Showing papers in "Michigan Law Review in 2001"

Private Commercial Law in the Cotton Industry: Creating Cooperation Through Rules, Norms, and Institutions

Abstract: The cotton industry has almost entirely opted out of the public legal system, replacing it with one of the oldest and most complex systems of private commercial law.1 Most contracts for the purchase and sale of domestic cotton, between merchants or between merchants and mills, are neither consummated under the Uniform Commercial Code ("Code") nor interpreted and enforced in court when disputes arise. Rather, most such contracts are concluded under one of several privately drafted sets of contract default rules and are subject to arbitration in one of several merchant tribunals. Similarly, most international sales of cotton are governed neither by state-supplied legal rules nor

The Pathological Politics of Criminal Law

Abstract: INTRODUCTIO N 506 I. CRIMINAL LAW'S BREADTH 512 A. Breadth and Depth .. 512 B. The Consequences of Breadth and Depth 519 II. THE POLITICAL ECONOMY OF CRIME DEFINITION 523

On Academic Fads and Fashions

Abstract: Like everyone else, academics are susceptible to informational and reputational signals. Sometimes academics lack confidence in their methods and beliefs, and they pay a great deal of attention to the methods and beliefs of others. The academic study of law is particularly subject to cascade effects, as people follow signals that they participate in amplifying. Some of these effects run their course quickly, whereas others last a long time. Leaders can play a special role in starting and stopping cascades; external shocks play a special role in the academic study of law; sometimes like-minded people within academia move one another to extremes. This informal essay, the Foreword to the forthcoming annual book review issue of the Michigan Law Review, discusses these points in a tentative and impressionistic way, with brief comparisons to other fields.

Cost-Benefit Default Principles

Abstract: In an important but thus far unnoticed development, federal courts have created a new series of “default principles” for statutory interpretation, authorizing regulatory agencies, when statutes are unclear, (a) to exempt trivial risks from regulation and thus to develop a kind of common law of “acceptable risks,” (b) to take account of substitute risks created by regulation, and thus to engage in “health-health” tradeoffs, (c) to consider whether compliance with regulation is feasible, (d) to take costs into account, and (e) to engage in cost-benefit balancing, and thus to develop a kind of common law of cost-benefit analysis. These cost-benefit default principles are both legitimate and salutary, because they give rationality and sense the benefit of the doubt. At the same time, they leave many open questions. They do not say whether agencies are required, and not merely permitted, to go in the direction they indicate; they do not indicate when agencies might reasonably reject the principles; and they do not say what, specifically, will be counted as an “acceptable” risk or a sensible form of cost-benefit analysis. Addressing the open questions, this Article urges that the principles should ordinarily be taken as mandatory, not merely permissive; that agencies may reject them in certain identifiable circumstances; and that steps should be taken toward quantitative analysis of the effects of regulation, designed to discipline the relevant inquiries. An understanding of these points should promote understanding of emerging “second generation” debates, involving not whether to adopt a presumption in favor of cost-benefit balancing, but when the presumption is rebutted, and what, in particular, cost-benefit analysis should be taken to entail. “Courts should be reluctant to apply the literal terms of a statute to mandate pointless expenditures of effort. . . . Unless Congress has been extraordinarily rigid, there is likely a basis for an implication of de minimis authority to provide exemption when the burdens of regulation yield a gain of trivial or no value.”1 “It seems bizarre that a statute intended to improve human health would . . . lock the agency into looking at only one half of a substance’s health effects in determining the maximum level of that substance.”2 * Karl N. Llewellyn Distinguished Service Professor, University of Chicago Law School and Department of Political Science. I am grateful to Elizabeth Garrett, Robert Hahn, Eric Posner, and Richard Posner for helpful comments on a previous draft. 1 Alabama Power Co. v. Costle, 636 F.2d 323, 360-61 (DC Cir 1979). 2 American Trucking Association v. EPA, 173 F.3d 1027, 1052 (DC Cir 1999). 2 Cognition and Cost-Benefit Analysis “It is only where there is ‘clear congressional intent to preclude consideration of cost’ that we find agencies barred from considering costs.”3 "In order better to achieve regulatory goals for example, to allocate resources so that they save more lives or produce a cleaner environment regulators must often take account of all of a proposed regulation's adverse effects, at least where those effects clearly threaten serious and disproportionate public harm. Hence, I believe that, other things being equal, we should read silences or ambiguities in the language of regulatory statutes as permitting, not forbidding, this type of rational regulation."4 “The rule-implicit valuation of a life is high – about $4 million – but not so astronomical, certainly by regulatory standards, as to call the rationality of the rule seriously into question, especially when we consider that neither Hepatis B nor AIDS is a disease of old people. These diseases are no respecters of youth; they cut off people in their working years, and thus in their prime, and it is natural to set a high value on the lost years.”5

Deceptive Police Interrogation Practices: How Far is too Far?

