Showing papers in "Harvard Law Review in 2004"

Transitional Justice as Ordinary Justice

Abstract: Theorists of transitional justice study the transition measures used, or eschewed, by new democracies that succeed communist or authoritarian regimes - measures including trials, purges, lustration, reparations, and truth commissions. The theorists tend to oppose transitional measures, portraying them as illiberal and as a distraction from the task of consolidating new democracies. In this Article we argue against that view. The critics of transitional justice have gone wrong by overlooking that transitional measures are common in consolidated legal systems, which themselves constantly undergo political and economic shocks resulting in transitions of greater or lesser degree. Ordinary justice has developed a range of pragmatic tools for managing transitions. Consolidated democracies use trials, purges and reparations to accomplish valuable forward-looking goals without allowing illiberal repression; new democracies can and should use those tools also. Because transitional justice is continuous with ordinary justice, there is no reason to treat transitional-justice measures as presumptively suspect, on either moral or institutional grounds.

Plea Bargaining Outside the Shadow of Trial

Abstract: Plea-bargaining literature predicts that parties strike plea bargains in the shadows of expected trial outcomes. In other words, parties forecast the expected sentence after trial, discount it by the probability of acquittal, and offer some proportional discount. This oversimplified model ignores how structural distortions skew bargaining outcomes, causing them to diverge from trial outcomes. Part I of this Article explores the various structural forces that warp plea bargains. Agency costs, attorney compensation and workloads, resources, sentencing and bail rules, and information deficits all skew bargaining. In addition, psychological biases and heuristics warp judgments. Part II applies recent research from behavioral law and economics and cognitive psychology to critique plea bargaining. Overconfidence, denial, discounting, risk preferences, loss aversion, framing, and anchoring all affect bargaining decisions. Skilled lawyers can partly counteract some of these problems, but they can also overcompensate. The oversimplified shadow-of-trial model of plea bargaining needs to be supplemented by a structural-psychological perspective. On this perspective, uncertainty, money, self-interest, and demographic variation greatly influence plea bargains. Part III explores how to respond to the various structural and psychological influences that warp plea bargains. Reforming systems of defense counsel, bail rules, and the structure of sentencing rules, and increasing use of mediators and judges in bargaining could ameliorate some of these influences. Other problems, such as demographic variations in psychology, are very difficult to correct. These influences cast light on how civil and criminal bargaining differ in important respects.

Property, Privacy, and Personal Data

Abstract: Modern computing technologies and the Internet have generated the capacity to gather, manipulate, and share massive quantities of data; this capacity, in turn, has spawned a booming trade in personal information. Even as it promises new avenues for the creation of wealth, this controversial new market also raises significant concerns for individual privacy consumers and citizens are often unaware of, or unable to evaluate, the increasingly sophisticated methods devised to collect information about them. This Article develops a model of propertized personal information that responds to these serious concerns about privacy. It begins this task with a description and an analysis of several emerging technologies that illustrate both the promise and peril of the commodification of personal data. This Article also evaluates the arguments for and against a market in personal data, and concludes that while free alienability arguments are insufficient to justify unregulated trade in personal information, concerns about market failure and the public's interest in a protected "privacy commons" are equally insufficient to justify a ban on the trade. This Article develops the five critical elements of a model for propertized personal information that would help fashion a market that would respect individual privacy and help maintain a democratic order. These five elements are: limitations on an individual's right to alienate personal information; default rules that force disclosure of the terms of trade; a right of exit for participants in the market; the establishment of damages to deter market abuses; and institutions to police the personal information market and punish privacy violations. Finally, this Article returns to examples of technologies already employed in data trade and discusses how this proposed model would apply to them.

