Showing papers in "Harvard Journal of Law and Public Policy in 2005"

Using Information Markets to Improve Public Decision Making

Abstract: I. INTRODUCTION II. AN INTRODUCTION TO INFORMATION MARKETS III. GETTING BETTER INFORMATION FOR MAKING POLICY CHOICES A. A New Approach B. Extending the Framework C. The Potential for Improving Fairness D. Potential Problems with This Approach 1. Versatility of the Approach 2. Project Governance 3. Measurement Issues 4. Market Design Issues IV. A BENEFIT-COST ANALYSIS OF INFORMATION MARKETS A. A More Informed Assessment of Policy Proposals B. Greater Transparency and Accountability in Decision Making C. Greater Availability of Assets for Financing Projects and Spreading Risks D. Cost of Information Markets E. Comparison of Direct and Indirect Approaches for Information Markets V. SIGNIFICANCE FOR POLICY DESIGN AND EVALUATION A. Information Markets in the Policy Process B. Solving Some Difficult Government Oversight Problems C. The Potential Role for Government and Researchers VI. CONCLUSION VII. APPENDIX I. INTRODUCTION Many legal scholars have studied how to improve public decision making. Justice Breyer, for example, argues that technical problems could benefit from greater scientific expertise, and suggests using such analysis to help prioritize among competing social needs. (1) Cass Sunstein argues for the judicious use of cost-benefit analysis in a variety of areas, but also points out its limitations. (2) Sunstein's proposal, and the proposals of other scholars, would rely heavily, albeit not exclusively, on cost-benefit analysis to evaluate public policy decisions. (3) Cost-benefit analysis is a tool used by decision makers to help inform the policy process. Cost-benefit analysis examines how different policies affect the overall level of net benefits to society, or benefits minus costs. A cost-benefit analysis may also be used to explore equity issues, examining how the distribution of net benefits varies across key groups, such as minorities or small businesses. (4) A fundamental problem with cost-benefit analysis of new policies is that the analysis is conducted before such policies are implemented. When conducting ex ante analyses, it is difficult to predict the future values of key variables that could be affected by a policy. (5) For example, an analyst might predict that a worldwide carbon tax of $100 per ton would reduce world GDP by 1% in 2010. (6) How confident should we be in such a prediction? In this paper, we present a new framework for addressing such uncertainty; this framework has the potential to substantially improve public decision making. We argue that decision makers can be more confident in analytical results if these results are based more directly on market data. Our framework introduces "information markets" that allow people to profit from superior knowledge about the future. (7) For example, if an information market suggested that expected GDP would fall by 1% with a carbon tax, (8) this estimate would theoretically incorporate all publicly available information about that policy's effects. We also argue that if these information markets are designed well, information from the prices in these markets is likely to be much more accurate than other forecasts. An information market allows individuals to purchase contracts, using real money, that yield returns to their owners contingent upon the uncertain outcome of a future event. (9) With the advent of the Internet, information markets are becoming more common. They are used in a number of contexts, ranging from assessing the likelihood that the Federal Reserve will raise interest rates to assessing the odds that a particular presidential candidate will be elected. As an example, consider the online exchange at TradeSports.com. This exchange allowed its members to trade contracts that yielded $10 to their owners if President Bush was reelected in November 2004. …

Against Foreign Law

Abstract: In recent years, several Supreme Court Justices have looked to the decisions of foreign and international courts for guidance in interpreting the U.S. Constitution. This practice has occurred in several controversial, high-profile cases. Roper v. Simmons' outlawed application of the death penalty to offenders who were under eighteen when their crimes were committed. Lawrence v. Texas2 struck down a state law that criminalized homosexual sodomy. Atkins v. Virginia' held against the execution of mentally retarded capital defendants. All three cite foreign and international precedents. In Roper, the Court, per Justice Kennedy, found it \"proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty .... The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.\" 4 The Court relied on a provision of the United Nations Convention on the Rights of the Child-a treaty the United States has not ratified-and on amicus briefs by the European Union and interested foreign observers. In Lawrence, Justice Kennedy's majority opinion cited decisions of the European Court of Human Rights to conclude that prohibiting homosexual sodomy is at odds with the current norms of