Abstract: Virtually all interrogations or at least virtually all successful interrogations involve some deception.1 As the United States Supreme Court has placed few limits on the use of deception, the variety of deceptive techniques is limited chiefly by the ingenuity of the interrogator. Interrogators still rely on the classic "Mutt and Jeff," or "good cop, bad cop," routine. Interrogators tell suspects that nonexistent eyewitnesses have identified them, or that still at-large accomplices have given statements against them. Interrogators have been known to put an unsophisticated suspect's hand on a fancy, new photocopy machine and tell him that the "Truth Machine" will know if he is lying. Occasionally, an interrogator will create a piece of evidence, such as a lab report purporting to link the suspect's bodily fluids to the victim. Perhaps most often, interrogators lie to create a rapport with a suspect. Interrogators who feel utter revulsion toward suspects accused of horrible crimes sometimes speak in a kindly, solicitous tone, professing to feel sympathy and compassion for the suspect and to feel that the victim, even if a child, should share the blame. At the very least, the successful interrogator deceives the suspect by allowing the suspect to believe that it somehow will be in the suspect's best interest to undertake the almost always self-defeating course of confessing.

Questioning the Relevance of Miranda in the Twenty-First Century

Abstract: Miranda v. Arizona2 is the most well-known criminal justice decision arguably the most well-known legal decision in American history. Since it was decided in 1966, the Miranda decision has spawned voluminous newspaper coverage, political and legal debate, and academic commentary. The Miranda warnings themselves have become so well-known through the media of television that most people recognize them immediately.3 As Patrick Malone has pointed out, the Miranda decision has added its own lexicon of words and phrases to the American language.4 Perhaps with this understanding in mind, George Thomas recently suggested that the Miranda warnings are more well-known to school children than the Gettysburg address,5 foreshadowing the Supreme Court's statement in Dickerson v. United States that "Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture."6 But even this may be an understatement: beyond the borders of the United States, the Miranda warnings may be more well known than virtually any other feature of the American criminal justice system.