Equality Talk: Antisubordination and Anticlassification Values in Constitutional Struggles Over Brown

Abstract: When Brown v. Board of EducationI prohibited racial segregation in public education, it inaugurated a great debate about equal citizenship and federalism that spanned the second half of the twentieth century. The case reverberates with conflict, with stories about the possibilities and limits of constitutional law. This Article explores the relation of constitutional principle and constitutional politics in the ways we talk about the decision's meaning. It shows how convictions about the principle on which Brown rests were forged in conflicts over enforcing Brown, and demonstrates how such conflicts have produced indirection and contradiction in doctrines that enforce the equal protection guarantee. By revisiting early arguments about Brown, we are better able to describe the values and concerns that have shaped the development of equal protection law, and to debate those that might shape its future. At the same time, exploring the impress of constitutional conflict in our constitutional commitments invites us to reflect again on the ways that the Court and the nation make claims on one another to ask questions about how the Court forges a constitutional principle that can compel the allegiance of the people whose lives it would constrain. Today, many understand Brown to have ended the era of segregation in America by declaring the constitutional principle that government may not classify on the basis of race. Judicial and popular speakers invoke this Brown, the anticlassification Brown, quite commonly.2 Most recently, the Brown that prohibits classification on the basis of race was prominently cited by proponents of a law that would have outlawed racial data collection by the State of California. Summoning Thurgood Marshall's arguments in Brown, the legacy of Mar-

Preferences for Processes: the Process/Product Distinction and the Regulation of Consumer Choice

Abstract: TABLE OF CONTENTS INTRODUCTION I. THE PROCESS/PRODUCT DISTINCTION A. International Trade and "Products As Such" 1. Process-Based Trade Measures Under GATT/WTO Jurisprudence 2. The Special Case of Product Labeling B. Genetic Engineering and "Substantial Equivalence" 1. Modern Genetic Engineering Processes 2. U.S. Regulation of Genetically Modified Food Products 3. The Looming Trade War with Europe C. Commercial Speech and "Mere Consumer Concern" 1. International Dairy Foods Ass'n v. Amestoy: Mandatory Disclosure of Process Information 2. Nike, Inc. v. Kasky: Voluntary Disclosure of Process Information II. THE REGULATION OF CONSUMER CHOICE A. Comprehending Preferences for Processes 1. The Instrumental Account (a) Sovereignty of Consumers (b) Sovereignty of Nations 2. The Expressive Account (a) The Utility of Process (b) The Market for Expression 3. The Ethical Account B. Process Preferences in Global Civil Society 1. The Inevitability of Regulation 2. The Heroic Consumer CONCLUSION PREFERENCES FOR PROCESSES: THE PROCESS/PRODUCT DISTINCTION AND THE REGULATION OF CONSUMER CHOICE This Article examines a conceptual distinction between product-related information (such as whether a consumer good threatens to harm its user) and process-related information (such as whether a good's production harmed workers, animals, or the environment) that has appeared in various guises within international trade law; domestic environmental, health, and safety regulation; and constitutional commercial speech jurisprudence. This process/product distinction tends to dismiss information concerning processes as unworthy of attention from consumers or regulators, at least so long as the processes at issue do not manifest themselves in the physical or compositional characteristics of resulting end products. Proponents have offered the process/product distinction as a useful device for determining when consumer product regulations are likely to have drifted beyond the satisfaction of significant consumer interest into areas of unjustified alarm, disguised protectionism, or excessive encroachment onto competing interests, such as the speech concerns of product manufacturers or the domestic sovereignty of foreign nations. As this Article shows, however, the process/product distinction proves far too thin and formalistic of a conceptual device, once one examines the full panoply of reasons why consumers might express preferences for processes. Thus, rather than dismissing process preferences as especially likely to be ill-informed or otherwise objectionable, this Article argues in favor of acknowledging and accommodating such preferences within theoretical frameworks for policy analysis. Indeed, in view of several growing phenomena--including the cultural and political significance attached to the consumption function, the effort by regulatory cost-benefit analysts to ground public policies on the values revealed by individuals acting in their roles as market actors, and the integration of global product markets without similarly expansive integration of the global regulatory system --this Article concludes that, in the future, process preferences may serve as indispensable outlets for public-regarding behavior. INTRODUCTION Shortly after the terrorist attacks of September 11, 2001, U.S. Commerce Secretary Don Evans was quoted as saying, "People ask all the time, 'What can I do, what sacrifices can I make for my country?'" His answer: "Go back to the stores." (1) Although long present in political and popular discourse, (2) this conflation of patriotism with consumption, of civic life with market life, became unmistakably apparent in the wake of the World Trade Center and Pentagon disasters. Across the airwaves and in the newspapers, private consumer spending appeared as the primary, and at times the exclusive, avenue for citizen participation in the nation's effort to recover from 9/11. …

