Showing papers in "Boston University Law Review in 2012"

Investing in a Centralized Cybersecurity Infrastructure: Why "Hacktivism" Can and Should Influence Cybersecurity Reform

Abstract: This Note recommends that Congress draftcybersecurity reform legislation in line with President Obama's May 2011 Cybersecurity Legislative Proposal, rather than the House Republican Cybersecurity Task Force's October 2011 Proposal. The former proposal's emphasis on centralized regulation under the Department of Homeland Security (DHS) more accurately accounts for the nature of threats posed in cyberspace, including hacktivist groups like the online hacker collective Anonymous who have become the most prominent actors in cyberspace over the last few years. This Note advocates that Congress expressly account for Anonymous in drafting cybersecurity legislation because doing so will deliver an array of otherwise-desirable policy goals.In arriving at these conclusions, this Note explores in detail the history of hacking, hacktivism, and Anonymous. Additionally, it briefly surveys the panoply of current legal mechanisms governing cyberspace. Finally, this Note will advocate for the inclusion of several key elements in any cybersecurity reform legislation, whether or not Congress chooses a DHS-centric model.INTRODUCTIONOf the many topics President Obama was expected to address head-on in the opening stage of his presidency, only political and industry insiders could have guessed that cybersecurity would be one. Surely, President Obama's selfdesignated mandate upon taking office - "Change" - pertained to the tanking global economy and the prolonged wars in Iraq and Afghanistan. Attention to those gargantuan problems, the American public might have thought, should prevent talk of just about anything else.Nevertheless, in late May 2009, barely four months after taking his presidential oath, Obama delivered a blunt, urgent speech on securing our nation's cybersecurity network.1 Partially spurred into action after becoming a victim of a cyberattack himself,2 President Obama stated that cyberattacks3 constitute "one of the most serious economic and national security challenges we face as a nation."4 The President also made clear a belief that has been widely agreed upon by commentators for nearly two decades: "We're not as prepared as we should be, as a government or as a country [for a cyberattack]. . . . This status quo is no longer acceptable - not when there's so much at stake. We can and we must do better."5These statements beg the question: Three years later, has the status quo changed? Are we better equipped in 2012 than we were in 2009 to protect the United States from cyberattacks? Even an optimistic reader of recent news headlines would answer, "No."Consider the following stories. In December 2010, hackers prevented user access to PayPal - a leading online global payment company - for a four-day period by executing a distributed denial of service (DDoS) attack on the PayPal website.6 The hackers who took credit for the attack announced that PayPal deserved retribution for its wrongful suspension of WikiLeaks' donation account following the latter's online release of highly classified U.S. State Department documents.7In April 2011, Sony's PlayStation Network - an online gaming community for the company's top-selling video game console - was the victim of a more intrusive cyberattack.8 Hackers breached security safeguards to steal data from each of the PlayStation Network's seventy-seven million individual user accounts, including birthdates and credit card numbers.9 Upon discovering the breach,10 Sony promptly shut down the PlayStation Network for more than a month in order to conduct a thorough security and damage assessment.11 Sony estimated that the cyberattack caused approximately $170 million in losses for the company.12 In the weeks preceding the cyberattack, the hackers alleged to be responsible had taken to the blogosphere to declare war on Sony for its decision to sue a hacker in January 2011 for publishing the PlayStation 3 console code obtained from reverse-engineering the device. …

Confronting the One-Man Wolf Pack: Adapting Law Enforcement and Prosecution Responses to the Threat of Lone Wolf Terrorism

Abstract: In recent years, a new type of terrorist threat has emerged: the "lone wolf." Lone wolves present a challenge for current law enforcement and prosecutorial approaches to combating terrorism because these individuals are radicalized without significant contact with others and operate alone. The tools currently available to law enforcement and prosecutors focus on exploiting the vulnerabilities and liabilities created through group interactions, a "preventive" approach to terrorism that is inapplicable to the solitary terrorist.This Note argues, however, that lone wolves - poorly trained individuals operating alone with minimal equipment against relatively unimportant targets - do not pose a significant threat to the United States. Indeed, the very traits that make lone wolves difficult to apprehend mitigate the damage lone wolves can effect. Therefore, a heavy-handed policy response is unnecessary and, in light of a proper understanding of the concept of "national security," ultimately counterproductive. Because of lone wolves' isolation, no readily available set of policies is likely to have a significant effect. Even if it were feasible to completely eliminate lone wolf terrorism, such an effort would not be worth the inevitably high cost, both in the allocation of scarce resources and the necessary infringements on civil liberties.INTRODUCTIONOn November 21, 2011, New York City Police arrested suspected terrorist Jose Pimentel for allegedly conspiring to explode homemade bombs for terrorist purposes in the New York area.1 Pimentel, however, was acting alone, not as part of a larger organization. Indeed, in announcing the arrest, New York Mayor Michael Bloomberg made clear that Pimentel "was not part of a larger conspiracy emanating from abroad."2 The suspect, according to Mayor Bloomberg, was a "total lone wolf."3Preventing terrorism is now the number one priority of both the Department of Justice and the FBI, and a top priority for state and local law enforcement agencies. In the past decade, as military and diplomatic efforts have contained the threat of international terrorism, attention has shifted to headline-grabbing "homegrown" terrorism.4 In the area of criminal law, this has resulted in the increased use of "material support" prosecutions, pretextual arrests for crimes unrelated to terrorism, conspiracy liability for inchoate terror plots, informants infiltrating Arab and Muslim communities, sting operations, and heightened physical and electronic surveillance. These tactics, while controversial, have been effective in disrupting numerous terror plots.But in recent years, and in large part because of law enforcement's success in stopping homegrown group plots,5 a new type of threat has emerged: the "lone wolf" terrorist. Although also "homegrown," lone wolves are individuals radicalized without significant contact with others - typically through the Internet - and operate entirely, or almost entirely, alone.6 Therefore, the typical law enforcement tools used against homegrown terrorists are significantly less useful, and often useless, against lone wolves. In essence, these individuals and their plots are difficult to apprehend and prevent because they are only detectable by law enforcement when they commit a terrorist act.The relatively novel threat of lone wolf terrorism presents a challenge for traditional law enforcement and prosecutorial approaches. Indeed, the threat is likely to increase in prevalence. Security experts note that the threat of lone wolf terrorism is one of the United States' main vulnerabilities today.7 President Obama stated in 2011 that "the most likely scenario that we have to guard against right now ends up being more of a lone wolf operation than a large, well-coordinated terrorist attack."8 Events of the past few years corroborate this statement. Pimentel, Rezwan Ferdaus (a U.S. citizen arrested in Massachusetts for plotting to bomb the Pentagon and U. …

Beyond identities: The limits of an anti-discrimination approach to equality

Abstract: INTRODUCTIONLooking at the mounting statistics and reports on the growing inequality in the United States, one might wonder how a nation built on the ideal of equality could have strayed so far from that ideal in reality.1 We seem to be proceeding under an impoverished sense of what it means to be a nation committed to equality. From a twenty-first century human-rights perspective, law and policy responses in a number of areas have fallen far short of mounting an adequate response to growing inequality.2 These policy deficits will be hard to close because our Constitution, with its restrictive federal nature, limits the remedial ability of the federal government, and because current Supreme Court jurisprudence deems that equality requires only sameness of treatment3 or nondiscrimination4 rather than a more substantive vision of equality.5A distributional deficit is reflected in the existing and widening income gap between the 1% (or .01%) and the rest of America.6 This disparity has occupied news recently, as has the tendency for billionaires to pay a lower income tax rate than do their employees earning much lower wages.7 Also illustrating the unequal nature of the United States' economic distributional system is the fact that in the last half-century, although worker productivity has increased, average wage and compensation rates have remained nearly flat.8 Workers are producing more, but their compensation remains the same.9 Recent figures indicate that during the Great Recession following the 2008 global financial crisis, the typical middle class family's median net worth declined by 43.3%, while the wealthiest 10% of the population experienced only a 6.4% decrease in median net worth.10The lack of social mobility in the United States today also indicates that there is a deficit in meaningful access to the opportunities provided by society and its institutions.11 Significantly, recent studies have found that the United States is a far less mobile society than many European countries.12 For most people, one of the best predictors of ultimate success and social standing is increasingly the economic position of their parents.13 The hallowed American mantra of equality of opportunity and access is rendered hollow by such data.An additional deficit, which both contributes to and is exacerbated by the inequalities resulting from the deficits previously discussed, exists within our democratic institutions. Disadvantaged circumstances lead to disengagement and alienation on an individual level.14 Additionally, the United States as a whole suffers from structural impediments to democracy as compared with our peer nations.15 The length and manner in which our elections are run16 and the role of private money in campaigns17 create a chaotic and superficial political discourse that avoids in-depth debates on shared factual foundations, favoring instead polarized sound bites, intentional misrepresentations and distortions, and partisan obstinacy.18 Unsurprisingly, the Supreme Court's decision in Citizens United v. FEC19 intensified these structural impediments, unleashing mountains of money through political action committees during the most recent election cycle.20 The fundamental principle of equality guaranteed by "one person, one vote" is vanquished by the ability of corporations and billionaires to buy endless media advertisements, arguably often untrue or distorted, that favor or condemn candidates for office.21This Article compares the legal culture of equality in the United States with the legal cultures of other constitutional democracies. It looks at two manifestations of equality: equality in its narrow sense - as a nondiscrimination mandate - and equality in its broader, substantive sense - as establishing a positive right to access the social goods or resources necessary to sustain equally valued individuals.22 The Article ultimately argues that the foundational difference between the manner in which equality is understood in the United States and how it is understood in much of the rest of the world arises from the recognition and acceptance in other countries that human need and vulnerability are not only an individual responsibility but also a state responsibility. …

The Geography of the Death Penalty and Its Ramifications

Abstract: INTRODUCTIONA few counties in the United States continue to sentence people to death with any regularity. The vast majority of counties do not use the death penalty at all.1 For those interested in reducing the total number of death sentences or finding a practical way to gauge the level of arbitrariness that exists in the administration of a death penalty scheme, this clustering of death sentences around an isolated few counties provides the opportunity for targeted doctrinal, litigation, and advocacy strategies.This Essay proceeds in three parts. In Part I, I detail the geography of the death penalty. Scholars traditionally gauge death penalty activity at the state level. A county-level analysis of the distribution of death sentences and executions from 2004 to 2009, however, provides a more nuanced view. Just 10% of counties nationally returned even a single death sentence during this time period.2 Even in those states that most often impose the death penalty,3 the majority of counties do not return any death verdicts. The geographic distribution of death sentences reveals a clustering around a narrow band of counties: roughly 1% of counties in the United States returned death sentences at a rate of one or more sentences per year from 2004 to 2009.4 Similarly, fewer than 1% of counties in the country sentenced anyone to death (at any point since 1976) whom their respective states executed from 2004 to 2009.5 After separately exploring the distribution of death-sentences and executions, I consider the small subset of counties that both regularly sentence people to death and are situated in states that regularly perform executions. Part I concludes by briefly considering possible explanations for why this small subset of counties produces more death sentences than any other in the United States.This clustering of death sentences around a few counties is important. It matters because it permits a tailored and rigorous analysis for gauging the continued constitutionality of capital punishment. A county-centric approach also permits targeted litigation and advocacy strategies and suggests how scarce resources (including government dollars) can be used more efficiently in the death penalty arena.Part II addresses these doctrinal, litigation, and advocacy ramifications. The first section discusses the doctrinal implications that result from a focus on county-level death sentencing. The section begins by discussing the Eighth Amendment's prohibition on arbitrarily imposing the death penalty. Special attention is paid to the choice between heightened procedural regulation of capital trials (the path taken by the Court) and outcome-based approaches (the path not taken). The procedural regulation approach was adopted because of the belief that such changes would result in consistently imposed punishment. Yet the Court has never tested whether its procedural regulations have reduced arbitrariness. Next, this section discusses two alternative methods for presenting constitutional challenges that seek to limit capital punishment or render its administration more equitable. It begins by explaining the categorical exclusion approach (e.g., death-ineligibility for juveniles) and its limits, and the section then proposes a data-driven approach to presenting claims of arbitrariness that focuses primarily on comparative sentencing within a single county. By facilitating a more precise way to gauge arbitrariness, the data-driven, county-level analysis improves upon Eighth Amendment jurisprudence.The second section discusses how litigants (as well as other interested parties) might take advantage of the clustering of death sentences around a narrow band of counties. Poor trial representation - brought on by overburdened, under-resourced, and under-trained defenders - is a hallmark of capital representation. New models of representation - including trial consulting offices and data-driven remedies, what I term the "fire hose" problem - are demonstrating the ability to reduce new death sentences drastically (even in places like Harris County, Texas). …

