Showing papers in "Duke Law Journal in 2008"

Economic Foundations of Intellectual Property Rights

Abstract: My work in the economics of innovation began some forty years ago. I realized, as I was beginning my work on the Economics of Information, that knowledge and information are very similar. In fact, you can view information as a particular kind of knowledge, and so the problems that I was analyzing at the time, such as how well the market economy deals with information, corresponded to the question of how well the market economy deals with knowledge. My work showed that the standard paradigm (the neoclassical model, which argued that well-functioning markets solved all economic problems) just did not work when information was imperfect and endogenous (that is, could be affected by what individuals or firms did), and, by extension, when knowledge is endogenous (that is, when technology is changing). Adam Smith’s theory argued that individuals in pursuit of their self-interest (firms in pursuit of maximizing profits) were led as if by an invisible hand to the general well-being of society. One of the important results of my work, developed in a number of my papers, was that the invisible hand often seemed invisible because it was not there.

The right's reasons: constitutional conflict and the spread of woman-protective antiabortion argument.

Abstract: In Gonzales v. Carhart, the Supreme Court upheld the PartialBirth Abortion Ban Act, emphasizing that government may regulate the methods employed to perform an abortion “to show its profound respect for the life within the woman” and to vindicate the interest in protecting potential life first recognized in Roe v. Wade. Carhart discussed an additional justification for restricting abortion—to protect women as well as the unborn:

The Development and Failure of Social Norms in Second Life

Abstract: This Note analyzes the development and efficacy of social norms in maximizing the welfare of participants in the virtual community of Second Life. Although some of these norms developed appropriately in response to the objectives and purposes of this virtual world, Second Life is so thoroughly steeped in conditions that have impeded the development of successful social norms in other communities that any system of social norms in Second Life will ultimately fail Because social norms will likely fail to successfully maximize resident welfare, regulatory schemes imposed both by the operators of the virtual world and by real-world governing institutions are needed to enhance the functioning of this particular alternative reality inhabited by millions.

The Internationalization of Public Interest Law

Abstract: Author(s): Cummings, Scott L | Abstract: This Article is an account of profound changes in the organization and practice of public interest law that have emerged over the past 25 years against the backdrop of globalization. Its central claim is that as the United States has become more globally interdependent, the institutional context of public interest law has been transformed, elevating transnational mobility as a basic feature of legal practice. The Article specifically examines three vectors of global change that have reshaped the terrain of US public interest law: the increasing magnitude and scope of undocumented immigration; the growth of free trade and its governing institutions; and the heightened political influence of human rights. It suggests that each of these trends has contributed to important institutional revisions within the US public interest system: the rise of immigrant rights as a distinctive category of public interest practice; the emergence of transnational advocacy as a response to the impact of US economic policy abroad; and the movement to promote domestic human rights, both as a way to resist the deregulatory thrust of market integration at home and to defend civil rights and civil liberties in the face of domestic conservatism and the War on Terror. After mapping the institutional scope and density of these changes, the Article appraises their influence on the goals public interest lawyers pursue, the tactics they deploy, and the professional roles they assume in the modern era.

Paradigms of Restraint

Abstract: Incapacitation of dangerous individuals has conventionally entailed the exercise of physical control over an actual body: the state confines the person in jail. But advances in technology have changed that convention. A variety of new technologies—such as GPS tracking bracelets, biometric scanners, online offender indexes, and DNA databases—give the government power to control dangerous persons without relying on any exertion of physical control. The government can track the location of a person in real time, receive remote notification that an individual has ingested alcohol, or electronically zone someone into a home or out of a public park. It can prove conclusively that a particular person wore a hat or took a sip from a discarded soda can, or identify a single face in a ten thousand–person crowd. In this day and age, restraint of the dangerous can be as much about keeping people out of a place as it used to be about locking them up in one. But whereas physical incapacitation of dangerous persons has always invoked some measure of constitutional scrutiny, virtually no legal constraints circumscribe the use of its technological counterpart. Across legal doctrines, courts erroneously treat physical deprivations Copyright © 2008 by Erin Murphy. † Assistant Professor, University of California, Berkeley (Boalt Hall). I owe a debt of gratitude to Carol Steiker, who invited me to participate in the Conference on Criminal Procedure Stories at Harvard Law School at which a preliminary version of this work was given, and to Dan Richman, whose superb piece on United States v. Salerno first inspired me to think about these issues and who provided equally enriching comments on a subsequent draft. Thanks are also due for the generous attention given by KT Albiston, Ken Bamberger, Eric Biber, Goodwin Liu, Melissa Murray, Anne Joseph O’Connell, and Molly Van Houweling, and to my wonderful colleagues Paul Schwartz, Jonathan Simon, David Sklansky, and Frank Zimring. This work benefited tremendously from helpful comments by Chris Slobogin, Brandon Garrett, and Robert Weisberg, and by remarks made at the UCLA Junior Faculty Exchange workshop, particularly by Sharon Dolovich and Jennifer Mnookin. Finally, thanks are due to the participants in the junior criminal professor workshop hosted by Rachel Barkow, Jennifer Collins, Dan Solove, and Orin Kerr at George Washington University Law School for their contributions, and to Steven Sassaman, Ben Wolff, and Debbie Won who supplied invaluable research assistance. 02__MURPHY.DOC 5/27/2008 1:44:55 PM 1322 DUKE LAW JOURNAL [Vol. 57:1321 as the archetypal “paradigm of restraint,” and thus largely overlook the significant threat to liberty posed by technological measures. Similarly, little academic attention has been paid to the state’s use of targeted forms of non-physical control. Much scholarly interest has focused on the increased use of physical incapacitation as a means of exerting regulatory control over, for example, illegal immigrants, pretrial detainees, or the mentally ill. And an equally vibrant debate surrounds the protection of information privacy in general society. Yet nearly no attention has been paid to the connection between these two developments. This Article examines the generally unheeded intersection between two well-documented trends: the state’s increasing desire to preventively regulate targeted classes of individuals, and its increasing capacity to use innovative technologies, rather than physical incapacitation, to realize that desire. This Article identifies four loosely grouped emerging technologies of control: DNA databasing, electronic monitoring, electronic indexing, and biometric scanning. It then reviews the legal landscape on which they operate and demonstrates that, across the range of doctrines, courts unduly focus on the physical world as the relevant metric against which all restraints are judged. As a result, technologies of restraint are imposed without necessary procedural safeguards. This Article then outlines four concerns peculiar to these kinds of restraints and illustrates how significant concerns are wholly overlooked when the physical world is the determinant referent of comparison. The Article closes by urging greater judicial scrutiny of technological restraint and by laying out a series of potential inquiries that might aid in such an effort.