From 'Separate is Inherently Unequal' to 'Diversity is Good for Business': The Rise of Market-Based Diversity Arguments and the Fate of the Black Corporate Bar

Abstract: On December 7, 1953, two of the greatest appellate advocates that this country has ever produced squared off in the Supreme Court's marble and mahogany chamber to present the final arguments in Brown v. Board of Education.' At one counsel table sat Thurgood Marshall, chief counsel for the NAACP Legal Defense and Education Fund, arguably the nation's first "public interest" law firm.2 At the other sat John W. Davis, whose seamless blending of public service (including a stint as Solicitor General of the United States under President Wilson) and private practice (as the senior partner of the Wall Street law firm Davis, Polk, Wardwell, Sunderland & Kiendl) epitomized the power and prestige of the elite corporate bar in the years following World War II.3 It was both fitting and ironic that Marshall and Davis found themselves squaring off in what many now consider the most important constitutional case since Marbury v. Madison.4 Fitting because of each man's skill and fame as an appellate advocate. By the time Brown was first argued, Thurgood Marshall had successfully litigated thirteen cases before the U.S. Supreme Court.5 Counting his experience as Solicitor General, Davis had participated in over 250 cases before the Court, more than any other lawyer in the twentieth century, and was widely praised as one of the greatest masters of oral advocacy of all

The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience

Abstract: Although the First Amendment refers to freedom of "speech," much speech remains totally untouched by it. Antitrust law, securities regulation, the law of criminal solicitation, and most of the law of evidence, for example, involve legal control of speech lying well beyond the boundaries of the First Amendment's concern. It is not that such regulation satisfies a higher burden of justification imposed by the First Amendment. Rather, the First Amendment does not even show up in the analysis. The explanation for lack of First Amendment coverage lies not in a theory of free speech or in legal doctrine, but instead in an often serendipitous array of political, cultural, and economic factors determining what makes the First Amendment salient in some instances of speech regulation but not in others. Because the First Amendment's cultural magnetism attracts a wide variety of claims, nonlegal factors, far more than legal ones, determine which opportunistic claims to First Amendment attention will succeed and which will not. Legal doctrine and free speech theory may explain what is protected within the First Amendment's boundaries, but the location of the boundaries themselves the threshold determination of what is a First Amendment case and what is not is less a doctrinal matter than a political, economic, social, and cultural one. And although the First Amendment's historical and political place in American culture makes this Article more than just a case study commenting on larger issues of constitutional salience, looking at these dimensions of the First Amendment has suggestive implications for questions of constitutional salience and the mysterious way in which policy issues are or are not understood to present constitutional issues.

