond the immediate terrorist threat.

Independent Directors as Securities Monitors

Abstract: This paper considers the role of independent directors as securities monitors. Rather than engaging in the debate about whether independent directors are good or bad, important or unimportant, the paper takes their existence and basic governance role as a given, focusing on their role as detailed in the federal securities laws, regulations, and releases. To the extent that directors are supposed to play a monitoring role in the corporation, exercising both guidance and a check and balance, the securities laws are part of the mechanism to ensure that they fulfill that role. From the SEC's perspective, independent directors are on the board for a reason. Their role is to act as securities law monitors. Although this role is particularly serious when it involves statements the directors draft or sign, it also includes an ongoing responsibility to be informed of developments within the company, to ensure good processes for accurate disclosures, and to determine if disclosures are adequate. Independent directors with expertise should be involved in reviewing and, sometimes, drafting statements. All directors, however, should be fully aware of company statements and sufficiently engaged and active to question and correct inadequate disclosures. This role of securities monitor is yet another way of implementing the information-forcing-substance disclosure model that the SEC has always utilized to achieve corporate governance. In addition to defining and animating the role of independent directors as securities monitors, I review the ways in which private causes of action and the SEC's enforcement powers are available to ensure that directors have the proper incentives to fulfill their securities monitoring role and provide some scenarios for the SEC to use to fulfill its enforcement role.

Why Hasn't the World Gotten to Yes? An Appreciation and Some Reflections

Abstract: This is a review essay on the occasion of the 25th anniversary of the publication of Roger Fisher, William Ury and Bruce Patton's, Getting to Yes, which reviews the interdisciplinary field of Negotiation and how it came to be, as well as where it is heading. The review focuses on constituent questions, constituent disciplines, the legacy of GTY on theory, practice and pedagogy and discusses the issue of why more of the world's actors and institutions have not employed more integrative, problem-solving and peace seeking approaches to conflicts at all levels. It also reports, more optimistically, on the enormous contributions GTY and its progeny have made to how some people approach each other in resolving disputes and negotiating new transactions and relationships. This is a short synthesis and intellectual history of the protean interdisciplinary field of negotiation.

What Iraq and Argentina Might Learn from Each Other

Abstract: Iraq and Argentina each launched a $100 billion debt restructuring last year. The two cases are rarely mentioned together. Most think of Argentina as the quintessential case of financial globalization gone awry - a lapsed market reformer that sank under the weight of (depending on your perspective) misguided liberalization or its own financial chutzpah, and took with it Argentine depositors, Italian retirees, Japanese banks, and offshore investment funds. Iraq's debt has a distinctly preglobalization flavor. Most of its obligations precede the recent wave of financial liberalization. In the words of Iraq's own advisers, its debt restructuring is a quintessential geopolitical case, a classic outlier framed by strategic more than financial concerns. Aside from the obvious intuition that no case of government debt is immune from politics and no multibillion dollar restructuring is devoid of finance, Argentina and Iraq appear to be on opposite ends of the finance-politics spectrum. Despite, or because of this distance between them, each of these two restructurings offers insights for policy and doctrinal problems normally associated with the other. This essay focuses on two such problems: shielding sovereign debtors from lawsuits, now most acutely associated with Argentina, and restructuring debts inherited from bad regimes, such as those Iraq had incurred under Saddam Hussein. Early evidence reveals that existing legal, policy and financial techniques offer governments considerable flexibility to achieve deep debt relief and frame it in the political terms of their choice. These techniques, invoked ad hoc with the blessing of major economic powers and accepted by the financial markets, help preempt the emergence of more radical doctrines such as sovereign bankruptcy and odious debt.

The Merchant-Bank Struggle for Control of Payment Systems

Abstract: Merchants and banks are currently engaged in a wide-ranging struggle for control over payment systems. The conflict is playing itself out in business practices, in banking regulation, in corporate governance, in corporate restructuring, in securities offerings, and in the biggest antitrust litigation since AT&T. Yet, it is possible that the extraordinary energy being spent in this fight is for naught, as the growth of national bank brands, technological developments, and innovative business models are likely to result in a radical reshaping of the payments world. This article reviews the factors behind the struggle between merchants and banks and the strategies adopted by each, and questions what impact changes in the payment card industry's structure and the emergence of new payments technologies and business models will have on the merchant-bank contest.

The Sec as a Lawmaker: Choices About Investor Protection in the Face of Uncertainty

Abstract: The SEC is often praised or criticized for the law it makes. But relatively little scholarly effort has gone into trying to understand how or why it acts as it does. Indeed, critics of the SEC tend to adopt one of two fairly inconsistent behavioral theories: either that the Commission is readily captured by external political interests or that it behaves with a great deal of internal slack so that its decisions reflect judgmental biases and heuristics. On the other hand, those more inclined to support SEC rulemaking have not adequately explained how or why the Commission would likely make good law in the face of either external pressure or internal heuristics. My paper is an effort to stimulate a richer institutional understanding of the work of the SEC by looking more closely at both the external and internal accounts, and considering some possibilities for synthesis. The recent mutual fund corporate governance rulemaking is examined as a useful case study into how the Commission tries to balance costs and benefits in the face of considerable uncertainty.

What Does Social Justice Require for the Public's Health? Public Health Ethics and Policy Imperatives

Abstract: Justice is so central to the mission of public health that it has been described as the field's core value. Our account of justice stresses the fair disbursement of common advantages and sharing of common burdens. It captures the twin moral impulses that animate public health: to advance human well-being by improving health and to do so particularly by focusing on the needs of the most disadvantaged. This commentary explores how social justice sheds light on major ongoing controversies in the field, and it provides examples of the kinds of policies that public health agencies guided by a robust conception of justice would adopt.