The Patriot Act and the Wall between Foreign Intelligence and Law Enforcement

Abstract: I LEGENDS OF THE WALL A Pre-FISA B FISA 1 Applications for FISA Surveillance Orders 2 Judicial Approval of FISA Surveillance Orders 3 The Govemment's Intended and Actual Use of FISA-Acquired Information a FISA Provisions Requiring a Certification About the Purpose of Proposed Surveillance and Authorizing Limited Judicial Review of That Certification b Minimization Procedures c Section 1806 of the FISA i Section 1806(a) ii Section 1806(b) C The "Primary Purpose" Test 1 Origin of the Primary Purpose Test 2 Linkage of the "Primary Purpose" Test to the FISA D The Department of Justice's Use of the Primary Purpose Test as the Foundation for the Wall E The Patriot Act's Supposed Demolition of the Wall II IN RE SEALED CASE A How the Case Arose 1 The FISA Trial Court Adopts the Attorney General's 1995 Procedures as Required "Minimization Procedures" 2 In 2002, the Department of Justice Changes Information Sharing Procedures To Implement the Patriot Act 3 The FISA Trial Court Rejects the Department's March 2002 Information Sharing Procedures 4 The Department of Justice Creates a Route for Appealing the FISA Trial Court's Opinion B The FISA Court of Review's Opinion 1 The Court of Review's Analysis of the Original FISA 2 The Court of Review's Analysis of the Patriot Act Amendments to the FISA 3 The Court of Review's Fourth Amendment Ruling 4 Summary of Court of Review's Opinion; Description of That Court's Disposition of the Case; Later Proceedings in the Case III ANALYSIS OF STATUTORY ISSUES AND THEIR TREATMENT BY THE FISA COURTS A Importance of Statutory Rulings in In re Sealed Case B Statutory Analysis of the Original FISA 1 The Purpose Provision of the Original FISA a Text of the Original FISA's Purpose Provision i The Primary Purpose Test's Defective Textual Interpretation ii The FISA Court of Review's Erroneous Conclusion That the Original FISA's Purpose Provision Did Not Limit the Government's Intended Prosecutorial Use of Foreign Intelligence Information iii The Requirement that Achievement of a Foreign Intelligence Purpose be the Primary Purpose for Seeking a FISA Surveillance Order iv The Permissibility, Under the Original FISA, of the Government's Using FISA Surveillance for the Primary (or Even the Sole) Purpose of Investigating and Prosecuting Crime of any Type When the Government Intended the Prosecution to Serve a Foreign Intelligence Purpose v Summary of Textual Analysis of the Original FISA's Purpose Provision b Legislative History of the Original FISA's Purpose Provision i Legislative History Showing that the FISA Purpose Provision Limits the Type of Information That can be Sought as Well as the Intended Use of That Information ii Legislative History Seemingly Supporting the "Primary Purpose" Test iii Legislative History on the "Noncriminal" Standard for FISA Surveillance iv Scarcity of Legislative History Citing Primary Purpose Case Law 2 Provisions on Minimization Procedures a Text of FISA Provisions on Minimization Procedures b Legislative History of Minimization Procedures C …

Five Theses on Identity Politics

Abstract: The kind of freedom I want to address is the most vital kind: political freedom. By that I mean the summoning and exertion of energy to engage one another on matters of collective government. What I have in mind specifically is democratic political freedom. By that I mean political freedom in a context shaped by three simple norms: political equality, popular sovereignty and, therefore, majority rule. What should we make of identity politics as an exercise of democratic political freedom? Let me respond with five connected theses. Number One. All politics is identity politics. Political activity is--and, at its best, is--animated by efforts to define and defend who I am, or we are, or you are, or hope to be, or hope to be seen to be. (1) By extension, it is motivated by our imagination of what is or ought to be mine or ours or yours. It is not only about self-government. Nor does it always involve much in the way of public debate. What structures it, often beneath the surface, is the always unfinished enterprise of self-construction and self-presentation. The reason, first of all, is that politics (2) involves making comparisons and choices among--and commitments to--values and interests and groups and individuals (including choices not to choose among available choices). The choices and the commitments we make in politics are ones with which we mean to--or by which we cannot help but--identify ourselves. (3) What is more, politics involves comparison, choice, and commitment under conditions of conflict. There are winners and losers. Crucially, over time, it is an open-ended conflict: The first ones now may later be (and often are) last. And, over time, political conflict is open in another respect. It is without permanent bounds or rules. The most unexpected issues may one day become salient political issues; allegiances and alliances shift; and, at some point, any mode of struggle, even war, may turn out to be politically decisive. This contingency of politics tends, in turn, to open up the enterprise of self-identification that animates it--keeping it on edge and, so, alive. In democratic politics, moreover, the conflict is among putative equals. The norm of political equality not only destabilizes temporary victories. It also unsettles taken-for-granted hierarchies and, so, identities--and thus renews the spring of political energy. In this way, identity politics and democratic political freedom are, in principle and often in practice, mutually supportive, each of them enabling the vitality of the other. Number Two. However, it can also work the other way around. Identity politics can dampen or smother democratic political freedom. And democratic politics itself sometimes seems to sponsor this tendency, undermining itself by fostering a perversion of identify politics. The question is: What accounts for that? What sorts of identity politics, what aspects of identity politics, are pathological to democratic political freedom and where do they come from? Number Three. Certain familiar answers (4) to the question are deeply misguided. They are as follows: That the pathology of identity politics has to do with its promotion of a self-regarding (rather than a public-regarding) political culture. Or of "stereotypes." Or that identity politics tends to portray and purvey differences and grievances (rather than similarities and bonds) among groups and individuals. Such diagnoses are wrong not simply because they flush out the baby with the bathwater, but because they seem not to recognize the baby--to understand the value of identity politics--in the first place. Of course, identity politics is self-regarding. It is, after all, about the construction and presentation of oneself. That matters to everyone. That is what accounts for the energy, the motivation, which identity politics can infuse into democratic politics. (5) It shouldn't take Adam Smith to remind us that self-concern is not necessarily antithetical to--that it can accompany and foster, even be indispensable to--promotion of the well-being of others. …

RLUIPA at Four: Evaluating the Success and Constitutionality of RLUIPA'S Prisoner Provisions