Theology scholarships, the pledge of allegiance, and religious liberty: avoiding the extremes but missing the liberty

Abstract: i. A Realist Introduction to the Discriminatory Funding Cases 174 2. Penalties Versus Refusals To Fund. 175 (a) The Error in the Abortion Analogy: Burden Rights and Neutrality Rights..... 176 (b) Separating Funded and Unfunded Activities 178 3. O ther Lim its to the H olding. ........ 183 (a) Religious Intensity of the Program Where Funds Are Used 184 (b) B ad M otive 187 (c) Speech.. ..... 191 4. The Hazards of Governmental Discretion 195 II. DAVEY AND THE REGULATION CASES 200

Organizations as Internal Capital Markets: The Legal Boundaries of Firms, Collateral, and Trusts in Commercial and Charitable Enterprises

Abstract: IN TROD UCTION ........ ..... ......... 1103....... o 3 I. SWITCHING OPTIONS, INFORMATION ASYMMETRIES, AND AGENCY PROBLEM S I110o9 II. ORGANIZATIONAL BOUNDARIES OF INTERNAL CAPITAL MARKETS 1119

Buscando America: Why Integration and Equal Protection Fail to Protect Latinos

Abstract: Equal protection doctrine, including the Supreme Court’s decision in Brown vs. Board of Education, has done little to protect the equality of Latinos/as. This article provides an in-depth exploration of why equal protection fails to protect Latinos/as, focusing on inequality in education. Since at least the 1930s, Latinos have made legal challenges against school segregation and educational inequality. A paramount example of this struggle is demonstrated by Mendez v. Westminster School District, in which several Mexican-American families sued the school district to end the segregation of their children into inferior schools. This article discusses the many reasons why equal protection fails to protect Latinos in education, despite well-developed best practices for educating Latino/a students. First, the courts and society generally fail to recognize discrimination against minority languages like Spanish as a form of race discrimination. Second, the history of the education of Latinos/as demonstrates that the purpose of the educational system has been essentially to train Latino/as to become agricultural workers and laborers. The entire purpose of the educational system has been to assimilate Latinos into White, English-speaking society in a subordinate position. Equal protection jurisprudence also operates with assumptions of assimilation towards Whiteness and English-speaking. Implementing one-way assimilation towards Whiteness and English-speaking, however, denies the particularity and dignity of Latino/a identities and denies them equality. This is demonstrable in court decisions in various contexts, such as employment discrimination, jury service, and child custody decisions. Brown vs. Board of Education itself was based on similar, one-way assimilation towards Whiteness through attempted integration of public schools. This kind of reasoning denied equality both to Blacks and Latinos/as. The Supreme Court’s equal protection jurisprudence has historically privileged Whiteness, and current conceptions of equal protection, while embracing integration, assimilation and “colorblindness,” continue to reinforce White privilege. This article then discusses what equal education should mean for Latino students and describes long-known, but rarely implemented, best practices for educating Latino students. Rather than integrating and assimilating Latinos into conformity with White, English-speaking norms, a system of bilingual education should instead provide them equal education through the acknowledgement and protection of their linguistic and cultural identities. To conceptualize equality as a one-way assimilation toward a White, English-speaking norm is irreconcilably opposed to the concept of equality for minority cultures.

"A Question Which Convulses a Nation": The Early Republic's Greatest Debate About the Judicial Review Power

Abstract: I. CONTEXT AND CHRONOLOGY ...... 835 A. The Political Culture and Legal Landscape of Early-Nineteenth-Century Kentucky... 836 I. "Steady to the principles of pure republicanism" 836 2. "The laws of Virginia for the appropriation of lands were the greatest curse that ever befell Kentucky" 839 B. The Crisis Unfolds 844 . The Triggering D ecision 845 2. Removal and Reorganization 849 3. Response and Retrenchment 852 II. POWER, LEGITIMACY, AND CONSTITUTIONALISM .... 855 A. Competing Structural Theories of Sovereignty 857 i. Questions of Representation ........ 857 2. "[I]n ... a multiplicity of checks the freedom of the whole will be safe" 862 3. "Aristocrats" and "Farmers" 865 B. The Locus and Methodology of Constitutional Interpretation 869 i. The New Court's Populist View of Constitutionalism . 870 (a) Judicial Illegitimacy and Incompetency in Constitutional Interpretation 870 (b) "That little book": Implications of Writtenness for Popular Constitutional Theory 871 2. The Old-Court Party's Moderate Judicial Constitutionalism 874 III. RAMIFICATIONS ACROSS GEOGRAPHY, TIME, AND THEORY 877 A. Insights Regarding Marbury's Influence and the Opinions of National Leaders ......... 879 I. "Marberry and Madison ... [an] unhappy citation[]" . 879 2. The Views of National Leaders 881 B. Influences on Judicial Behavior and Andrew Jackson's Constitutionalism 884 I. Judicial Behavior 884 2. Jackson's Constitutionalism 886 C. Broader Historical and Theoretical Lessons 888 i. Recent Scholarship Assessing Conceptions of Judicial Review in the Early Republic 888 2. A n U ncertain C onsensus 892 3. The Public's Constitutional Moment 894 4. Taming the Judges 896