The New Judicial Deference

Abstract: INTRODUCTIONA decade into the "war on terror," the United States is starting to recover its balance. Plunged by panic into enacting terrorism laws and rushing into effect terrorism policies that challenged both separation of powers and constitutionally protected individual rights, the Bush Administration began to ease up on these draconian policies mid-way through its second term.1 The victory of Barack Obama in the presidential election of 2008 was due in no small measure to the fact that the country had become preoccupied with issues other than terrorism.2 While the United States has permanently entrenched in federal law many formerly temporary provisions of the USA Patriot Act,3 and the Obama Administration initially adopted many of the policies of its predecessor,4 the Obama Administration has shown itself much less willing to rile up public fears over every sign of a potential terrorist attack than its predecessor had been.5What has been the role of courts in this trajectory from reaction to the normalization and entrenchment of anti-terrorism powers?In this Article, I will show that American courts have often approached the extreme policies of the anti-terrorism campaign by splitting the difference between the two sides - the government and suspected terrorists. One side typically got the ringing rhetoric (the suspected terrorists), and the other side got the facts on the ground (the government). In major decisions both designed to attract public attention and filled with inspiring language about the reach of the Constitution even in times of peril, the Supreme Court, along with some lower courts, has stood up to the government and laid down limits on anti-terror policy in a sequence of decisions about the detention and trial of suspected terrorists. But, at the same time, these decisions have provided few immediate remedies for those who have sought the courts' protection. As a result, suspected terrorists have repeatedly prevailed in their legal arguments, and yet even with these court victories, little changed in the situation that they went to court to challenge. The government continued to treat suspected terrorists almost as badly as it did before the suspected terrorists "won" their cases. And any change in terrorism suspects' conditions that did result from these victorious decisions was slow and often not directly attributable to the judicial victories they won.Does this gap between suspected terrorists' legal gains and their unchanged fates exist because administration officials were flouting the decisions of the courts? The Bush Administration often responded with sound and fury and attempted to override the Supreme Court's decisions or to comply minimally with them when they had to.6 But, as this Article will show, these decisions did not actually require the government to change its practices very quickly. The decisions usually required the government to change only its general practices in the medium term. Judges had a different framework for analyzing the petitioners' situation than the petitioners themselves did; judges generally couched their decisions in favor of the suspected terrorists as critiques of systems instead of as solutions for individuals. In doing so, however, courts allowed a disjuncture between rights and remedies for those who stood before them seeking a vindication of their claims. Suspected terrorists may have won in these cases - and they prevailed overwhelmingly in their claims, especially at the Supreme Court - but courts looked metaphorically over the suspects' heads to address the policies that got these suspects into the situation where the Court found them. Whether those who brought the cases actually got to benefit from the judgments, either immediately or eventually, was another question.Bad though the legal plight of suspected terrorists has been, one might well have expected it to be worse. Before 9/11, the dominant response of courts around the world during wars and other public emergencies was to engage in judicial deference. …

The Hidden Limits of the Charitable Deduction: An Introduction to Hypersalience

Abstract: INTRODUCTIONIn the last several years, the concept of salience, which originated in cognitive psychology literature and made its way into behavioral economics, has been mentioned in almost every conceivable field of study. Salience refers to the prominence of an item: the more salient something is, the more aware individuals are of its effect. Budget-conscious shoppers are advised to pay with cash because it makes their purchases more salient to them;1 stores have taken to printing customer savings on receipts to make the benefits of shopping with them more salient to those same shoppers.2 Economists have discussed salience in a variety of areas, ranging from highway tolls that become less salient as more drivers enroll in EZ-Pass programs3 to sales taxes that become more salient when posted prices are rewritten to include them.4In the area of income tax policy, salience has become an increasingly popular topic. Starting with McCaffery in the 1990s and continuing today, many tax scholars have discussed the prominence of specific tax provisions and the tax system as a whole in the mind of taxpayers. Underlying these discussions is the idea that, as a tax becomes less salient, taxpayers become less conscious of the effect of that tax. In response, they oftentimes become more willing to pay that tax, and there is less behavioral distortion to avoid that particular tax.This general introduction to low salience - or "hidden" - taxes ignores the normative implications of taxpayers becoming more willing (or less opposed) to pay a tax when they are less aware of it. Some commentators argue that this lack of awareness is inherently a problem: taxpayer confusion or misguidance is objectively wrong, and policymakers should never take advantage of this confusion.5 Others argue that this confusion creates an opportunity for policymakers to raise revenue for needed policies without facing the wrath of the taxpaying citizenry.6This Article argues that, to date, the literature has essentially ignored a significant aspect of salience. The vast majority of articles addressing taxpayer awareness focus on provisions that increase the tax burden of taxpayers - what this Article refers to as "revenue-raising tax provisions." They debate whether or not taxes should be hidden, the implications of hidden taxes, how taxes become hidden, and how to respond to the consequences of hidden taxes.7 What they generally do not discuss is the salience of provisions that decrease the tax burden of taxpayers - deductions, exclusions, and credits. In the following discussion, this Article will refer to these provisions collectively as "revenue-reducing tax provisions."This Article begins to fill that gap and argues that revenue-reducing tax provisions raise new issues to consider when discussing salience. Because deductions, exclusions, and credits are in many ways the mirror image of revenue-raising tax provisions, taxpayer awareness of these provisions often acts in the reverse direction of provisions that increase tax payments. While taxpayers arguably underestimate their tax liability as provisions that increase that liability become less salient, the opposite is true for many revenuereducing tax provisions. For taxpayers to underestimate their tax burden - or overestimate the reduction in their tax burden - as a result of the effect of deductions, exclusions, and credits, those tax provisions must become more salient. Although commentators have alluded to the high salience of certain revenue-reducing tax provisions,8 they have not discussed the market salience of these provisions in detail. This Article expands on that aspect of salience and discusses its implications.As a way of explaining the salience of certain revenue-reducing tax provisions, this Article introduces the concept of hypersalience. Hypersalience occurs when a tax provision is fully - or almost fully - salient, but the limits restricting that provision's application are hidden, or less salient. …

The Structure of Unjustness

Abstract: INTRODUCTIONWhat renders an enrichment unjust?1 This is the most fundamental and perplexing issue in the law of unjust enrichment - fundamental because in the absence of unjustness, one is not liable for being enriched at another's expense and perplexing because the reference to "unjust" (or "unjustified") enrichment provides little indication of the source of one's liability. In the past, perplexity about this fundamental issue fueled the suspicion that unjust enrichment, if recognized as a discrete basis of liability, would be incompatible with disciplined legal reasoning.2 Even today, as we celebrate a new Restatement (Third) of Restitution and Unjust Enrichment, uncertainty concerning what makes a particular enrichment unjust continues to spawn both doctrinal and theoretical controversy.This Article examines the issue from the perspective of corrective justice. Corrective justice is the theoretical notion that sets out what it means for private law to be fair and coherent.3 It does so by insisting that liability be based on normative considerations that embrace both parties in relation to each other. The requirement of applicability to both parties in their interrelationship is a general structural idea to which particular substantive elements of liability, whatever they are, have to conform if they are to be fair to both parties and coherent with one another. My goal is to show how this structural idea illuminates the unjustness that figures into unjust enrichment.I. CORRECTIVE JUSTICECorrective justice understands civil liability as an entirely interactional phenomenon. It treats the parties as being each related to the other, and it treats the law as constructing categories expressive of the reciprocity of this relationship. From the standpoint of corrective justice, the plaintiffand defendant participate in a juridical process in which what matters is not either party's action considered on its own, but the norms and imputations appropriate to their interaction with each other.The juridical character of this interaction is reflected in the most pervasive feature of liability: the liability of a particular defendant is always a liability to a particular plaintiff. In holding the defendant liable to the plaintiff, the court is not making two separate judgments (one that awards something to the plaintiffand the other that coincidentally takes the same thing from the defendant), but a single judgment that embraces both parties in their interrelationship. Each party's position is intelligible only in the light of the position of the other. The defendant cannot be liable without reference to a plaintiffin whose favor such liability runs. Similarly, the plaintiff's entitlement exists only in and through the defendant's subjection to liability. Liability thus treats the plaintiffand defendant as correlatively situated.Corrective justice draws out this correlativity's normative implications. For corrective justice, the point of liability is to correct an injustice between the parties. This correction can occur only if the structure of the injustice matches the correlative structure of liability. As is evidenced by the judgment's simultaneous correction of both sides of the injustice, the injustice done by the defendant and the injustice suffered by the plaintiffare not independent items. Rather, they are the active and passive poles of the same injustice, so that what the defendant unjustly has (or has done) is the basis of liability only because of what the defendant has unjustly suffered, and vice versa. Because the determination of the injustice is not a matter of mere assertion but is a normative ascription that must be justified by an appropriate set of reasons, the correlativity of the injustice means that the reasons for concluding that something is an injustice also have a correlative structure. Accordingly, the only considerations that matter for elucidating the injustice as between the parties are those that apply correlatively to both of them. …

Living Originalism and Living Constitutionalism as Moral Readings of the American Constitution

