Showing papers in "Harvard Law Review in 2012"

Property as the Law of Things

Abstract: INTRODUCTION Private law deals with the interactions of persons in society. If we think about all the effects produced by the relation between each pair of persons and then unlimited chains of such interactions--A sells Blackacre to B, who sells to C, who mortgages to D and rents to E, and so on--then prescribing results for such interactions is a potentially intractable problem. Private law would be an impossible enterprise. This is where property comes in. Property is a platform for the rest of private law. The New Private Law takes seriously the need for baselines in general and the traditional ones furnished by the law in particular. And nowhere is this issue of baselines more salient than in property. I argue that the baselines that property furnishes, as well as their refinements and equitable safety valves, are shaped by information costs. For information-cost reasons, property is, after all, a law of things. Property as a law of things, however, suffers from a serious image problem in American legal theory. In stark contrast, other legal systems treat property as a right to a thing and property law as the "law of things." (1) An "in rem" right originally meant a right "in a thing," and I argue that it is the mediation of a thing that helps give property its in rem character--availing against persons generally. But if legal realism and its progeny insisted on anything, it was that property is not about things. (2) According to this conventional wisdom, property is a bundle of rights and other legal relations availing between persons. Things form the mere backdrop to these social relations, and a largely dispensable one at that. Particularly with the rise of intangible property, so this story goes, the notions of ownership and property have become so fragmented and untethered to things that property is merely a conclusion, a label we affix to the cluster of entitlements that result from intelligent policymaking. (3) By contrast, according to the realist and postrealist conventional wisdom, the traditional baselines provided by property law not only were undertheorized and underjustified, but also represented a pernicious superstition and an obstacle to clear thinking and progressive remaking of the social order. (4) An inclination to take traditional property baselines seriously can then be dismissed as a failure to get with the program and a reflection of lack of sophistication or a partiality for entrenched interests. I want to suggest that this familiar picture has things exactly backward. It is the extreme realist picture that is myopic, inflexible, and ultimately unworkable and the traditional baselines that, while in need of constant improvement, are very worthy of explanation and a good deal of respect. The point is not to restore prerealist formalism but to ask why property sometimes is formal and sometimes is not. The first step toward understanding private law is to try not to take things for granted and to be as attentive to how things are not as to how things are. As we will see, this type of detachment makes some room for formalism, which is somewhat ironic because commentators since the legal realist era have generally criticized prerealist "formalism" for being complacent and taking traditional baselines and doctrine as given. Whether that was ever so, it is first of all important to distinguish between, on the one hand, making open-ended inquiries about property law and, on the other, building open-ended inquiry into the decisionmaking processes of judges and others operating the system of property law. There is nothing inconsistent about a highly contextual explanation of a system that itself eschews context--is "formalist"--in important respects. One might have a highly complex theory of traffic patterns and still conclude that it is best to promulgate flat speed limits and a duty to stop at red traffic lights and stop signs regardless of the amount of traffic in the other direction. …

Agency Coordination in Shared Regulatory Space

Abstract: Interagency coordination is one of the great challenges of modern governance. This Article explains why lawmakers frequently assign overlapping and fragmented delegations that require agencies to "share regulatory space," why these delegations are so pervasive and stubborn, and why consolidating or eliminating agency functions will not solve the problems these delegations create. Congress, the President, and agencies have a variety of tools at their disposal to manage coordination challenges effectively, including agency interaction requirements, formal interagency agreements, and joint policymaking. This Article also assesses the relative strengths and weaknesses of these coordination tools using the normative criteria of efficiency, effectiveness, and accountability, and it concludes that the benefits of coordination will frequently be substantial. To varying extents, these instruments can reduce regulatory costs for both government and the private sector, improve expertise, and ameliorate the risk of bureaucratic drift without compromising transparency. Coordination can also help to preserve the functional benefits of shared or overlapping authority, such as promoting interagency competition and accountability, while minimizing dysfunctions like discordant policy. Shared regulatory space can be challenging for the executive branch, but it also presents the President with a powerful and unique opportunity to put his stamp on agency policy. This Article recommends a comprehensive executive branch effort to promote stronger interagency coordination and improve coordination instruments. Any presidential exercise of centralized supervision will often be politically contentious and must, of course, operate within legal bounds. On balance, however, presidential leadership will be crucial to managing the serious coordination challenges presented by modern governance, and existing political and legal checks on potential overreach are sufficient to manage any conflicts with Congress. This Article concludes by exploring the implications of enhanced interagency coordination for judicial review. Courts might adjust standards of review to promote coordination, but even if they do not, policy decisions arrived at through strong interagency coordination likely will attract greater deference. Greater coordination is relatively unlikely to impact the outcome of the Chevron inquiry when reviewing agency legal interpretations. Some minor doctrinal adjustments could lead to greater deference where agencies use certain coordination instruments to adopt shared interpretations, but no major change in how courts approach judicial review is necessary for coordination to flourish. …