The Role of the Local in the Doctrine and Discourse of Religious Liberty

Abstract: INTRODUCTION I8II I. THE ROLE OF THE LOCAL 1820 A. Madison's Positive Pluralism 1823 B. Reconciling the Extended Sphere and the Dispersal of Political Authority 1825 II. DECENTRALIZED FREE EXERCISE 1831 A. Smith and Boerne Began To Decentralize Free Exercise Clause Exemptions 1832 B. Sm ith and Boerne Are Under-Theorized 1838 C. What Is Wrong with National Religion-Accommodating Legislation? 1844 D. Federal RFRA, State RFRAs, and Judicial Competence 1848 III. DECENTRALIZED FUNDING ......... 1853 A. The Doctrine Cannot Differentiate Local from National Exercises of Power 1855 B. Locke v. Davey and Local Decisionmaking 1858 C. The Problem of State Funding Is Its Scope and Origin 1867 IV. DECENTRALIZED EXPRESSION 1874 A. Endorsement and the Regulation of Local Expression 1875 B. The Emphasis on Expressive Harms Is Overstated .... 188o C. Giving Voice to Public Associational Values ...... 1886 CO N CLU SIO N 189 I

Article I Tribunals, Article III Courts, and the Judicial Power of the United States

Abstract: TABLE OF CONTENTS INTRODUCTION I. LEADING ACCOUNTS OF ARTICLE III A. Problems with the Literal Account 1. Legislative Courts 2. Administrative Agencies 3. Executive Branch Administration of Laws B. The Court's Alternatives to Article III Literalism 1. Holding the Line with Categorical Constraints 2. Balancing Article III Values C. Scholarly Alternatives to Article III Literalism II. THE TEXTUAL FOUNDATION OF AN INFERIOR TRIBUNALS ACCOUNT A. Distinguishing Inferior Tribunals from Inferior Courts 1. Textual and Structural Support 2. Support in the Drafting History 3. Early Implementation B. Inferiority in Relation to a Unitary Supreme Court III. THE ELEMENTS OF AN INFERIOR TRIBUNALS ACCOUNT: LESSONS FROM INSTITUTIONAL HISTORY A. Inferior Tribunals for Matters Outside the Judicial Power 1. The Finality Principle (a) Finality and Public Benefit Claims (b) Finality and Advisory Opinions 2. Territorial Courts and the Absence of Federal Rights 3. The Traditional Boundaries Principle (a) Court-Martial Proceedings (b) Small Claims, Bankruptcy, and Mixed Functions B. Preserving the Inferiority of Article I Tribunals 1. Direct Appellate Review 2. Supervisory Power and the Common Law Writs 3. Common Law Collateral Attacks on Inferior Tribunals C. Murray's Lessee, Public Rights, and the Limits of Congressional Power 1. Murray's Lessee and Public Rights 2. The Curious Focus on Issues of State Law D. Public Benefits, Private Rights, and Administrative Agencies E. The Scope of Review Required by the Principle of Inferiority IV. APPLYING THE INFERIOR TRIBUNALS ACCOUNT A. Testing the Inferiority of Familiar Article I Tribunals 1. Territorial Courts 2. Courts-Martial 3. Military Commissions 4. Public Rights, Sovereign Immunity, and the Court of Federal Claims 5. Article I Judges in Article III Courts 6. Magistrate Judges 7. NAFTA and the Use of International Panels To Arbitrate Trade Disputes B. Applying the Inferiority Principle to Leading Cases 1. Northern Pipeline 2. CFTC v. Schor 3. Thomas v. Union Carbide 4. Article I Appellate Review CONCLUSION We lack an entirely convincing account of the scope of Congress's power under the Constitution to create Article I tribunals and invest them with authority to adjudicate disputes that seemingly come within the scope of Article III. The literal terms of Article III appear to rule out reliance upon Article I tribunals altogether; Article III vests the judicial power of the United States in federal courts whose judges enjoy salary and tenure protections that were designed to ensure judicial independence in a scheme of separated powers. Yet Article I tribunals have grown up and flourished throughout the nation's history. This institutional history of Article I adjudication demonstrates the need for an alternative to literalism, but none of the competitors resolves the problem. The balancing test currently preferred by the Supreme Court acknowledges some role for Article I tribunals but fails to provide clear guidelines as to when Congress may sidestep Article III. A more promising academic theory--the appellate review account--emphasizes the need for appellate review in constitutional courts as the key to legitimate Article I adjudication. While this theory offers greater coherence, it does not fit especially well with some features of our institutional history and it would seemingly authorize some arrangements that depart dramatically from current law. Professor Pfander develops a new "inferior tribunals" account. Building on the constitutional distinction between "inferior tribunals" (in Article I) and "inferior courts" (in Article III), he suggests a new textual foundation for Article I tribunals. …