Abstract: INTRODUCTIONWith this event - A Symposium on Jack Balkin's Living Originalism and David Strauss's The Living Constitution - we launch a Boston University School of Law series of symposia on significant recent books in law. The distinctive format is to pick two significant books that join issue on an important topic, to invite the author of each book to write an essay on the other book, and to invite several Boston University School of Law faculty to write an essay on one or both books.What are the justifications for pairing Balkin's Living Originalism1 and Strauss's The Living Constitution2 in this series? I suggest three. First, both books have the word "living" in their titles. They are engaged in a debate about the form that "living" constitutional theory should take. This is code for offering alternatives to originalism as conventionally understood. Indeed, these books are two of the best criticisms of conventional varieties of originalism ever written. But if Strauss came to bury originalism, Balkin came to praise it. Or Balkin came to bury conventional forms of originalism, but to praise a new form, living originalism.Second, both Balkin and Strauss make evidently conservative arguments to justify their liberal theories of living originalism and living constitutionalism. I want to point out two parallel ironies. Balkin claims that originalism - which as conventionally understood makes a virtue of thwarting constitutional change - provides the best foundation for a liberal theory of constitutional change.3 And Strauss contends that Edmund Burke - who conventionally is understood to oppose change - provides the best justification for a liberal theory of the living constitution.4Third, the two books complement one another and to some degree may remedy one another's shortcomings. Sandy Levinson drew a famous distinction between constitutional protestants and constitutional catholics: protestants insist on the authority of every individual citizen to interpret the Constitution, while catholics insist on the courts as the ultimate if not exclusive interpreters of the Constitution.5 If Balkin is our most thoroughgoing constitutional protestant,6 Strauss may be one of our most committed constitutional catholics.7 That is, Balkin provides the best account to date of popular constitutional interpretation outside the courts, while Strauss provides the best account to date of common-law constitutional interpretation inside the courts. Perhaps the two together provide the groundwork for a more complete, ecumenical approach to constitutional interpretation.I already have written a paper on Balkin's book for a symposium in University of Illinois Law Review.8 And so, I shall focus my remarks here on criticism of or engagement with Strauss's book. But I will begin by discussing the Balkanization (and Balkinization) of originalism. I then will sketch the ways in which both Balkin's theory of living originalism and Strauss's theory of living constitutionalism are best understood as moral readings of the Constitution.I. THE BALKANIZATION (AND BALKINIZATION) OF ORIGINALISMIn recent years, some have posed the question, "Are we all originalists now?" Indeed, some have claimed that we are all originalists now.9 If anything would prompt that question and claim, it would be constitutional theorists like Ronald Dworkin and Balkin dressing up their theories in the garb of originalism (or, at any rate, being interpreted as originalists). For these scholars are exemplars of two bete noires of originalism as conventionally understood: namely, moral readings of the Constitution and pragmatic, living constitutionalism, respectively.10 By a "moral reading," I refer to a conception of the Constitution as embodying abstract moral and political principles, not codifying concrete historical rules or practices. Yet in recent years Dworkin has been interpreted as an abstract originalist,11 and Balkin has now embraced the method of text and principle, which he presents as a form of abstract living originalism. …

The Age of Marital Capacity: Reconsidering Civil Recognition of Adolescent Marriage

Abstract: Age at marriage has for decades been the strongest and most unequivocal predictor of marital failure. The likelihood of divorce nears eighty percent for those who marry in mid-adolescence, then drops steadily. Delaying marriage until the mid-twenties reduces one's likelihood of divorce to thirty percent. Women who marry at age twenty-one or younger, moreover - and one in ten U.S. women do - experience worse mental and physical health, attain less education, and earn lower wages than those who marry later. Post-divorce, they and their children tend to endure even greater economic deprivation and instability than do never-married mothers, who will frequently have invested more in market work and education.While the social cost of early marriage is significant, U.S. policy disregards the hundreds of thousands of young people currently married or divorced, as well as those who may be contemplating early marriage. A comprehensive analysis of early marriage and its regulation is overdue, and this Article undertakes that task.The Article argues that a historic confluence of cultural and structural changes has simultaneously transformed the social function and meaning of modern marriage and prolonged the course of development to adulthood. It advances a new conception of "marital capacity" to supplant the current legal concept of consent, which is inadequate in the context of marriage. This new conception recognizes adolescents' and emerging adults' cognitive abilities to understand and voluntarily consent to marriage, but also accounts for their psychosocial immaturity and incomplete acquisition of other abilities required to sustain modern marriage.The median age at first marriage is rising, reflecting gradual social adaptation to these cultural and structural changes. Legal adaptation, however, has lagged. Even though law is only one of the structural influences on family formation, legal change bringing the marital age in line with the modern social institution will go far to alleviate the strain on individuals and cost to society imposed by early marriage.INTRODUCTIONIn 2010, the U.S. Senate unanimously voted to enact the International Protecting Girls by Preventing Child Marriage Act of 2010.1 The bill aimed "[t]o protect girls in developing countries through the prevention of child marriage,"2 and Secretary of State Hillary Rodham Clinton joined its drafters in denouncing "'all cases of child marriage as child abuse.'"3 The bill's explicit target was marriage by individuals below a country's legal minimum age, but its factual findings all alluded to marriage by girls under eighteen.4The irony apparently lost on U.S. lawmakers who supported the bill is that child marriage is not limited to developing countries but is also a domestic practice; more than one in ten of all U.S. women surveyed between 2001 and 2002 had married before age eighteen, with an estimated 9.4 million having married at age sixteen or younger.5 In 2010, more than 500,000 U.S. teens were married, divorced, separated, or widowed.6What is surely the most familiar statistic of modern American family life - that nearly half of all marriages end in divorce7 - obscures significant and consistent variations in marital stability depending on the age at which people first marry. For decades now, age at marriage has been the most consistent and unequivocal predictor of marital failure.8 Of marriages entered at age twentyfive or later, fewer than thirty percent end in divorce.9 Of marriages entered before age eighteen, on the other hand, nearly seventy percent end in divorce.10 The earliest marriers, those adolescents who enter marriage in their mid-teens, experience marital failure rates closer to a sobering eighty percent.11 Not until age twenty-two does marital stability improve significantly and do marriage dissolution rates begin to level off, although marriages entered at later ages are more stable still. 12The costs of child marriages (those entered before age eighteen) as well as early marriages more generally (those entered at age twenty-one or younger) extend beyond the likelihood of their dissolution. …

The Supreme Court and the Regulation of Risk in Criminal Law Enforcement

Abstract: Criminal law enforcement raises numerous issues of risk regulation. Yet judicial treatment of such issues is anything but rigorous. This Article critically examines the Supreme Court's use of risk regulatory paradigms in the context of criminal law enforcement. It focuses on two such settings - police termination of a high-speed chase by putting a fugitive's life at risk and the sentencing of career criminals. This Article then argues why the Court's efforts are deficient and raises a more general question: Is the judiciary aptly positioned to conduct formal risk analysis in the criminal law context?INTRODUCTIONFormal risk analysis has become more and more commonplace in recent years. Legislators and regulators have enlisted risk analysis as a tool in protecting public health and safety, perhaps especially in the area of environmental law. These governmental actors undertake the often difficult task of estimating the risk that, to name one example, the widespread use of a new chemical will impose. They decide whether that risk is something about which government ought to be concerned. They then balance that risk against the risk that not using the chemical - for example, higher prices that might deprive people of a particularly beneficial product - might impose.Criminal law provides a natural home for risk regulation. Police pursue suspected criminals in order to further public safety, although at times such pursuits may themselves endanger the public. Bail hearings require judges to weigh the risk that a defendant will flee the jurisdiction without facing trial and the danger that the defendant if released will pose a threat to the community. The justice system provides for a presumption that a criminal defendant is innocent until proven guilty on the logic that it is "better that ten guilty persons escape than that one innocent suffer,"1 or put another way, that the risk to society of punishing an innocent person is worse than the risk to society of allowing a guilty person to go free. And sentencing determinations turn, at least in part, on the extent to which the convict posed a threat to the community and the public by her actions and the extent to which the sentence will reduce the future risk that the convict would otherwise pose.Despite the growing ubiquity of risk analysis in health, safety, and environmental regulation, risk analysis surprisingly has yet to take hold in criminal law and procedure. This deficit is true at both the practical and theoretical levels. Legislators and regulators do not as a rule undertake meaningful risk analysis in deciding upon the structure of criminal law. And commentators have done little to improve the theoretical underpinnings of criminal law risk analysis.Despite the substantial absence of legislative, regulatory, and theoretical treatment of risk analysis in criminal law, criminal law's natural affinity for risk analysis has emerged in the Supreme Court's treatment of some aspects of criminal law. To see this, consider two subjects handled by the Court in recent years that lie on opposite ends of a criminal case - the extent to which the police may risk harm to a fugitive in order to terminate a high-speed pursuit2 and the determination of whether a crime "presents a serious potential risk of physical injury to another" under the federal Armed Career Criminal Act (ACCA).3In its 2007 decision in Scott v. Harris,4 the Supreme Court decided that police officers had not violated Victor Harris's Fourth Amendment rights when they terminated a high-speed car chase by forcing Harris's car from the road, thereby rendering Harris a quadriplegic.5 The eight-Justice majority made clear that its decision rested upon review of a videotape of the chase recorded by the police vehicle in pursuit. Indeed, the Court was so confident of its conclusion, that no rational jury could conclude that Harris did not pose a substantial threat to the police and bystanders, that it included a web link to the video in its opinion. …

Rethinking Ponzi-Scheme Remedies in and out of Bankruptcy

Abstract: INTRODUCTIONA conventional Ponzi scheme, which temporarily sustains extraordinary returns by drawing on newly invested funds to make payouts to earlier investors, is normally a subject for criminal law.1 If the prospect of criminal penalties has not deterred the mastermind of such an enterprise, then, when the scheme runs its course, it is normally mopped up by bankruptcy law.2 The scheme lives longer and allows the perpetrator to extract and waste greater resources the more investors plow back their "profits" and the less intensely anyone investigates its details. As is often the case following large-scale tortious activity, legal remedies will be aimed beyond the primary wrongdoer to other parties.3 Thus, after Bernard Madoffstole, lost, and gave away about $18 billion, in what might have been the largest Ponzi scheme in history, a court-appointed trustee aggressively pursued second-best cost avoiders, including investors who might have suspected that fraud was in progress.4 Some of the facts and lessons of that case are discussed below.In dealing with Ponzi schemes, bankruptcy law conceives of defrauded investors as armed with restitution claims, so that they become creditors of the estate, able to recover some of their principal in proportional fashion.5 If, however, there are investors who were in bad faith, the new Restatement (Third) of Restitution and Unjust Enrichment confirms and advances the notion that a claim might run in the other direction, so that the debtor's estate can recapture, or claw back, these investors' earlier withdrawals.6The discussion in Part I begins with a review of, and some context regarding, current law. I argue that bankruptcy law might reinvent itself. Defrauded investors might be depicted not as creditors unable to collect their full restitution claims, but rather as equity investors. Some past payments to these investors might then be subject to recapture, not just as fraudulent conveyances but as mistaken distributions. The larger point is that bankruptcy law needs a reason to choose between competing characterizations of what transpired. I suggest that the right choice is the one that deters Ponzi schemes or minimizes losses. Part II goes a step further and argues that the harm done by Ponzi schemes might be minimized not by clawing back from investors who should have known better but rather by rewarding those who exited, inasmuch as it is exit that hastens the scheme's collapse. It turns out that each of these three legal strategies makes use of restitution and that each creates problems for courts. Part III carries the loss-minimization goal, as well as the restitution remedy, to frauds that I label semi-Ponzis. In such a scheme there is a Ponzi-esque collective action problem without the likelihood of a geometric expansion and then collapse of a fraud.I. REMEDIES FOR PONZISA. Current LawThere are many kinds of fraud, and it is unlikely that each requires a distinct remedy. Moreover, most wrongdoers who use new investors' money to satisfy or make good ambassadors of old investors - a pattern that complies with the usual definition of a Ponzi scheme - will have dissipated a fair portion of the funds contributed by investors. Presumably, the primary target of a fraud investigation and claim is the wrongdoing organizer of the fraud. If this primary wrongdoer's resources have been exhausted, and a prison term or disappearing act is in the picture, then investors can expect no more than a fraction of their invested principal.7 If all those who suffered losses are in identical positions, the cleanup process known as bankruptcy is fairly straightforward. A court will assemble and assess the available assets, require proof of the original investments, and then distribute the available assets in pro rata fashion.8In most cases the investors are not all alike. Some will have extracted all or a portion of their original investment. Some may be labeled as "winners" because they have withdrawn more than they invested. …

Defining a New Punctilio of an Honor: The Best Interest Standard for Broker-Dealers