In Defense of Prometheus: Some Ethical, Economic, and Regulatory Issues of Sports Doping

Abstract: A chapter in The Case Against Perfection: Ethics in the Age of Genetic Engineering,1 a book by Michael Sandel, the well-known Harvard political philosopher, provides a convenient stepping-off place for an analysis of the social issues involved in sports doping. The chapter is entitled "Bionic Athletes," and despite the reference in the subtitle of the book to genetic engineering the chapter is mainly about doping rather than about genetic alteration; the author returns to the topic of doping in a later chapter, "Mastery and Gift."2 By "sports doping" I mean, of course, the use of performance-enhancing drugs by athletes, though professional athletes will soon resort to genetic alteration as well or instead, because it will be harder to detect.3 There are other methods of athletic performance enhancement as well. Some of them, such as taking up temporary residence at a very high altitude in order to increase one's red blood corpuscles,4 tremble on the edge between tolerated and reprobated methods of improving one's athletic performance. I will focus on

Administrative Law As the New Federalism

Abstract: perspective. Reasons certainly exist to be skeptical of the extent to which agencies will protect state regulatory prerogatives, but it is also easy to underestimate the influence that the states can wield administratively. Critically, moreover, administrative agencies and administrative law are not the same thing. 163 Geier v. American Honda Motor Co., 529 U.S. 861, 908 (2000); see also Jack W. Campbell, Regulatory Preemption in the Garcia/Chevron Era, 59 U. Pitt. L. Rev. 805, 832 (1998); Damien J. Marshall, Note, The Application of Chevron Deference in Regulatory Preemption Cases, 87 Geo. L. J. 263, 277-78 (1998); Cass R. Sunstein, Nondelegation Canons, 67 U. Chi. L. Rev. 315, 331 (2000). For contrary views, see Mendelson, supra note , at 758; Richard J. Pierce, Regulation, Deregulation, Federalism, and Administrative Law: Agency Power to Preempt State Regulations, 46 U. Pitt. L. Rev. 607, 664 (1985). 164 See, e.g., Jerry Mashaw, ProDelegation: Why Administrators Should Make Political Decisions, 1 J. L. Econ. & Org. 91 (1985). For critique, Jede Nzebile, The Fable of the Nationalist President and the Parochial Congress, 53 U.C.L.A. L. Rev. 1217 (2006) 165 See e.g. Louisiana PSC v. FCC Public Serv. Com v. FCC, 476 US. 355 (1986) (describing agency arguments of the need for uniformity). Cf Philip J. Weiser, Cooperative Federalism, Federal Common Law, and The Enforcement of the Telecom Act, 66 N.Y.U. L. Rev. 1692 (2001). 166 Hills, Against Preemption, supra note _ , at __ (describing pol economy of preemption battles). But see Matthew C. Stephenson , Public Regulation of Private Enforcement: The Case for Expanding the Role of Administrative Agencies, 91 Va. l. Rev. 93, 130-32 (2005) (arguing agency capture fears are often exaggerated). 47 Administrative law involves deference to agency decisionmaking, to be sure, but it encompasses significantly more than that, in particular procedural limits on agencies and independent judicial scrutiny in some contexts. As a result, administrative law represents an important mechanism for improving federal agencies’ responsiveness to state interests. 1. Political versus Alternative Safeguards. Commentators on administrative preemption have identified several reasons for skepticism about the extent to which agencies can adequately protect a regulatory role for the states. First among these is the claimed lack of political safeguards for federalism in the administrative context. Justice Stevens put it, “[u]nlike Congress, administrative agencies are clearly not designed to represent the interests of States.” Moreover, although presidential oversight may render agencies politically accountable to some degree, it does not clearly tie them to state interests. On the contrary, the President is often identified as representing national interests against the more parochial views of members of Congress. That nationalist focus may make agencies more inclined to value regulatory uniformity over state variation and more likely to heed the cries of national industrial groups bemoaning the burdens of state regulation. At a minimum, federal agencies are likely to be subject to substantial lobbying from regulated entities favoring preemption, undermining state influence and heightening fears of agency capture. Also playing a role here is that the hierarchical aspect of 167 On the importance of such multiple power bases in Congress, see Carol F. Lee, The Political Safeguards of Federalism? Congressional Responses to Supreme Court Decisions on State and Local Liability, 20 Urb. Law. 301 (1988) 168 See Kramer, supra note _, at __; Mendelson, supra note _, at 768–69. 169 See DAVID B. WALKER, THE REBIRTH OF FEDERALISM: SLOUCHING TOWARD WASHINGTON 129-70 (1995) (providing an overview of changes in federal-state relations from 1960 through early 1990s); Barry Rabe, Environmental Policy and the Bush Era: The Collision Between the Administrative Presidency and State Experimentation, 37 Publius 413, 415–18, 42022 (2007) (detailing changed federal-state relationships in the environmental arena under the Bush I, Clinton, and Bush II administrations); Denise Scheberle, The Evolving Matrix of Environmental Federalism and Intergovernmental Relationships, 35 Publius 69, 75, 77–84 (2005) (describing changed managerial approaches in federal environmental programs during the 1990s that delegated greater managerial control to implementing states); Michael J. Scicchitano & David M. Hedge, From Coercion to Partnership in Federal Partial Preemption: SMCRA, RCRA, and the OSH Act, 23 Publius 107, 109 (1993) (noting that initial implementation of several federal environmental and health statutes was largely coercive towards the states but changed by the mid-late 1990s, with the federal and state governments coming to share responsibility over implementation). 170 See John Kincaid, From Cooperative to Coercive Federalism, 509 Annals of the AM. Acad. of Pol. & Soc. Sci. 139 (1990); Paul Posner, The Politics of Coercive Federalism in the Bush Era, 37 Publius 390, 390–92, 400 (2007). But see Tim Conlan, From Cooperative to Opportunistic Federalism: Reflections on the Half-Century Anniversary of the Commission on Intergovernmental Relations, 66 Pub. Admin. Rev. 663, 666-68 (2006) (arguing that the current federal-state system is more opportunistic than coercive or cooperative because “actors . . . pursue their immediate interests with little regard for the institutional or collective consequences”); Joseph F. Zimmerman, Congressional Preemption During the George W. Bush Administration, 37 Publius 432, 446–47 (2007) (arguing that federal-state relationships demonstrate continuous metamorphosis and are more complex and nuanced than descriptions such as “coercive” or “cooperative” convey). 48 agencies may serve to restrict states’ access, particularly compared to Congress which offers affected states multiple points of entry. Clearly, concerns about the states’ loss of influence in the executive branch have some merit. But it is also easy to exaggerate the extent of this loss. Numerous factors, such as congressional oversight, federal officials’ ties to state regulators, lobbying by state political organizations, and dependence on state implementation, can all serve to give state regulatory interests leverage in federal agency decisionmaking. The influence states wield by virtue of their role in federal regulatory programs merits particular note. Studies of joint federal-state regulatory programs indicate that the extent of state power in these contexts has varied over the years, reflecting changes in political climate, regulatory approaches, and perceptions of state regulatory competence. These studies also document a trend towards more coercive federal-state relationships since the 1960s, with states increasingly facing mandates and federal preemption. Nonetheless, responsibility for program implementation and enforcement appears