Duties, Liabilities, and Damages

Abstract: In this Article I explore two ways of understanding damage awards. The first way, which I call the duty view, supposes that damage awards confirm existing legal duties to pay damages. According to this view, damage awards are structurally similar to awards that require defendants to do things such as deliver contractually promised goods, cease nuisances, or pay contractual debts. Like these awards, damage awards are essentially rubber stamps: they require defendants to do what they should have done already. In contrast, the second way of understanding damage awards, which I call the liability view, supposes that insofar as it makes sense to speak at all of legal duties to pay damages, such duties are created--not confirmed--by damage awards. According to this view, damage awards are structurally similar to awards that require criminal wrongdoers to pay fines. In Montreal, there is a bylaw stipulating that citizens are liable to be fined a minimum of $300 if they allow their dogs to run unleashed. (1) But there is no rule stipulating that if citizens allow their dogs to run unleashed, they should send the city a check for $300. Errant dog owners have no legal or even moral duty to pay the city prior to being ordered to do so. The liability view regards damage awards as similar: they are at most duty creating, not duty affirming. The Article defends three main propositions. First, the best-known contemporary theories of damages--"rights-based theories" and "utilitarian theories"--are committed to the duty view. Properly understood, the explanations these theories give for why damages should be paid--roughly, that there are moral duties to pay damages or that the practice of paying damages promotes utility--are in principle best satisfied if payment is made immediately after the wrong. If either of these theories is correct, the common law should contain a rule stipulating that wrongdoers have duties to pay damages to their victims. Second, the common law contains no such rule. (2) Rather than imposing ordinary or even inchoate duties to pay damages, the common law merely imposes liabilities to pay damages. Third and finally, it follows from the first two propositions that any theory of damage awards focusing on the value of the actions that such awards require--as do rights-based and utilitarian explanations--is bound to fail. The most important feature of damage awards is that they are awards--that is, that courts issue them. Like orders to pay fines, their importance lies fundamentally not in what they do, but in what they represent. And what damage awards represent is the law's recognition that the plaintiff was wronged by the defendant. Damage awards are the law's way of vindicating--not enforcing--the plaintiff's rights. A word on terminology: except where indicated otherwise, "legal duties" refers to duties that exist because there is a legal rule--legislative or judge-made--that makes certain behavior obligatory. This usage is familiar: lawyers say that citizens have legal duties to pay their contractual debts because there is a legal rule that contractual debts ought to be paid. It is not, however, the only usage; in particular, lawyers sometimes talk of legal duties that exist because a court issued a judicial award. (3) Thus, it is sometimes said that a defendant who has been ordered to pay a sum has a legal duty, arising from the order, to pay the money. (4) In Part II, I briefly consider whether "court-ordered duties" are different in kind from "rule-based duties" and, more generally, whether the idea of court-ordered duties makes sense at all. In general, however, this distinction is unimportant for my purposes. The alleged duties that are this Article's focus are duties that arise upon the commission of a wrong and that require the wrongdoer to pay damages. Such duties are necessarily rule-based. I. RIGHTS-BASED AND UTILITARIAN THEORIES: THE DUTY VIEW A. Rights-Based Theories Rights-based theories explain private law in terms of rights that individuals hold against other individuals. …

Worth a Thousand Words: The Images of Copyright Law

Abstract: CONTENTS INTRODUCTION 684 I. THE DIFFERENCE THAT IMAGES MAKE 688 A. Nothing to See Here: The Transparency of Images 688 B. Transparency in Law 693 C. Images as Legal Tools 695 D. Opacity 701 II. COPYRIGHT PROTECTION AND THE CONTRADICTIONS OF SIMILARITY 710 A. Opacity in Copyright ability 712 B. The Substantial Similarity Test 716 1. "Look and Feel" Suffers from the Same Problems as Copyright ability 716 2. The Difficulty of Judging Images 719 3. Naive Theories of Representation and the Idea/Expression Divide. 723 4. Infringement Analysis and Verbal Overshadowing 733 C. Solutions 738 III. PRIVILEGING TEXT IN COPYRIGHT CONFLICTS 740 A. Comic Art: A Case Study of Words and Pictures 741 B. Fair Use 751 CONCLUSION: Imaging/Imagining the Future 755 Copyright starts with the written word as its model, then tries to fit everything eise into the literary mode. It oscillates between two positions on nontextual creative works such as images - either they are transparent, or they are opaque. When courts treat images as transparent, they deny that interpretation is necessary, claiming both that the meaning of the image is so obvious that it admits of no serious debate and that the image is a mere representation of reality. When they treat images as opaque, they deny that interpretation is possible, pretending that images are so far from being susceptible to discussion and analysis using mords that there is no point in trying. The oscillation between opacity and transparency has been the source of much bad law. This Article explores the ungovernability of images in copyright, beginning with an overview of the power of images in the law more generally. The Article then turns to persistent difficulties in assessing copyrightability and infringement for Visual works. In assessing copyrightability, courts draw Unes between artistic choice and mere reproduction of reality, but also treat the artist as a person with a special connection to reality who possesses a way of seeing that ordinary mortals lack. Infringement analysis repeats this doubling, using the representation/reality divide to separate protected elements of a specific work from unprotected ones while simultaneously insisting that works are indivisible gestalts. Current doctrine makes impossible and self-contradictory demands on factfinders. It should be replaced with a true "reproduction" right against exact or near-exact copying. Despite this radical proposai, much of my argument is critical and diagnostic. I therefore turn to more specific Problems in authorship questions for multimedia works and fair use that highlight the instabilities in current approaches to nontextual works. Greater epistemic humility, recognizing that images make multiple meanings in multiple ways, could combat the judicial tendency to presume that images are nothing more than what they seem. INTRODUCTION Copyright is literal. It starts with the written word as its model, then tries to fit everything else into the literary mode. Protections for photographic, musical, audiovisual, and other modes of expression were added to the U.S. Code slowly and haphazardly, following economic rather than conceptual demands. (1) Taking words as the prototypical subject matter of copyright has continuing consequences for copyright law, which often misconceives its object, resulting in confusion and incoherence. An introductory example comes from one of the most significant copyright developments of our time, Google Book search. …