Abstract: I INTRODUCTION II RLUIPA'S LEGISLATIVE HISTORY AND THE HISTORICAL BACKGROUND OF PROTECTION OF RELIGIOUS EXERCISE OF PRISONERS III HOW THE ACT OPERATES A A Brief Overview of the Act B The Elements of a Prisoner's Claim for Relief Under RLUIPA 1 RLUIPA's Merits Requirement--Demonstrating a Substantial Burden on Religious Exercise a Substantial Burden b Religious Exercise i "Any" religious exercise is protected by RLUIPA ii Actions Must Be "Religious" to Be Protected iii Religious Exercise Need Not Be "Compelled" by a System of Religious Belief to Be Protected iv Religious Exercise Need Not Be "Central" to a System of Religious Belief to Be Protected 2 RLUIPA's Jurisdictional Requirements-Demonstrating Either Spending Clause or Commerce Clause Jurisdiction a Spending Clause Jurisdiction b Commerce Clause Jurisdiction 3 RLUIPA's Exhaustion Requirement-- Demonstrating Compliance with the PLRA C Defending Against a RLUIPA Claim 1 The Strict Scrutiny Test Applies 2 Unlike the Turner/O'Lone standard, RLUIPA Shifts the Burden of Proof to Defendants 3 Prison Administrators Will Not Be Able to Rely on Merely Legitimate or Important Interests 4 Prisoners can defeat assertions of a compelling government interest where the prison allow similar conduct that damages the asserted interest 5 How Strict Is RLUIPA's Strict Scrutiny Standard? D RLUIPA's Remedies IV THE SUCCESS OF RLUIPA CLAIMS ON THE MERITS A Cases Challenging the Denial of a Religious Diet 1 Cases Challenging Prison Grooming and Clothing Policies B Cases Challenging Restrictions on Group Worship and Special Ceremonies C Cases Challenging Limits on access to Religious Literature and Devotional Items D General Observations On the Record of Merits Claims Under RLUIPA In Its First Four Years V RLUIPA Is A CONSTITUTIONAL EXERCISE OF CONGRESSIONAL POWER A RLUIPA Section 3 Does Not Violate the Establishment Clause 1 RLUIPA Has a Secular Purpose 2 RLUIPA Does Not Have the Primary Effect of Advancing Religion a RLUIPA does not cause the government to advance religious exercise itself, but rather to avoid interference with private religious actors as they advance religious exercise b None of the rationales suggested by the Sixth Circuit and RLUIPA's critics distinguish RLUIPA from the myriad accommodations of religious exercise by the political branches that follow the best of our traditions i The Establishment Clause Does Not Prohibit Law Passed Solely to Accommodate Religious Exercise ii RLUIPA Does Not Have Any Impermissible Effects on the Religious Freedoms of Others iii The Mandates of the Free Exercise Clause Are Not a Ceiling On Permissible Accommodation of Religious Exercise 3 RLUIPA Does Not Foster Excessive Entanglement With Religion B RLUIPA Section 3 Is a Constitutional Exercise of Congress's Spending Power Under Article I 1 RLUIPA Is in Pursuit of the General Welfare 2 RLUIPA Places Unambiguous Conditions on the Receipt of Federal Funds 3 RLUIPA's Conditions Relate to a Legitimate Federal Interest 4 RLUIPA Does Not Violate Any Independent Constitutional Requirement C RLUIPA Section 3 Is a Constitutional Exercise of Congress's Commerce Clause Power Under Article I D …

Property and Environment: Thoughts on an Evolving Relationship

Abstract: Private property is a necessary but insufficient tool for environmental regulation. Why is it necessary? There are several reasons. First, it settles who controls a resource, making rational management possible. While this may sound trivial, countries with weak or fragmented systems of ownership--or where enforcement of law is tainted by corruption--find it impossible even to begin to preserve resources or prevent pollution. (1) This is especially the case when different individuals make conflicting claims to the same plot of land. Second, private property owners have the incentive to preserve the capital value of their land. They can reap where they (or nature) have sown. They postpone harvesting their property (by cutting a forest, for example) until a propitious time. This choice is a cousin to environmental protection. Private ownership involves control of appetite and rational planning. It similarly solves the problem of open access to a resource, which leads to destruction, because all may have an incentive to reap but none have any incentive to sow--or even to defer use. (2) Private property owners can also be effectively regulated. Regulators can easily locate owners of land and many other natural resources. To the extent that the resource is valuable or the owner competes in a market, regulators have a generally effective lever for enforcement of laws. This obvious point is not unimportant; clear expectations of effective enforcement are an aspect of the rule of law. Reducing enforcement costs enhances the efficiency of regulations in reaching public goals. Private property generally encourages innovation by simplifying decision-making and safeguarding the fruits of success. In some instances, it can similarly encourage innovation in achieving environmental goals by allowing an owner to capture the economic benefit of the innovation. Regulatory systems that create such benefits harness private initiative for public ends, but are themselves complex public creations that require enormous sophistication in regulatory agencies. (3) I will discuss this further below. Consequently, private property may be necessary for environmental protection in a market economy. (4) Nearly everyone, however, recognizes that property rights alone are insufficient. While an owner may manage her land to protect the value of some economic service or product it provides her, she may not take steps to protect its ecological health, at least in spheres unrelated to economic return. A farmer may assiduously cultivate a field for corn, but remain indifferent to the consequences of destroying wildlife habitat. Moreover, the fertilizer spread on the fields and the drainage system for rainwater may weaken the natural health of nearby bodies of water. (5) Owners might also rationally conclude that exhausting the entire value of a resource immediately is more valuable to them than preserving it, even if this eliminates options for future users. (6) They make choices that impose costs on others without taking those costs into account, which is the fundamental economic problem of externalities. Environmental law starts from the recognition that: 1) environmental benefits are public goods, so individual owners do not have a strong incentive to produce them, and 2) legal institutions are needed to make owners take account of the costs that they might impose on others. A near consensus on these points seems to exist, both in the legal academy and on this panel, although with a great deal of pulling at the margins. Professor Ely distinguishes between pollution control regulations, which address harms to the public, and other regulations (such as those preventing the destruction of privately-owned wetlands or woodlands) that seemingly try to gain some public environmental benefit. He argues that the former is unobjectionable because no one has the right to use his property to harm another, a familiar principle drawn from the common law of nuisance. …