Victims’ Rights in an Adversary System

Abstract: The victims' rights movement argues that because the outcome of criminal prosecutions affects crime victims, the justice system should consider their interests during proceedings. In 2004, Congress passed the Crime Victims' Rights Act (CVRA), giving victims some rights to participate in the federal criminal justice system. This Note probes both the theoretical assumptions and practical implications of the CVRA. It demonstrates that the victims' rights movement revisits a long-acknowledged tension between adversary adjudication and third-party interests. It shows, however, that American law has resolved this tension by conferring party or quasi-party status on third parties. Despite some pro-victims rhetoric, Congress reaffirmed the public-prosecution model when it passed the CVRA. Instead of making victims parties or intervenors in criminal prosecutions, the CVRA asks courts and prosecutors to vindicate victims' interests. This unusual posture creates substantial conflicts for courts and prosecutors and undermines defendants' rights. To avoid these consequences, this Note argues, courts can interpret the CVRA's substantive rights narrowly. Rather than reading the CVRA as conferring broad rights on crime victims, courts should interpret the statute to simply require institutional courtesy toward crime victims. This interpretation reflects victims' nonparty status and preserves the rights and responsibilities of courts, prosecutors, and defendants. Copyright © 2008 by Erin C. Blondel. t Duke University School of Law, J.D. expected 2009; Oxford University, M.St. 2006; University of Notre Dame, B.A. 2005. I thank Professors Sara Sun Beale and Ernest A. Young for their invaluable and generous assistance with this Note and the editors of the Duke Law Journal for patiently guiding it to publication. For reading early drafts of this Note, I thank Dan Berick, Jessica Brumley, Hannah Weiner, and Eric Wiener. Finally, I thank my family for