Democracy and Disdain

Abstract: THE SUPREME COURT 2011 TERM FOREWORD: DEMOCRACY AND DISDAIN Pamela S Karlan CONTENTS I THE VERY WORLD OF ALL OF US: THE REVOLUTION OF THE WARREN COURT ADemocracy and the Electoral Process BTrusting Congress CThe Democratization of Constitutional Enforcement II AS ON A DARKLING PLAIN: THE COUNTERREVOLUTION OF THE ROBERTS COURT AProtecting Spenders and Suspecting Voters: The Roberts Court and the Political Process B Suspecting Congress CUndermining Enforcement III SHINE, PERISHING REPUBLIC Sometimes the Justices seem barely able to hide their disdain for the other branches of government Take the oral argument three Terms ago in Northwest Austin Municipal Utility District No One v Holder Justice Scalia pointed to the overwhelming congressional vote in favor of amending and extending section 5 of the Voting Rights Act of 1965--the "crown jewel" of the Second Reconstruction--as a reason not for deference, but for suspicion: JUSTICE SCALIA: What was the vote on this 2006 extension --98 to nothing in the Senate, and what was it in the House? Was -- MR ADEGBILE: It was--it was 33 to 390, I believe JUSTICE SCALIA: 33 to 390 You know, the--the Israeli Supreme Court, the Sanhedrin, used to have a rule that if the death penalty was pronounced unanimously, it was invalid, because there must be something wrong there (1) In this Term's argument in Arizona v United States, (2) an important immigration case, Chief Justice Roberts cut off Solicitor General Donald B Verrilli Jr before Verrilli was able to utter a complete sentence (3) And during argument in National Federation of Independent Business v Sebelius (4) (NFIB), Justice Kennedy speculated that when the political branches take a step beyond what the Court's existing cases "have allowed," the presumption of constitutionality disappears, to be replaced by "a heavy burden of justification to show authorization under the Constitution" (5) The Justices are becoming umpires in the tradition of Bill Klem, who when asked whether a particular pitch was a ball or a strike, replied that "It ain't nothin' till I call it" (6) It was not always so The opening day of the marathon oral argument in the Affordable Care Act (7) cases--surely the defining decision for the Roberts Court so far--happened to be the fiftieth anniversary of what Chief Justice Warren called "the most important case" of his "tenure on the Court" (8): Baker v Carr (9) Why Baker, and not Brown v Board of Education (10) or Miranda (11) or Gideon (12) or New York Times Co v Sullivan? (13) Well, because Baker set in motion the reapportionment revolution--a centerpiece of the Warren Court's "participation-oriented, representation-reinforcing approach to judicial review" (14) The animating impulse behind many of the Warren Court's major decisions was a commitment to civic inclusion and democratic decisionmaking This impulse is captured not only by the Reapportionment Cases themselves, where the Court focused on equality in voting and problems of minority entrenchment, (15) but also by the way the Court tied public education to civic participation in Brown (16)and treated the landmark legislation of the Second Reconstruction as an important tool in realizing constitutional values (17) The Warren Court understood the problems and the promises of politics from its own experience The Court numbered among its members former senators, representatives, and state legislators, a former governor and a former mayor, and former cabinet members (18) Earl Warren himself was a politician of a kind we can scarcely imagine today Elected Governor of California as a Republican in 1942, (19) he proposed that California become the first state "to create and support a system of compulsory health insurance" (20) Although the proposal was defeated by one vote in the Assembly, (21) his health care agenda, among other things, garnered Warren such widespread admiration that when he ran for reelection in 1946, he won both the Republican and Democratic primaries …

