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Showing papers in "Harvard Law Review in 2013"


Journal Article
TL;DR: The goal of this bundle of rights is to provide people with control over their personal data, and through this control people can decide for themselves how to weigh the costs and benefits of the collection, use, or disclosure of their information.
Abstract: During the past decade, the problems involving information privacy--the ascendance of Big Data and fusion centers, the tsunami of data security breaches, the rise of Web 2.0, the growth of behavioral marketing, and the proliferation of tracking technologies--have become thornier. Policymakers have proposed and passed significant new regulation in the United States and abroad, yet the basic approach to protecting privacy has remained largely unchanged since the 1970s. Under the current approach, the law provides people with a set of rights to enable them to make decisions about how to manage their data. These rights consist primarily of rights to notice, access, and consent regarding the collection, use, and disclosure of personal data. The goal of this bundle of rights is to provide people with control over their personal data, and through this control people can decide for themselves how to weigh the costs and benefits of the collection, use, or disclosure of their information. I will refer to this approach to privacy regulation as “privacy self-management.”

343 citations


Journal Article
TL;DR: In this paper, the authors focus on the interplay between privacy and systems of surveillance, and argue that privacy is an indispensable structural feature of liberal democratic political systems, and that the perception of privacy as anti-innovation is wrong.
Abstract: I. HOW PRIVACY GOT A BAD NAME FOR ITSELF Privacy has an image problem. Over and over again, regardless of the forum in which it is debated, it is cast as old-fashioned at best and downright harmful at worst--antiprogressive, overly costly, and inimical to the welfare of the body politic. (1) Privacy advocates resist this framing but seem unable either to displace it or to articulate a comparably urgent description of privacy's importance. No single meme or formulation of privacy's purpose has emerged around which privacy advocacy might coalesce. (2) Pleas to "balance" the harms of privacy invasion against the asserted gains lack visceral force. The consequences of privacy's bad reputation are predictable: when privacy and its purportedly outdated values must be balanced against the cutting-edge imperatives of national security, efficiency, and entrepreneurship, privacy comes up the loser. (3) The list of privacy's counterweights is long and growing. The recent additions of social media, mobile platforms, cloud computing, data mining, and predictive analytics now threaten to tip the scales entirely, placing privacy in permanent opposition to the progress of knowledge. Yet the perception of privacy as antiquated and socially retrograde is wrong. It is the result of a conceptual inversion that relates to the way in which the purpose of privacy has been conceived. Like the broader tradition of liberal political theory within which it is situated, legal scholarship has conceptualized privacy as a form of protection for the liberal self. So characterized, privacy is reactive and ultimately inessential. Its absence may at times chill the exercise of constitutionally protected liberties, but because the liberal self inherently possesses the capacity for autonomous choice and self-determination, loss of privacy does not vitiate that capacity. As this Article explains, however, such thinking is mistaken. In fact, the liberal self who is the subject of privacy theory and privacy policymaking does not exist. As Part II discusses, the self who is the real subject of privacy law and policy is socially constructed, emerging gradually from a preexisting cultural and relational substrate. For this self, privacy performs a function that has nothing to do with stasis. Privacy shelters dynamic, emergent subjectivity from the efforts of commercial and government actors to render individuals and communities fixed, transparent, and predictable. It protects the situated practices of boundary management through which the capacity for self-determination develops. So described, privacy is anything but old-fashioned, and trading it away creates two kinds of large systemic risk, which Parts III and IV describe. Privacy incursions can be episodic or systematic, but systematic deprivations of privacy also facilitate episodic privacy incursions. In this Article, therefore, I focus on the interplay between privacy and systems of surveillance. Part III argues that freedom from surveillance, whether public or private, is foundational to the practice of informed and reflective citizenship. Privacy therefore is an indispensable structural feature of liberal democratic political systems. Freedom from surveillance also is foundational to the capacity for innovation; therefore, as Part IV explains, the perception of privacy as anti-innovation is a non sequitur. Innovation occurs in commercial and social contexts and is infused with particular commercial and social values. A commercial culture that sees privacy as threatening its own valued practices of knowledge production will register privacy regulation as a threat. But a society that values innovation ignores privacy at its peril, for privacy also shelters the processes of play and experimentation from which innovation emerges. In short, privacy incursions harm individuals, but not only individuals. Privacy incursions in the name of progress, innovation, and ordered liberty jeopardize the continuing vitality of the political and intellectual culture that we say we value. …

145 citations


Journal Article
TL;DR: In this paper, the authors propose a set of principles that should guide the future development of surveillance law, allowing for a more appropriate balance between the costs and benefits of government surveillance.
Abstract: From the Fourth Amendment to George Orwell's Nineteen Eighty-Four, and from the Electronic Communications Privacy Act to films like Minority Report and The Lives of Others, our law and culture are full of warnings about state scrutiny of our lives. These warnings are commonplace, but they are rarely very specific. Other than the vague threat of an Orwellian dystopia, as a society we don't really know why surveillance is bad and why we should be wary of it. To the extent that the answer has something to do with "privacy," we lack an understanding of what "privacy" means in this context and why it matters. We've been able to live with this state of affairs largely because the threat of constant surveillance has been relegated to the realms of science fiction and failed totalitarian states. But these warnings are no longer science fiction. The digital technologies that have revolutionized our daily lives have also created minutely detailed records of those lives. In an age of terror, our government has shown a keen willingness to acquire this data and use it for unknown purposes. We know that governments have been buying and borrowing private-sector databases, (1) and we recently learned that the National Security Agency (NSA) has been building a massive data and supercomputing center in Utah, apparently with the goal of intercepting and storing much of the world's Internet communications for decryption and analysis. (2) Although we have laws that protect us against government surveillance, secret government programs cannot be challenged until they are discovered. And even when they are, our law of surveillance provides only minimal protections. Courts frequently dismiss challenges to such pro-grams for lack of standing, under the theory that mere surveillance creates no harms. The Supreme Court recently reversed the only major case to hold to the contrary, in Clapper v. Amnesty International USA, (3) finding that the respondents' claim that their communications were likely being monitored was "too speculative." (4) But the important point is that our society lacks an understanding of why (and when) government surveillance is harmful. Existing attempts to identify the dangers of surveillance are often unconvincing, and they generally fail to speak in terms that are likely to influence the law. In this Article, I try to explain the harms of government surveillance. Drawing on law, history, literature, and the work of scholars in the emerging interdisciplinary field of "surveillance studies," I offer an account of what those harms are and why they matter. I will move beyond the vagueness of current theories of surveillance to articulate a more coherent understanding and a more workable approach. At the level of theory, I will explain why and when surveillance is particularly dangerous and when it is not. First, surveillance is harmful because it can chill the exercise of our civil liberties. With respect to civil liberties, consider surveillance of people when they are thinking, reading, and communicating with others in order to make up their minds about political and social issues. Such intellectual surveillance is especially dangerous because it can cause people not to experiment with new, controversial, or deviant ideas. To protect our intellectual freedom to think without state oversight or interference, we need what I have elsewhere called "intellectual privacy." (5) A second special harm that surveillance poses is its effect on the power dynamic between the watcher and the watched. This disparity creates the risk of a variety of harms, such as discrimination, coercion, and the threat of selective enforcement, where critics of the government can be prosecuted or blackmailed for wrongdoing unrelated to the purpose of the surveillance. At a practical level, I propose a set of four principles that should guide the future development of surveillance law, allowing for a more appropriate balance between the costs and benefits of government surveillance. …

93 citations


Journal Article
TL;DR: In this article, the authors examine the effect of product liability on product safety and conclude that, for many products, it is likely to be outweighed by the litigation and related costs.
Abstract: TABLE OF CONTENTS I. INTRODUCTION 1438 II. THE SAFETY BENEFIT OF PRODUCT LIABILITY 1443 A. Incentives To Reduce Product Risk Generated by Market 1443 Forces B. Regulation of Product Risk 1450 C. Risk Reduction Accomplished by Product Liability 1453 III. THE PRICE-SIGNALING BENEFIT OF PRODUCT LIABILITY 1459 A. Price-Signaling and Consumer Information 1459 B. Price-Signaling and First-Party Insurance 1461 IV. THE COMPENSATION BENEFIT OF PRODUCT LIABILITY 1462 A. Compensation Accomplished by Insurance 1462 B. Compensation Accomplished by Product Liability 1463 C. The Social Desirability of the Compensation Accomplished by Product Liability 1465 V. THE COSTS OF PRODUCT LIABILITY 1469 A. Legal Expenses 1469 B. Price Distortions 1470 VI. IS PRODUCT LIABILITY SOCIALLY WORTHWHILE GIVEN ITS BENEFITS AND COSTS? 1472 A. Product Liability for Widely Sold Products 1472 B. Product Liability for Products That Are Not Widely 1476 Sold VII. THE PREVAILING SOCIAL ENDORSEMENT OF PRODUCT LIABILITY 1476 A. Judicial Opinions 1476 B. Academic Writing 1483 C. Public Commentary 1487 VIII. THE CONTRAST BETWEEN PRODUCT LIABILITY AND LIABILITY TO STRANGERS 1490 IX. CONCLUSION 1491 I. INTRODUCTION The liability of manufacturers of products for harms caused to their customers--product liability (1)--has great prominence in the United States. Tens of thousands of product liability cases are filed annually in state and federal courts, including some as class or other mass tort actions that can involve thousands or even millions of individuals as plaintiffs. (2) The legal bases for product liability suits are expansive, comprising liability for manufacturing defect, design defect, and failure to warn. (3) Product liability cases receive significant attention from the media, especially when they concern widely sold products that harm many consumers. (4) Moreover, product liability is of growing importance outside of the United States, particularly in the European Union and in Asia. (5) Perhaps surprisingly, no one to our knowledge has attempted to examine the question whether, or in what circumstances, product liability is socially desirable, considering its major benefits and costs. (6) We undertake this task here and come to the judgment that the case for product liability is problematic for a wide range of products. The essence of our argument is that the three beneficial effects of product liability--inducing firms to improve product safety, causing prices of products to reflect their risks, and providing compensation to injured consumers--are, for many products, likely to be outweighed by the litigation and related costs of product liability. (7) We discuss the influence of product liability on product safety in Part II of the Article. To assess this effect, it is necessary to consider whether firms would have an incentive to make safe products even in the absence of product liability. One reason that firms might have such an incentive concerns market forces, namely, that their sales may fall if their products harm consumers or are viewed as unduly risky, or that their sales may rise if their products are seen as particularly safe. …