Is It Wrong to Sue for Rape

Abstract: The title of this Article poses a rhetorical question. Of course it is not improper to sue a rapist. The act of rape qualifies as a tort in all fifty states. Rape causes egregious injuries, both physical and psychological. The Supreme Court regards rape as the ultimate violation of personal autonomy. Other than homicide, no act is more plainly tortious. Yet the criminal justice system is surprisingly hostile to civil suits by rape survivors. Judges in criminal cases virtually always allow impeachment of accusers with evidence of civil suits against the alleged assailants or third parties. This Article surveys every published decision on the subject since the 1970s, and it notes judges’ general agreement that civil litigation “corrupts” accusers in prosecutions for rape. The courts’ aversion to civil litigation reflects a misapprehension of the theoretical principles underlying the impeachment rules; it also reflects assumptions that injuries caused by rape are not remediable in tort. Although civil suits are sometimes a legitimate ground for impeachment, accusers should not automatically forfeit their credibility in criminal cases simply because they file tort claims. Copyright © 2008 by Tom Lininger. † B.A., Yale University; J.D., Harvard Law School; Associate Professor of Law, University of Oregon. This Article benefited from feedback I received during presentations at Stanford Law School and at the Willamette University College of Law. 1558 DUKE LAW JOURNAL [Vol. 57:1557 Indeed, given the different standards of proof in criminal and civil proceedings, the alleged victim’s failure to file a tort claim may be more noteworthy than her filing of a claim. Impeachment of accusers based on parallel civil litigation actually says more about the wealth of the accused (a highly prejudicial topic) than about the mendacity of the accusers. Reforms are necessary to harmonize criminal and civil litigation. The rules of evidence should require a more precise showing of relevance before permitting impeachment of accusers based on their civil claims. Pattern instructions should guide jurors in weighing this evidence. New tolling provisions for civil statutes of limitation can help to reduce the friction between the criminal and civil justice systems. The goal is to ensure that the criminal and civil justice systems are complementary, not mutually exclusive. TABLE OF CONTENTS Introduction ...........................................................................................1559 I. Growing “Competition” between Civil Suits and Prosecutions...................................................................................1568 A. Recent Increase in Civil Suits Alleging Sexual Assault ...1568 B. Advantages and Disadvantages of Civil Suits ...................1574 C. Necessity for Simultaneous Civil and Criminal Proceedings............................................................................1579 D. Prosecutors’ and Judges’ Hostility to Civil Claims by Accusers .................................................................................1582 II. Present Rules Permitting Impeachment of Accusers Based on Civil Claims....................................................................................1589 A. Evidence Codes.....................................................................1589 B. Case Law................................................................................1592 C. Ethical Rules .........................................................................1598 III. Considering the Case for Reform................................................1599 A. Reasons to Limit Impeachment with Evidence of Civil Claims.....................................................................................1599 1. Questionable Relevance................................................1600 2. Prejudice Disproportionate to Probative Value .........1609 3. Hindrance of Civil Remedial System...........................1615 4. Deterrence of Victims’ Cooperation with Law Enforcement....................................................................1616 2008] RAPE IMPEACHMENT EVIDENCE 1559 B. Reasons to Allow Impeachment with Evidence of Civil Claims.....................................................................................1618 1. Constitutional Requirement of Confrontation ...........1619 2. Need to Expose Fraudulent Accusations ....................1623 IV. Proposed Reforms ........................................................................1625 A. Amendment of Evidence Codes .........................................1625 1. Specific Rule Governing Impeachment with Parallel Civil Claims.......................................................1626 2. Commentary Guiding Interpretation of New Rule....1629 B. Ancillary Reforms.................................................................1632 1. Pattern Jury Instructions ...............................................1632 2. Tolling Provisions for Civil Statutes of Limitation.....1634 3. Protocols for Police Agencies .......................................1636 Conclusion..............................................................................................1637 Appendix 1: Proposed Rule of Evidence ...........................................1639 Appendix 2: Proposed Pattern Jury Instruction ................................1640

Institutions in the Marketplace of Ideas

Abstract: If any area of constitutional law has been defined by a metaphor, the First Amendment is the area, and the “marketplace of ideas” is the metaphor. Ever since Justice Holmes invoked the concept in his Abrams dissent, academic and popular understandings of the First Amendment have embraced the notion that free speech, like the free market, creates a competitive environment in which the best ideas ultimately prevail. But as with the free market for goods and services, there are discontents who point to the market failures that make the marketplace metaphor aspirational at best, and inequitable at worst. Defenders of the free economic market have responded to these criticisms by developing a thicker understanding of how the market actually functions. Their most successful model is the New Institutional Economics, which incorporates and explains the transaction costs and institutions that populate and effectively regulate that market. The marketplace of ideas model, however, remains faithfully wedded to a neoclassical view that depends on a perfectly costless and efficient exchange of ideas. It is thus vulnerable to the Copyright © 2008 by Joseph Blocher. † Yale Law School, J.D. 2006; University of Cambridge, M.Phil. 2003; Rice University, B.A. 2001. Many thanks to Paul Horwitz, Marin K. Levy, Scott Moss, Neil Richards, Bertrall Ross, Michael Siebecker, and Nat Stern for their invaluable feedback on earlier drafts of this Article, and to Jonathan Pahl and Kish Vinayagamoorthy for exceptional editorial assistance. 01__BLOCHER.DOC 4/16/2008 8:29:05 AM 822 DUKE LAW JOURNAL [Vol. 57:821 same criticisms economists answered decades ago, and it fails to take into account the rich view of market mechanisms and institutions they have developed since. First Amendment scholars led by Frederick Schauer have begun to lay the groundwork for a solution by describing an “Institutional First Amendment” that would accord special treatment to certain institutions like schools and the press. But just as the marketplace of ideas fails to account for institutions, the Institutional First Amendment fails to account for the marketplace of ideas. As it turns out, the two theories are not only reconcilable but complementary. This Article brings them together, using the New Institutional Economics to describe the “speech institutions”—such as schools and universities—that play the same cost-reducing role in the marketplace of ideas as other institutions do in the market for goods and services. Courts should defer to the speech rules of marketplaceof-ideas-enhancing institutions for the same reason and to the same degree that economists defer to the private norms of marketenhancing institutions. The Article then tests the descriptive and normative validity of this “New Institutional First Amendment,” finding that it both explains and justifies much of the Court’s school speech doctrine, including its 2007 ruling in Morse v. Frederick. It also justifies the special status of universities as speech institutions, and suggests an explanation for some of the current weaknesses in commercial speech doctrine. By addressing the “economic” objections to the marketplace metaphor, the Article attempts to better describe, explain, and rehabilitate the marketplace of ideas. 01__BLOCHER.DOC 4/16/2008 8:29:05 AM 2008] NEW INSTITUTIONAL FIRST AMENDMENT 823

Is Secured Debt Used to Redistribute Value from Tort Claimants in Bankruptcy? an Empirical Analysis