The "Inexorable Zero"

Abstract: For over a quarter century, legal arguments about segregation, discrimination, and affirmative action have invoked the image of the "inexorable zero" - complete absence of any women or minorities at a given school or workplace. Yet as evocative as the phrase might be, its precise doctrinal import has remained elusive. This Note recounts the original use of the concept in a landmark Title VII case and documents a current circuit split. It then articulates theoretical grounds upon which the concept’s intuitive appeal might rest. Finally, it excavates a further, more complex rationale that the Supreme Court may have contemplated at the concept’s genesis.

The Politics of "Inmate Litigation"

Abstract: I feel compelled to respond to a recent student-written Note1 that critiques my Article, Inmate Litigation,2 published last year in the Review. The Note aims to expose my work as an (“at least . . . unconscious”3) exercise in left-leaning political argumentation in the guise of technocratic, quantitative data-crunching. The accusation of covert politics is puzzling. My piece employed careful quantitative and qualitative empirical techniques to evaluate a statute, the Prison Litigation Reform Act (PLRA),4 that restricts the legal rights of some of the most disempowered and vulnerable people in this country. The politics of that inquiry are clear, and I made no attempt to hide them: I think that the outcome of such systematic investigation matters — that it is wrong to curtail litigation rights, even of inmates, if the effect is to deny redress to victims of unconstitutional misconduct or if the policy change is based on false factual arguments. Unlike the Note, that is, I would hold Congress accountable for both the premises on which it rested inmate litigation reform and the results of that reform. The anonymous Note author’s (shocked, shocked!) discovery that my piece was driven by such an agenda, hidden in plain sight, hardly requires much analytic insight. But whatever one’s politics, I believe that there is something to be said for fair and careful use of data, as well. Unfortunately, these qualities are nowhere to be found in the Note. Instead, its author engages both in egregious misreading of my piece — mischaracterizing both my arguments and the data on which they rest — and in illogical argumentation that hides rather than clarifies the meaning and effects of statutory provisions. These failings are particularly unfortunate because they obstruct serious policy debate, which is what my piece attempted to promote. The problem begins with the Note’s frame, which asserts that I attempted but failed to establish that the PLRA’s proponents would, if only