72 citations


Journal Article
TL;DR: In this article, the authors argue that the dominant approach in BLE to consumer credit regulation limits itself, yet again, to choice-preserving interventions, such as mandatory disclosure that will, it is argued, enable correction of consumers' systematic mistakes.
Abstract: III. CONSUMER CREDIT The consumer credit market has received renewed attention in the wake of the recent financial crisis, itself precipitated by a wave of defaults on residential mortgage loans. In response, the Dodd-Frank Act (164) created a new agency charged with regulating consumer loans, the Consumer Financial Protection Bureau, (165) which is expected to lead to regulatory change. Moreover, the last decade has witnessed a burgeoning behavioral literature on consumer credit that provides a new intellectual foundation for some form of government intervention. Scholarly work has documented ways that bounded rationality and bounded willpower result in socially costly consumer credit market mistakes. Mortgage loans to consumers who were in no position to pay them off is the most visible example. Those mistakes are then amplified by the strategic behavior of firms, which have powerful incentives to design contracts to exploit these behavioral irrationalities. The dominant approach in BLE to consumer credit regulation limits itself, yet again, to choice-preserving interventions. The principal policy tool suggested is mandatory disclosure that will, it is argued, enable correction of consumers' systematic mistakes. A second tool is a form of default rule referred to as a "sticky default"; while not mandating use of any particular contractual form, these defaults are designed to make it costly to opt out of a "plain vanilla," easy-to-understand form. As with retirement savings, interventions that would explicitly limit choice are excluded from detailed or sustained analysis from the very start. Our story here is much the same: the BLE approach fails to take its own behavioral insights seriously enough. BLE inappropriately truncates its policy analysis by excluding policy tools that might be optimal from a social-welfare perspective but that could not be sold as "preserving choice." Mandating new forms of disclosure is unlikely to significantly improve outcomes when (1) the underlying contractual complexity would remain and (2) firms have strong incentives to undermine choice in response to the required disclosures. In addition, the sticky default rule approach is once again, in effect, largely a way to wrap a mandate in a choice-preserving facade. Reliance on the illusion of choice avoids grappling with the difficult tradeoffs that confronting such mandates directly would pose. A complete behavioral approach would more comprehensively explore alternative regulatory tools, such as product regulation or ways to lower firms' incentives to exploit consumer mistakes, that are perhaps better designed to account for consumer behavioral irrationalities. It would also compare the costs and benefits of disclosure mandates and default rules to those of a full range of regulatory options. A. The Neoclassical Account of the Policy Problem In the neoclassical account, consumer credit markets allow households to move income from the future into the present, which enables households to finance purchases of expensive consumer durables like cars and homes, to make investments in education, and to smooth their consumption despite changes in their income over their lifetimes. Consumers are assumed to be able to analyze competing credit offers and choose the product and level of borrowing that maximizes their well-being. In this account, the primary market failures here are due to asymmetric information and imperfect competition. Asymmetric information stems from consumers having better information than lenders about their own ability to repay and about the actions they take that affect their ability to repay. This market failure entails the borrower using this information advantage to exploit the lender and thus does not justify consumer protection regulation. Rather, it explains private arrangements and associated legal institutions that protect lenders, most importantly collateral and security interests. …

63 citations


Journal Article
TL;DR: In this paper, the authors focus on the distributive consequences of privacy regulations and argue that the U.S. political system might be just as biased in favor of citizens who do not value privacy as it is biased in favour of highly educated and high-income citizens.
Abstract: Privacy protections create winners and losers. So does the absence of privacy protections. The distributive implications of governmental decisions regarding privacy are often very significant, but they can be subtle too. Policy and academic debates over privacy rules tend not to emphasize the distributive dimensions of those rules, (1) and many privacy advocates mistakenly believe that all consumers and voters win when privacy is enhanced. At the same time, privacy skeptics who do discuss privacy in distributive terms sometimes score cheap rhetorical points by suggesting that only those with shameful secrets to hide benefit from privacy protections. Neither approach is appealing, and privacy scholars ought to do better. This Article reveals some of the subtleties of privacy regulation, with a particular focus on the distributive consequences of privacy rules. The Article suggests that understanding the identities of privacy law's real winners and losers is indispensable both to clarifying existing debates in the scholarship and to helping predict which interests will prevail in the institutions that formulate privacy rules. Drawing on public choice theory and median voter models, I begin to construct a positive account of why U.S. privacy law looks the way it does. I also suggest that a key structural aspect of U.S. privacy law--its absence of a catch-all privacy provision nimble enough to confront new threats--affects the attitudes of American voters and the balance of power among interest groups. Along the way, I make several other subsidiary contributions: I show why criminal history registries are quite likely to become increasingly granular over time, I examine the relationship between data mining and personality-based discrimination, and I explain how the U.S. political system might be just as biased in favor of citizens who do not value privacy as it is biased in favor of highly educated and high-income citizens. Part I assesses the distributive implications of two privacy controversies: the extent to which public figures should be protected from the nonconsensual disclosure of information concerning their everyday activities, and the extent to which the law should suppress criminal history information. In both instances the United States is far less protective of privacy interests than Europe is, and, as a result, the U.S. government has received criticism both at home and abroad. The Part shows that defensible distributive judgments undergird the American positions. The European approach to celebrity privacy is highly regressive and causes elites and nonelites to have differential access to information that is valuable to both groups. The U.S. attitude toward criminal history information may be defended on pragmatic grounds: in the absence of transparent criminal history information, individuals may try to use pernicious proxies for criminal history, like race and gender. Part I then shows how these distributive implications affect the politics of privacy. To use one example, California's interest groups are pushing that state toward European-style regulation, and there is an apparent emerging trend toward ever-increasing granularity in criminal history disclosures. Part II analyzes the emerging issue of Big Data and consumer privacy. It posits that firms rely on Big Data (data mining and analytics) to tease out the individual personality characteristics that will affect the firms' strategies about how to price products and deliver services to particular consumers. We cannot anticipate how the law will respond to the challenges posed by Big Data without assessing who gains and who loses by the shift toward new forms of personality discrimination, so the Article analyzes the likely winners and losers among voters and industry groups. The analysis focuses on population segments characterized by high levels of extraversion and sophistication, whose preferences and propensities to influence political decisions may deviate from those of introverts and unsophisticated individuals in important ways. …

61 citations


Journal Article
TL;DR: The European Commission's proposed "General Data Protection Regulation" (the Proposed Regulation) provides a perfect juncture to assess the ongoing EU-U.S. privacy status quo as mentioned in this paper.
Abstract: I. INTRODUCTION Internet scholarship in the United States generally concentrates on how decisions made in this country about copyright law, network neutrality, and other policy areas shape cyberspace. (1) In one important aspect of the evolving Internet, however, a comparative focus is indispensable. Legal forces outside the United States have significantly shaped the governance of information privacy, a highly important aspect of cyberspace, and one involving central issues of civil liberties. The EU has played a major role in international decisions involving information privacy, a role that has been bolstered by the authority of EU member states to block data transfers to third party nations, including the United States. (2) The European Commission's release in late January 2012 of its proposed "General Data Protection Regulation" (the Proposed Regulation) provides a perfect juncture to assess the ongoing EU-U.S. privacy collision. (3) An intense debate is now occurring about critical areas of information policy, including the rules for lawfulness of personal processing, the "right to be forgotten," and the conditions for data flows between the EU and the United States. This Article begins by tracing the rise of the current EU-U.S. privacy status quo. The European Commission's 1995 Data Protection Directive (the Directive) staked out a number of bold positions, including a limit on international data transfers to countries that lacked "adequate" legal protections for personal information. (4) The impact of the Directive has been considerable. The Directive has shaped the form of numerous laws, inside and outside of the EU, and contributed to the creation of a substantive EU model of data protection, which has also been highly influential. (5) This Article explores the path that the United States has taken in its information privacy law and explores the reasons for the relative lack of American influence on worldwide information privacy regulatory models. As an initial matter, the EU is skeptical regarding the level of protection that U.S. law actually provides. Moreover, despite the important role of the United States in early global information privacy debates, the rest of the world has followed the EU model and enacted EU-style "data protection" laws. At the same time, the aftermath of the Directive has seen ad hoc policy efforts between the United States and EU that have created numerous paths to satisfy the EU's requirement of "adequacy" for data transfers from the EU to the United States. (6) The policy instruments involved are the Safe Harbor, the two sets of Model Contractual Clauses, and the Binding Corporate Rules. (7) These policy instruments provide key elements for an intense process of nonlegislative lawmaking, and one that has involved a large cast of characters, both governmental and nongovernmental. This Article argues that this policymaking has not been led exclusively by the EU, but has been a collaborative effort marked by accommodation and compromise. In discussing this process of nonlegislative lawmaking, this Article will distinguish the current policymaking with respect to privacy from Professor Anu Bradford's "Brussels Effect." (8) This nonlegislative "lawmaking" is a productive outcome in line with the concept of "harmonization networks" that Professor Anne-Marie Slaughter has identified in her scholarship. (9) "Harmonization networks" develop when regulators in different countries work together to harmonize or otherwise adjust different kinds of domestic law to achieve outcomes favorable to all parties. (10) The Article then analyzes the likely impact of the Proposed Regulation, which is slated to replace the Directive. The Proposed Regulation threatens to destabilize the current privacy policy equilibrium and prevent the kind of decentralized global policymaking that has occurred in the past. The Proposed Regulation overturns the current balance by heightening certain individual rights beyond levels that U. …