Abstract: Many scholars question the priority enjoyed by secured debt in bankruptcy. They fear that secured debt will be used to inefficiently redistribute value away from preexisting unprotected creditors of a firm. These scholars advocate a host of legal innovations, such as "superpriority" for tort claimants with respect to other creditors, to mitigate the redistributional problem. Other scholars minimize the redistributional problem, however, and argue that priority for secured credit is efficient. To help resolve this debate, this Article examines the redistributional theory from an empirical perspective. In particular, it focuses on secured debt usage by publicly traded firms facing large tort liabilities ("high-tort" firms). In theory, secured debt should be attractive for high-tort firms because they have a large class of unsecured and uncovenanted creditors (tort claimants) exposed to redistribution in bankruptcy through the use of secured credit. The Article's empirical analysis contradicts the redistributional theory's prediction, however. High-tort firms have unusually low amounts of secured debt. Although this result is very difficult to explain under the redistributional theory, it can readily be explained according to other theories of secured debt. Several important policy implications for bankruptcy priorities follow from these findings. Copyright © 2008 by Yair Listokin. t Associate Professor of Law, Yale Law School. I would like to thank Barry Adler, Kenneth Ayotte, Ian Ayres, George Priest, Alvin Klevorick, Roberta Romano, Alan Schwartz, Kathryn Spier, George Triantis, and participants at the Conference on Empirical Legal Studies at the University of Texas School of Law for many helpful comments and suggestions. All errors

The problem of doping.

Abstract: Doping has long been a matter of private concern for sports insiders. Since 1988, however, when Ben Johnson was stripped of his gold medal at the Seoul Olympics after he tested positive for the steroid stanozolol, doping increasingly has become a matter of public concern. Johnson’s claim that he took drugs to level the playing field—suggesting that most if not all of his elite competitors were also using drugs—coupled with data showing that teenagers (primarily

From New London to Norwood: A Year in the Life of Eminent Domain

Abstract: A little more than a year after the U.S. Supreme Court’s decision in Kelo v. City of New London upheld the use of eminent domain for economic development, the Ohio Supreme Court became the first state supreme court to address a factual situation raising the same issues. In City of Norwood v. Horney, the Ohio court repudiated the Kelo rationale and rejected Norwood’s proposed takings. Property rights advocates quickly hailed Norwood as a model for other state courts to follow in defending individual land owners from eminent domain abuse. This Note argues that Norwood’s holding is incoherent and does nothing to resolve the language-based quagmire that inflames the eminent domain debate. This Note instead contends that the Connecticut Supreme Court’s more nuanced Kelo v. City of New London opinion is a superior state court model, which better captures the necessary balance between individual property rights and urban revitalization plans involving eminent domain.

Repairing family law

Abstract: Scholars in the burgeoning field of law and emotion have paid surprisingly little attention to family law. This gap is unfortunate because law and emotion has the potential to bring great insights to family law. This Article begins to fill this void-and inaugurate a larger debate about the central role of emotion in family law-by exploring the intriguing and significant consequences for the regulation of families that flow from a theory of intimacy first articulated by psychoanalytic theorist Melanie Klein. According to Klein, individuals love others, inevitably transgress against those they love out of hate and aggression, feel guilt about the transgression, and then seek to repair the damage. Individuals experience this cycle repeatedly throughout their lifetimes, with transgressions ranging from the minor, such as parents raising their voices to their children, to the more egregious, such as an individual conducting an illicit affair. This Article argues that the legal process embodied in the substance, procedure, and practice of traditional family law is at odds with the human process of love, hate, guilt, and reparation. In contexts as far ranging as divorce, child welfare, and adoption, family law is predicated on a binary model of love and hate, with no accounting for guilt and the drive to reparation. This Love-Hate Model actively thwarts the cycle of intimacy, greatly diminishing the opportunity for repair in familial relationships. In short, reparation as a normative goal receives far too little attention in family law. Although several important reforms have begun to move family law away from the Love-Hate Model, these reforms are undertheorized and incomplete and sometimes actively challenged. An overarching theory is needed both to undergird current reforms and to encourage others, thus moving family law more fully in a reparative direction. To replace the prevailing Love-Hate Model, this Article proposes a Reparative Model of family law that would recognize the full cycle of emotions and facilitate the reparative drive. A Reparative Model would modify the substance of family law to recognize the ongoing relationships that often persist even after legal relationships are altered. It would reform the process of family law by de-emphasizing adversarial decisionmaking. And it would change the practice of family law by reconceiving the role of the family law attorney. Ultimately, the Reparative Model yields new perspectives on a range of theoretical and practical problems in contemporary family law, providing a framework for the law to account for the full, and complex, emotional reality of familial relationships.

The Shadows of Future Generations

Abstract: This Note addresses the twin problems of political short-termism and intergenerational equity. Although scholars have discussed these concerns extensively, few scholars have developed proposals to modify democratic institutions particularly legislatures to better consider posterity's interests. This Note critiques one such set of proposals by several environmental ethicists for including posterityoriented legislators in present-generation legislatures. It then proposes a system that ties the long-term outcomes of legislators' policy preferences to their pension plans by creating a new commodities market that values the decisions legislators make and their effect on

Depoliticizing Administrative Law

Abstract: A large body of empirical evidence demonstrates that judicial review of agency action is highly politicized, in the sense that Republican appointees are significantly more likely to invalidate liberal agency decisions than conservative ones, while Democratic appointees are significantly more likely to invalidate conservative agency decisions than liberal ones. These results hold for both (a) judicial review of agency interpretations of law and (b) judicial review of agency decisions for “arbitrariness” on questions of policy and fact. On the federal courts of appeals, the most highly politicized voting patterns are found on unified panels, that is, on panels consisting solely of either Democratic or Republican appointees. On the Supreme Court, politicized administrative law is also unmistakable, as the more conservative justices show a distinctive willingness to vote to invalidate liberal agency decisions, and the more liberal justices show a distinctive willingness to vote to invalidate conservative agency decisions. Indeed, it is possible to “rank” justices in terms of the extent to which their voting patterns are politicized. The empirical results raise an obvious question: What might be done to depoliticize administrative law? Three sets of imaginable solutions have promise: (1) self-correction without formal doctrinal change, produced by a form of “debiasing” that might follow from a clearer judicial understanding of the current situation; (2) doctrinal innovations, as, for example, through rethinking existing deference principles and giving agencies more room to maneuver; and (3) institutional change, through novel voting rules and requirements of mixed panels. An investigation of these solutions has implications for other domains in which judges are divided along political lines, and indeed in which nonjudicial officials show some kind of politicized division or bias.