A Political History of the Establishment Clause

Abstract: The central contention of this paper is that the Court's Establishment Clause jurisprudence can best be understood from a political perspective. The title of the article signals the intent. We analyze Establishment Clause decisions as if they were political. More fully, we analyze Establishment Clause decisions as if they were products of political contests among various interest groups, both religious and secular, with competing positions on the proper relation of church and state. Looking at the Establishment Clause in this way is deeply informative. It yields a more complete and coherent account of modern constitutional doctrine than can be derived from the conventional sources of text, history, and structure. Indeed, one good reason to analyze the Establishment Clause in this way is the lack of plausible alternatives. To preview the argument briefly, the modern Establishment Clause dates not from the founding but from the mid-twentieth century. At that time, the Supreme Court adopted a rhetoric of radical separation of church and state. That rhetoric had as its defining application and chief consequence a constitutional ban against aid to religious schools. Later, the Court also moved to purge religious observances from public education. These two propositions - that public aid should not go to religious schools and that public schools should not be religious - make up the separationist position of the modern Establishment Clause. We begin with the ban against aid to religious schools. The modern no-aid position drew support from a broad coalition of separationist opinion. Most visible was the pervasive secularism that came to dominate American public life, especially among educated elites, a secularism that does not so much deny religious belief as seek to confine it to a private sphere. Additionally, the ban against government aid to religious schools was supported by the great bulk of the Protestant faithful. With few exceptions, Protestant denominations, churches, and believers vigorously opposed aid to religious schools. For many Protestant denominations, this position followed naturally from the circumstances of their founding. It was strongly reinforced, however, in the nineteenth and early twentieth centuries by hostility to Roman Catholics and the challenge they posed to the Protestant hegemony. In its political origins and constituencies, the ban against aid to religious schools aimed not only to prevent an establishment of religion but also to maintain one. Today, much has changed. Anti-Catholic animosity has faded, and the crucial alliance between public secularists and Protestant believers has collapsed. Public secularists, whose devotion to public schools has declined in recent decades, are now divided over the question of funding religious alternatives. More importantly, so are the Protestant faithful. While mainline Protestant denominations continue to demand strict separation of church and state, fundamentalist and evangelical opinion has largely deserted that position. Today, fundamentalists and evangelicals have moved from the most uncompromising opponents of aid to parochial schools to its unlikely allies. As a consequence, strict separationism is opposed today by true believers of many faiths, not just Roman Catholics (and a few other sects with a history of religious schools), but also by the nation's largest Protestant denomination (Southern Baptists) and by the great weight of opinion among the variety of churches called fundamentalist and/or evangelical. Against this new coalition, we predict, the constitutional barrier against financial support of religious schools will not long stand. We see the current judicial uncertainty on this subject not merely as a continuation of the blurred and shifting margins that have plagued the field for years, but as a crack that goes to the core. This prediction does not depend (except in timing) on a guess about future appointments to the Supreme Court. It arises rather from the current realignment of the political forces historically arrayed against constitutional toleration of aid to religious institutions. Old coalitions have collapsed, and new alliances are demanding change. We think it likely that the emerging political combination in favor of government aid to religious education will prove, sooner or later, to be irresistible. We do not, however, see a similar fate for secularism in public education. In contrast to the political revolution on school aid, no new coalition has formed to overturn the Court's decisions outlawing school prayer and Bible reading. Religious exercises in public schools are endorsed today, as they were forty years ago, by the Catholic leadership and by conservative evangelicals and fundamentalists. They are opposed today, as they were forty years ago, by public secularists, mainline Protestant clergy, and most Jews. Moreover, the increasing religious pluralism of American society reinforces the secularist position. While the growing religious diversity of private schools makes government funding of them more "neutral" and hence more acceptable, the growing religious diversity of students in public schools makes it more and more difficult to envision any religious exercises that would not favor some faiths and offend others. We therefore predict that the constitutional prohibition against prayer in the public schools to remain more or less intact. The argument proceeds in three stages. Part I describes the two policies that have dominated the modern Establishment Clause. Part II places those doctrines in historical context. It traces the political antecedents of the separationist policies and identifies the constituencies of their support. Part III addresses the current instability in Establishment Clause doctrine and analyzes the underlying realignment of political forces that are now deploying in favor of radical change.

Property Rights and Liability Rules: The Ex Ante View of the Cathedral

Abstract: A. Introducing Ex Ante Investments . 619 B. Investment by Factory to Enhance the Value of Its A ctivity 621 1. The Socially Optimal Investment Level 621 2. Investment Under Alternative Rules 621 C. Resort's Ex Ante Investment to Enhance the Value of Its A ctivity 624 1. The Socially Optimal Investment Level 624

The Limits of Localism

Abstract: In this Article, Chicago v. Morales serves as a vehicle for interrogating the limits of localism. Morales, which involved a Chicago ordinance that banned loitering by gang members in certain inner-city Chicago neighborhoods, has served as a flashpoint for an increasingly robust scholarship that argues for the devolution of constitutional norms down to the neighborhood level. The debate over local norms is often structured as a clash between a minority community's efforts to solve pressing local problems and the liberal abstractions of due process imposed by majority outsiders. The conventional story has only two possible endings: either the wider political community respects the decisions of local people to adopt laws that are responsive to local conditions or it imposes a norm by force that the affected community does not share. This Article challenges the structure of that debate by examining the coherence of the concept of community on which arguments on behalf of local autonomy are based. Localism depends on the creation and maintenance of smaller-than-state associations marked off in geographical space by a definable perimeter. Yet, while boundaries create citizens (or aspire to do so), they must also, by definition, create noncitizens, and therefore they are invariably destructive of the ideal of a wider community. Localism tends to sacrifice inclusion for the possibilities of citizenship. The creation of a place for meaningful self-government for those inside the (metaphorical and sometimes literal) gates always affects (and often injures) those who are outside the gates. The "boundary problem" in local government law thus is the problem of pluralism. By challenging the devolutionary trend in criminal procedure and the normative foundations for localism in general, the Article seeks to highlight the boundary problem of local government law and to illustrate how it is fostered by the spatially deployed rhetoric of "community." The Article develops three accounts of community - contractarian, deep, and dualist - that provide the most common theoretical grounds for local autonomy. It then critiques each account by examining how law is often "boundary creating" - how legal doctrine marks us in legal, social, and literal space as insiders or outsiders, members or nonmembers, citizens or noncitizens. The Article argues that the conventional dichotomy between respect and force is a false one. The difficult choice is how to define "the local" in the first place.