44 citations


Journal Article
TL;DR: In this article, the authors conducted two randomized trials to compare the outcomes of the treated and control groups on a variety of dimensions, focusing primarily on possession of the unit, financial consequences of the litigation, and measures of court burden.
Abstract: We persuaded entities conducting two legal aid programs designed to provide evidence regarding a civil right to counsel to allow us to randomize which potential clients would receive offers of traditional attorney-client relationships from legal aid provider staff attorneys and which would receive only limited ("unbundled") assistance. In both pilot programs, potential clients were occupants facing eviction from their housing units, and in neither pilot program did the legal aid provider have capacity sufficient to offer full representation to all occupants who sought it. In this Article, we report the results of one of the two randomized trials, which we label the "District Court Study" after the type of court in which it took place. In this District Court Study, most occupants who became part of the study population received limited assistance in how-to sessions, which included instruction on the summary eviction process as well as help in filling out answer and discovery request forms. After receiving this "unbundled" assistance, members of a randomly selected treated group were offered a traditional attorney-client relationship from a legal aid provider staff attorney; members of the remaining randomly selected control group received no such offer. We compared outcomes for the treated group versus the control group on a variety of dimensions, focusing primarily on possession of the unit, financial consequences of the litigation, and measures of court burden. At least for the clientele involved in this District Court Study--a clientele recruited and chosen by the legal aid provider's proactive, timely, specific, and selective outreach and intake system--an offer of full representation mattered. Approximately two-thirds of occupants in the treated group, versus about one-third of occupants in the control group, retained possession of their units at the end of litigation. Using a conservative proxy for financial consequences, and based on a subset of cases in which financial issues were at the forefront, treated-group occupants received payments or rent waivers worth on average a net of 9.4 months of rent per case, versus 1.9 months of rent per case in the control group. Both results were statistically significant. Meanwhile, although treated cases did take longer to reach judgment, the offer of representation caused no increase in court burden as measured by other, more salient metrics, such as the number of party motions or the quantity of judicial rulings. We discuss possible reasons for the magnitude of the differences between the outcomes experienced by the treated and control groups. For example, following previous work, we discuss the possible importance of the legal aid provider's process for client recruitment and selection. Here, the provider invested substantial resources into a system designed to recruit and identify clients for whom unbundled legal assistance would be inadequate, suggesting that identifying such cases can be done but that doing so may be expensive. We conclude by discussing future directions for a movement, growing in momentum, toward an evidence-based approach for access to, and administration of, justice. INTRODUCTION To the past decade, state bar associations, state courts, bodies that compose and administer ethical codes, and others have accelerated a trend begun much earlier by legal aid providers toward the legitimization and promotion of "limited" or "unbundled" forms of legal assistance. By "limited" or "unbundled" assistance, we mean some form of legal service or information provision short of a traditional, matter-specific attorney-client relationship. Advocates of unbundling argue that it has the potential to address, in part, two related crises afflicting the U.S. legal system over the past two decades: the access-to-justice challenges that have arisen as the legal system has become more complicated, and the influx of pro se litigants that have flooded the nation's courts, particularly the state courts. …

40 citations


Journal Article
TL;DR: A detailed account of the regulatory regime applicable to leaking can be found in this paper, where the authors provide a sustained account of how the U.S. government fails to enforce the laws against leaking.
Abstract: CONTENTS INTRODUCTION I. WHAT WE KNOW (AND THINK WE KNOW) ABOUT LEAKS A. The Legal Framework B. Leaking Practices C. Enforcement Practices D. Consequences II. ORDER IN "DISORDER": THE LOGIC OF LEAKINESS A. The Inadequacy of the Constraint-Based Narrative 1. Catching Culprints 2. Bringing Cases 3. Additional Evidence B. Leaking's Systemic Rewards 1. Plants Need to Be Watered--with Leaks 2. Plants, Leaks, and Pleaks 3. External Signaling and Executive Self-Binding 4. Manufactured Scarcity and Intragovernmental Communication 5. Pacifying and Coopting Powerful Groups III. "ORDER" IN DISORDER: DISCIPLINING LEAKERS WITH AND WITHOUT LAW A. Internal Signaling and Informal Sanctions B. Senior Officials, Junior Officials, and Mixed Deterrence C. Substantive Norms IV. SOME NOTES ON LEAKINESS AND EXECUTIVE POWER A. Revisiting the Source/Distributor Divide B. Silver Linings and Media Narratives C. Seeing Like a National Security State D. Democracy, Discourse, and Rule of Law E. Comparative Convergence, Obama's Uptick, and the Road Ahead V. CONCLUSION INTRODUCTION Ours is a polity saturated with, vexed by, and dependent upon leaks. The Bay of Pigs, the Pentagon Papers, warrantless wiretapping by the National Security Agency at home, targeted killings by the Central Intelligence Agency abroad: the contours of these and countless other government activities have emerged over the years through anonymous disclosures of confidential information to the press. (1) Across the ideological spectrum, many Americans believe both that leaking "is a problem of major proportions" (2) and that "our particular form of government wouldn't work without it." (3) Episodically, leaks generate political frenzy. The country is in such a period at this writing. Mass releases of classified defense documents and diplomatic cables through WikiLeaks, followed by a series of news stories about some of the government's most closely held national security programs, have unleashed a torrent of legislative and media responses, of recriminations and justifications. This "latest outbreak of leak panic" (4) will soon fade; a new iteration will arrive in due course. Our comprehension of leaking has not kept pace with our fascination. Even accounting for the secrecy that obscures its workings, the ratio of heat to light in commentary on the subject is extreme. Some valuable progress has been made. Journalists and ex-officials have chronicled the role of leaks in their work. Students of government and the press have limned leaks' different forms and motivations. Legal theorists have considered the First Amendment implications. Yet for a variety of reasons, the literature reflects only a rudimentary understanding of leaks' consequences, inside and outside government. (5) More surprising, because the questions are more tractable, scholars have devoted scant attention to the constitutive elements of the leak, as a legal and bureaucratic concept, or to the policies the executive branch has developed to enforce relevant prohibitions. We know something about the phenomenology and constitutionality of leaks but next to nothing about how the government deals with them. This Article begins to reveal that world. Drawing on a range of theoretical perspectives and original sources--interviews with journalists and executive branch officials, plus records requested through the Freedom of Information Act (6) (FOIA)--it offers the first sustained account of the regulatory regime applicable to leaking. Superficially straightforward, this regime turns out to be an intricate ecosystem. At the most general level, the Article demonstrates that the story behind the U.S. government's longstanding failure to enforce the laws against leaking is far more complicated, and far more interesting, than has been appreciated. …

31 citations


Journal Article
TL;DR: The Office of Information and Regulatory Affairs (OIRA) is a part of the Office of Management and Budget (OMB) as mentioned in this paper, which collects widely dispersed information that is held by those within the Executive Office of the President, relevant agencies and departments, state and local governments.
Abstract: Since its creation in 1980, the Office of Information and Regulatory Affairs (OIRA), a part of the Office of Management and Budget, has become a well-established institution within the Executive Office of the President. This Commentary, based on public documents and the author's experience as OIRA Administrator from 2009 to 2012, attempts to correct some pervasive misunderstandings and to describe OIRA's actual role. Perhaps above all, OIRA operates as an information aggregator. One of OIRA's chief functions is to collect widely dispersed information--information that is held by those within the Executive Office of the President, relevant agencies and departments, state and local governments, and the public as a whole. Costs and benefits are important, and OIRA does focus closely on them (as do others within the executive branch, particularly the National Economic Council and the Council of Economic Advisers), especially for economically significant rules. But for most rules, the analysis of costs and benefits is not the dominant issue in the OIRA process. Much of OIRA's day-to-day work is devoted to helping agencies work through interagency concerns, promoting the receipt of public comments on a wide range of issues and options (for proposed rules), ensuring discussion and consideration of relevant alternatives, promoting consideration of public comments (for final rules), and helping to ensure resolution of questions of law, including questions of administrative procedure, by engaging relevant lawyers in the executive branch. OIRA seeks to operate as a guardian of a well-functioning administrative process, and much of what it does is closely connected to that role. I. INTRODUCTION The Office of Information and Regulatory Affairs (OIRA), a part of the Office of Management and Budget (OMB), has become a well-established, often praised, and occasionally controversial institution within the federal government. (1) OIRA was initially created by the Paperwork Reduction Act of 1980, (2) with (among other things) the particular responsibility of approving (or disapproving) information collection requests from federal agencies. In one of his early actions, taken less than a month after assuming office, President Ronald Reagan gave OMB an additional responsibility, which is to review and approve (or decline to approve) federal rules from executive agencies, with careful consideration of costs and benefits. (3) Within OMB, that responsibility is exercised by OIRA. The Administrator of OIRA is often described as the nation's "regulatory czar." While it is an understatement to say that this term is an overstatement (and that is one of my major claims here), it does give a sense of the range and responsibility of the office. From September 2009 until August 2012, I was privileged to serve as OIRA Administrator. (4) I had taught and written about administrative law for over two decades, and much of my work focused explicitly on OIRA. (5) Nonetheless, there was a great deal that I did not know, and much of what I thought I knew turned out to be wrong or at best incomplete. Even among close observers--in the media, in the business and public interest communities, and among academics, including professors of law--the role of OIRA and the nature of the OIRA process remain poorly understood. It is frequently and mistakenly thought, for example, that OIRA review almost exclusively involves the views and perspectives of OIRA itself; (6) that when rules are delayed, it is almost always because of OIRA's own concerns; (7) that when rules are long delayed or ultimately not issued, it is generally because OIRA opposes them; that analysis of costs and benefits is the dominant feature of OIRA review; (8) and that OIRA review is highly political. (9) Much of the discussion of OIRA focuses on OIRA's role as part of White House oversight of agency rulemaking. (10) To be sure, that role is quite important, and it will receive considerable attention here. …