Introduction: Pragmatism and Private Law

Abstract: Like many legal concepts, "private law" has recognizable referents yet eludes precise definition. Private law defines the rights and duties of individuals and private entities as they relate to one another. (1) It stands in contrast to public law, which establishes the powers and responsibilities of governments, defines the rights and duties of individuals in relation to governments, and governs relations between and among nations. (2) Private law includes the common law subjects that have long been central to U.S. legal education--contracts, property, and torts. But it is not limited to those subjects, nor to common law. Statutory fields such as intellectual property and commercial law fall within private law. So too do areas of law now mostly neglected in U.S. law schools, such as agency, unjust enrichment, and remedies. At a broader level, the phrase "private law" gestures toward an elusive set of distinctions between what is public and what is private. Private law is law, so government is involved, albeit in a particular way. Typically, it makes available institutions and procedures that enable individuals and entities to define their relationships and to assert and demand the resolution of claims against others. Courts are central to this framework, but so too are arbitral panels. In turn, this institutional framework builds on and partly incorporates customs and social norms pertaining to interpersonal interaction. Whereas scholars in commonwealth and civil law jurisdictions generally are comfortable with the category of private law, the disposition among U.S. legal academics is skeptical. (3) The idea that "all law is public law" (4) is no less taken for granted than the idea that "we are all realists now." (5) The simultaneous embrace of these two mantras is no coincidence. Legal realism is one important instantiation of a broader view of law that has contributed to the rise of private law skepticism. In what follows I will first briefly discuss three canonical statements of this broader view, which I dub "brass-tacks pragmatism." They are Justice Holmes's The Path of the Law, (6) Karl Llewellyn's Some Realism About Realism, (7) and Duncan Kennedy's Form and Substance in Private Law Adjudication. (8) I focus on these articles because (by academic standards) they are famous, because they appeared in the pages of this journal, and because they demonstrate that the view I am describing crosses methodological, political, and generational lines. After outlining the connection between brass-tacks pragmatism and private law skepticism, I will invoke a different variant of pragmatism--"inclusive pragmatism"--in support of the less skeptical "new" private law. I. BRASS-TACKS PRAGMATISM The label "brass-tacks pragmatism" derives from the idiom "getting down to brass tacks." The idiom imports a notion of moving past idle chatter to what is genuine and important. (9) Brass-tacks pragmatism offers a comparable view of what it means to be pragmatic in one's thinking. Pragmatic thinking, it supposes, is hardheaded in the particular sense of pushing past the surface to get to what is "really" at stake. (10) More than a century after its publication, The Path of the Law remains a leading statement of brass-tacks pragmatism. Ever the provocateur, (11) Justice Holmes took the occasion of a law school ceremony to tweak his hosts for providing students with a gauzy depiction of law. Law, he supposed, was portrayed in the classroom as an exercise in practical reason--it was said to reside in judicial opinions that abstract away from particular disputes to general "issues" and that reason through those issues by appeals to precedent, principle, and common sense. (12) This portrayal failed to get down to brass tacks. Law is not disembodied reason. It is rather a set of tolls imposed by the state on individuals as they go about their business, and it is judges who build and staff the tollbooths. …

Historical Gloss and the Separation of Powers

Abstract: Arguments based on historical practice are a mainstay of debates about the constitutional separation of powers. Surprisingly, however, there has been little sustained academic attention to the proper role of historical practice in this context. The scant existing scholarship is either limited to specific subject areas or focused primarily on judicial doctrine without addressing the use of historical practice in broader conceptual or theoretical terms. To the extent that the issue has been discussed, most accounts of how historical practice should inform the separation of powers require “acquiescence” by the branch of government whose prerogatives the practice implicates, something that is viewed as critical to giving historical practice the force of law. Yet the concept of acquiescence has been treated much too casually in the literature. Claims about acquiescence are typically premised on a Madisonian conception of interbranch competition, pursuant to which Congress and the Executive Branch are each assumed to have the tools and the motivation to guard against encroachments on their authority. It has become apparent from political science scholarship, however, that the Madisonian model does not accurately reflect the dynamics of modern congressional-executive relations. This requires a reexamination of the premises and implications of the idea of institutional acquiescence in particular, and of the role of historical practice more generally. Ultimately, we argue, the problems with the Madisonian model are not fatal to crediting historical practice in interpreting the separation of powers. But they do require more attention to the reasons why such practice is invoked, the extent to which the reasons demand institutional acquiescence, and the precise method by which such acquiescence is identified. To illustrate the importance of each of these questions, we present three case studies of constitutional debates concerning the separation of powers in which practice-based arguments are prominent - war powers, congressional-executive agreements, and removal of executive officers.

When Things Aren't What They Seem: Context and Cognition in Appearance-Based Regulation

Abstract: Appearances mean a lot in American society, more than we probably care to admit or deem appropriate. Using appearance as a justification for the government’s policy decisions is thus a provocative idea that demands scrutiny. Indeed, for the government to act on appearances alone — whether to change “reality” or not — is fraught with complexity and is problematic in its implications. Recognizing the high stakes, Professor Adam Samaha1 attempts to impose analytic and normative clarity by drawing on a mix of legal and social science scholarship. He offers a general framework for evaluating appearancebased government decisions and applies his logic to two concrete cases — campaign finance regulation and broken windows policing. An important move in Samaha’s article is to take seriously the mechanism of the “self-fulfilling prophecy” and apply it to the appearance-reality connection.2 The “bank run” is a well-known example of a self-fulfilling prophecy that is triggered when appearances are the causal force driving a later meltdown. There are other ways to think about appearance and reality, however. Samaha uses the example of bridges to highlight the transparency problem: how reality can be insulated from appearance (a bridge can appear unsound but be safe, for example, or appear safe but lack structural integrity). Architects understand the importance of “designing in” the appearance of safety, even though believing that a bridge is safe does not make it safe. For this reason, the bridge mechanism is distinct from the bank, where appearance does drive reality. Clocks represent yet a third example, where reality “collapses into appearance” based on agreed-upon con-