Abstract: In response to the recent financial crisis, the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) required the SEC to conduct a six-month study and report to Congress on the effectiveness of existing standards of care imposed on broker-dealers and investment advisers. Following this study, the SEC is authorized to create new rules governing the duties a broker-dealer owes when providing personalized investment advice about securities to a retail customer. Mirroring prior statements by SEC Chairman Mary Schapiro, as well as the general outcry for banking reform, the SEC Staffrecommended that the Commission harmonize the duties owed by broker-dealers and investment advisers.The mere imposition of a heightened fiduciary duty, however, is unlikely to foster the change that Dodd-Frank intended to produce. As interpreted by the SEC, the Investment Advisers Act of 1940 currently requires investment advisers to act in their clients' best interests. Although defined by certain requirements, this standard is vague. Therefore, I suggest a two-part proposal that will help to support the development of a robust best interest standard. First, the best interest standard as applied to broker-dealers should be based on analogous trust law concepts and not the current best interest standard applicable to investment advisers. Second, the SEC should exercise its authority under Dodd-Frank to eliminate mandatory arbitration agreements in client contracts in order to support the transparency necessary to develop a robust doctrine. I show that these suggestions would not only effectuate the policy goals of Dodd-Frank by reducing the potential for conflicts of interest between investment professionals and their clients, but they would also be less cost-prohibitive and more practical than other alternatives.INTRODUCTIONOn July 21, 2010, President Barack Obama signed into law the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank).1 Driven by many of the same concerns that underlie common law fiduciary duties,2 Dodd- Frank gave the Securities and Exchange Commission (SEC) the authority to harmonize the standard of conduct between broker-dealers and investment advisers.3 Broker-dealers not only compete with investment advisers but also "solicit investors' business on the basis of the quality of their investment advice and advertise that they provide ongoing advice tailored to meet their customers' changing needs."4 Specifically, § 913 of Dodd-Frank required the SEC to report to Congress, following a six-month study, on (1) "the effectiveness of existing . . . standards of care" for broker-dealers and investment advisers, and (2) the existence of "legal or regulatory gaps, shortcomings, or overlaps in legal or regulatory standards in the protection of retail customers relating to the standards of care."5 The SEC could then "issue rules to 'address' the standard of care applicable to broker-dealers and investment advisers when giving personalized investment advice to retail customers."6 In particular, "the SEC may choose to create a rule requiringbroker-dealers offering personalized investment advice to retail customers to act in the best interest of the customer, as well as requiring broker-dealers to disclose certain conflicts of interest."7 Following the study, the SEC Staffrecommended harmonizing the standards of conduct applicable to brokerdealers and investment advisers.8 In doing so, the Staffexpressly rejected a "sole interest" standard that would prohibit a broker-dealer from engaging in any transaction tainted by self-interest. As explained infra Part III, the "best interest" standard better accomplishes Dodd-Frank's goal of increasing investor protection.While it is "uncontroversial . . . that the securities laws enhance disclosure and prohibit fraud,"9 it is unclear that merely harmonizing the standards of care between broker-dealers and investment advisers will have any appreciable effect in the marketplace. …

The Reason to Reverse: Unjust Factors and Juristic Reasons

Abstract: INTRODUCTIONThe Restatement of Restitution: Quasi Contracts and Constructive Trusts1 had a profound impact not only in the United States but also throughout what used to be known as the British Commonwealth.2 The project's success at home was to be expected, of course. Its impact abroad was more remarkable. Academics - and those of an academic bent3 - responded quickly and enthusiastically in both England4 and Canada.5 Bar and bench, however, proved less welcoming. It fell to Lord Denning, fifteen years after the fact, to explain why English law (and, by extension, Canadian law, which had yet to strike an independent path) was "obviously not a favourable soil in which to plant the Restatement."6 The very idea of a Restatement, he observed, was fundamentally at odds with the English legal tradition.7 The law is to be found in the cases and not in broad, bold-fonted principles.8 And whereas a textbook might helpfully serve as "a guide to the authorities but not to the law," the Restatement stated propositions unsupported by precedent.9 Worse yet, it was prepared not by a named (preferably dead) author dedicated to the cases, but rather by a committee! A committee "with a revising editor" that produced "compromised views of the members" that were "put into words by the secretary."10 Suffice to say, there was "not much to commend it in English eyes."11 Given the situation, the Restatement unsurprisingly suffered another disadvantage: it "was hard to find."12 Lord Denning was prepared to "suppose there [were] copies at Oxford and Cambridge," but he noted that even a couple of years after publication, there was "only one copy of the Restatement available to English barristers and judges" in London.13"Small wonder then," that it took "some time for the Restatement" to become accepted into English courts.14 But accepted it was, thanks in no small part to Lord Denning's own pioneering - some might say heroic - efforts. Acting pro bono15 in United Australia, Ltd. v. Barclays Bank, Ltd.,16 he "looked for the first time at the Restatement," adopted its position regarding the nature of "waiver of tort," and provided the House of Lords with the means "to cut away the misunderstandings of the old authorities and to put the decisions on the right ground."17 The resulting judgment extended far beyond the immediate issue and "opened the way to the development of restitution as a separate branch of the law."18 Two years later, Lord Wright drew upon United Australia and, presumably, his own extra-judicial thoughts on the Restatement19 in declaring that "any civilized system of law is bound to provide remedies for cases of what has been called unjust enrichment."20 The Restatement's influence was even more pronounced in Canada. While English judges occasionally were skeptical or even dismissive of a generalized notion of unjust enrichment,21 Canadian courts routinely looked south for guidance.22 The impact of the Restatement in the Supreme Court of Canada was further heightened by the fact that the court was led, during a crucial period of restitutionary development in the 1970s and 1980s, by a former student of one of the Restatement's principal reporters.23The explanation as to why the Restatement overcame initial resistance and gained acceptance abroad is not difficult to discern. As Lord Denning observed, "local conditions" occasionally may "lead us to reach a different solution."24 For the most part, however, "our fundamental outlook is the same on all the things that really matter."25 The common-law jurisdictions on either side of the Atlantic "have the same concept of justice, the same tradition of freedom, and the same hatred of oppression."26 And because they share the same commitment to liberal values, individual autonomy, and personal property, they encounter the same types of disputes. Moreover, due in no small part to the Restatement, courts in all three countries came to employ essentially the same principle of unjust enrichment during the second half of the twentieth century. …

Revisiting Federalism Concerns in the Offshore Wind Energy Industry in Light of Continued Local Opposition to the Cape Wind Project

Abstract: Interest in developing offshore wind energy projects in the United States has increased dramatically in the last few years. A proposed project to develop an offshore wind energy facility in the shallow waters of Nantucket Sound (a project now known as "Cape Wind") has recently received all required federal, state, and local approvals to proceed. The approvals have come only after a ten-year battle over a complex and changing regulatory scheme, as well as private litigation from local citizen groups challenging every step of the approval process. The high cost and delay associated with the current regulatory system will likely discourage future development of wind energy projects in the United States without reform. This Note provides a summary of the current federally controlled regulatory regime and the history of the Cape Wind saga, with emphasis on two recent instances of vehement local opposition. The Note argues that given the inherently local nature of the costs and benefits of offshore wind energy, the permitting regime should be "inverted" to give the coastal states primary regulatory control over their offshore wind resources. Local control over project siting, as well as competition among the states to attract offshore wind energy development, would lead to a more efficient allocation of our nation's offshore wind energy resources and avoid the cost and delay faced by Cape Wind under the current regulatory scheme.INTRODUCTIONThe development of offshore wind energy projects in the United States has attracted greater interest in the last few years,1 and the federal government seems to recognize the benefits of wind power, as evidenced by various tax credits and loan guarantees currently in place for the industry.2 Nevertheless, a proposed project to develop an offshore wind energy facility in the shallow waters of Nantucket Sound - a project known as "Cape Wind" - has faced over ten years of regulatory hurdles and private litigation. The Cape Wind project has largely been viewed as a test case for offshore wind energy projects in the United States.3 The complex and changing regulatory scheme, coupled with the cost and delay associated with private litigation from citizen groups challenging every step of the approval process, will likely discourage future development of wind energy projects in the United States without reform.The Cape Wind story demonstrates that the siting of offshore wind projects leads to a unique interplay between federal and state interests. The Cape Wind turbines will be located entirely in federal waters, but electricity transmission cables will run under state waters and lands to connect to the local power grid.4 The Coastal Zone Management Act (CZMA) provides the primary mechanism for balancing federal and state interests in U.S. coastal resources.5 Under the regime set up by the CZMA, states are given broad discretion to create their own Coastal Zone Management Plans (CZMPs) regulating the use of resources within state waters, defined as those waters within three miles of the shoreline.6 The federal government retains regulatory and permitting authority over all federal waters beyond three miles of the shoreline; however, the mechanism of federal consistency review extends state power further, beyond their coastal zones, by allowing states to review and sometimes overrule federal actions and permits in federal waters when the activity affects the state's coastal zone.7 Nevertheless, the federal government retains ultimate permitting authority; the U.S. Secretary of Commerce can overrule a state's protest by finding that a permit is consistent with the objectives of the CZMA or otherwise in the interest of national security.8A robust literature has developed analyzing and critiquing the regulatory scheme in place for the approval of offshore wind facilities.9 Most commentators have focused on the complexity and incoherence of the regulatory process faced by Cape Wind, ultimately proposing regulatory modifications that increase federal control of the permitting process. …

The Roots of the Living Constitution

Abstract: INTRODUCTION: A TREE GROWS IN AMERICAOn the cover of David Strauss's The Living Constitution1 is a magical tree. The metaphor of a tree connotes what is living and organic; it also suggests Canada's doctrine of a constitution as a living tree.2 The tree sits above a parchment copy of the Constitution, suggesting that the real Constitution grows out of and transcends the ancient text. Branches of the tree radiate in all directions, and in place of ordinary leaves there are stars, perhaps standing for famous judicial decisions such as Brown v. Board of Education3 or McCulloch v. Maryland.4The book's cover symbolizes important features of Strauss's argument. Strauss believes that the real constitution in the United States is not its text, but a living, growing thing beyond the text that has evolved through common-law decision making, and that its central features and many of its proudest accomplishments are judicial decisions.5In this Essay, I will not be focusing on the branches of the tree or on its starry leaves. Instead I shall focus on what lies beneath these aspects of constitutional development and makes them possible. That is, this Essay is about the roots of the tree. Because Strauss's book is primarily about the leaves - famous Supreme Court decisions and other doctrinal developments - it is necessarily incomplete. This Essay offers supplements to his argument, emphasizing things that Strauss himself does not talk much about in the book but which I think are necessary to make his tree grow.Strauss's goals are announced early in the book. He asks, "[D]o we have a living constitution that changes over time?"6 His answer is an emphatic yes. But the problem, as Strauss sees it, is how it is possible to "have a constitution that is both living, adapting, and changing and, simultaneously, invincibly stable and impervious to human manipulation."7 The answer, Strauss believes, lies in the traditions, practices, and ideology of the English common law that was transported to American soil with American colonists. "[A]t the core of our constitutional tradition - our living constitutional tradition - [is] an approach derived from the common law and based on precedent and tradition."8 "Our constitutional system," he explains "has become a common law system, one in which precedent and past practices are, in their own way, as important as the written U.S. Constitution itself."9 Such a "common law constitution" has distinct advantages. It "is a 'living' constitution, but it is also one that can protect fundamental principles against transient public opinion[,] [a]nd it is not one that judges (or anyone else) can simply manipulate to fit their own ideas." 10 Attending to the common-law approach, Strauss contends, "shows how the Constitution can evolve and yet still provide the solid principles that a constitution should provide - and not become the plaything of judges." 11Both Strauss's statement of the problem and his solution make judges and the judiciary central to living constitutionalism. He asks how we can explain constitutional adaptation outside the amendment process that (1) constrains judges so that the Constitution does not become their "plaything" but that (2) protects fundamental rights from merely "transient public opinion." Strauss is responding to various conservative and originalist arguments about the judiciary that have been made over the years. These arguments maintain in a system of living constitutionalism judges are lawless and that the very idea of a living Constitution is a license to make things up.12 Strauss sees conservative originalists as his primary adversary. Yet by stating the key questions of the book in this way, he demonstrates that he actually agrees with his opponents on a central point: the central focus of constitutional interpretation is and should be judges, and the central problem that living constitutionalism faces is constraining judicial behavior.In my view, that is not the best way to frame the question of living constitutionalism. …