25 citations


Journal Article
TL;DR: The concept of poorly translated CBA as a self-insulation mechanism builds upon the work of others that have considered the institutional lens to consider how a CBA's form can also facilitate or hinder the review process itself as discussed by the authors.
Abstract: This concept of poorly translated CBA as a self-insulation mechanism builds upon the work of others that have considered CBA as a strategic means of acquiring information about a project's net value, (219) but now broadens the institutional lens to consider how a CBA's form can also facilitate or hinder the review process itself. In doing so, it distinguishes the more well-known incentives for agencies to augment net benefits in order to increase a regulatory action's perceived value, and turns instead to the ways in which a CBA's presentation at the point of submission can impose higher or lower reviewing costs. 3. Timing Strategies. -- In addition to choosing regulatory instruments designed to bypass review and calibrate its scrutiny, agencies can also effectively truncate the time available for review, such that the President will be able to review and reverse fewer decisions either within or across rules. Recall that in response to criticism during previous administrations that "delay was OIRA's tactic of choice for stifling costly new regulations," (220) President Clinton's executive order imposed a ninety-day cap subject to a thirty-day extension on the amount of time available for review, (221) which itself could be extended for "whatever length [the agency] deems appropriate." (222) While the Clinton Administration appears not to have enforced the deadlines vigorously, accounts suggest that they were more strictly enforced beginning with President George W. Bush's OIRA Administrator, who specifically instructed his staff "that no rule will stay longer than 90 days at OMB without my personal authorization." (223) The best way to understand this initial ninety-day clock is as a timing default rule: a presumption that review should be complete within that period after which there are increased political costs for extending the review. Those costs can be in the form of greater scrutiny from outside interest groups, (224) as well as congressional oversight hearings or letters. (225) As a result, agencies can insulate themselves from political control by attempting to truncate the amount of time effectively available for review. Managing that amount of time reduces the number of issues that can be raised and resolved during the process and thereby increases the pressure for reviewers to prioritize some issues and ignore others that might have otherwise been subject to reversal. This dynamic is strongest in the context of rules with judicial and statutory deadlines, though it also applies to other internal administration deadlines, such as announcements or high-profile events. Both courts and Congress can impose deadlines on agency action, including ones to commence or complete an action by a specified date. (226) The Hazardous and Solid Waste Amendments of 1984, (227) for example, contained more than sixty statutory deadlines for the issuance of specific regulations regarding the land disposal of hazardous waste. (228) As another example, the Defenders of Wildlife and the National Audubon Society sued the Department of the Interior's Fish and Wildlife Service in 2007, alleging the department's failure to implement an adequate plan governing off-road vehicle use. (229) In April 2008, the plaintiffs agreed to a consent decree, which established a judicial deadline of April 1, 2011, for the final rule. (230) ssWhile agencies are able to comply with only a fraction of these deadlines in practice, (231) such deadlines can nonetheless be powerful motivations for expedited behavior. A number of courts, in turn, have held that the presidential review process cannot delay the promulgation of regulations subject to such deadlines. (232) In Environmental Defense Fund v. Thomas, (233) for example, the district court ruled that "OMB has no authority to use its regulatory review ... to delay promulgation ... beyond the date of a statutory deadline." (234) Similarly, the D.C. Circuit found an Occupational Safety and Health Administration (OSHA) rule to be lawful despite the fact that OMB still had objections at the time the final rule was issued under a judicial deadline. …

Journal Article
Abstract: America's first black President signed his first major piece of legislation on January 29, 2009: the Lilly Ledbetter Fair Pay Act. (71) Since the Act carried Lilly Ledbetter's name, she fittingly stood beaming by President Obama's side during the signing ceremony. (72) For nineteen years, however, this seventy-year-old grandmother had less reason to be joyful, working in supervisory blue-collar jobs in a Goodyear Tire and Rubber plant in Gadsden, Alabama, and earning fifteen to forty percent less than her male counterparts. This pay gap, which resulted from receiving smaller raises than the men, "added up and multiplied" over the years. (73) But Ledbetter did not discover the disparity until she was nearing retirement and "only started to get hard evidence of discrimination when someone anonymously left a piece of paper" in her mailbox listing the salaries of the men who held the same job. (74) Ledbetter sued and a federal jury awarded her $223,776 in back pay and more than $3 million in punitive damages, finding that it was "more likely than not that [Goodyear] paid [Ledbetter] a[n] unequal salary because of her sex." (75) The Supreme Court nullified that verdict. The five-Justice majority held that Ledbetter waived her right to sue by failing to file her complaint within 180 days of the first act of discrimination. (76) In Ledbetter's words, the Court "sided with big business. They said I should have filed my complaint within six months of Goodyear's first decision to pay me less, even though I didn't know that's what they were doing." (77) By contrast, the Lilly Ledbetter Fair Pay Act sided with ordinary working women across the nation. Justice Ruth Bader Ginsburg, on behalf of herself and three colleagues, dissented from the Court's May 2007 decision. (78) A leading litigator and advocate for women's equality before taking her seat on the Court, (79) Justice Ginsburg read her dissent aloud from the bench--an act that, in her own words, reflects "more than ordinary disagreement." (80) Her oral dissent, which made the front page of the Washington Post, (81) signaled that something had gone "egregiously wrong." (82) In a stinging rebuke to the Court majority, she used the personal pronoun, speaking not to her colleagues but directly to the other "you's" in her audience--women who, despite suspecting something askew in their own jobs, were reluctant to rock the boat as the only women in otherwise all-male positions: Indeed initially you may not know the men are receiving more for substantially similar work.... If you sue only when the pay disparity becomes steady and large enough to enable you to mount a winnable case, you will be cut off at the Court's threshold for suing too late. (83) Justice Ginsburg's dissent reflected an acute sense, missing from the majority's opinion, of the circumstances surrounding women in male-dominated workplaces. In a job previously filled only by men, women "understandably may be anxious to avoid making waves." (84) Justice Ginsburg was courting the people. (85) Her oral dissent and subsequent remarks hinted at a democratizing form of judicial speech that, were it heard, could be easily understood by those outside the courtroom. (86) By speaking colloquially--using the personal pronoun "you" to address her audience--Justice Ginsburg signaled to ordinary women that the majority should not have the last word on the meaning of pay discrimination. Her goal was to engage an external audience in a conversation about our country's commitment to equal pay for equal work. (87) While Justice Ginsburg spoke frankly to and about the Lilly Ledbetters of the world, her real target was the legislature. Appalled by the Court's "cramped interpretation" of a congressional statute to justify its decision nullifying the favorable jury verdict, Justice Ginsburg explicitly stated that the "ball again lies in Congress's court." (88) During a public conversation in September 2008, then-Harvard Law School Dean Elena Kagan asked Justice Ginsburg to describe her intended audience in Ledbetter. …

Journal Article
TL;DR: Mazzone and Patry as mentioned in this paper have made substantial contributions to the copyright reform literature and have made substantially different recommendations about how copyright ills should be cured, whereas Patry and Mazzone agree on the need for reforms to counteract or deter overreaching by copyright owners.
Abstract: COPYFRAUD AND OTHER ABUSES OF INTELLECTUAL PROPERTY LAW. By Jason Mazzone. Stanford, Cal.: Stanford University Press. 2011. Pp. xiii, 295. $27.95. HOW TO FIX COPYRIGHT. By William Patry. New York, N.Y.: Oxford University Press. 2012. Pp. x, 323. $21.95. Copyright law has taken quite a beating in the legal literature in the past decade or so. (1) Complaints have been legion that copyright industry groups and corporate copyright owners have sought and too often obtained extremely strong and overly long copyright protections that interfere with downstream creative endeavors and legitimate consumer expectations. (2) Two recent contributions to this literature are William Patry's How to Fix Copyright and Professor Jason Mazzone's Copyfraud and Other Abuses of Intellectual Property Law. Although Patry and Mazzone agree on the need for reforms to counteract or deter overreaching by copyright owners, they make substantially different recommendations about how copyright ills should be cured. Patry is mainly concerned with articulating principles that should be used to recraft copyright law (for example, making it "technology neutral" (pp. 46-47) and demanding evidence to support any expansion in the scope of protection (pp. 54-56)), whereas Mazzone mainly wants to sanction those who claim copyright in public domain materials and those who attempt to thwart the exercise of fair and other lawful uses of copyrighted works (for example, through license restrictions (pp. 27-29) or digital locks (pp. 69-70)). Each book makes powerful arguments and offers important insights. Patry, for instance, does a lively job debunking copyright industry claims about the "losses" it sustains from "piracy" and about the economic significance of the industry as a job creator (pp. 61-70). He also draws upon insights from the field of cultural economics to explain why copyright law does not accomplish the oft-stated objective of promoting creative work as effectively as is commonly assumed (pp. 14-29). Mazzone offers a dazzling array of examples of the multifarious ways that people and firms in a wide variety of settings assert entitlements beyond what copyright law provides. (3) He considers these unwarranted claims of rights to be a form of fraud ("copyfraud," to be specific) for which new penalties need to be devised (p. 168). As much as I admire these books, their agendas for reform are incomplete. Patry's is incomplete in three respects: first, it does not flesh out specific details about the substantive recommended reforms; second, it does not discuss how such reforms might be accomplished; and third, it does not consider a sufficiently wide range of needed reforms. This book is, however, a valuable contribution to the copyright reform literature, as it provides a rich explanation about how and why copyright policymaking has become dysfunctional. One cannot fix a law if one does not recognize the complex problems that beset it. As a former staffer in the Copyright Office and in Congress, Patry is keenly aware of the political economy difficulties likely to attend any serious effort to bring about comprehensive copyright reform through legislation. Yet readers of his book will want to know how Patry thinks these problems can be overcome so that the major reforms he recommends--shortening the duration of copyright terms (ch. 8), requiring copyright owners to comply with registration requirements or other formalities (ch. 9), and establishing a compensation scheme for noncommercial peer-to-peer file sharing (ch. 7)--could be accomplished. The recommendations in Mazzone's book are both more specific and more idealistic than those in Patry's. However, by focusing on copyfraud issues, Mazzone does not explore the more pervasive malaise to which copyright law is now subject. I began exploring this malaise in a previous article, Preliminary Thoughts on Copyright Reform, (4) which argued for a substantial overhaul of U. …