Palsgraf, Punitive Damages, and Preemption

Abstract: The standard One-L curriculum remains heavy on Torts, Contracts, and Property, presumably on the theory that these subjects will help students learn "to think like lawyers." Ironically, however, these are the subjects in which leading scholars are most attracted to the opposite approach: they want to think like economists, philosophers, political scientists, and historians, not like lawyers. And so it is that a basic common law subject like Torts has turned into a battleground for "law-and-" scholars, with scholars of law and economics pushing efficiency theories on one side and legal philosophers pushing corrective justice theory on the other. New Private Law theory is founded on the idea that legal scholars must do both: although we must avail ourselves of the sophistication of cognate fields of study, we must, in the end, think and theorize like lawyers. New Private Law theorists recognize the value of a pragmatism that is sensitive to which functions the law serves, critical as to how well it is serving those functions, and open-minded about how it might better serve them. We insist, however, that understanding private law goes far beyond an appreciation of its salutary functions and its limits. The task requires understanding the concepts and principles entrenched in the law and the structures, institutions, and languages that implement these concepts through the practices of courts, legislators, and lawyers. I have dubbed this view "pragmatic conceptualism" and, along with Professor John Goldberg, have applied it to a wide array of problems in tort law over the past fourteen years. This Article utilizes a pragmatic conceptualist methodology to solve three problems in tort law: one on Palsgraf, one on punitive damages, and one on federal preemption. In each case, pragmatic conceptualism allows us to cut through distracting features of the problem, to avoid the embarrassment of judicial paralysis, and to move forward with a coherent approach that identifies which decisions will need to be made by judges and what practical concerns those decisions will turn on. Indeed, in each of the sections that follow, I begin by showing that courts and commentators have been so badly confused by the problem before them that they have been incoherent, silent, or deadlocked. The confusion has been generated by a failure to recognize that--despite the many aspects of tort law that render it importantly public--there is something distinctively private about the common law of torts. Utilizing civil recourse theory, this Article alleviates the confusion and articulates solutions to all three problems. Part I begins with the canonical case of first-year Torts, Palsgraf v. Long Island Railroad Co. The central point of Chief Judge Cardozo's Palsgraf opinion is that a defendant's failure to use due care must have been a breach of the duty of due care owed to the plaintiff; the breach and duty elements of the negligence claim must fit together in the right way. The opinion infers this requirement from the broader principle that a plaintiff may not sue in tort for a wrong to another, which itself flows from the idea that a tort claim is fundamentally a private right of action to redress a wrong to oneself. Chief Judge Cardozo utterly rejected the sort of private attorney general conception of tort law that has become prevalent in contemporary tort thinking. So long as scholars and students reading his Palsgraf opinion resist his private-law mindset, they are doomed to misunderstand what the opinion actually says. Part II turns from the past to the present, from Palsgraf to the constitutional status of punitive damages. Over the past two decades, the United States Supreme Court has wrestled with the question of when, if ever, a state's punitive damages law fails to live up to the standards of the Fourteenth Amendment's Due Process Clause. The Court's difficulties were dramatically revealed in Philip Morris USA v. …

Inventing the Traditional Concept of Sex Discrimination

Abstract: It is a commonplace in employment discrimination law that Title VII’s prohibition of sex discrimination has no legislative history. Courts have therefore argued that this prohibition must be restricted to the “traditional concept” of sex discrimination. Traditionally, courts suggest, discrimination “because of sex” referred only to practices that divided men and women into two perfectly sex-differentiated groups. Although Title VII doctrine has evolved over time, this “traditional concept” of sex discrimination continues to exert a powerful regulative influence over the law. It excludes certain claims — such as those by sexual minorities — from coverage and elevates the evidentiary burdens plaintiffs must satisfy in order to prove discrimination “because of sex.” This article argues that the “traditional concept” of sex discrimination is an invented tradition. It purports to reflect the historical record, but in fact reflects normative judgments about how deeply the law should intervene in the sex-based regulation of the workplace. Recovering the largely forgotten legislative history of Title VII’s sex provision, this article shows that there was little consensus and much debate in the 1960s about what qualified as sex discrimination. Employers advanced the argument that Title VII applied only to practices that sorted men and women into two perfectly sex-differentiated groups in order to preserve the traditional gendered organization of the workplace and insulate particular employment practices from scrutiny. In the 1970s, courts adopted this interpretation but no longer cited the need to preserve conventional sex and family roles as a justification; instead, courts cited deference to the legislature and fidelity to tradition as justifications for interpreting the law narrowly. This article shows that history does not compel courts to interpret Title VII’s prohibition of sex discrimination in anticlassificationist terms — and that, in fact, in cases where anticlassificationism produces expansive rather than narrow results, courts have routinely departed from it. This tendency should prompt us to think critically about the assertion that deference to the legislature and fidelity to tradition require courts to adhere to a narrow conception of what it means to discriminate “because of sex.” The parameters of Title VII’s prohibition of sex discrimination have always been determined by normative judgments about how forcefully the law should intervene in practices that reflect and reinforce conventional understandings of sex and family roles.

To tax, to spend, to regulate.