The Nature and Importance of Liberty

Abstract: What is liberty, and why is it important? Why do we care about it? The first premise that I offer here is that liberty is an expression of what is valuable about us as human beings. It is a natural law idea; that is to say, it is a moral imperative based on what is fundamental (another moral idea) about our human nature. (1) I would say that what is important about us, what makes us moral human beings, is our individual capacities to think, reason, choose, and value. It is what Kant called our freedom and rationality. (2) Individuals, therefore, are the elementary particles of moral discourse. Our value is our taking individual responsibility for our lives, and our choices. And if a person is to count as a person--and here we have the difficult questions about the beginning and the end of life--then we are all equally valuable in this same way. It is from that base of our equal responsibility for ourselves that we choose our goods: that we choose what to make of the only life we will ever have. My liberty, then, is my ability to choose that life. No one has the right to interfere with that choice, except as it is to further his own good. But that good of the other is worth no more than mine because he is not worth any more than I am. There is, therefore, a right of mutual noninterference: an equal right. By the same token, nobody can interfere with or draft another person to help him achieve his own good if the other person has not chosen voluntarily to enlist in that campaign. There are conclusions to be drawn from these postulates; for example, that liberty is a relation among persons. Liberty is violated when someone else interferes with it. Gravity, tigers, and disease do not interfere with my liberty; other people do. In addition, I can make your good, that which you choose, part of my good. But then I must work through you, through your liberty, and not upon you, not in spite of your liberty. And what is interference? It can be hindering you for your sake, for your good. Or hindering you for my sake, for my good. When do I hinder you in that second sense; when do I hinder you for my sake? There are two ways. First, when I disregard you. Second, when I use you, as when I trick you or threaten you or force you in some way or another. The issue of hindering others by disregard is, in fact, conceptually the most difficult. It is pretty easy to tell when I hinder you in the second sense: when I use you, when I trick you, when I force you. These are clear-cut violations of liberty. But, how can we tell when I am hindering you by, for instance, just failing to help you, by just disregarding you? The picture I have is of my driving down the middle of the highway at eighty miles per hour, disregarding that you are coming the other way. Am I hindering your liberty, or does your demand that I regard you hinder mine? It is out of this dilemma--this dilemma of when do we hinder each other by disregarding each other, just going our way, running over each other--that we derive, in a very general sense, the concept of property. Which is why property is so closely related to liberty. (3) Property describes the whole--I will call it the n-dimensional space, as it is much more than three-dimensional--n-dimensional space in which I may operate as a free person without being hindered by you as you go about in pursuit of your goods. You may not violate my property, you may not enter my n-dimensional space. But that n-dimensional space must be defined somehow. Is it defined by liberty itself, or is it conventional, or is it a little bit of each? If it is conventional, if our property in ourselves and our property in the outside world which we have assimilated to ourselves is wholly conventional, then of course its boundaries are established by convention. If it is the creature of convention, it is the creature of others. And that is a serious problem for liberty and one which the friends of liberty have sought many ways to solve--the social contract tradition is such an attempt--and the enemies of liberty have sought to exploit from the very beginning. …

A Gleeful Obituary for Poletown Neighborhood Council V. Detroit

Abstract: The Michigan Supreme Court's decision in Wayne County v. Hathcock, (1) overruling the infamous decision in Poletown Neighborhood Council v. Detroit, (2) represents a major victory for property owners not only in that state, but, indirectly, throughout the United States. The earlier decision greatly broadened the scope of the eminent domain power, enabling government to seize land for the benefit of private corporations such as General Motors, instead of for "public use," as the text of the state constitution required. In the years following Poletown, many state and federal courts embraced a similar theory of the "public use" clause, holding that any use the legislature declared to be a public benefit qualified as a public use. (3) The result has been a rash of condemnations benefiting private parties. The Hathcock court's decision to overrule Poletown vindicates an important legal principle to protect people from what the founding fathers called "the mischiefs of faction." (4) It sends a clear message to other courts that the abuse of eminent domain must be stopped, and that the government's power to seize property must be limited by effective constitutional restraints. As the United States Supreme Court considers the subject of eminent domain this term, an examination of this most famous of eminent domain cases is especially timely. (5) This article discusses the background and importance of Hathcock, and some of the important matters that must be addressed to further rein in the extreme government power of eminent domain. Part I describes the history of Poletown and its demise. Part II discusses Hathcock and its effect. Part III suggests the next steps that must be taken to restore the public use limitation as an effective brake on the condemnation power. I. THE STORY OF POLETOWN V. DETROIT A. The Litigation of Poletown In the early 1980s, high oil prices, inflation, and government regulation brought on a severe recession, which hit Michigan's automobile manufacturers especially hard. As Americans turned to cheaper and more efficient Japanese imports, the state's unemployment rate rose from 7 percent in March of 1979, to 9.9 percent a year later; 12.2 percent in March, 1981, and peaked at 16.3 percent in November, 1982. (6) The Detroit property tax base fell by $100 million. (7) Government attempts to resolve such problems included major subsidies to domestic businesses both at the state and federal levels. (8) In particular, Michigan sought to relieve the ailing General Motors Corporation. In 1980, GM informed the city of Detroit that it would be willing to construct a new factory in a region of the city known as Poletown (due to the large number of Polish immigrants living there). The company had already threatened to close a factory which would have cost the community 6,000 jobs, and, as Justice James L. Ryan would later note, the city felt severe pressure from GM's "immense political and economic power." (9) The Poletown neighborhood was "a rare commodity in an urban environment: a stable, integrated area that in many ways harkened back to the close-knit ethnic communities that characterized Detroit's past." (10) The GM project meant condemning over 1,000 properties and the homes of 3,438 people. (11) And although it was deteriorating in the 1980s, many residents cherished their neighborhood, where milkmen still made their rounds, (12) local policemen regularly lunched at Carl Fisher's Famous Bar-B-Q Restaurant, (13) and where, one resident recalled, "[p]eople watched out for one another.... In the suburbs, it's keep up with the Joneses.' Over here, nobody cared. You were neighbors." (14) As Jean Wylie explains in her history of the Poletown case, "even as late as 1980, the community was known for its sound housing stock, its low rents, its good access to shops and services, and its tolerance for divergent ethnic groups and religious denominations. ... [A] study done by the University of Michigan in 1980 suggested that 'this area may be one of the most continuously racially integrated areas in Michigan. …