Journal Article
TL;DR: Mack as mentioned in this paper reviewed "Representing the Race: The Creation of the Civil Rights Lawyer" by Kenneth W. Mack, which is a collective biography of African American lawyers who struggled to succeed in a largely white legal profession.
Abstract: This essay reviews "Representing the Race: The Creation of the Civil Rights Lawyer" by Kenneth W. Mack. The essay first describes Mack’s collective biography of African American lawyers who struggled to succeed in a largely white legal profession. It highlights the paradox of representation that Mack identifies, showing how African American lawyers experienced conflicting pressures to make themselves whiter in order to succeed professionally while maintaining the racial authenticity that allowed their successes to reflect well on the race as a whole. The essay then shows how Representing the Race is the most recent entry into a growing new field of civil rights history. It describes the contours of the field and its key characteristics. These include decentering the Supreme Court, Brown v. Board of Education, and the NAACP’s campaign for school desegregation and including many more actors involved in the process of legal change; taking a prospective rather than retrospective approach to the past; emphasizing lawyers as particularly important intermediaries between the legal claims of lay actors and legal doctrine as constructed by courts; identifying the importance of class and economic issues to the ways in which various groups of lay and professional legal actors interacted with and understood the law; taking legal doctrine seriously but viewing it as a field of contestation rather than the authoritative output of judges; and finally, as a result of these other shifts in focus, highlighting the contingency of the law-creation process. Finally, the essay explores Mack’s engagement with this new field. It concludes that his collective biography reinforces some of the literature’s key conclusions, most notably how lawyers’ situated choices channeled, transformed, and perhaps limited civil rights doctrine and the shape of civil rights law.

Journal Article
TL;DR: In this paper, the authors argue that it is appropriate to think of political representatives as standing in a fiduciary capacity to the people they represent, giving rise to a fiducary duty of loyalty, and that representatives breach that duty when they self-deal by manipulating laws regulating the political process to entrench themselves.
Abstract: This Part argues that it is appropriate to think of political representatives as standing in a fiduciary capacity to the people they represent, giving rise to a fiduciary duty of loyalty. It goes on to argue that representatives breach that duty when they self-deal by manipulating laws regulating the political process to entrench themselves. Finally, it argues that courts should enforce the fiduciary duties of representatives by subjecting self-dealing laws to heightened scrutiny. A. Politicians' Duty of Loyalty The first step in applying a private law fiduciary framework to the agency problem created by incumbent control over political process regulations is to ask whether political representatives can be properly understood to bear a fiduciary duty of loyalty. Treating politicians as fiduciaries, subject to a duty of loyalty to the people they represent, is consistent both with the history and political theory that surrounded the adoption of the U.S. Constitution and with the theoretical justification for fiduciary duties in private law. 1. Constitutional History and Political Theory.--The idea that rulers stand in a fiduciary relationship to the ruled is not new; its origins date back at least as far as the Middle Ages and can be seen even earlier in the writings of Cicero. (211) "Political trusteeship" played a prominent role in the trial of Charles I in 1649. (212) Defending the divine right of kings, Charles I maintained that he had received power in trust from God to be used on behalf of the people. (213) The Whigs in Parliament agreed that the king was a trustee, but they argued that the people had entrusted him with a limited power and could call him to account for breaching it. (214) The idea that Parliament received its power from, and acted as trustee on behalf of, the people was widespread by the mid-seventeenth century. (215) Oliver Cromwell repeatedly referred to public office, both that of Parliament and his own station of Lord Protector, as a trusteeship. (216) In his Second Treatise of Civil Government, John Locke argued that the government with supreme legislative power stood in a fiduciary relationship to the people. (217) In the original social contract, according to Locke, the people delegated power to the legislature on the condition that the power be used only for the "public good of society." (218) The legislative power was "only a fiduciary power to act for certain ends," (219) and the government was obliged to act only on behalf of the community and not in its own interests. (220) Locke's approach was widely accepted in England by the eighteenth century, when Henry St. John Bolingbroke, an English politician and political philosopher, declared that a patriot king "will make one, and but one, distinction between his rights and those of his people: he will look on his to be a trust and theirs a property." (221) Whig pamphleteers argued that the House of Commons "ought to be, what they reckon themselves, Trustees and Guardians of the Liberties of England." (222) And Locke's political philosophy had tremendous influence on the American colonists in the lead-up to independence and later on the Framers of the Constitution. (223) As Professor John Reid argues, the theory of governmental "constraint through delegated trust" played a prominent role in shaping the constitutional debate surrounding the American Revolution. (224) According to the theory: "The power of parliament ... is a power delegated by the people, to be always employed for their use and benefit, never to their disservice and injury." It was, therefore, a limited power, "bounded by the good and service of the people; and whenever such power shall be perverted to their hurt and detriment, the trust is broken, and becomes null and void." (225) And Professor Robert Natelson has observed that "both defenders and opponents of the Crown had adopted public trust views of government" and "agreed that public officials were bound by fiduciary-style obligations. …

Journal Article
TL;DR: For example, this paper argued that neither Brown nor Windsor would have been plausible constitutional rulings as little as two decades before the cases were decided, and only dramatic changes in the social and political contexts surrounding these decisions rendered them conceivable.
Abstract: In his second inaugural address in January 2013, President Barack Obama associated the struggle for gay equality with that for racial equality by conjoining, alliteratively, Stonewall with Selma (along with Seneca Falls). The President went on to proclaim that "[o]ur journey is not complete until our gay brothers and sisters are treated like anyone else under the law--for if we are truly created equal, then surely the love we commit to one another must be equal as well." (1) The President was referring, of course, to the issue of gay marriage, and just five months later, the Supreme Court decided two landmark cases bearing on that issue. In United States v. Windsor, (2) the Court invalidated Section 3 of the Defense of Marriage Act (DOMA), which supplied a definition of marriage for federal law purposes, such as allocating Social Security survivors" benefits and determining the immigration status of the spouse of a U.S. citizen. (3) Under DOMA, marriage consisted only of the union of a man and a woman; the federal government declined to recognize gay marriages lawfully performed in the states. (4) The Court in Windsor invalidated that federal definition of marriage under the Fifth Amendment. On the same day Windsor was decided, the Court in Hollingsworth v. Perry (5) dismissed an appeal from a ruling by the U.S. Court of Appeals for the Ninth Circuit that had invalidated a California initiative (Proposition 8) defining marriage as the union of a man and a woman. Hollingsworth had presented the Justices with a wide array of options. (6) One potential route was simply to reverse the lower court and reject a federal constitutional right to same-sex marriage. Another option was to affirm the Ninth Circuit--in an opinion that could have assumed various different breadths. The narrowest alternative, known colloquially as the "one-state" solution, was to invalidate Proposition 8, as the Ninth Circuit had done, on the ground that California had no permissible justification for depriving gay married couples of a status that had once been conferred upon them by state law. (7) A broader option--the so-called "eight-state" solution, advocated by the Justice Department (8)--was to require those states that had authorized civil unions for same-sex couples, including California, to permit gay marriage on the ground that no legitimate reason existed for granting same-sex couples all of the rights and benefits of marriage while withholding from them the formal title. The broadest option, known as the "fifty-state" solution, was simply to identify a federal constitutional right to same-sex marriage. (9) Eschewing all of these options, the Hollingsworth Court, by a vote of five to four, declined to reach the merits of the constitutional dispute. Instead, in an opinion by Chief Justice Roberts, the majority dismissed the appeal on the ground that the initiative's official sponsors, who had intervened at trial to defend Proposition 8 after elected officials had declined to do so, lacked standing to prosecute the appeal (either to the Ninth Circuit or to the Supreme Court) of the district court's decision invalidating the measure. (10) In this Comment, I shall contrast the Court's marriage-equality rulings with its epic decision in favor of racial equality, Brown v. Board of Education, (11) with the goal of shedding light on how American constitutional law works. Part I seeks to show that neither Brown nor Windsor would have been plausible constitutional rulings as little as two decades before the cases were decided. Only dramatic changes in the social and political contexts surrounding these decisions rendered them conceivable. Part II explains how rulings that had become conceivable by the time of the decisions were still not inevitable. The composition of the Court, which is partly fortuitous, plays a critical role in constitutional interpretation. Turning to another possible input into constitutional decisionmaking, Part III argues that constitutional doctrine played little role in the outcomes of Brown and Windsor. …