Abstract: Introduction Two very different visions of the national government underpin the ongoing battle over the Affordable Care Act (1) (ACA). President Obama and supporters of the ACA believe in the power of government to protect individuals through regulation and collective action. (2) By contrast, the ACA's Republican and Tea Party opponents see expanded government as a fundamental threat to individual liberty and view the requirement that individuals purchase minimum health insurance (the so-called "individual mandate") as the conscription of the healthy to subsidize the sick. (3) This conflict over the federal government's proper role is, of course, not new; it has played out repeatedly over our nation's past. (4) But rarely since the New Deal has it surfaced in such a distinctly constitutional guise with respect to economic legislation. Instead, after the Supreme Court sustained broad congressional power seventy-plus years ago, (5) little doubt existed that the federal government generally had constitutional authority to regulate private activity if it chose to do so. The Rehnquist Court's reassertion of limits on congressional power under the Commerce Clause indicated that some measures may go too far. (6) Still, the fight over the federal government's proper role in the economic sphere has been largely political, not constitutional. National Federation of Independent Business v. Sebelius (7) (NFIB) challenged this basic constitutional consensus, with the most significant social welfare reform legislation in decades hanging in the balance. Moreover, reopening that constitutional consensus focused national attention on the Supreme Court, with perceptions of the Court as ideologically driven reinforced by the close association between the constitutional challenges to the ACA and conservative political views. (8) The country's obsession with the health care litigation provided a daily reminder of the extent to which the Court stood at the center of a political as well as a constitutional storm. Against this backdrop, it is hard not to see Chief Justice Roberts's opinion in NFIB as a consummate act of institutional diplomacy. Although at times writing for himself only, the Chief Justice's opinion determined the Court's path. He avoided the unpalatable result of having the Court invalidate President Obama's signature achievement in the midst of a close reelection campaign by a 5-4 vote that would have mapped the Justices' ideological leanings. In the process, he managed to offer something to everyone: liberals got the vast majority of the ACA upheld; (9) conservatives got new limits on Congress's regulatory and spending authority; (10) states not only got the freedom to refuse to expand their Medicaid programs without risk of losing funds, but also kept the ability to expand (with generous federal subsidies) if they want to. (11) Chief Justice Roberts even used the opinion as an opportunity to reassert the Court's preeminent role in enforcing the Constitution. (12) Reinforcing this institutionalist account are reports that his decision to uphold the mandate represented a change of heart after the initial conference. (13) We thus may have a second putative "switch in time" to protect the Court, three-quarters of a century after an earlier Justice Roberts is alleged to have done the same. (14) In short, the Chief Justice's opinion appears to be a jurisprudential compromise that allows the Court to straddle the rancorous political divide consuming the nation. At the same time, it has a legitimate legal basis. In upholding the mandate as a tax, Chief Justice Roberts acted in accordance with the Constitution's grant of a broad tax power, longstanding precedent, and the well-established presumption of constitutionality. But the Chief Jushandguns tice's approach created an opinion whose different parts stand in considerable analytic tension. His flat rejection of all applications of the mandate under the commerce power contrasts with his willingness to preserve as much of the ACA as possible under Congress's tax and spending authority. …

A Reply to Professor Hasen

Abstract: “Corruption” plays an important role in First Amendment law. For it is only to avoid “corruption” or the “appearance of corruption” that Congress has the power to restrict otherwise protected political speech. Yet that formulation leaves a fundamental question unresolved: What does “corruption” mean? Everyone agrees it means at least quid pro quo bribery, or influence peddling. On this conception, corruption is influence exchanged for reward; public office traded for private gain. To the modern American mind, no crime could be clearer. To the modern cynical American mind, no crime could be more common. But does the term “corruption” mean anything beyond quid pro quo corruption? This Supreme Court has made it clear that it does not mean the odd innovation of Austin v. Michigan Chamber of Commerce,2 which I will call, “inequality corruption.” As Professor Richard Hasen explains it in his review:

Law and Local Knowledge in the History of the Civil Rights Movement

Abstract: We live in chastened times. A generation ago, young legal academics often desired to explain how the Supreme Court could be an effective participant in the social controversies of the day, and young liberal lawyers believed that public impact litigation could be an effective strategy for social reform. The most visible evidence for that optimism seemed to be the NAACP’s desegregation litigation that led to the Court’s decision in Brown v. Board of Education, which was conventionally seen as the opening act of the civil rights movement. At present, such dreams seem hopelessly utopian. Ambitious legal scholars now make their careers by explaining how, as a descriptive or normative matter, one should not expect courts to be agents of social change. Conservative lawyers, rather than liberals, spend decades developing strategies to effect public policy through the judiciary. Nominees to the Supreme Court routinely express the requisite reverence for the Court’s decision in Brown, and the equally-

Affordable convergence: "reasonable interpretation" and the Affordable Care Act.