"Is the Meat Here Safe?" How Strict Liability for Retailers Can Lead to Safer Meat

Abstract: INTRODUCTIONIn a book that I recently read about teaching reading to children, the author opens by staring at a potato on her kitchen table and asking, "[I]f I had a potato, nothing but a potato, how could I teach a classroom full of children?"1 Thinking for just a few moments, she discovers the unlimited web of topics that burst forth from the shriveled potato on the table, from mathematics and science to history and literature.2I begin this Note by taking a similar approach, but instead I use a hamburger patty. What can we learn from a hamburger patty in terms of the problems that plague the United States' food supply today? To begin, I would ask questions about how that burger came to be sitting on the table ready to eat. How did it go from cow to chow? Eventually, I would ask why it is there ready to eat. Is it the best choice for health or taste? Is it merely cheap and filling? Expanding my questions about the hamburger patty, I would inevitably ask, "Is it safe?" From the potato curriculum perspective, however, where on earth do I begin? Most of the literature on meat safety focuses only on the immediate relationship between consumer and patty. If the consumer eats the patty, will the consumer get sick from a microbial pathogen such as E. coli? But there are many more ways to frame the question, "Is the patty safe?" Did the employees of the slaughterhouses and processing facilities produce the patty under conditions safe for their own health? Was it safe for vegetable growers to use their water source to grow their crops?3 Is it safe for the consumer to eat so many burgers?4 Will eating the burger increase the consumer's resistance to antibiotics?5 The questions and corresponding problems go on and on.In regard to pathogens such as E. coli, however, when it comes to answering the question, "Is the patty safe?" the answer generally focuses on just one part of a vast web of relationships and interconnected problems. When we ask about meat safety, we look primarily to slaughterhouses and processors. We look there for regulatory solutions; we look there in our liability theories. This narrow focus obscures the overall problem of meat safety, which begins with livestock-raising practices and ends with a consumer developing an illness. Furthermore, such focus throws all liability onto the consumer. The consumer faces the risk of eating potentially contaminated meat without any information about the likelihood of contamination. If the consumer accepts that risk and gets sick, she faces overwhelming obstacles in bringing a successful lawsuit and, in many instances, must take responsibility for her illness. According to one commentator, "The underlying premise that erodes a civil liability theory is that the consumer ultimately is responsible for the proper preparation of the meat she ingests."6The system's unfairness to the consumer in terms of both regulation and liability has been the focus of much discussion on improving meat safety. Commentators have widely and properly criticized meat regulations as ineffective and have also criticized liability rules for the seemingly insurmountable burdens they place on consumers. Little has been said, however, about the role that consumers themselves have played in this system, and little has been written about the tradeoffconsumers have made. In exchange for accepting the risk associated with eating meat, consumers have received a nearly endless supply of cheap meat.7 And they have consumed much8 - their appetites putting further pressure on the meat industry. According to William Marler, a lawyer specializing in foodborne illness claims, "Industry economics are . . . problematic. Labor and other costs go up. Market pressures force retail prices down. So there's less room for thorough product testing and other safety measures."9 The demand for cheap meat, therefore, is as integral to the problem as the supply of potentially unsafe meat.This Note will not analyze the web of interconnections applicable to meat safety in any detailed way. …

Change of Position: A Defence of Unjust Disenrichment

Abstract: INTRODUCTIONSection 65 of the Restatement (Third) of Restitution and Unjust Enrichment refers to the defence of change of position in a claim for unjust enrichment.1 The section provides, "If receipt of a benefit has led a recipient without notice to change position in such manner that an obligation to make restitution of the original benefit would be inequitable to the recipient, the recipient's liability in restitution is to that extent reduced."2In England, when the defence of change of position was first explicitly recognised, it was stated in very similar terms. The case which recognised the defence in England was Lipkin Gorman v. Karpnale Ltd.3 In that case change of position was described as a defence available "to a person whose position has so changed that it would be inequitable in all the circumstances to require him to make restitution."4The leading statement of the defence in both U.S. and English law expresses the defence's focus at this extremely abstract level of inequitability. But inequitability does not operate at large. In particular, the English courts have recently, and rapidly, developed a considerable number of rules relating to applicability of the change-of-position defence to claims based on unjust enrichment. As the reporter's note (a) to Restatement (Third) section 65 observed of the defence's development in English law, "[T]he belated discovery of a general defense of change of position has been the occasion for a much fuller examination of its definition and basic principles than it has ever received in U.S. courts."5This Article utilises the explosion in English case law to explain what is meant by the notion of inequitability and what it tells us about the nature of the defence of change of position. In English law, the defence of change of position is sometimes referred to as a defence of disenrichment. The thesis of this Article is that establishing disenrichment is a necessary but not sufficient requirement to the defence. As the rules concerning change of position begin to coalesce in England, the picture that has emerged is that a defendant must prove that any disenrichment is unjust.This Article is divided into three parts. The first Part explains that the foundations of change of position in "inequitability" do not permit unbridled judicial discretion. Instead, this inequitability is manifest in established principles. Recent English law is used to explain these principles. Nevertheless, difficult questions relating to each and every one of these principles require resolution. These questions can only be answered in a principled way once the concept of inequitability, and the rationale for the defence, is elucidated.The second Part of the Article turns to the rationale for the defence. Suggestions that the rationale is "security of receipt," "loss allocation," "disenrichment," or "irreversibility" are rejected. Although neither disenrichment nor security of receipt are rationales of the defence, disenrichment is, nevertheless, an essential element the defence and security of receipt and loss allocation may be effects of the defence. The rationale is the protection of the defendant's autonomy. The degree of protection for a defendant's autonomy that the courts have chosen is the same degree of protection as that given to the claimant's autonomy. This outcome resulted from courts effectively developing change of position in tandem with the rules for the claimant to establish a prima facie case. In other words, if a claimant can establish a prima facie claim for unjust enrichment by proving that the defendant has been enriched and that the enrichment is caused by an unjust factor, then a defendant will have a defence of unjust disenrichment if, like the claimant, she can prove (1) that she was disenriched and (2) that the disenrichment was caused by an unjust factor. There is a principled coherence to this approach. It could hardly be just for a claimant to be able to insist upon restitution to protect his autonomy and yet deny the same protection to the autonomy of the defendant. …

Calling the Supreme Court: Prisoners' Constitutional Right to Telephone Use

Abstract: INTRODUCTIONWinston Holloway is seventy years old and lives in Arkansas.1 Each month, he can afford to make about two telephone calls.2 The first is to his son, who is in the U.S. Army and is stationed in Arizona.3 If his son is overseas, Holloway calls his daughter-in-law and his grandchildren in Arizona.4 The second telephone call is to one of his two sisters, both of whom live in Lufkin, Texas.5 Each fifteen-minute call that Holloway makes to his son, grandchildren, or sisters costs $10.70 plus taxes and any governmental charges.6 One of Holloway's sisters visits him in Arkansas about once a year, and his son's family visits every few years.7 Holloway has never seen his youngest grandchild, and he has seen another grandchild only once.8 His grandchildren are too young to write to him, and letters from other family members are infrequent.9 The telephone calls and the rare visits are the only occasions in which Holloway hears his family members' voices.10 Holloway is unable to use email or visit his family members.11 For Holloway, the telephone is a "unique and essential way" to communicate with others.12 Holloway has been in prison for thirty-eight years, and he will remain in prison for the rest of his life.13If the telephone calls were less expensive, Holloway would make calls more frequently.14 Holloway's situation is not unique. The telephone is an essential way for many prisoners to communicate with the outside world, yet prisoner telephone calls cost much more than telephone calls between two nonprisoners.15 For instance, an Alabama, Alaska, Colorado, Connecticut, Georgia, Illinois, Minnesota, North Carolina, or Oregon prisoner's ten-minute out-of-state call costs $12.85; in other states, the cost is even higher.16 These costs reflect decisions by state departments of corrections to use prisoner telephone calls to fund general prison operations.17 Throughout the country, the method through which departments of corrections use prisoner telephone calls to raise revenue is similar: a department of corrections contracts with a telephone company, granting the telephone company exclusive rights to provide telephone service to inmates.18 In return for granting these exclusive privileges, the department of corrections receives a "commission" from the telephone company - i.e., a percentage of the telephone company's gross revenue from prisoners' telephone calls.19 In states where these systems are in place, commissions average forty-two percent of gross revenues from prisoner telephone calls.20 According to one study, nearly eighty-five percent of state prison systems receive commissions from telephone service providers.21 These systems create higher prices for prisoners' telephone calls and give departments of corrections a greater incentive to allow phone companies to increase prices further on inmate calls.22Under these systems, telephone companies usually install collect-call-only phones in the prisons.23 As a result, prisoners generally do not pay their telephone call expenses. Instead, the cost falls on the "spouses, parents and other collect-call recipients who typically come from the country's poorest families."24 The economic cost to prisoners' family and friends is not light. State prison systems receive over $152 million annually from these commissions, from a prison telephone market that is worth more than $362 million annually in gross revenue.25On September 13, 2010, a federal magistrate judge in the Eastern District of Arkansas held that the Arkansas Department of Correction unconstitutionally infringed the First Amendment right of Holloway and other prisoners to use the telephone to communicate with people outside the prison.26 Judge Deere's recommended disposition in Holloway v. Magness is the first opinion in the United States to hold that a commission paid from a telephone company to a department of corrections is unconstitutional.27 Judge Deere's recommended disposition runs in direct opposition to Judge Posner's decision in Arsberry v. …

Legal Epistemology in the Restatement (Third) of Restitution and Unjust Enrichment