The Continued Relevance of the Irrelevance-of-Motive Maxim

Abstract: The irrelevance-of -motive maxim the longstanding principle that a defendant's motives are irrelevant to criminal liability has come under attack. Critics of this maxim claim that "motives, " under any plausible conception of the term, are in fact relevant in the criminal law. According to these critics, the only way to defend the truth of the irrelevance-of -motive maxim is to render it true by definition, by defining motive as the subcategory of intentions that are irrelevant to criminal liability. This Note defends the irrelevance-of -motive maxim by applying a plausible conception of "motive" that conforms to the historical meaning of the term. With the proper definition in place, the irrelevanceof -motive maxim can be understood as stating a valid principle of criminal law, defied only by the advent of a certain kind of bias crime legislation.

Regulation with Placebo Effects

Abstract: A growing scientific literature supports the existence of placebo effects from a wide range of health interventions and for a range of medical conditions This Article reviews this literature, examines the implications for law and policy, and suggests future areas for research on placebo effects In particular, it makes the case for altering the drug approval process to account for, if not credit, placebo effects It recommends that evidence of placebo effects be permitted as a defense in cases alleging violations of informed consent or false advertising Finally, it finds that tort law already has doctrines such as joint and several liability to account for placebo effects Future research on placebo effects should focus on whether awareness of placebo effects can disable these effects and whether subjects can control their own placebo effects

Administrative Law's Federalism: Preemption, Delegation, and Agencies at the Edge of Federal Power

Abstract: This Article critiques the practice of limiting federal agency authority in the name of federalism. Existing limits presently bind agencies even more tightly than Congress. For instance, although Congress can regulate to the limits of its commerce power with a sufficiently clear statement of its intent to do so, absent clear congressional authorization an agency cannot, no matter how clear the language of the agency’s regulation. Similarly, although Congress Copyright © 2008 by Brian Galle and Mark Seidenfeld. † Assistant Professor, Florida State University College of Law. †† Patricia A. Dore Professor of Administrative Law, Florida State University College of Law. The authors thank the editors of the Duke Law Journal for organizing this symposium, as well as for outstanding editorial assistance in preparing this Article for publication. We are grateful to our fellow symposium participants for challenging and enjoyable discussion, as well as for helpful comments from other correspondents, including Bill Buzbee, Robin K. Craig, Rick Hills, Sam Issacharoff, Tom Merrill, Trevor Morrison, Jim Rossi, Cathy Sharkey, David Vladeck, and David Zaring. 01__GALLE_SEIDENFELD.DOC 7/31/2008 9:55:16 AM 1934 DUKE LAW JOURNAL [Vol. 57:1933 can preempt state law, albeit only when its intent to do so is clear, some commentators have read a line of Supreme Court decisions to hold that agencies cannot, except upon Congress’s clear authorization. A number of leading commentators have hailed this combination of rules on the ground that congressional control over questions of federalism should be preferred to agency decisionmaking. Congress, they claim, is more deliberative, more transparent to the public, and more accountable than the executive. Additionally, given the relative ease of enacting regulations rather than statutes, those who favor Congress fear that lower barriers to federal expansion in the executive would lead to runaway federal power. We argue that both these sets of claims are, at best, only occasionally accurate. In many instances agencies are—or with wise doctrines of judicial review can be made to be—more democratic and deliberative than Congress. Although regulating almost always is easier than legislating, in many instances the need for additional speed bumps under the wheels of the executive is negligible or downright counterproductive. Thus, we argue for a more nuanced set of rules that would permit agencies in many instances to preempt or regulate without the need for express congressional approval.

How Reasonable Is “Reasonable”? The Search for Satisfactory Approach to Employment Handbooks

Abstract: Although courts, in considering the enforceability of employment handbooks, have relied on a single source of principles, contract law, their inconsistent approaches have produced inequitable and irreconcilable results. This Note argues that courts should abandon their dependence on contract law when analyzing handbook claims and instead adopt an employment-based approach that balances the needs of employers with the realistic expectations of employees. Accordingly, this Note proposes three rules for analyzing the legitimacy of handbook modifications: (1) employers should always be permitted to unilaterally modify handbooks; (2) employers must provide employees reasonable notice, defined as a length of time set by the type and importance of the promise made in a handbook, before modifying a handbook; and (3) handbook disclaimers should be ignored, as they often have inequitable results for employees and employers alike.

Hindsight Is 20/20: Revisiting the Reapportionment Cases to Gain Perspective on Partisan Gerrymanders

Abstract: In the first decade of the twentieth century, political party operatives have manipulated the boundaries of congressional districting maps to an unprecedented extent in the interest of gaining partisan advantage. The judiciary, led by a fractured Supreme Court, has refused to intervene, holding claims of unconstitutional partisan gerrymandering nonjusticiable for want of a workable judicial standard. The epidemic of partisan gerrymandering has harmed the electoral process in ways that mirror the harm caused by legislative malapportionment prior to the 1960s. In that decade, the Court assertively invoked the Equal Protection Clause to effect reapportionment and bring congressional districting maps in line with updated population patterns. This Note revisits the reapportionment cases, examines the political and jurisprudential context at the time they were decided, and posits that well-reasoned decisions by the Court that correct a breakdown in the democratic process will gain public acceptance over time and strengthen the legitimacy of the Court. This is the lesson of the reapportionment cases. Copyright © 2008 by Douglass Calidas. t Duke University School of Law, J.D. expected 2008; University of Pennsylvania, B.S. 2003. I would like to thank Professor Neil Siegel for providing insightful feedback on early drafts and helping me focus my research. Special thanks to several members of the Duke Law Journal for their hard work and to my family for encouraging me. This content downloaded from 157.55.39.102 on Thu, 23 Jun 2016 06:33:01 UTC All use subject to http://about.jstor.org/terms 1414 DUKE LAW JOURNAL [Vol. 57:1413