Abstract: The constitution of the United States is to receive a reasonable interpretation of its language, and its powers, keeping in view the objects and purposes, for which those powers were conferred. By a reasonable interpretation, we mean, that in case the words are susceptible of two different senses, the one strict, the other more enlarged, that should be adopted, which is most consonant with the apparent objects and intent of the constitution. ... -- Joseph Story (1833) (1) That the Court was sharply divided was not a surprise. The contrasting briefs--including a record 136 from amici--laid out the dispute. (2) Over the extraordinary six hours of oral argument, the Justices actively interrupted the advocates, with Justices Ginsburg, Breyer, Sotomayor, and Kagan directing considerably more words to the challengers, and Chief Justice Roberts and Justices Scalia, Kennedy, and Alito the mirror image, directing far more of their words to the government. (3) So it was not a surprise to find that the Justices produced two starkly warring opinions. One would strike down as unconstitutional the entire Patient Protection and Affordable Care Act, (4) and another would entirely uphold the same law; (5) the two opinions embodied distinctive approaches to the issues at hand, to constitutional interpretation, and indeed, to how to view the world. The unexpected further, controlling opinion authored by Chief Justice Roberts was historic not only in its bottom line (upholding most of the law but under the federal taxing power, after finding no power under the Commerce Clause), but also in its staking out a third position, outside the two warring camps. (6) Leaving to others speculative debate about the motivations and intentions of Chief Justice Roberts, (7) this Comment argues that this third opinion transcended the polarized political debates surrounding the legal challenge to President Barack Obama's signature domestic policy initiative through analytical convergence, not political compromise. Although pundits called it a compromise, something else was at work. (8) Here, Chief Justice Roberts followed Justice Joseph Story's view of "reasonable interpretation." (9) Seeing the decision as one of law, not just of politics, demonstrates the power of arguments and explanations rather than sheer outcomes or advantage. The reasons and interpretations exchanged in this case--not just the votes and the result--amplify the Supreme Court as a symbol of the rule of law. And, because it was a legal ruling, there will be repercussions for legal doctrines and for the actual scope of governmental powers for years to come. (10) Or so I will argue here. In the political debates over national health care, which have recurred periodically in the United States over the past 100 years, (11) advocates have disagreed over whether markets or governments offer better solutions and whether or how public incentives or subsidies should be designed. (12) While other countries installed varied versions of compulsory insurance, tax-funded health care, or single-payer programs, (13) the United States refrained from a federal policy for all, even as the federal government provided specific programs for individuals living in poverty, elderly people, and federal employees and offered incentives for provision by private employers. Observers knowledgeable about other nations wonder what explains this pattern of American exceptionalism. (14) Some United States presidents vowed to end it. (15) The recent political fight, ultimately producing a bill, passed largely along party lines and logging in at over 900 pages, (16) generated considerable media attention--devoted much more to political maneuvers and controversy than to the substance of the legislation. (17) In the view of commentators, the political fight continued in the lawsuits--filed by twenty-six states as well as private parties--and judicial decisions leading up to the Supreme Court's consideration. …

The obligatory structure of copyright law: unbundling the wrong of copying

Abstract: INTRODUCTION Courts and scholars today understand and discuss the institution of copyright in wholly instrumental terms.(1) Indeed, given the forms of analysis that they routinely employ, one might be forgiven for thinking that copyright is nothing more than a comprehensive government-administered scheme for encouraging the production of creative expression and is therefore quite legitimately the subject matter of public law. (2) While this instrumental focus may have the beneficial effect of limiting copyright's unending expansion, it also serves as a source of distraction. It directs attention away from the reality that copyright is fundamentally a creation of the law and is thus endowed with a uniquely legal normativity that instrumental accounts find difficult to capture. (3) In so doing, it also glosses over the rather crucial fact that copyright law's basic structure is and indeed always has been that of private law. In this Article, I argue that taking copyright's legal architecture seriously reveals a matrix of core private law concepts and ideas that are in turn a rich and underappreciated source of normativity for the institution. In the process, I make three interrelated claims. First, copyright theories and analyses ought to pay greater attention to the analytical structure of copyright's entitlement framework and the ways in which this structure seeks to operate in the real world. Discussions of copyright law would do well to appreciate that the institution's exclusive rights framework functions almost entirely through its creation of an obligation not to copy original expression. Second, copyright can usefully be reconceptualized as revolving around the "wrong of copying," which originates in the right-duty structure that copyright creates. Reorienting discussions along these lines allows for a more direct focus on why copyright treats copying as a wrong, what actions constitute the wrong, and which plural values can fruitfully coexist within its private law structure. Third, focusing on copyright's internal logic need not come at the cost of its instrumentalism. To the contrary, such an approach entails mediating the institution's instrumentalism through its private law structure on a nuanced, pragmatic basis. The idea of legal normativity is traced back to the seminal work of Professor H.L.A. Hart, who argues that the law always operates by imposing "obligations" on individuals. (4) Individuals, in turn, comply with these obligations not merely because of the consequences of compliance or noncompliance--that is, the rewards or sanctions that are likely to follow from obedience or disobedience--but because they have internalized the rule and accepted it, owing to its origins in the law. Hart terms this approach to understanding a legal rule the "internal point of view," and contrasts it with other approaches that neglect this practical attitude of rule acceptance. (5) Viewing copyright from this internal point of view entails two important analytical moves. First, it entails trying to understand copyright in terms of its obligatory or duty-imposing directives, which are vested with independent normative significance. Commonly thought of entirely in terms of "rights" owing to its structural similarity to property law, copyright law is rarely, if ever, conceptualized as a duty-imposing system. When scholars do make mention of copyright's duty in their analyses, they do so without crediting this duty with any independent functional significance. (6) Ironically, though, absent the "duty not to copy" that copyright creates as an obligatory directive, copyright's entire structure of exclusive rights becomes functionally vacuous. Second, an internal approach to copyright law entails accepting that copyright's legal framework--as an obligatory system--speaks most directly to potential copiers rather than to creators. Reframing copyright in terms of the "wrong of copying" that its right-duty structure anticipates provides a more useful basis for tying it to the internal point of view. …