Abstract: INTRODUCTIONThe publication of the Restatement (Third) of Restitution and Unjust Enrichment1 (R3RUE) is an important accomplishment on at least two levels. Its contribution, actual and potential, to the development of the law is beyond question. Carefully crafted over many years, it is a work that will shape our understanding of restitution in the United States and beyond. Equally important is the legal epistemology adopted in R3RUE. The strange accident of the advent of American legal realism had a number of effects.2 In the law of unjust enrichment, even more so than in other fields of private law, it has been associated with the decline of respect in the United States for doctrinal scholarship.3 However, like most publications in the Restatement project, R3RUE stands against this rejection of doctrine. It situates itself in the interpretive tradition that has been a hallmark of the development, not only of the common law, but of the civil law as well.In this text, I have three goals. The first is to explore some of the characteristics of the traditional Western epistemology of private law, in order to understand its default position of respect for elaborated doctrine. This effort, which I will undertake in Part I, will allow me to highlight in Part II the differences between the traditional epistemology and other approaches, including those that arose following the downgrading of doctrine in the United States.The second goal, which will be the preoccupation of Part III, will be to assess the approach in R3RUE to the important topic of constructive trusts. My argument will be that in this field, R3RUE is ambivalent. It combines traditional epistemology with, in some respects, the law-skeptical approach that arose in the wake of American legal realism. I will argue that the attempt to draw on these incongruent epistemologies - these different ways of knowing what the law is - leads to tension and inconsistency in the positions taken in R3RUE.The third goal, which I will address in my Conclusion, is to evaluate whether and to what extent this matters. Is there any particular reason why we should adopt a single way of knowing what the law is?I. THE DOCTRINAL VOICE AND THE INTELLECTUAL RESOURCES OF THE LAWThe voice of the Restatement project is the voice of the law as it has been developed. By this, I mean that it is backwards-looking. In formulating the numbered provisions of a Restatement, provisions that are called "black letter" in the language of the American Law Institute, the Reporter primarily looks to past decisions of the courts. The enterprise is a justificatory one: in addition to explanatory comments and illustrations, the Reporter provides notes whose purpose is to show that the black letter of the Restatement reflects the best interpretation of the collected decisions of the courts. The voice, in other words, is the voice of doctrinal law, which is also backwards-looking and justificatory. And the voice of doctrinal law is not that different from the voice of a common-law judge who is called upon to resolve a question of law: the judge, too, looks back to the previous case law and explains, in reasons for judgment, how that case law leads to the decision that has been made.Anyone who works in this doctrinal voice knows that it does not exclude creativity. The most renowned doctrinal jurists, whether judges or professors, are the creative ones. As in many spheres, including the fine arts, creativity can be more impressive exactly because it is constrained in various ways. Doctrinal law is always constrained. One constraint relates to binding authority. Morden J.A. once said, "In the absence of binding authority clearly on point it may reasonably be said that the law is what it ought to be,"4 a statement which was adopted by the Supreme Court of Canada.5 The Supreme Court of Canada, like other supreme appellate courts, is in the position that no authority is ever binding on it. …

The Fight Over "Fighting Regs" and Judicial Deference in Tax Litigation

Abstract: Courts typically accord some level of deference to agency interpretations of statutes. Should that change for a "fighting" regulation that an agency has issued during the course of related litigation? The Treasury Department has done that many times, as highlighted by the 2011 U.S. Supreme Court decision in Mayo Foundation for Medical Education and Research v. United States and a series of recent courts of appeals cases that led to a grant of certiorari in Home Concrete & Supply, LLC v. United States.To answer the question of how "fighting regs" and other litigation-oriented tax guidance should be treated, this Article first analyzes the law on judicial deference to tax authorities generally, making sense of the confused taxspecific historical approach. It then considers the context of rulings issued during pending litigation. The Article explains that, following the 2011 decision in Mayo, deference under the famous Chevron case applies to all Treasury regulations issued in accordance with the requirements of the Administrative Procedure Act. It further argues that Revenue Rulings - formal guidance issued by the Internal Revenue Service - should receive deference under Skidmore v. Swift& Co., in accordance with United States v. Mead Corp. and Mayo. The Article proposes that regulations and rulings issued during related litigation receive the applicable level of deference (Chevron or Skidmore) but that the deference inquiry take into account the retroactivity and surprise issues raised by the timing of the guidance.INTRODUCTIONImagine a corporation that sells its own stock at a time when the applicable Treasury regulation provides that such sales are tax-free, yet the government claims in litigation that the sale should be taxable. The Treasury Department amends the regulation during the litigation to state that such sales are taxable, retroactive to the year of the taxpayer's transaction. That is essentially what happened in Helvering v. R.J. Reynolds Tobacco Co.,1 and resembles the facts of a number of very recent cases.2 Should courts defer to the regulation in such a context?The question of how much deference courts should accord agency interpretations of statutes is an important issue that cuts across distinct areas of substantive law, including banking law,3 communications law,4 environmental law,5 labor law,6 and tax law.7 The level of judicial deference matters because greater deference increases the likelihood that an agency regulation or ruling will be upheld, which in turn provides agencies with greater discretion in their rulemaking.8As is well known, Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.9 is the leading judicial deference case, setting forth a famously deferential two-step test.10 As the U.S. Supreme Court explained in a footnote in Chevron, "The court need not conclude that the agency construction was the only one it permissibly could have adopted to uphold the construction, or even the reading the court would have reached if the question initially had arisen in a judicial proceeding."11 Thus, Chevron extended substantial deference to agency guidance.Despite its prominence, Chevron did not necessarily displace agencyspecific precedents.12 In tax cases, courts sometimes applied National Muffler Dealers Ass'n v. United States13 - an earlier, tax-specific precedent - instead of Chevron. Which standard to apply in tax cases remained a source of confusion until 2011, when the Supreme Court decided Mayo Foundation for Medical Education & Research v. United States.14 In that case, the Court emphasized the importance of consistency between tax and other areas of law, holding that Chevron, not National Muffler, applies to tax regulations.15Adding to the confusion regarding judicial deference, decades prior to Chevron, the Supreme Court decided Skidmore v. Swift& Co.,16 under which some agency rulings are merely persuasive.17 In Skidmore, the Court explained that the respect accorded a ruling "will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control. …

Restitution of Mistaken Enrichments

Abstract: INTRODUCTIONThe restitution of a mistaken payment is generally regarded as the paradigm example of the restitution of an unjust enrichment The central issues are clear cut, the case law is voluminous, and mistaken payments are commonplace in everyday life It follows that if we can be clear and content about our law on mistaken payments, we can use it as a model for much of the rest of the law on restitution of an unjust enrichment This was the precise strategy used by Peter Birks in Unjust Enrichment1 In the first paragraph, he described the mistaken payment of a non-existent debt as the "core case"; and he went on, "The law of unjust enrichment is the law of all events materially identical to the mistaken payment of a non-existent debt"2 At the end of the first chapter he wrote, Analysis of the receipt of a mistaken payment of a non-existent debt reveals a causative event of a third kind It is not a manifestation of consent such as a contract, and it is not a wrong The consequent liability, surprisingly at first, is strict, albeit subject to defences The generic conception of that causative event is unjust enrichment at the expense of another That generalization enables us to look for other examples materially identical to the core case3We find a similar approach in the Restatement (Third) of Restitution and Unjust Enrichment4 The introductory note under "Benefits Conferred by Mistake" in chapter 2 reads as follows:The relatively detailed treatment of restitution for mistake within Chapter 2 should not be taken to indicate that the mistaken transferor receives broader protection from the law of restitution than does, for example, the victim of fraud or duress Mistake receives more extensive treatment because of its relatively voluminous and accessible case law, and because it offers a reliable template for analogous restitution claims5It follows that, in welcoming the Restatement (Third) and in seeking to compare the law in England and the United States, no apology is needed for a paper examining mistaken enrichmentsMy particular focus is on four mistaken enrichments issues that are, at present, hotly debated in England I shall set out in some detail the English law and why it is proving controversial before looking at the position on each under the Restatement (Third)Before proceeding any further, it is important at the outset to appreciate that the approach taken throughout the Restatement (Third) is more contextual and less conceptual than that which would be adopted by restitution scholars in England This is not intended as a criticism but rather is designed to ensure that English and American scholars are fully aware that, in trying to learn from each other, we have different starting points So, for example, in chapter 1 on "General Principles" there are only four black letter propositions;6 none of these four deals with what is meant by "enrichment" or "at the expense of the claimant" or the approach to deciding "injustice"; and no fundamental distinction is drawn in those general principles between restitution of an unjust enrichment and restitution for wrongs7 Admittedly, there is a sentence on the meaning of "at the expense of" in the commentary to section 18 and some more extensive discussion of "enrichment" in the commentary to section 19 and in relation to some other black letter rules (such as on "benefits other than money" conferred by mistake)10 The distinction between restitution for unjust enrichment and for wrongs is referred to very briefly in the commentary to section 1 where it is said that "nothing practical turns on this except the identification of the applicable period of limitations"11 There is barely any discussion of the "unjust factors" as opposed to the "absence of basis" approach to injustice that has traditionally distinguished common-law and civilian approaches to the subject and underpinned Birks's dramatic change of heart in Unjust Enrichment …

Statistical Knowledge Deconstructed

Abstract: The law frequently distinguishes between individualized knowledge, or awareness that one's act will harm a particular victim, and statistical knowledge, or awareness that one's activity or multiple acts will, to a high statistical likelihood, harm one or more persons from a large class of potential victims. (Compare driving through an intersection while aware that one's automobile is likely to injure a pedestrian in the crosswalk with managing a large construction project that one confidently predicts will result in worker injuries.) Under tort and criminal law doctrine, acting with individualized knowledge is ordinarily much more difficult to justify and, if unjustified, much more culpable than acting with statistical knowledge. Yet the distinction is remarkably difficult to explain and defend.This Article - the first systematic analysis of this pervasive but underappreciated problem - offers a qualified defense of the distinction between individualized and statistical knowledge. Acting with statistical knowledge is ordinarily less culpable than acting with individualized knowledge, and it is often not culpable at all. Expanding the spatial or temporal scope of an activity or repeating a series of acts sometimes causes the actor to acquire statistical knowledge, but such an expansion in scale ordinarily does not increase the level of culpability properly attributable to the actor. Two invariant culpability principles, "invariant culpability when acts are aggregated" and "invariant culpability when risk-exposures are aggregated," formalize this idea.Why is acting with individualized knowledge especially culpable? Part of the answer is the special stringency principle (SSP), a deontological principle that treats an actor as highly culpable and treats his acts as especially difficult to justify when he knowingly imposes a highly concentrated risk of serious harm on a victim. Under SSP, it is much harder to justify (a) speeding to the hospital to save five passengers, with knowledge that this will very likely require killing a pedestrian in one's path, than (b) speeding to the hospital to save one passenger, with knowledge that this creates a 20% chance of killing a pedestrian in one's path.The analysis has a number of significant implications but is also subject to important qualifications:* Notwithstanding the invariant culpability principles, if a faulty or unjustified actor repeats his acts or expands his activity, that repetition sometimes reveals a new type of culpability: the defiance of moral and legal norms. Accordingly, a retributivist can indeed support a punishment premium for recidivists.* In rare cases, when the actor possesses merely statistical knowledge but his conduct is extremely unjustifiable, the actor's culpability is comparable to that of an actor with individualized knowledge.* If an actor conducts a cost-benefit analysis of a planned activity and thereby acquires statistical knowledge that the activity will cause serious harm, his decision to proceed with the activity in the face of such knowledge does not, by itself, demonstrate that the activity is unjustifiable or that he is culpable for so proceeding.* A legal system can be legitimate even though legal actors within the system know that it will, as a statistical matter, punish the innocent.* The higher culpability of acting with individualized knowledge is not explained by a supposed higher duty owed to "identifiable victims," except insofar as that duty is a crude version of SSP.INTRODUCTIONThe law typically treats an actor who knows that he or she will likely cause serious harm to a particular individual, and who does cause that harm, as a very culpable wrongdoer who merits a severe sanction. Consider a simple illustration:Clara (impatient driver acting with individualized knowledge)Clara is running late for a flight to a critically important business meeting. Driving along a one-lane deserted mountain road, she suddenly sees a man lying on the road in the path of the car. …

Common-Law Constitutionalism, the Constitutional Common Law, and the Validity of the Individual Mandate