State Attempts to Define Religion: The Ramifications of Applying Mandatory Prescription Contraceptive Coverage Statutes to Religious Employers

Abstract: I. INTRODUCTION There has been much attention given of late to the issue of whether the law should require private employers to cover prescription contraceptives under their health care plans. Although the exclusion of prescription contraceptive coverage by plans that offer coverage for other prescription medication was for many years not an issue that received attention, the decision by significant numbers of plans in the mid-1990s to cover Viagra made the failure of plans to cover prescription contraceptives a cause celebre of women's groups, who began to fight for such coverage. (1) As a result, at least twenty states have passed laws of various types requiring mandatory coverage of prescription contraceptives. (2) For most employers, a requirement that contraceptive coverage be provided in plans that otherwise provide coverage for prescription medication is not a serious matter. Although for the most part employers are free to decide what benefits they will or will not provide to their employees, there have been other instances where state insurance law has imposed mandatory requirements on employers. (3) Moreover, unlike some of those other mandates, providing contraceptive coverage does not tend to increase the cost to an employer of providing prescription coverage. To the contrary, there is some evidence that medical costs in some plans that are amended to provide for contraception coverage actually decline due to a reduction in the costs of unintended pregnancies. (4) However, for Catholic organizations, mandatory contraceptive coverage creates an issue of conscience. Because of the Catholic Church's strong moral objection to the use of birth control, (5) forcing organizations affiliated with the Catholic Church to provide prescription contraceptive coverage to their employees is anathema. The same is true of religions organizations affiliated with other religions having moral objections to the use of artificial means of contraception. (6) Recognizing the conscience concern, many of the mandatory contraceptive coverage statutes have some carve-out for religious employers. (7) However, the exclusions in statutes adopted in several major states, such as New York (8) and California, (9) define religious employer very narrowly, with the idea of excluding from the operation of the statute Catholic churches themselves, but not arms of the Catholic Church such as Catholic Charities, or Catholic hospitals, universities or nursing homes. (10) Because the application of mandatory contraception statutes to religious employers creates a major issue of conscience for the affected religious employers, religious groups in both states have challenged the laws as unconstitutional. Although there has not yet been a final ruling by the New York Court of Appeals on the issue, (11) on March 1, 2004, in Catholic Charities of Sacramento, Inc. v. The Superior Court, (12) the California Supreme Court rejected the constitutional claims of Catholic Charities and held that it must provide its employees with prescription contraception coverage in accordance with the statutory mandate. (13) The question of whether the law should so narrowly define what it means to be a religious employer is not a minor one. The number of workers employed by religious employers is extremely large. For example, in California, Catholic Charities of Sacramento has 1600 employees and Catholic hospitals in California employ 52,000 persons. (14) In New York, Catholic affiliated health organizations employ over 50,000 persons and provide health coverage for as many as 500,000. (15) In addition, the Church in New York operates 800 schools, 61 nursing homes and hundreds of social service agencies. (16) Nationwide, Catholic hospitals employ over 620,000 employees. (17) This Article does not analyze the constitutional claims of the religious organizations. The ruling by the California Supreme Court comes as no great surprise given the Supreme Court's most recent statement on the subject of burdens on a religion's free exercise, (18) and one would expect the New York Court of Appeals ultimately to reach the same conclusion. …