Science Gone Astray: Evolution and Rape

Abstract: Throughout A Natural History of Rape, coauthors Randy Thornhill2 and Craig Palmer3 resort to what is known among philosophers of science as "The Galileo Defense," which amounts to the following claim: I am telling the Truth and doing excellent science, but because of ideology and ignorance, I am being persecuted.4 The authors have repeated and elaborated upon this defense during the sizable media flurry accompanying the book's publication in February 2000.5

Laws as Treaties: The Constitutionality of Congressional-Executive Agreements

Abstract: This article seeks to resolve the debate over the use of a statutory method for approving international agreements in place of the supermajority process required by the Constitution's Treaty Clause. These congressional-executive agreements, which require only simple majorities in Congress and presidential signature, have become the instrument of choice for entry into some of the nation's most significant international obligations, such as the WTO and NAFTA. Some, such as Bruce Ackerman and David Golove argue that statutes and treaties are interchangeable because a constitutional moment occurred at the end of World War II (in which We the People non-textually amended the Constitution to allow this alternate process). Their critics, such as Laurence Tribe, suggest that the text and structure of the Constitution forbids the use of a statutory method to enter into significant international agreements. Standard foreign relations law doctrine, by contrast, consistently has defended interchangeability, but with little success at explaining how interchangeability is consistent with the constitutional text and structure. This Article provides a constitutional justification for the congressional-executive agreement, one consistent with the text, structure, and history of the Constitution. It shows a clear dividing line that demarcates the situations in which treaties must be the sole instrument of national policy, and those that can be dealt with by the congressional-executive agreement. This Article articulates a theory of treaties that explains the record of practice by the political branches, rather than making normative claims derived simply from different theories of constitutional interpretation. Practice suggests that complete interchangeability ought to be rejected because it creates severe distortions in the American public lawmaking system. Allowing statutes to completely replace treaties eliminates the restrictions upon Congress's enumerated powers and undermines the separation of powers in foreign affairs. Nonetheless, congressional-executive agreements still have a legitimate place in the constitutional conduct of foreign policy, because their use preserves Congress's constitutional powers over matters such as international commerce. Treaties still retain a vital role by allowing the nation to enter into agreements that regulate matters outside of Congress's enumerated powers. Congressional-executive agreements allow the political branches to maintain a separation between treatymaking and lawmaking at a time when the distinction between international and domestic is rapidly disappearing.

Optimal Delegation and Decoupling in the Design of Liability Rules

Abstract: IN TRO D U CTIO N 2 I. SINGLE-CHOOSER RULES 16 A. Selecting Optimal Damages 19 B. Selecting the Chooser 21 C. Selecting the D istribution 26 II. DUAL-CHOOSER RULES 34 A. Selecting Optimal Damages 37 B. Selecting the D istribution 39 C. Selecting the Choosers 41 D. Selecting Among the Four Foundational Single-Price A llocations 43 III. SECOND (AND HIGHER) ORDER RULES 51 A. Selecting Optimal Damages 54 B. Selecting the D istribution 56 C. Selecting the Chooser 57 D. Selecting Among the Six Foundational Allocations 59 IV. EXTENDING THE ANALYSIS 61 A . A dm inistrative Costs 61 B. Alternative Informational Assumptions 62 C. Unintentional Taking 63 D . N um erosity 64