Journal Article
TL;DR: Demsetz et al. as mentioned in this paper showed that parking lots are not being produced in this example because it is not efficient to produce them because private owners may choose to leave goods in the commons, and that the costs of these inputs could be directly imposed on those who would benefit from the arrangement.
Abstract: This point becomes clear when we recognize that private owners may choose to leave goods in the commons. Demsetz gives the example of a parking lot adjacent to a shopping area. (124) It would be possible to propertize the parking spots and charge a fee for their use; indeed, this happens all the time in urban areas. This approach requires fewer parking spaces (because people overconsume a zero-priced commodity) and thus lower costs to create parking lots. But it would also mean higher transaction costs because people have to pay each time they park. As Demsetz explains, "[W]hile we have reduced the resources committed to constructing parking spaces, we have increased resources devoted to market exchange. We may end up by allocating more resources to the provision and control of parking than had we allowed free parking because of the resources needed to conduct transactions." (125) In short, creating and enforcing shortterm property interests in the individual spaces may not be worth it. (126) In a case like this one, the inputs into the foregone transactions (an entry control gate, a gatekeeper, and so on) are readily available through competitive markets, and the costs of these inputs could be directly imposed on those who would benefit from the arrangement. Transactions are not being produced in this example because it is not efficient to produce them. They are not being inefficiently undersupplied. The same point holds when we move outside the property envelope of a single owner. (127) Even if we feel quite certain that a given kind of transaction is being underproduced, a subsidy may not be helpful. We need to know why it is being underproduced. A subsidy might work quite well to ease interactions between willing buyers and sellers (paying them for the time it takes to meet, for instance), but not at all well to address their desire to extract disproportionate surplus from a deal. As Cooter has noted, reducing certain kinds of transaction costs can actually have a pernicious effect where strategic holdout behavior is at issue. (128) The cheaper it is to transact, the lower the opportunity cost of wrangling over surplus, and hence the more of it we are likely to see. 3. Streamlining.--If subsidies seem like an often unhelpful approach to the problem of high transaction costs, we might turn our attention to more broad-based measures and expenditures that make market coordination less expensive. Consider government investments in transportation and communication infrastructure, the public education system, the legal system, and the currency system. Property rights comprise an especially interesting and important category of such transaction cost lowering technologies. By creating a tradable commodity--a property entitlement--the cost of coordinating over a transaction is diminished. Within the broad category of property rights lie a number of specific "transactability features," from land registries to standardization protocols to antifragmentation doctrines. All of these things help reduce coordination costs. In each instance, we would want to make sure that the returns to these investments are worth the cost--that is, capable of facilitating transactions that will generate more surplus than was expended in the process. We do have reason to suspect that the private market would undersupply many of the things that globally reduce transaction costs, to the extent those things take the form of public goods or goods with large network effects or spillovers. But streamlining costs something, and the fact that the charges are dispersed across the population should, if anything, make us more vigilant in comparing what we are getting with what we are giving up. (129) Not all streamlining takes the form of advances in infrastructure or institutions. It might instead involve simply rolling back the formal requirements associated with transactions. Coase mentions one example: easing the requirements for completing a contract. …


Journal Article
TL;DR: The Voting Rights Act of 1965 (VRA) was the crown jewel of the civil rights era as discussed by the authors, but it has been shown to not be constitutionally responsive to the America that the Act itself helped create out of the overt racialism of the American South.
Abstract: Retirement with dignity was denied to section 5 of the Voting Rights Act of 1965 (1) (VRA). If ever a statute rose to iconic status, a superstatute amid a world of ordinary legislation, (2) it was the VRA. In the course of not quite half a century, the Act was pivotal in bringing black Americans to the broad currents of political life--a transformation that shook the foundations of Jim Crow, triggered the realignment of partisan politics, and set the foundation for the election of an African American President. Deciding when the time has come is never easy. We see the athlete one step too slow to carry the team, the tenor no longer able to hit the necessary C, the pop star straining to hide the arthritic hip. Invariably there are the moments that recall stardom, be they increasingly seldom. But ultimately each waning icon is allowed to step down gracefully, carried by the fans basking in the memories of faded glory. What President Lyndon Johnson introduced to America as the crown jewel of the civil rights era has now been struck down by the Supreme Court as timeworn, no longer constitutionally responsive to the America that the Act itself helped create out of the overt racialism of the American South. According to the Court in Shelby County v. Holder, (3) civil rights-era concerns could no longer justify requiring certain jurisdictions to obtain Department of Justice (DOJ) approval before altering voting procedures. For instance, until the Court's decision, Shelby County, Alabama, was subject to administrative preclearance because less than fifty percent of its citizens voted in the 1964 presidential election. (4) For the Court's majority, that was simply too long ago, leaving section 4, the VRA's coverage formula, out of touch with current reality: "Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions." (5) A constitution demanding a respect for the dignity of the states and contemporary proof of a close fit between means and ends when race-based distinctions are drawn allows no room for sentiment. "That is no country for old men," wrote William Yeats of the willingness to cast aside the once vibrant but now rendered "a paltry thing." (6) And a Court no longer attached to the past glories of the Act looked with disregard at an odd legislative structure that tied its regulatory framework to turnout statistics from the 1964 presidential election. As a formal matter, the Court struck down only the formula and left untouched the constitutionality of the VRA's preclearance structure. The Court took pains to leave open the prospect of a renewed coverage formula, one that does not turn on what seventy- and eighty-year-old voters did a half century ago, perhaps sending our currently dysfunctional Congress on a new wayward journey: "Congress may draft another formula based on current conditions." (7) But despite the Court's care to avoid ruling on section 5, it was the indignity that "[s]tates must beseech the Federal Government for permission to implement laws that they would otherwise have the right to enact and execute on their own" (8) that provided the unacceptable constitutional insult. (9) The Court's unromantic constitutional ruling should prompt rethinking whether the regulatory model of prior federal approval of voting changes is truly responsive to the voting problems of today. The critical assumptions of the challenged provisions of the Act corresponded to a world in which overt racial exclusion meant that black citizens faced first-order impediments simply to getting registered to vote and in which only the federal government could assume the responsibility to challenge the persistence of Jim Crow. For much of post-Civil War American history, the prospect for goal-oriented abuse of election processes has been directed largely--though never exclusively--at black Americans. …

Journal Article
TL;DR: This paper published a previously unpublished essay by H. A. Hart, one of the most distinguished figures in twentieth-century legal philosophy, alongside a fine commentary by Geoffrey Shaw, the scholar whose intellectual imagination and meticulous archival research has brought the essay to light.
Abstract: It is an extraordinary privilege to be able to introduce a previously unpublished essay by H. L. A. Hart, one of the most distinguished figures in twentieth-century legal philosophy, alongside a fine commentary by Geoffrey Shaw, the scholar whose intellectual imagination and meticulous archival research has brought the essay to light. It is particularly apt that H. L. A. Hart’s essay should be published by this Review, appearing fifty-seven years after it was written in the early months of his visit to Harvard, thus joining a distinguished tradition of posthumously published scholarship of the 1950s, most notably Lon Fuller’s The Forms and Limits of Adjudication, and Henry Hart and Albert Sacks’s The Legal Process. Its publication is also timely, albeit long delayed, in that it comes hard on the heels of a period in which the intellectual history of legal thought has been the subject of wide interest and some very powerful scholarship.


Journal Article
TL;DR: Hart's taxonomy of discretionary power in law as discussed by the authors is a good starting point for a discussion of the main principles at play in the emergence of the concept of discretion in the legal system.
Abstract: B. What Is Discretion? 1. The Analytical Approach to Definition.--Hart devoted a large portion of his paper to the first question: "What is discretion ...?" It was a classic application of Hart's linguistic method. He believed that providing an account of a concept requires analyzing the way ordinary speakers use the words associated with that concept. (180) To analyze discretion, therefore, Hart investigated the uses of the word "discretion" in a variety of different contexts--legal and nonlegal--and then inferred the general principles at play. (181) While Hart was aware that there were borderline cases--penumbral situations that might or might not be classified as discretion--he mainly aimed to contribute a clear theory of the core phenomenon: when we all agree discretion is present, what is it? (182) A clear definition of the core phenomenon was, in Hart's view, what the group needed most: "[t]he position" of the group with respect to discretion, Hart speculated, was "parallel to a person who knows his way about town by rote but could not draw a map of it or the crude case where we can say that I can recognize an elephant but I could not define the term 'elephant' for you." (183) 2. Hart's Taxonomy of Discretion in Law.--Hart began his analysis of the core phenomenon by considering a broad list of cases where discretion occurs in the legal system. Hart was not concerned with discretion in courts alone; he was aware that discretion arises not just in statutory or constitutional interpretation, but also in many other settings. Although it would become clear that the role of judges was of special concern for Hart (as it was for the process theorists), he warned against focusing too much on one kind of example at the outset, advising the group "to remind ourselves of the tremendous diversity of the situations in which this phenomenon appears, for nothing in this field is so misleading as over-concentration on one sort of example." (184) The main distinction in Hart's taxonomy of discretion in law was simple. (185) Sometimes, lawmakers explicitly delegate discretionary power to officials or institutions--the powers, say, to set interest rates, to end hunting season, to appoint officials, to issue licenses, and so on. In Hart's terminology, these are examples of "Express or Avowed ... Discretion." (186) By contrast, in cases of "Tacit or Concealed Discretion," (187) the legal system does not explicitly grant discretionary authority to an official; instead, the official, making an effort to apply rules intended to be as dispositive as possible, finds that the rules do not yield a determinate result, making necessary the exercise of discretion. Key examples in this category are "disputable questions" (188) in statutory interpretation and the application of precedent. (189) A third category, which received no further discussion, includes cases of "Discretionary Interference or Dispensation from Acknowledged Rules": pardons and "[i]njunction[s] against exercise of common law remedies." (190) Hart further noted that institutions are sometimes charged with exercising multiple forms of discretion. "Express or Avowed ... Discretion," for example, can be exercised by "administrative bodies" (Hart identified the now-defunct Interstate Commerce Commission and "Fish and Game Commissioners" as possibilities), or by courts in the cases of sentencing, "[d]iscretionary remedies," and the application of standards, like "reasonable care," so broad as to be understood as constituting an explicit grant of discretionary authority. (191) Delving deeper into institutional roles, Hart pointed out that this form of standard-applying discretion is entrusted sometimes to judges, and sometimes to juries. (192) Hart classified most appellate adjudication in "disputable ... case[s]" (193)--the most politically charged form of decisionmaking on the list--as "Tacit or Concealed ... Discretion" exercised by courts. (194) 3. …