The Rules of Law Problem: Unconstitutional Class Actions and Options for Reform,

Abstract: I. INTRODUCTION II. THE RULE OF LAW PROBLEM A. Defining Rights B. Due Process and the Rule of Law 1. Introduction to Due Process in the Class Action Context: Federalism and State Autonomy Interests 2. The Rule of Law and Class Actions 3. Class Actions and Rent-Seeking III. CONSTITUTIONAL CLAIM AGGREGATION: PROPOSALS FOR REFORM A. Principles for Reform 1. Decentralization 2. Cooperative Federalism 3. Judicial Review B. The Class Action Fairness Act Considered 1. Summary of Provisions a. Expanding Federal Diversity Jurisdiction b. Expanding Federal Removal Jurisdiction 2. Will the Class Action Fairness Act Succeed? a. Article III Problems with the Class Action Fairness Act b. The Act's Myopic Focus on Federal Competency C. Designing a Better Class Litigation System 1. Enhance Transparency 2. Create Textual Choice of Law Requirements 3. Eliminate the Power of Named Plaintiffs to Monopolize the Market for Class Members 4. Create Structural Incentives for Litigants and Courts to Raise Constitutional Challenges to Class Certification 5. Encourage Decentralization and Cooperative Federalism IV. CONCLUSION I. INTRODUCTION Imagine that relief depends on the will of a man, called the Judge, who possesses the power to force "wrongdoers" to compensate "victims." Busy and indecisive, the Judge hasn't formulated a coherent set of laws. Instead, when a citizen asserts a grievance, the Judge changes the rules based on principles he does not announce in advance. As a result, no one can predict when he will be hauled into court because there is, quite simply, no commonly accepted language for what is "wrong," who is a victim, and when coercive legal process is proper. This article suggests that contemporary class action litigation mirrors this imaginary legal world. Utilizing an often neglected strain of due process analysis, the article explains how class actions frequently unsettle defendants' expectations about their rights and defends the proposition that class actions thereby violate due process. The article then applies this due process analysis to launch a new framework for class action reform, one that flows naturally from conceptualizing class action abuse as a constitutional problem. It is well known that rights are often ignored or changed when litigants assert claims on behalf of a class. To see this problem concretely, consider the following hypothetical: Congress passes a law that outlaws the use of "profane" words, but excuses a defendant who utters profanity when physically injured. An onlooker sues you for damages under the statute after you stub your toe and assault him with choice words. At trial, you produce a witness--a tourist who videotaped the incident--but the judge disregards the evidence, deciding he will not enforce the "physical injury" defense on this occasion. Clearly, your rights have been altered. A potent defense (stubbing your toe) is not available to you, and your liability is assessed by a standard different than the law had allowed. When courts aggregate many individual lawsuits through the class device, they are inevitably tempted to change defendants' rights in this fashion. Imagine, now, that one citizen files a class action against you under this anti-profanity statute, alleging you violated the rights of 10,000 persons in as many different individual encounters. It would be impossible for the court to ascertain whether the physical injury defense applied to each claim, since no single court could examine each of your interactions with 10,000 class members. So, inevitably, the plaintiff, to secure aggregation, will argue that your liability can be proven in a more lenient fashion. If the court accepts the plaintiff's invitation, the rules that govern your conduct are changed. …

"Thou Shalt Not Bear False Witness": "Sham" Secular Purposes in Ten Commandments Displays

Abstract: I. REMEMBER THY HISTORY, HOLY OR NOT II. HONOR SUPREME COURT PRECEDENT, THAT THY DISPLAY'S DAYS MAY BE LONG UPON GOVERNMENT PROPERTY III. THOU SHALT NOT PROFFER SHAM PURPOSES A. From Whence Cometh Secular Purpose? B. Whither Goeth Secular Purpose? 1. Stone v. Graham 2. Parsing the Sham Purpose from the Sincere One IV. THOU SHALT NOT CIRCUMVENT THE COURT A. Older Displays and Legal Necromancy B. "If at first you don't succeed....": Modified Displays V. THOU SHALT HANG EIGHTEEN, NOT TEN The Ten Commandments 1 And God spake all these words, saying, 2 I am the LORD thy God, which have brought thee out of the land of Egypt, out of the house of bondage. 3 Thou shalt have no other gods before me. 4 Thou shalt not make unto thee any graven image, or any likeness of any thing that is in heaven above, or that is in the earth beneath, or that is in the water under the earth: 5 Thou shalt not bow down thyself to them, nor serve them: for I the LORD thy God am a jealous God, visiting the iniquity of the fathers upon the children unto the third and fourth generation of them that hate me; 6 And showing mercy unto thousands of them that love me, and keep my commandments. 7 Thou shalt not take the name of the LORD thy God in vain: for the LORD will not hold him guiltless that taketh his name in vain. 8 Remember the sabbath day, to keep it holy. 9 Six days shalt thou labor, and do all thy work: 10 But the seventh day is the sabbath of the LORD thy God: in it thou shalt not do any work, thou, nor thy son, nor thy daughter, thy manservant, nor thy maidservant, nor thy cattle, nor thy stranger that is within thy gates: 11 for in six days the LORD made heaven and earth, the sea, and all that in them is, and rested the seventh day: wherefore the LORD blessed the sabbath day, and hallowed it. 12 Honor thy father and thy mother: that thy days may be long upon the land which the LORD thy God giveth thee. 13 Thou shalt not kill. 14 Thou shalt not commit adultery. 15 Thou shalt not steal. 16 Thou shalt not bear false witness against thy neighbor. 17 Thou shalt not covet thy neighbor's house, thou shalt not covet thy neighbor's wife, nor his manservant, nor his maidservant, nor his ox, nor his ass, nor any thing that is thy neighbor's. (1) Last fall, the nation watched as Chief Justice Roy Moore of the Alabama Supreme Court proudly erected a two-and-a-half-ton granite monument right in the center of the rotunda of the state's courthouse. The monument was engraved with the Ten Commandments and other references to God from documents and people important to American history. (2) Courts quickly found the display unconstitutional, (3) amidst much public outcry from Moore's supporters. (4) Moore was removed from the bench by the Alabama Court of the Judiciary for violating canons of judicial ethics. (5) While the courts were absolutely right to find the monument unconstitutional under current Supreme Court precedent, the incident highlights the importance of religious symbols to many American citizens. (6) Around the country, courts have faced constitutional challenges to the display of religious symbols on government property. (7) Under the United States Constitution, "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof." (8) Thomas Jefferson once used the metaphor of a "wall of separation between church and State" to describe the First Amendment. (9) Justice Hugo Black, a strong supporter of a strict separation of church and State, accorded that resonant metaphor an almost liturgical quality and added a chorus: "The wall must be kept high and impregnable." (10) Although scholars and judges have questioned whether this metaphor accurately portrays the legal effect of the Establishment Clause, (11) polls show that Americans generally agree with this portrayal of the church-state relationship. …