Abstract: INTRODUCTIONOriginalism's proponents (and here I refer to those "skyscraper originalists" who consider themselves bound by "original expected application"1) articulate three important virtues of their chosen interpretive method: (1) originalism provides legitimacy to judicial review that would otherwise be lacking;2 (2) originalism constrains judges' discretion in choosing among possible interpretations of the Constitution's text;3 and (3) originalism provides stability to the Constitution's meaning.4 In The Living Constitution, David Strauss's central thesis seems to be that the institution of judicial review itself - particularly the path dependency of the common-law tradition - provides all of those virtues even when judges are not bound by the Framers' understandings.5 Indeed, Professor Strauss makes the stronger claim that "common law constitutionalism" better captures the virtues of legitimacy, constraint, and stability when it is not bound to original meaning than when it is.6In making his case, however, Professor Strauss paints too simplistic a picture of modern judicial review, eliding a second and crucially important common-law-like feature of judicially constructed constitutional rules: their frequent susceptibility to legislative override.7 Today's judiciary does not announce a constitutional rule and then enforce it dictatorially at all times and in all cases, nor does it announce a constitutional rule and then enforce it monolithically until compelled to make revisions through trial-and-error elaboration. Instead, today's judges announce broad constitutional norms and then craftspecific rules for enforcement of those norms - rules that Henry Monaghan long ago termed the "constitutional common law."8 Importantly, most of these enforcement rules either allow for legislative overrides or are themselves subject to such override.The presence and operation of the common law is important to Professor Strauss's theory, especially to his claim that common-law constitutionalism can beat originalism at its own game - that it can better capture the virtues of legitimacy, constraint, and stability that originalists seek. The problem is that the legitimacy, constraint, and stability of common-law constitutionalism do not come from Burkean notions of tradition and precedent; they come from the constitutional common law and its openness to political suasion. But when it comes to judicial review, political suasion is a source of virtue that originalists want to reject. The disagreement between Professor Strauss and originalists, then, ought to be fought at square one: whether changing social norms and political preferences are a justifiable reason to change constitutional operations (absent a formal constitutional amendment). In my view, Professor Strauss cannot win on the originalists' turf; he ought to attack the originalists' foundational view that courts are institutionally antidemocratic and therefore ought not to do politics.The paper proceeds as follows. Part I describes the constitutional common law and its interactions with common-law constitutionalism. Part II uses the fight over the constitutionality of the Patient Protection and Affordable Care Act (ACA) and its so-called "individual mandate" as a case study to flesh out the core differences between common-law constitutionalism and constitutional common law. Part III argues that a viable justification for a living constitution needs to embrace and defend the courts' essentially political nature, confronting head-on the (skyscraper) originalists' sense that courts should never do politics.I. THE CONSTITUTIONAL COMMON LAWIn The Living Constitution, Professor Strauss portrays constitutional elaboration in the courts as a cloistered, voyeuristic, and slow process: A court announces a constitutional rule in the course of deciding a case, sees how that rule works in the world beyond its doors, and then makes adjustments slowly and carefully through case-by-case elaboration and with due respect for precedent. …

Questions of Time, Place, and Mo(o)re: Personal Property Rights and Continued Seizure under the DNA Act

Abstract: INTRODUCTIONOn August 12, 2010, the United States Court of Appeals for the First Circuit upheld the constitutionality of retaining DNA profiles and samples compelled from convicted felons on supervised release under the authority of the DNA Backlog Elimination Act1 (DNA Act).2 Although the First Circuit had previously ruled on the constitutionality of sample collection and analysis under the DNA Act,3 the court's decision in Boroian v. Mueller was its first to address the constitutionality of sample retention. Boroian claimed that the government's indefinite retention of his DNA profile and sample, without "reasonable suspicion of criminal activity," violated his Fourth Amendment right against unreasonable search and seizure, and he requested that his profile be expunged from the Combined DNA Index System (CODIS) and that his sample be destroyed.4 The district court granted the government's motion to dismiss, concluding that use of Boroian's profile in CODIS did not constitute a new search under the Fourth Amendment and that Boroian had not presented any evidence that additional analysis of his sample was presently or imminently occurring.5 The First Circuit granted Boroian's appeal but came to the same conclusions.6The Fourth Amendment generally protects a citizen's personal security in both his person and his effects.7 Under the modern approach, courts assess the constitutionality of a search by considering both the subjective and objective reasonableness of the individual's expectation of privacy.8 Using this framework, the First Circuit rejected Boroian's claim that each use of his profile in the database constituted a separate, unreasonable search; the government's retention of his DNA profile, analogous to the routine retention of fingerprints, did not violate any expectation of privacy that society recognized as reasonable.9 While the government conceded that further use of Boroian's blood sample would constitute a search implicating the Fourth Amendment, the First Circuit concluded that until such use occurred, Boroian had no Fourth Amendment claim.10Although the Boroian decision was the first of its kind in the First Circuit, the case's real novelty presents itself in what the court declined to address. In addition to the arguments discussed above, Boroian claimed that the retention of his blood sample beyond the term of his probation, regardless of any future analysis, constituted an unreasonable continued seizure that independently violated his Fourth Amendment rights.11 As seizure interferes with a person's possessory, not privacy, interests, such claims under the Fourth Amendment open an entirely independent line of inquiry and analysis.12 Boroian failed to present the claim in district court, however, and the First Circuit deemed it waived on appeal.13This Note attempts to address the unanswered question presented in Boroian - whether the government's continued retention of Boroian's DNA sample after he completed probation constitutes an unreasonable continued seizure in violation of the Fourth Amendment. Perhaps more importantly, this Note addresses a critical precursory issue - whether individuals subject to compulsory DNA sampling under the DNA Act retain a possessory personal property interest in their DNA samples after they are extracted. Only if such interest is retained can the retention of Boroian's sample constitute a continued seizure for Fourth Amendment purposes.Part I presents a brief background of the current law. It provides an overview of DNA sampling and profiling in the U.S. criminal justice system, describes the relevant Fourth Amendment challenges to mandatory sampling under the DNA Act, introduces the new challenge presented in Boroian, and discusses the history and development of continued seizure doctrine. Part II addresses the issue of property interests in human tissue and genetic material, arguing that existing case law on the issue is easily distinguishable from - and may even support - property interests in compulsory DNA samples obtained under the DNA Act. …

Excess Baggage? Rethinking Risk Allocation in the Restatement (Third) of Restitution and Unjust Enrichment

Abstract: INTRODUCTION: THE ANALYTICAL STRUCTURE OF THE RESTATEMENTThe law of restitution in the common law has traditionally been explained with reference to specific reasons for restitution or unjust factors. In John Dawson's formulation, the common law requires "some specific ground, asserted affirmatively by the party seeking restitution" in order to contain enrichment liability within manageable bounds.1 Civilian systems, on the other hand, tend to eschew the elaboration of specific reasons (at least openly) for the return of unjustified enrichment. Instead, they look to the absence of any legal ground for the transfer or retention of the enrichment. This difference between the two legal traditions is summed up as follows by Lord Hoffmann in Deutsche Morgan Grenfell Group Plc v. IRC2:The answer, at any rate for the moment, is that unlike civilian systems, English law has no general principle that to retain money paid without any legal basis (such as debt, gift, compromise, etc) is unjust enrichment. In the Woolwich case Lord Goffsaid that English law might have developed so as to recognise such a general principle - the condictio indebiti of civilian law - but had not done so. In England, the claimant has to prove that the circumstances in which the payment was made come into one of the categories which the law recognizes as sufficient to make retention by the recipient unjust.3Part I of the Restatement of Restitution: Quasi Contracts and Constructive Trusts, entitled "The Right to Restitution," is organised exclusively around specific reasons for restitution, such as mistake and duress.4 Everything about it points towards an analysis of unjust enrichment, which focuses exclusively on unjust factors.5 On the other hand, the Restatement (Third) of Restitution and Unjust Enrichment has an important civilian twist to it. Chapter 1, entitled "General Principles," states that the subject is better described as the law of "unjustified enrichment," and it makes plain that "unjustified enrichment is enrichment that lacks an adequate legal basis."6 The civilian cast of the Restatement (Third) is confirmed when we turn our attention to section 6, which is entitled "Payment of Money Not Due."7 According to the wording of this provision, "payment by mistake gives the payor a claim in restitution against the recipient to the extent payment was not due."8 However, the civilian import of chapter 1 and section 6 must be set offagainst the overall structure of chapter 2, which clearly accords analytical significance to specific reasons for restitution, such as fraud, duress, undue influence, and incapacity, as well as mistake itself. Regarding mistaken transfers in particular, section 6 must be set offagainst section 5, entitled "Invalidating Mistake."9 According to section 5(1), which is intended to "epitomize" the whole law of mistake, "(1) A transfer induced by invalidating mistake is subject to rescission and restitution. The transferee is liable in restitution as necessary to avoid unjust enrichment."10 Given this epitome, there can be no doubt that mistake itself plays a key analytical role in justifying or explaining the restitution of mistaken transfers.11In the second edition of his book Unjust Enrichment, Peter Birks argued that English law had come to recognise the civilian absence-of-legal-ground approach (or the absence-of-basis approach as it is sometimes called) in the "swaps" cases.12 He believed that a legal system had to make a choice between the civilian approach and the traditional common-law approach.13 However, he admitted a limited continuing role for unjust factors. In the words of Lord Walker in Deutsche Morgan Grenfell Group Plc v. IRC,14Nevertheless I would add that my tentative inclination is to welcome any tendency of the English law of unjust enrichment to align itself more closely with Scottish law, and so to civilian roots. I see attractions in the suggestion made by Professor Birks in Unjust Enrichment, under the heading "The Pyramid: A Limited Reconciliation": "A pyramid can be constructed in which, at the base, the particular unjust factors such as mistake, pressure, and undue influence become reasons why, higher up, there is no basis for the defendant's acquisition, which is then the master reason why, higher up still, the enrichment is unjust and must be surrendered. …

Responsible Congress and Political Time

Abstract: Consider the apocalyptic premise and precautionary measures Bruce Ackerman proposes in Before the Next Attack.1 Terrible events will come in a form that makes September 11 seem “merely a pinprick,”2 he tells us, and the President will take precautions against “a second strike.”3 Ackerman knows that in the face of terrorism, the President, Congress, and a fearful public will unhesitatingly reverse discount, sacrificing present civil liberty to reduce the risk of future death and destruction, as they picture the next attack in catastrophic terms where the stakes are existential survival.4 Ackerman adds another element to this picture by predicting the total “implosion of liberal democratic values”5 and the large-scale breakdown of the rule of law. He advocates protection against unchecked executive prerogative via a statute that bolsters Congress’s institutional independence by giving Congress a device to limit unilateral presidential emergency power.6 The plan is formal and tied to constitutionally assigned responsibility; it involves an initial declaration of emergency power that is time-limited, after which power lapses unless an escalating supermajority of Congress votes to continue the emergency regime.7 Ackerman’s statute has not been on Congress’s agenda for many reasons, not least because both present and future infringements on liberty are not randomly distributed but fall on predictably vulnerable groups. Massive detentions that threaten us all are hard to imagine because we displace the costs of counterterrorism policies onto others.8 Ackerman also proposes that every