Milberg’s Monopoly: Restoring Honesty and Competition to the Plaintiffs’ Bar

Abstract: When the renowned plaintiffs’ firm Milberg Weiss was indicted in 2006 for paying kickbacks to clients, most commentators saw the scandal as the product of five dishonest lawyers. This Note argues that the causes were more complex than the moral shortcomings of a few attorneys; rather, the kickbacks were but one symptom of a deeply flawed system for selecting lead counsel in securities class action lawsuits. Although the Private Securities Litigation Reform Act of 1995 attempted to curb abusive behavior by the plaintiffs’ bar, its focus on reforming plaintiff behavior meant that attorneys were left relatively free to continue using whichever tactic served their financial ends. Using Milberg Weiss’s behavior to guide analysis, this Note assesses the problems of lead-counsel selection. These problems trace to a common source: an imbalance of information between attorneys vying for appointment as lead counsel and the judge who must select one of these attorneys. To correct this problem, this Note proposes implementing screening and signaling procedures to determine the “most adequate counsel” who can provide quality representation for every member of a class. Copyright © 2008 by James P. McDonald. † Duke University School of Law, J.D. expected 2009; Bowdoin College, A.B. 2005. I thank Professor Ogden N. Lewis for his wise oversight of this Note, as well as Joshua Haber, Kelly Taylor, Mom, and Dad for their thoughtful comments along the way. In the course of researching and writing this Note, I contacted a number of individuals for interviews, including William Lerach, who graciously shared his time and assistance. Some people I contacted chose to participate in these interviews, and some chose to participate only on the condition of anonymity. In the case of anonymous sources who permitted me to use their information, I have cited those sources as “Confidential Source” with no other identifying information to respect their requests for anonymity. Please accept my apologies for the absence of information but take my strongest assurances that all sources are quoted and represented accurately in the pursuit of the truth. MCDONALD IN FINAL[1].DOC 11/16/2008 10:26:16 PM 506 DUKE LAW JOURNAL [Vol. 58:505

The Newest Spectator Sport: Why Extending Victims’ Rights to the Spectators’ Gallery Erodes the Presumption of Innocence

Abstract: A criminal defendant in the United States is innocent until proven guilty and has a Sixth Amendment right to a fair trial and an impartial jury. Although the American criminal justice system generally goes to great lengths to afford defendants these constitutional rights, competing interests may, if not carefully monitored, undermine these bedrock principles. This Note argues that a new practice, stemming from the victims' rights movement and developing in criminal courtrooms across the country, is one such competing interest. This new practice spectator demonstrations allows crime victims' family members and supporters to display ribbons, buttons, T-shirts, signs, family urns, or any other written or symbolic message to the jury while sitting in the audience section of the courtroom, also known as the spectators' gallery. Although the cathartic nature of the demonstration may provide benefits to the victims, this Note argues that the prejudicial effects on the jury and resulting contravention of the defendant's constitutional rights far outweigh any such justification. Consequently, this Note proposes that courts limit victims' rights in this area and ban spectator demonstrations completely to eliminate the per se unacceptable risk that they create. Copyright © 2008 by Sierra E. Colbert. t Duke University School of Law, J.D. expected 2009; Duke University Graduate School Department of Psychology and Neuroscience, M.A. expected 2009; University of Michigan, B.A. 2005. I express thanks to Professor N. Vidmar for his assistance with this project and the sixteen prosecutors who offered their unfettered opinions and practical insight. Special thanks to the editors of the Duke Law Journal, my friends and family for their support, and my Lord and Savior who makes all things possible. This content downloaded from 157.55.39.17 on Fri, 02 Sep 2016 05:46:54 UTC All use subject to http://about.jstor.org/terms 276 DUKE LAW JOURNAL [Vol. 58:275

Regulating Corporations the American Way: Why Exhaustive Rules and Just Deserts Are the Mainstay of U.S. Corporate Governance

Abstract: At the dawn of the twenty-first century, a flurry of media reports revealed that pervasive corporate and accounting scandals were infecting U.S. financial markets. As investors panicked and stock prices plummeted, a determined Congress scrambled to restore order by ushering in the Sarbanes-Oxley Act, the most exacting regulatory imposition on corporate America since the Great Depression. Burdened with the Act's enormous administrative and transactional costs, many corporations pulled their shares from U.S. markets and relocated them to exchanges in nations with less onerous governance strictures. This exodus has deeply concerned many U.S. political, financial, and legal commentators, who argue that the American corporate governance regime must be revamped to resemble the less burdensome and principles-based soft law structure that operates in countries like the United Kingdom. This Note assesses the viability of such an overhaul. It ultimately concludes that given the longstanding and singularly American predilection for rules-based regulation and litigation, any large-scale transplant of soft law principles into U.S. corporate governance is a practical impossibility. Copyright © 2008 by Jonas V. Anderson. t Duke University School of Law, J.D. and LL.M. in international and comparative law expected 2008; Yale University, M.S. 2001; Brigham Young University, B.A. 1999. I wish to thank Professor James Cox for his invaluable guidance on the topic and substance of this Note and the Duke Law Journal editors for their tireless work and excellent feedback. Special thanks to my wife, Rachel, and to my parents for their constant encouragement and steadfast support. This content downloaded from 207.46.13.127 on Sun, 02 Oct 2016 06:03:31 UTC All use subject to http://about.jstor.org/terms 1082 DUKE LAW JOURNAL [Vol. 57:1081