The Clash of Rival and Incompatible Philosophical Traditions within Constitutional Interpretation: Originalism Grounded in the Central Western Philosophical Tradition

Abstract: I. INTRODUCTION A. Preview of the Defense of Originalism Based on the Tenets of the Aristotelian Tradition II. THE RIVAL AND INCOMPATIBLE PHILOSOPHICAL TRADITIONS A. Introduction B. The Central Western Philosophical Tradition 1. Rational Man With a Purpose 2. Man is Naturally Political 3. Society as a Moral Entity Pursuing the Common Good Through Time C. The Enlightenment Tradition D. Summary III. ORIGINALISM GROUNDED IN THE CENTRAL WESTERN TRADITION A. Whether and in What Manner a Society May Bind Itself B. Enter the Framers: Our Society's Road to the Binding Constitutional Social Ordering 1. Introduction 2. Criteria to Determine When a Group of People Becomes a Society 3. Differences Between the Colonies Prior to the Revolutionary Period 4. The Road to One National Society: Unification of the Colonies During the Revolution and Under the Articles of Confederation 5. Philadelphia: The Framers Propose a New Social Ordering to Save Society 6. Ratification of a New Constitutional Ordering a. Introduction b. Contemporary Understanding of the Nature of the Ratification of the Constitution i. The People, Through Ratification of the Constitution, Prudentially Ordered Society, Including Future Generations, Toward the Common Good ii. A Major Mechanism Through Which Our Society Sought to Bind Itself was the Original Meaning of the Text of the Constitution c. Summary 7. Conclusion C. But Why Originalism?: Why Judges (and the Rest of Us) are Bound by the Original Meaning 1. Introduction 2. The Aristotelian Tradition and Originalism a. Prerogative of Authority b. Jurisdiction c. Competence IV. CONCLUSION I. INTRODUCTION This is the capstone Article in a series of three articles. This series of articles offers a comprehensive understanding of constitutional interpretation. It grounds original meaning adjudication (1) in what is arguably the central tradition in Western philosophy. (2) I rely on the central propositions of this, what I label the Aristotelian tradition, in grounding originalism. (3) In the first Article of the series I argued that originalist appeals to self-government by the People are incomplete and that the countermajoritarian difficulty posited by nonoriginalists does not exist. (4) In a subsequent Article of the series, I will describe the central Western philosophical tradition, its defining characteristics, and some major exponents from Aristotle to modern scholars. (5) In this, the central Article of the series, I will tie original meaning adjudication to the Aristotelian tradition (6) and explain why originalism follows from the tenets of the tradition. A. Preview of the Defense of Originalism Based on the Tenets of the Aristotelian Tradition Following the view of the nature of man and society found in the Aristotelian tradition, I offer three arguments as to why those who adhere to the Aristotelian tradition should also adhere to originalism. They are titled: prerogative of authority, jurisdiction, and competence. Of course, if one does not accept the truth of the Aristotelian tradition, then the defense of originalism grounded in that tradition will likely not be persuasive. Even if one accepts the tenets of the Enlightenment tradition, my hope is that the other claims in this series of articles will remain telling: first, that there are two rival and incompatible philosophical traditions and how one views the nature of the Constitution drives how one interprets the document; and second, how one views the nature of the Constitution is in turn driven by one's underlying philosophical commitments to one of the two traditions. …

The Quasi War Cases - and Their Relevance to Whether "Letters of Marque and Reprisal" Constrain Presidential War Powers