Journal Article
Erin Murphy1
TL;DR: The case of Maryland v. King as mentioned in this paper is a watershed moment in the evolution of the Fourth Amendment doctrine and an important signal for the future of biotechnologies and policing.
Abstract: Midway through the oral argument in Maryland v. King, Justice Alito spontaneously interjected: "[B]y the way, I think this is perhaps the most important criminal procedure case that this Court has heard in decades." (1) The juxtaposition between the breeziness of his comment and the solemnity of its content befit the case, which is best characterized as a sleeper in a Term overshadowed by monumental rulings on gay marriage, voting rights, and affirmative action. What looked on its face like just another Fourth Amendment dispute--with civil libertarians on one side and law enforcement on the other--garnered no special attention. But King is no ordinary Fourth Amendment case. At first glance, King simply upheld the Fourth Amendment constitutionality of a state statute authorizing the collection of DNA from arrestees. But the opinion in the case represents a watershed moment in the evolution of Fourth Amendment doctrine and an important signal for the future of biotechnologies and policing. This Comment places King into context from three different vantage points, each one step removed. Specifically, the three Parts below address the significance of the opinion: for DNA collection from arrestees, for forensic DNA practices more generally, and for the Fourth Amendment. Part I briefly summarizes the opinions in the case and may be skipped by those familiar with them. Part II reads between the lines of the majority opinion, in light of the greater constellation of facts and claims placed before the Court, to underscore the significance of what was not said about the constitutionality of arrestee DNA collection. Part III considers King as it exemplifies the judicial response to forensic DNA typing more generally, and imagines its precedential value in future biometric cases. Part IV situates King in the broader landscape of the Court's recent Fourth Amendment jurisprudence and analyzes its insights for the evolution of the field as a whole. I. THE KING OPINIONS In 2009, Maryland authorities arrested Alonzo King after a witness identified him as the man who had pointed a shotgun at a group in which the witness was standing. (2) He was charged with first- and second-degree assault. (3) Under a Maryland law passed in 2008, police may collect a DNA sample from any person arrested for a crime of violence or burglary. (4) Because the first-degree assault charge qualified as a crime of violence, officials sampled King's DNA. Ultimately, King entered an Alford plea to the charge of second-degree assault, (5) a misdemeanor offense that on its own would not have qualified him for inclusion in a DNA database under Maryland law governing arrestees or convicted persons. (6) Law enforcement took the sample and sent it to a private vendor, who analyzed it four months later, whereupon King's DNA profile was uploaded to the state's DNA database. (7) A routine search in the database matched the profile to that taken from an unsolved sexual assault from 2003, and King was arrested and charged with that offense. (8) He moved to suppress the evidence of the DNA match, arguing that the suspicionless collection of DNA from a person merely charged with an offense violated the Fourth Amendment. (9) The trial court denied his motion, but the Maryland Court of Appeals reversed, based in part on the "presumption that warrantless, suspicionless searches are per se unreasonable." (10) Maryland petitioned the Supreme Court for certiorari and the Chief Justice, acting as circuit justice, entered a stay of the judgment, noting the likelihood of success on the merits and the conflict in the lower courts on this issue. (11) Although the certiorari grant received only moderate attention from the general public, it did not escape the notice of interested parties. Over twenty amicus curiae briefs were filed, split roughly evenly between petitioner and respondent. (12) Maryland's supporters included all fifty states in a rare showing of total consensus, a variety of law enforcement and victims' rights organizations, and a consortium of businesses that sell DNA instrumentation and technology. …

Journal Article
TL;DR: The body of strict scrutiny doctrine that emerged is deeply attuned to the citizen's experience of state action as mentioned in this paper, and it has been used to constrain the means by which government promotes diversity or pursues remedial ends that is focused on protecting expectations of fair dealing that citizens have in interacting with the government.
Abstract: 2. How Discriminatory Purpose and Affirmative Action Cases Diverge.--Understanding that modern discriminatory purpose and strict scrutiny law were forged in the desegregation and affirmative action debates of the late twentieth century helps explain not only why, but also how these two bodies of law diverge. Judges who began to apply strict scrutiny to affirmative action acted in response to citizen objections that the programs were unfair. The body of strict scrutiny doctrine that emerged is, unlike discriminatory purpose doctrine, deeply attuned to the citizen's experience of state action. The justifications for strict scrutiny in affirmative action cases no longer emphasize the importance of protecting innocent victims of affirmative action, yet they remain intently focused on the beliefs about race that citizens internalize in their interactions with the state. (220) Attention to citizens' experience of government action not only figures centrally in the justifications for strict scrutiny, but also shapes the body of law the Court has developed to govern affirmative action. (221) In this area of equal protection law, it does not suffice for government to demonstrate that it acts from benign, or even compelling, purposes; as the Court recognized compelling reasons for state consideration of race, it has transformed strict scrutiny into a constraint on the means by which the government pursues those ends. (222) In the process the Court has devised a new body of strict scrutiny law designed to constrain the means by which government promotes diversity or pursues remedial ends that is focused on protecting expectations of fair dealing that citizens have in interacting with the government. These concerns shape not only the quantitative limits the decisions impose on affirmative action, (223) but also the requirements the decisions impose on affirmative action's form. Thus, after Justice Powell recognized diversity as a compelling government interest in Bakke, he allowed universities to consider the race of applicants as a "plus," but not to separate the admissions process by race. (224) Even if there was a constitutional reason to allow government to consider race, the Constitution constrained the form in which government could do so. Citizens would view separate admissions as unfair, Justice Powell reasoned, and, under the Constitution, "appearance"--that is, how citizens perceive government action--matters: Petitioner's program will be viewed as inherently unfair by the public generally as well as by applicants for admission to state universities. Fairness in individual competition for opportunities, especially those provided by the State, is a widely cherished American ethic. Indeed, in a broader sense, an underlying assumption of the rule of law is the worthiness of a system of justice based on fairness to the individual. As Mr. Justice Frankfurter declared in another connection, "[j]ustice must satisfy the appearance of justice." (225) In Grutter, Justice O'Connor affirmed and elaborated upon Justice Powell's requirement of individualized consideration. She began her discussion of the individualized consideration requirement by describing narrow tailoring as probing for suspect motives, (226) but concluded her discussion by explaining the function of narrow tailoring on completely different grounds, as protecting citizens who might be adversely affected by the government's pursuit of legitimate ends. Narrow tailoring was no longer about smoking out government's bad motives but served a very different function: protecting "innocent persons" from harm ("members of any racial group," but especially those "individuals who are not members of the favored racial and ethnic groups" (227)) when government is pursuing important public ends. In Grutter, Justice Kennedy also emphasized that safeguarding the confidence of prospective students in the fairness of the application process was a crucial reason for "[c]onstant and rigorous judicial review" of the means by which schools promote diversity (228): "Prospective students, the courts, and the public can demand that the State and its law schools prove their process is fair and constitutional in every phase of implementation. …

Journal Article
TL;DR: The editors of the Harvard Law Review respectfully dedicate this issue to Professor Ronald Dworkin, who has no serious rival as the most incisive and fertile theorist of the past four decades.
Abstract: The editors of the Harvard Law Review respectfully dedicate this issue to Professor Ronald Dworkin. Richard H. Fallon, Jr * My first exposure to Ronald Dworkin came at Oxford, in the fall of 1975. Although I was there to study Philosophy, Politics, and Economics, not Law, friends told me that Professor Dworkin's packed lectures on jurisprudence were not to be missed. They were right. Dworkin delivered the most commanding lectures that I had ever heard, at Oxford or anywhere else. Plainly relishing the engagement of his rapt audience, and speaking entirely without notes, he worked his way through, and demolished, various thinkers' accounts of what made it the case, if it was the case, that "The law is that P." The critiques built inexorably to the conclusion that first made Dworkin famous: decision of hard cases requires a process of interpretation in which principles, not just "pedigreed" rules, help to make it the case, if it is the case, that "The law is that P." In one way, Dworkin was the very model of an Oxford philosopher. Though dense, his arguments were clear. He was a master of distinctions. But in another way, Dworkin was a gust of fresh air blowing through the ancient university during my two years there. To make his points, he used vivid, often funny examples. After skewering one position or another, he would pause to invite questions and challenges. Challenges came frequently because Dworkin's largest target was his eminent predecessor as Oxford's Professor of Jurisprudence, H. L. A. Hart. At that time and in that setting, however, taking on Dworkin in public debate was a fool's errand. Without fail, he would flatter the challenge, briskly restate it, and then quickly identify some stark fallacy at its heart, some untenable premise, some plain logical mistake. The 1970s were tough times for England, with the pound swooning and the economy--and sometimes governments--at the mercy of truculent unions. Though I loved Oxford, it was nearly always gray and often cold, and more than a few of the British seemed to relish the task of chastening American ambition. To young Americans there studying Law, or Philosophy, Politics, and Economics, Dworkin personified vitality, panache, and undaunted intellectual ambition. We not only flocked to his lectures, but also awaited--and then breathlessly discussed--his articles in the New York Review of Books. As a frequent speaker before formal and informal groups, Dworkin was generous with his time, funny, and warm. After leaving Oxford, I did not again have any personal encounter with Professor Dworkin for many years. I never knew him at all well. When I departed from Oxford in 1977 to attend law school, I did so with a strong interest in jurisprudence, the field that Dworkin had energized by initiating "the Hart-Dworkin debate." In law school and then in my professional career, other subjects, including constitutional law, engaged me more. Nevertheless, throughout my professional life, I have always had the acute, inescapable sense of working in the shadow of Dworkin's influence. In the study of American constitutional and statutory interpretation, Dworkin, in my estimation, has no serious rival as the most incisive and fertile theorist of the past four decades. In those fields, the question that he pressed in Oxford lecture halls in the 1970s never loses its freshness, even if answers change: By virtue of what is it the case, if indeed it is the case, that "The law is that P"? Dworkin's arguments about the connections between constitutional and statutory interpretation, on the one hand, and political morality, on the other, have had a profound and continuing influence. In his wake, one must either embrace his views about the irreducibly moralized character of legal interpretation, and about the need to interpret legal practice in order to appraise what count as good arguments within it, or fight against his position. For example, even the best constitutional "originalists" now acknowledge that they must advance a normative defense of their position, not stop with the claim--as many once did--that the meaning of the Constitution just is, apparently necessarily, what those who wrote or ratified relevant provisions intended or understood it to be. …