Aggregate Litigation Goes Public: Representative Suits by State Attorneys General

Abstract: State attorneys general represent their citizens in aggregate litigation that bears a striking resemblance to the much-maligned damages class action. Yet, while class actions are subject to a raft of procedural rules designed to protect absent class members, equivalent suits in the public sphere are largely free from constraint. The procedural disconnect between the two categories of aggregate litigation reflects a widespread assumption that attorneys general will adequately represent the interests of the state’s citizens, obviating any need for case-specific mechanisms for assuring the loyalty of lawyer to client.This Article challenges the presumption of adequate public representation. By conflating consent of the governed with consent of the client, the conventional wisdom ignores the important differences between political and adjudicative representation. Class-action scholars have produced mountains of commentary detailing the agency costs of aggregate litigation, including substantial conflicts between the interests of class counsel and the members of the plaintiff class. I show that the same risks are present in state suits. Attorneys general may not be driven by the pursuit of attorney’s fees, but their status as political representatives means that they must negotiate between the interests of the public at large and those of the individuals they purport to represent in an adjudicative capacity. The potential for conflicted representation would not be troubling if citizens could easily monitor and control the work of the attorney general, but, as in the class context, they cannot. If anything, the costs of monitoring and control are higher in the public sphere because the only way to “fire” the attorney general is to vote her out of office — hardly a viable solution when the attorney general’s political responsiveness is the source of the conflict. Thus, far from solving the problems that scholars have emphasized in the class-action context, the fact that the attorney general is an elected or appointed official should provide cause for heightened concern. That concern assumes a constitutional character when state litigation stands as a bar to subsequent private claims for damages or other monetary relief. In order to protect the due-process rights of the individuals whose interests are at stake in public aggregate litigation, courts must either ramp up the procedural requirements for state suits, or — better — hold that public suits cannot bind private claimants.

Incompetent Plea Bargaining and Extrajudicial Reforms

Abstract: For many years, plea bargaining has been a gray m ark et. Courts are rarely involved, leaving prose cut ors unconstrained by judges or juries. (1) Prosecutors' plea offers largely set sentences, checked only by defense lawyers. In this laissez-faire bargaining system, defense lawyers, not judges or juries, are the primary guarantors of fair bargains and equal treatment for their clients. (2) But the quality of defense lawyering varies widely. Bargaining can be a shadowy process, influenced not only by the strength of the evidence and the seriousness of the crime but also by irrelevant factors such as counsel's competence, compensation, and zeal. (3) And because bargaining takes place off the record and is conveyed to clients in confidence, it is not easy to verify that defense counsel have represented their clients zealously and effectively. Nevertheless, criminal procedure has long focused on jury trials. Even though guilty pleas resolve roughly ninety five percent of adjudicated criminal cases, (4) the Supreme Court has usually treated plea bargaining as an afterthought, doing little to regulate it. (5) When it has regulated pleas, the Court has largely focused on the procedures for waiving trial rights, not the substantive pros and cons of striking a deal. (6) This past Term, the Court for the first time addressed how the Sixth Amendment's guarantee of effective assistance of counsel applies to defendants who reject bargains and receive heavier sentences after fair trials. In Lafler v. Cooper (7) and Missouri v. Frye, (8) a five-to-four majority of the Court held that ineffectiveness that leads defendants to reject plea bargains can satisfy both the performance and prejudice prongs of Strickland v. Washington. (9) Incompetent lawyering that causes a defendant to reject a plea offer can constitute deficient performance, and the resulting loss of a favorable plea bargain can constitute cognizable prejudice, under the Sixth Amendment. (10) The majority and dissenting opinions al most talked past each other, reaching starkly different conclusions because they started from opposing premises: contemporary and pragmatic versus historical and formalist. The dissenters would have limited the Sixth Amendment to the jury trials with which the Framers were concerned and proceedings ancillary to those trials. (11) As Justice Scalia put it at oral argument, a jury trial is "the 24-karat test of fairness," and defendants who fail to plead guilty cannot complain that they received "the best thing [that] our legal system " has to offer. (12) Justice Kennedy's majority opinions, by contrast, rested heavily on the dominance of plea bargaining today and its central role in setting sentences as well as convictions. Even a fair trial cannot wipe away an earlier tactical decision that results in a much longer sentence after trial. (13) Belatedly, the Court noticed that "ours 'is for the most part a system of pleas, not a system of trials.'" (14) The Court, like Rip Van Winkle, has at last a woken from its long slumber and sees the vast field it has left all but unregulated. (15) Justice Scalia, in dissent, repeatedly assailed the majority for" op en[ing] a whole new field of ... plea-bargaining law," (16) but it is about time. Now the big question is which institutions can and will ameliorate poor defense lawyering retrospectively or prospectively. The upshot, I predict, will depend on semi-private ordering: few reversals in court, but much more prospective extrajudicial reform. Ladler and Frye will not cause courts of appeals to invalidate many Convictions for constitutional error. Courts are poorly equipped to remedy woefully inadequate defense-lawyering on their own. Plea bargaining creates little record, after-the-fact review is cumbersome and expensive, and courts are reluctant to reverse final judgments, intrude on prosecutors' prerogatives to bargain, or subject defense counsel's performance to searching review. …