Abstract: I. INTRODUCTION Constitutional scholars cite three Supreme Court decisions arising from the undeclared Quasi War with France in 1798-1800 as support for the proposition that Congress may authorize war of any magnitude, and that, except in case of sudden or imminent attack on the United States, this congressional authority displaces any right of the President to use military force of even modest magnitude without prior congressional authorization. The textual hook claimed by these scholars for so reading Bas v. Tingy, (1) Talbot v. Seeman, (2) and Little v. Barreme (3) is the phrase in Article I, Section 8 of the Constitution that immediately follows the grant to Congress of the power "To declare War"--namely, the power to "grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water." (4) These additional words, it is argued, are placed in the War Clause because the Framers intended that Congress, and Congress alone, have the power to authorize not only "general" or "perfect" war through a formal declaration of war, but also "limited" or "imperfect" war. It is further argued that the temporal proximity of the three Quasi War decisions to the framing of the Constitution strongly implies that the Framers meant to constrain the President's ability to use military force in a manner short of full-scale war. The list of scholars subscribing to this interpretation of the War Clause is long and imposing. In a frequently cited article published during the Vietnam War, Charles Lofgren argued that the Framers' grant to Congress of the power to issue letters of marque and reprisal created a residual category of all forms of undeclared war. (5) The Constitution, in his view, grants to Congress alone the power to commence war, whether by formally declaring war or by authorizing reprisals. (6) Abraham Sofaer, later a federal judge and legal adviser to the State Department, offered a similar interpretation of the Quasi War cases several years after Lofgren. (7) With the notable exception of Eugene Rostow, (8) other scholars writing on this topic during and shortly after the Vietnam War uniformly embraced that interpretation, (9) as have the scholars writing thereafter on the war powers. Dean Harold Hongju Koh of Yale Law School, for example, reads Bas and Talbot to constitute a "delineation and delimitation of the executive's authority [to commence] limited hostilities by means other than formally declared war." (10) Similarly, John Hart Ely read these cases to support his conclusion that the original meaning of the War Clause was that "all wars, big or small, 'declared' in so many words or not ... had to be legislatively authorized." (11) The other contemporary scholars subscribing to this same interpretation are numerous. (12) Part II of this essay analyzes the original understanding of "letters of marque," "reprisal," and "captures on land and water." (13) As used by legal scholars when the Constitution was drafted, these words had meanings that were both well understood and not dependent upon the allocation of war-making power between the legislative and executive branches. Part III discusses the facts, holdings, and dicta of the Quasi War cases. Properly read, these cases concerning the legality of capturing ships belonging to or collaborating with France during the Quasi War do not illuminate how the war powers should be allocated between Congress and the President. Part IV shows that the Supreme Court has never read this trio of cases, or any one of them individually, to support the proposition for which today's scholars routinely cite them. To the contrary, in the twenty decades since the Quasi War took place, the Court has, with rare exception, cited these cases only for propositions concerning the legality of capturing ships at sea. Nonetheless, the contemporary misinterpretation by scholars of the Quasi War cases found a receptive audience in 2000 in the U. …

Judicial Review of Unenumerated Rights: Does Marbury's Holding Apply in a Post-Warren Court World?

Abstract: Last year law schools across the country celebrated the 200th anniversary of the Supreme Court's landmark decision in Marbury v. Madison, which firmly entrenched judicial review as a fundamental component of our constitutional system of government--so fundamental, in fact, that adorning the east wall of the Justices' dining room in the building that is home to the Supreme Court of the United States are portraits of William Marbury and James Madison, side-by-side, facing each other as if in eternal combat. (1) At Chapman Law School, where I teach, we marked the occasion with a re-enactment of the oral argument in the case. University of Southern California Law Professor Erwin Chemerinsky (who is now a member of the faculty at Duke Law School) and I were opposing advocates. Fifth Circuit Court of Appeals Judge Jerry Smith, of Hopwood v. Texas (2) fame, played the role of Chief Justice, while a combination of Chapman law students and undergraduate legal studies majors filled out the bench. Complete transcripts of the original oral argument are not available, of course, so we were able to exercise a little literary license to fill in the gaps. I was there to argue Madison's case, for example, when no one appeared on Madison's behalf during the original proceedings, and various executive and legislative branch officials would not even provide Marbury's lawyers with documentary evidence of his nomination, confirmation, appointment, and commission. (3) I appeared specially only to challenge the Court's jurisdiction, and I began the argument with a motion that the Chief Justice recuse himself; it was, after all, Marshall's own failure while still Secretary of State to deliver Marbury's midnight commission that generated the controversy in the first place. "Chief Justice" Smith thundered a question to me from the bench: "Are you accusing me of bias?" (Actually, the question from Judge Smith was quite tame, but I did imagine the responsive thunder that such a question might have evoked from Chief Justice John Marshall himself!). My response drew a predictable round of laughter from the crowd: "I would never make such an accusation, Mr. Chief Justice. But the mere appearance of bias is sufficient to warrant recusal here." "Chief Justice" Smith denied my motion--thankfully, as my Dean would undoubtedly have been upset with me were our star jurist to leave the bench in the opening moments of the argument--but I suspect Chief Justice Marshall would have denied the motion as well, despite his connection to the case and familial relationship with the real party in interest, President Thomas Jefferson, his cousin. Why is it even arguably the case that Marshall should have recused himself?. Nothing in the Constitution explicitly bars one from serving as judge in a legal case or controversy in which he has an interest. On the contrary, Article III provides that "the judicial power of the United States shall be vested in one Supreme Court," and Marshall, as Chief Justice, was clearly a member of the Supreme Court. To be sure, Article III also specifies that judges "shall hold their Offices during good Behaviour," (4) and the Fifth Amendment guarantees that no one can be "deprived of life, liberty, or property without due process of law," (5) but neither of these clauses explicitly prevented the self-interested Marshall from presiding over the case, and there was at the time no positive law pronouncement, no statutory code of judicial ethics, that barred a biased jurist from taking the bench. Yet, even absent an express statutory prohibition, I think most of us have the innate sense that a judge should not sit in judgment over a case in which he has a personal interest. Call it "bad" behavior for a judge, or a deprivation of the process that is due as a matter of fundamental fairness, but is it not evident that to pursue either inquiry necessarily requires that we look beyond the mere text of the Constitution, to some notion of justice that would help give substance to its provisions? …