Journal Article
TL;DR: For example, in a recent speech, President Obama publicly renewed his commitment to address climate change and proposed an all-of-the-above plan to address the issue as discussed by the authors.
Abstract: With these words, President Obama publicly renewed his commitment to address climate change. The President himself had largely buried the issue during the last two years of his first term, making his statement all the more striking. While he spoke frequently in 2009 and 2010 about climate change’s “urgent dangers,” he rarely uttered the words “climate change” during the next two years: only once in 2011 and barely at all in 2012. The White House message was clear. Climate change had become the political equivalent of Harry Potter’s Lord Voldemort: the crisis that dared not be named. The President’s emphatic return to the climate issue is therefore welcome and promising. He can do a lot. But any President’s considerable powers inevitably suffer from an Achilles’ heel. Climate change laws are effective only if enduring, and presidential administrations are short-lived. Whatever one President does, a future President (and Congress) can undo just as quickly. So, what actions should the President take? He described an “allof-the-above plan” and promised to “direct my Cabinet to come up with executive actions we can take now and in the future.” But what should the specifics be? There are three.

Journal Article
TL;DR: The case of Maples v. Thomas as mentioned in this paper is a classic example of a case where a prisoner on Alabama's death row, Cory Maples, was represented pro bono by two young lawyers from Sullivan & Cromwell in New York.
Abstract: My course on the American death penalty has more than its share of dramatic and powerfully engaging issues and cases. Should the death penalty be limited to the crime of murder, as a matter of policy or of constitutional law? Is it constitutional to execute juvenile offenders or those with mental retardation? What role does race play in the capital justice system, and what is its constitutional significance? But I have never seen my students more avid and appalled than last semester, when they encountered the facts underlying the Court's recent decision, per Justice Ginsburg, in Maples v. Thomas, (241) issued in January of last year. The case involved a prisoner on Alabama's death row, Cory Maples, whose conviction and death sentence were upheld on direct appeal. In state post-conviction proceedings, Maples was represented pro bono by two young lawyers from Sullivan & Cromwell in New York--a role that many of my students could imagine themselves playing in the not-too-distant future. These two associates filed Maples's state habeas petition, alleging ineffective assistance of trial counsel among other trial infirmities. While this petition was pending in the Alabama trial court, the two associates left Sullivan & Cromwell for other employment opportunities, but failed to move for substitution of counsel or even to inform the Alabama court or Maples himself of their departure. When Maples's state habeas petition was denied, notices of the court's order were sent to the associates at Sullivan & Cromwell's address in New York, where the mail-room clerk marked them "return to sender" and sent them back, unopened, to the trial court clerk, who attempted no further mailing. After the clock ran out on Maples's chance to file an appeal from the denial of his state habeas petition, the Alabama Attorney General sent a letter directly to Maples informing him--for the first time--of the missed deadline and notifying him that he had four weeks in which to file a federal habeas petition. Maples called his mother, and his mother called Sullivan & Cromwell. The law firm tried to convince the Alabama courts to give them another chance to meet the appeals deadline, going all the way to the Alabama Supreme Court. (242) But Alabama's position, upheld by its courts, was that the trial court clerk had met the state's obligations by sending notice of the trial court's order to the New York lawyers' address of record. The state trial court maintained that it was "unwilling to enter into subterfuge in order to gloss over mistakes made by counsel for the petitioner." (243) Having procedurally defaulted his state habeas appeal, however, Maples was then held to be barred from federal habeas corpus review as well. Because state prisoners do not have a constitutional right to counsel on state habeas review, their state habeas counsel's mistakes cannot ordinarily constitute "cause" to excuse a state procedural default, because such counsel is presumed to be acting as the prisoner's agent, rather than as some force "external" to the prisoner. In other words, generally state prisoners are stuck with their lawyers' mistakes on state habeas, where a default will then bar all further review on the merits of their claims in both state and federal courts. In light of this precedent, the federal habeas court denied review of Maples's claims as procedurally defaulted, and the Eleventh Circuit affirmed. (244) Justice Ginsburg, writing for a 7-2 majority of the Court, noted that while the general rule of habeas counsel "agency" need not be disturbed, a "markedly different situation is presented ... when an attorney abandons his client without notice." (245) Abandonment is unlike any other form of attorney negligence or error, in that the rationale of attorney "agency" fails in such circumstances. In Justice Ginsburg's words, "[A] client cannot be charged with the acts or omissions of an attorney who has abandoned him. Nor can a client be faulted for failing to act on his own behalf when he lacks reason to believe his attorneys of record, in fact, are not representing him. …

Journal Article
TL;DR: The Herring case as discussed by the authors is a classic example of a case in which a police officer, suspicious of the defendant, who was seeking to gather something from his impounded truck, requested a warrant check.
Abstract: One can describe Justice Ginsburg as a reluctant dissenter. She agrees with Chief Justice Roberts that the Supreme Court provides clearer guidance and its opinions receive more deference when they are unanimous. When deciding whether to write separately, she asks, "Is this dissent or concurrence really necessary?" (47) "Really necessary" dissents would include not only those that force the majority to improve their opinion, (48) or those that could well become a majority opinion after drafts are exchanged. They involve dissents that have implications beyond the case at hand, and even beyond the court audience. A dissent, she said, can be "an appeal ... to the intelligence of a future day, when a later decision may possibly correct the error." (49) Beyond the canonically famous dissents, Justice Ginsburg pointed to Justice Breyer's dissent in Parents Involved in Community Schools v. Seattle School District No. 1 (50) and the dissents in District of Columbia v. Heller (51) as those that appeal to posterity. Equally important, some dissents can garner publicity and create pressure for legislative change. As an example, Justice Ginsburg identified her dissent in Ledbetter v. Goodyear Tire & Rubber Co., (52) which resulted in legislative change in 2009. (53) In the final analysis, Justice Ginsburg expressed hope that her dissents will be stronger because she had the wisdom to "choos[e] [her] ground." (54) Given this philosophy, Justice Ginsburg's dissent in Herring v. United States, (55) on the surface a garden-variety Fourth Amendment exclusionary rule case, takes on special resonance. In Herring, a police officer, suspicious of the defendant, who was seeking to gather something from his impounded truck, requested a warrant check. The officer was told that the computer database in the sheriff's department of a neighboring county showed an active warrant for Herring's arrest. The report was in fact in error; the computer database was at odds with the physical records in the same office. The warrant had been recalled some five months before and was corrected only minutes after Herring was arrested and a search incident to that arrest found an illegal firearm and drugs. That Herring's arrest violated his Fourth Amendment rights was uncontested; the only issue was whether the evidence the police obtained through the unlawful search should have been suppressed. (56) The majority in Herring held exclusion was not warranted because the police error "was the result of isolated negligence attenuated from the arrest." (57) Consider the concepts: Not only was "negligent" police conduct protected from exclusion, but so too was negligent police conduct that was "isolated" and "attenuated." Trivializing the misconduct, the Court held that it did not implicate the "core concerns" of the Fourth Amendment, as did the earlier exclusionary rule cases which involved flagrant police misconduct. (58) When the police behave only negligently, the Court reasoned, deterrence made no sense. Applying a cost-benefit analysis, and concluding that the costs of exclusion far outweighed its benefits, the Court rejected exclusion. (59) While the Fourth Amendment exclusionary rule had been narrowed in a host of prior Supreme Court decisions, to Justice Ginsburg, the majority's opinion went too far. A dissent--and a particularly forceful one--was warranted, although clearly not in the hopes of improving the majority's decision or supplanting it. That was unlikely. This was a dissent for posterity--a call to future courts to undo what the majority had done. First, Justice Ginsburg refocused the inquiry on a "'more majestic conception' of the Fourth Amendment and its adjunct, the exclusionary rule," (60) as a constraint on the sovereign, and as essential to protecting the integrity of the Court. Indeed, the dissent was buttressed not only by the early suppression cases, like Mapp v. Ohio, (61) but also the legendary dissents of Justices Holmes and Brandeis in Olmstead v. …