Dead Document Walking

Abstract: INTRODUCTIONAs this symposium commences, originalism is a hot topic to discuss and a cool position to advocate. Either portion of that statement would have been nearly inconceivable two decades ago when I started in academia. Originalism at that time was something of an intellectual backwater, with a very limited set of adherents and an even more limited set of critics who were willing to take originalist ideas seriously.1Today, as Boston University School of Law welcomes Jack Balkin and David Strauss, two of the leading lights in modern constitutional theory, to a conference dedicated to their recent books on constitutionalism,2 originalism has gained a whole new set of sophisticated defenders3 and critics.4 Professor Balkin is particularly prominent among those new defenders, having emerged as arguably the foremost representative of what is sometimes called the "New Originalism" (or occasionally even the "New New Originalism"5). Professor Balkin's Living Originalism is certain to become the canonical expression of an important variant of originalist theory. Professor Strauss, for his part, has long been one of the most prominent of originalism's "Old Critics," and The Living Constitution is the most artful and legally grounded affirmative statement that I have read of the "common law constitutionalist" approach. It is a pleasure to be able to comment on these remarkable works by these remarkable scholars.My comments here will focus on two observations that must (for reasons that will become evident quite shortly) stand more as clarification than as critique. First, I think it is a mistake to analyze the work of either Professor Balkin or Professor Strauss from the standpoint of legal interpretative theory, because neither of them is really setting forth a theory of legal interpretation - either an originalist theory or an alternative to originalist theory. Rather, Professors Balkin and Strauss are both engaged in projects that are most appropriately understood and examined by reference to disciplines other than (or at the very least in addition to) legal interpretation, such as political theory, moral theory, or sociology. This is most clear with respect to Professor Strauss, who is openly setting forth a theory of adjudication and governance rather than a theory of legal interpretation. Professor Balkin is harder to pin down because his project is simultaneously pursuing a rather large number of ends, of which legal interpretation is plainly one. But legal interpretation is a small part of Professor Balkin's overall project, and so the project is probably predestined to be relatively unsuccessful as legal interpretation (though it may prove to be extremely successful at other tasks). In Part I of this Comment, I describe the potential problems with asking too much of interpretative theory, as I think Professor Balkin does. Interpretative theory should focus on interpretation, not on other activities, however useful those other activities might be.Second, as do many of the so-called "New (or New New) Originalists," Professor Balkin draws heavily on a distinction between the ascertainment of a text's objectively-discoverable meaning and the construction of a text's meaning when ascertainment of meaning is impossible (or otherwise undesirable).6 Using Professor Balkin as an exemplar for the larger "construction project" that now dominates much of the originalist literature, I suggest that the move from ascertainment to construction is premature, or at least inadequately defended. Construction is an adjudicative response to interpretative indeterminacy, but it is not the only possible response. In Part II, I argue that, at least in the context of the federal Constitution, there is an interpretative response to interpretative indeterminacy that (largely) obviates any need for construction, because the response itself is not interpretatively indeterminate in any relevant sense. As the old story goes, it's interpretation all the way down. …

Common-Law Restitution and the Madoff Liquidation

Abstract: INTRODUCTIONIn the aftermath of the greatest Ponzi scheme in history, involving thousands of victims and billions of dollars in losses, lawyers and judges have begun the task of "sorting out decades of fraud."1 The complex sorting process involves claims against multiple parties on a variety of legal theories, but the central feature of the Madoffcontroversy is readily apparent from newspaper accounts. As in any Ponzi scheme, purported investment returns were paid with money obtained from subsequent fraud victims. More fortunate investors - the "net winners" - withdrew more money from the scheme than they put in, while others - the "net losers" - withdrew less than they invested or nothing at all. A natural question is whether in these circumstances net winners are liable to net losers; if so, why, and to what extent.An extensive body of law deals with precisely these questions, but that law is described in places where many modern lawyers and judges will not think to look. Rights and remedies between fraud victims are addressed by the common law of restitution and unjust enrichment, including (significantly) the equitable rights and remedies that make up much of this part of the law. Because the claims of net losers against net winners turn on textbook restitution issues, the Madoffliquidation is also the greatest restitution case in history, measured by the amounts at stake. A wave of Madofflitigation has begun to flow through the courts. But to judge by the published opinions in the cases so far, it appears that no one involved in these lawsuits - on either side of the bench - has thought to ask how the central issues would be analyzed and decided as a matter of common law. The significance of the law of restitution has been almost entirely overlooked.The Madoffliquidation is taking place in a quasi-bankruptcy setting, and the courts' disregard of the underlying restitution questions is part of an increasingly familiar pattern. Bankruptcy law determines how property rights and claims of various parties are adjusted and reconciled, but it does not say what those rights are in the first place. Property interests, whether legal or equitable, are part of the state-law background on which the bankruptcy statutes impose a procedural overlay. Restitution claims of the kind asserted in bankruptcy typically involve equitable property interests: a category of property rights and associated remedies that began to recede from professional awareness when American law schools stopped teaching equity. The problem is that when lawyers no longer perceive the common-law background, they try to find statutory answers to questions the statutes do not address. The attempt necessarily distorts both the meaning of the statute and the rules of the background law that are being ignored.At a minimum, the attempt to handle restitution claims in bankruptcy without reference to the background law by which they are defined means that the decisions reached on some central issues lack doctrinal coherence. Questions are made harder when relevant authority is ignored, and the doctrine in question - the law and equity of restitution and unjust enrichment - is impoverished where it might have been enriched.Applying a statute without investigating its origins does not necessarily lead to wrong outcomes: courts may do the right thing for the wrong reasons, or for reasons that are imperfectly understood. In the Madoffcases, however, a failure so far to recognize the underlying nature of the claims of net losers against net winners carries potentially serious practical consequences. Two pre-trial rulings by the district court appear especially doubtful when the net losers' claims are recognized for what they are. One concerns the applicable statute of limitations: the difference this makes to the potential aggregate recovery is said to be in the billions of dollars.2 Another - equally fundamental, though of less obvious economic significance - concerns the characterization of the restitution claims as legal or equitable for Seventh Amendment purposes. …

Why in Re Omegas Group Was Right: An Essay on the Legal Status of Equitable Rights

Abstract: INTRODUCTIONThe Restatement (Third) of Restitution and Unjust Enrichment is, in my view, an ideal Restatement. It faithfully reports the existing, mostly decisional, law of restitution. It does not presume to remake the law from an academic point of view; instead, its black letter provisions attempt to clarify, rationalize, and incrementally improve the doctrine that has evolved in judicial decisions. For the most part, it respects the value of legal rules: rather than referring directly to the seductive but indeterminate idea of unjust enrichment, it articulates relatively concrete rules of law.1 It also provides a wealth of examples to verify the rules it states.Nevertheless, I believe that on one issue - the effect of constructive trusts in insolvency - the Restatement (Third) should have engaged more aggressively in law reform. In section 60, the Restatement (Third) takes the position that constructive trust claimants have automatic priority over unsecured creditors.2 The priority described in the Restatement (Third) works in this way: assume that B, an insolvent debtor, holds title to an asset, X.3 A establishes that B's acquisition of X was an unjust enrichment of B at A's expense, as defined by any of the substantive rules of unjust enrichment set out in the Restatement (Third).4 At this point, A is entitled to a constructive trust against B.5 The constructive-trust remedy treats A as the equitable owner of X - or, as the Restatement (Third) puts it, declares that B's legal title is subject to A's superior equitable right.6 A bona fide purchaser of X from B prevails over A; but unsecured creditors, or creditors holding judgment liens on property of the debtor, do not qualify as bona fide purchasers.7 It follows that A's restitution claim to X takes priority over the claim of C, an ordinary creditor.8Doctrine, as traditionally stated, supports this description.9 In my view, however, traditional doctrine rests on an overly literal application of the notion of equitable title and a failure to appreciate the remedial nature of constructive trusts.10 If, as the Restatement (Third) assumes,11 a constructive trust is a vehicle for prevention of unjust enrichment, equitable title should be a conclusion rather than a premise of the decision to impose a trust. In presenting my arguments, I will detour into discussion of titles, equity, and the distinction between right and remedy.I. CONSTRUCTIVE TRUSTSA constructive trust is a very strong remedy for correction of unjust enrichment. The remedy is historically equitable: it relies on the concept of divided ownership that supports the law of express trusts and was first used to capture gains by trustees who misappropriated trust property.12 Over time, the courts expanded the constructive-trust remedy to cover a wide variety of situations in which the legal title to property is deemed to be misplaced.13 Equity courts also developed a companion remedy, the equitable lien, which relies on a similar notion of divided title borrowed from the law of consensual liens.14 I will focus here on constructive trusts, although my analysis of priority applies equally to equitable liens.A constructive trust treats the recipient of title as if he or she were a true trustee, holding legal title for the benefit of the restitution claimant.15 The fictitious trust relationship relates back to the time of the initial transfer, so that any profits the trustee may have realized in the interim also belong to the claimant.16 Once the parties' rights have been adjudicated, however, the trust is simply a vehicle for reassignment of title: the sole duty of the constructive trustee is to convey legal title immediately to the claimant.17 The primary objective of the remedy is to provide a powerful deterrent against wrongful acquisition of property by removing any potential profit from the transaction.18To qualify for a constructive trust, the claimant must establish a substantive claim of unjust enrichment, show that the enrichment took the form of title to a specific asset, and trace the asset, or proceeds received in exchange for the asset, to property currently owned by the defendant. …

Can Originalism Be Saved

Abstract: INTRODUCTIONJack Balkin's ambitious and impressive book, Living Originalism, announces its mission in its title.1 "Living constitutionalism" and "originalism" seem like antonyms. Living constitutionalism, roughly speaking, is the view that what the Constitution requires changes over time, even if the document is not formally amended. Originalism holds that the requirements of the Constitution were fixed, at least in crucial respects, at the times that its respective provisions were adopted. Professor Balkin's task is to reconcile these views: "Properly understood," he says, "these two views of the Constitution are compatible rather than opposed."2But beneath the surface, reconciliation is not quite an adequate description of what Balkin is trying to do. "Reclamation" might be better: Balkin wants to reclaim originalism for what would usually be described as liberal or progressive constitutional principles. Today, originalism is associated with "conservative" views about the Constitution: concern about extensive federal power; skepticism about gay rights; hostility to Roe v. Wade.3 Living constitutionalism, rightly or wrongly, tends to be associated with the opposite views, and constitutional principles that many "progressives" would like to see developed and extended, such as forbidding discrimination on the basis of sexual orientation, seem to require a living constitutionalist justification. Balkin's reclamation project is an effort to show that progressive principles can be justified on originalist grounds. Indeed, he says, originalism, properly understood, supports those principles; only originalists who misunderstand originalism would reject them.4Do these twin projects - reconciliation and reclamation - succeed? Only, it seems to me, by treating originalism not as a way of resolving constitutional issues but rather as a rhetorical resource: a means of enlisting our constitutional forebears in support of views that we have arrived at for other reasons. That is Balkin's achievement, and it is important. But, in my view, it does not establish originalism, in any recognizable form, as a way of doing constitutional law.I. THE ORIGINALIST DILEMMAThe central challenge that Balkin's project has to overcome is that originalism seems to be either implausible or entirely manipulable. The only kind of originalism that is reasonably determinate leads to conclusions that practically no one accepts.5 But less determinate forms of originalism can be enlisted to support pretty much anything.The problem can be illustrated with Brown v. Board of Education,6 the case that declared state-sponsored school segregation to be unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. When the Equal Protection Clause was adopted, it was understood not to invalidate racial segregation in public schools.7 That conclusion is nearly universally accepted.8 Notably, the Supreme Court in Brown all but conceded as much.9 But Brown is a fixed point in constitutional law; no approach to constitutional interpretation can survive if it does not accept Brown. So if originalism holds that constitutional provisions require and forbid only what they were understood to require or forbid when they were adopted, then originalism is implausible.How can originalism be reconciled with Brown and therefore be saved from implausibility? The usual response is to say that Brown is consistent with originalism as long as the original understandings are characterized at the right level of generality.10 The proper way to understand the Equal Protection Clause - according to this defense of originalism - is that the Clause adopted a principle of racial equality.11 The drafters and ratifiers of the Fourteenth Amendment believed that segregation was consistent with racial equality. But we now know better. And - on this account - our only obligation is to be consistent with the principles that the Fourteenth Amendment established. …