The Costs of Perceived Hypocrisy: The Impact of U.S. Treatment of Foreign Acquisitions of Domestic Enterprises

Abstract: The People's Republic of China's revised rules governing foreign acquisitions of domestic enterprises, promulgated in the fall of 2006, disappointed many observers who had hoped for a more open and transparent approach to Chinese foreign investment. On closer inspection, however, the United States' own laws and policies restricting foreign acquisition of domestic enterprises influenced the Chinese rules' protectionism. The costs of U.S. trade policy have extended beyond Chinese law. Both the U.S. and Chinese rules limiting foreign investment likely violate each country's respective GA TS commitments. These violations bring consequences beyond the borders of these two nations, undermining free trade in the global

The Siren Song of Interrogational Torture: Evaluating the U.S. Implementation of the U.N. Convention Against Torture

Abstract: Though the United States officially condemns all forms of torture, it has not adequately implemented the United Nations Convention Against Torture. This Note focuses on instances in which the United States has transferred suspected terrorists to countries that practice interrogational torture. It contends that these renditions demonstrate a lingering belief that interrogational torture is sometimes necessary to obtain vital intelligence information. Unfortunately y this belief has developed in a secretive manner that is antithetical to democratic principles of transparency and accountability. This Note argues that the United States should reject all forms of interrogational torture by fully implementing international norms that forbid engaging in or facilitating state-sponsored torture.

Court-Ordered Restrictions on Trial Participant Speech

Abstract: This Note considers court-ordered limitations on the extrajudicial speech of trial participants in high-profile cases. After providing a history of Supreme Court decisions, informative though not dispositive of the topic, it presents the divergent approaches lower courts take when faced with trial participants' extrajudicial speech. The Note highlights the extreme legal uncertainty facing trial participants who desire to speak publicly about court proceedings. Finally, it concludes that courts would better balance First Amendment and fair trial values by rejecting the reasonable likelihood of prejudice standard.

A Divine Comity: Certification (at Last) in North Carolina

Abstract: North Carolina is the only state never to have enacted a certification procedure, which would allow federal courts, in appropriate cases, to send questions of North Carolina law to the North Carolina Supreme Court Previous calls for certification's adoption in this state have been unsuccessful, perhaps because the North Carolina Supreme Court's jurisdictional precedent seems to undercut certification's constitutionality. Reexamined in light of the North Carolina Constitution's design and the structure of the General Court of Justice, however, this precedent does not render certification unconstitutional. Even if the North Carolina Supreme Court holds to the contrary, certification could be adopted by constitutional amendment or under a theory that answering certified questions does not require an exercise of jurisdiction. North Carolina therefore can and should adopt certification. Such a procedure will avoid federal court guesswork on difficult state law issues, ensuring fairness for the litigants while saving time and money for future parties and the North Carolina courts. Certification's potential pitfalls can be circumvented through careful drafting and the North Carolina Supreme Court's conscientious use of discretion. Bearing principles of judicial economy, comity, and federalism in mind, North Carolina should at last join the rest of the union in adopting certification. Copyright © 2008 by Eric Eisenberg. t I would like to thank the Honorable Allyson K. Duncan for her timely topic, Professor Thomas Rowe for his watchful eye, P. Bly Hall for her practical help, and the editors of the Duke Law Journal for their diligent effort throughout the process. This content downloaded from 157.55.39.157 on Tue, 17 May 2016 04:49:49 UTC All use subject to http://about.jstor.org/terms 70 DUKE LAW JOURNAL [Vol. 58:69

Constitutional Secrecy: Aligning National Security Letter Nondisclosure Provisions with First Amendment Rights

Abstract: First created in the 1980s, national security letters and their nondisclosure provisions evaded judicial review until 2004. These secretive investigative tools allow federal agencies such as the FBI to compel disclosure of information about hundreds of thousands of people while also allowing the same agencies to unilaterally issue gag orders that can silence the people who receive these letters. This Note examines the nondisclosure provisions in the national security letter statutes. It argues that the nondisclosure provisions are unconstitutional prior restraints on speech and content-based speech restrictions. This Note then proposes a three-part solution that constitutionally balances the government's need to protect national security with its citizens' rights to freedom of speech.

Spending Clause Litigation in the Roberts Court

Abstract: Throughout the Rehnquist Court's so-called federalism revolution, as the Court cut back on federal power under Article I and the Civil War Amendments, many commentators asserted that the spending power was next to go on the chopping block. But in the last years of the Rehnquist Court, a majority of Justices seemed to abandon the federalism revolution, and in the end, the Rehnquist Court never got around to limiting Congress's power under the Spending Clause. This Article contends that it is wrong to expect the Roberts Court to be so charitable about Congress's spending power. But the Court is not likely to limit the spending power in the way some hoped and some feared the Rehnquist Court would-by imposing direct limitations on the kinds of legislation Congress has power to pass under the Spending Clause. Direct limitations such as those proposed by Professors John Eastman, Lynn Baker, and Mitchell Berman are unlikely to find favor in the Roberts Court's cases. Rather, the Court is likely to act indirectly-through doctrines that skew the interpretation and limit the enforceability of conditional spending statutes. Those doctrines are both more analytically tractable and less ideologically problematic for conservative Justices than are the direct limitations that might be imposed on the spending power. In other words, the paradigm case for the Roberts Court's restriction of the spending power is likely to be not United States v. Butler, but rather Arlington Central School District Board of Education v. Murphy.