Conjunction and Aggregation

Abstract: This Article begins with the puzzle of why law does not embrace the “product rule”; a mathematically-inclined judge or jury that thought a defendant .6 likely to have been negligent and .7 likely to have caused plaintiff’s harm might conclude that plaintiff had failed to satisfy the preponderance of the evidence standard. Following some discussion of a number of reactions to this puzzle, the Article advances the idea that the process of aggregating multiple jurors’ assessments overlooks valuable information. First, following the Condorcet Jury Theorem, agreement among jurors might raise our level of confidence beyond what the jurors themselves report. Second, a supermajority’s mean or median voter is likely to have a different assessment from that gained from the marginal juror. As such, a supermajority (or unanimity) rule may take the place of the product rule where there are multiple requirements for liability or guilt. An attempt to extract this inframarginal information more directly would likely generate strategic behavior problems. The analysis is extended to panels of judges, for whom outcome voting may (somewhat similarly) substitute for the product rule.

In the Stationhouse after Dickerson

Abstract: Miranda v Arizona1 established the high water mark of the protections afforded an accused during a custodial interrogation During the decades that followed, the United States Supreme Court allowed Miranda's foundation to erode, inviting a direct challenge to the landmark ruling In Dickerson v United States,2 the Court turned back such a challenge and placed Miranda upon a more secure, constitutional footing This Article explores the impact of Dickerson in the place where Miranda was meant to matter most: the stationhouse As I have described elsewhere, Supreme Court decisions have influenced a number of California law enforcement agencies to instruct officers that they may continue to interrogate suspects in custody who have asserted their Fifth Amendment right to remain silent or right to counsel3 Harris v New York4 and Oregon v Hass5 permit some statements taken in violation of Miranda to be used for impeachment purposes at trial Michigan v Tucker6 and Oregon v Elstad7 permit some

Democratic Justice in Transition

Abstract: Ruti Teitel's1 Transitional Justice and Ian Shapiro's2 Democratic Justice come out of very different academic traditions. But they both develop a view of justice that might loosely be called pragmatic by virtue of its treatment of justice as a value that is simultaneously grounded in practice and powerful in bringing about social and political change. Moreover, they both use this shared pragmatic view of justice to provide us with two things that are of great importance to the study of transitional justice and democracy in general. The first is an explanatory framework for understanding how legal institutions and claims about justice function during periods of transition from authoritarianism to democracy. The second is a normative framework for generating principles of justice that can be used to democratize practices in all spheres of life: personal, social, economic, and political. Teitel and Shapiro's general view of justice is very compelling on its own terms and particularly well suited to the efforts of those who want to think about justice practically without degrading it or treating it as merely superstructural. The pragmatic view of justice they develop does not, like its transcendental counterparts, force us to locate a universal moral principle called justice. Nor does it, like its more cynical realist counterparts, force us to accept the status quo or to resign ourselves to a world where justice is considered to be no more than a mere mask for power politics and economic interest. Instead, it allows us to treat our moral and legal values, including justice, as both historically situated constructs and powerful tools for bringing about social and political change. While the pragmatic view of justice that Teitel and Shapiro develop is potentially more realistic and more useful than its transcendental and Marxist counterparts, it is not all that easy to substantiate

Understanding sprawl: Lessons from architecture for legal scholars

Abstract: What is suburban "sprawl"? Why is it undesirable? Why do many Americans nevertheless choose to live in sprawl? Do local zoning laws contribute to sprawl? Can democratic institutions discourage it? ...

Where is My Body? Stanley Fish's Long Goodbye to Law

Abstract: This Review begins by summarizing The Trouble with Principle, by Stanley Fish, paying particular attention to passages that show Fish at his antifoundationalist best--sections on hate speech, affirmative action, academic freedom, and religion. Because Fish's prose is elegant but his argument demanding, I offer a metaphor designed to help readers understand Fish's insight. I then show that the defect Fish highlights is part of a larger disconnection that afflicts legal discourse, looming up not only when we discuss affirmative action, hate speech, and other controversial public-law issues, but also when we try to fit ordinary private-law rules into a coherent system. In short, Fish exposes only part of a more general self-delusion running throughout our system of legal thought. In a concluding section, I recommend a pragmatic, anti-normative approach, similar to Fish's, but applied more broadly, to guard against thuggery operating under the guise of principle. Such an approach, tied closely to our deeply held moral convictions, I argue, can help us remember to support what we need to support, resist what we need to resist, and avoid losing our way, like a proprioceptively handicapped patient, in the "body of law."