Showing papers in "Northwestern University Law Review in 2013"

On Duopoly and Compensation Games in the Credit Rating Industry

Abstract: Credit rating agencies are important institutions of the global capital markets. If they had performed properly, the financial crisis of 2008–2009 would not have occurred, and the course of world history would have been different. There is a near universal consensus that reform is needed, but none as to the best approach. The problem has not been solved. This Article offers the simplest fix proposed thus far, and it is contrarian. This Article accepts the central role of rating agencies in the regulation of bond investments, the realities of a duopoly, and the issuerpay model of compensation. The status quo is the baseline. While not ideal, this much-maligned state is still well suited for robust competition leading to more accurate credit ratings. The role of regulation should be to create the conditions necessary to induce competition. This Article proposes that a small, recurring portion of revenue earned by the largest rating agencies should be ceded to fund a pay-for-performance bonus, and that the agencies should compete for this bonus on a periodic winner-take-all basis. This modest, at-the-margin bonding mechanism would significantly affect incentives and outcomes: conflict of interest and implicit coordination would be minimized; competition would increase; the quality of ratings would improve. Furthermore, this funding scheme can promote the incubation of smaller new competitors through a program of “shadow competition,” creating a competitive information market on credit ratings. Since regulation would only be required to assess performance and would not change the fundamental industrial organization, this proposal has the advantage of simplicity and feasibility. AUTHOR—John H. & Mary Lou Dasburg Professor of Law (designate), University of Florida Levin College of Law; Professor of Law, University of Maryland Francis King Carey School of Law; Professor, Johns Hopkins Carey Business School; Visiting Professor, Georgetown University Law Center. This Article was presented at the 2012 conferences of the Law & Society Association, Midwest Law & Economics Association, and the Italian Society of Law & Economics, and at the University of Minnesota Law School. I thank Mark Graber, Michelle Harner, Claire Hill, Donald Langevoort, Brett McDonnell, Barak Orbach, Brian Quinn, Simone Sepe, Jana Singer, Daniel Sokol, and Max Stearns for their helpful comments. N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W 86 INTRODUCTION 86 I. HISTORICAL BACKGROUND AND REVIEW OF PRIOR PROPOSALS 91 A. The Bond Market and the Credit Rating Industry 91 B. Poor Performance and Its Causes 93 C. Regulatory Responses 99 D. Review of Prior Proposals 102 II. PROPOSAL FOR A COMPENSATION COMPETITION 113 A. Properly Conceptualizing Competition and Incentive 113 B. Mandating Pay-for-Performance 114 C. Financial and Economic Analyses 118 D. Toward a Robust Secondary Market 124 III. POTENTIAL OBSTACLES TO IMPLEMENTATION 126 A. Coordination and Collusion 126 B. Standard for Performance Assessments 127 C. Regulatory Foundation Laid by Dodd–Frank 132 D. Political Reality of Regulation 134 CONCLUSION 136

The Chief Justice, the Appointment of Inferior Officers, and the "Court of Law" Requirement

Abstract: -In addition to his judicial duties, the Chief Justice presides over a sprawling judicial bureaucracy. Each year, the Chief fills positions within that bureaucracy, designating Article III judges to various specialty courts and appointing such officers as the director of the Administrative Office of the U.S. Courts. Although critics worry that the Chief may use his appointment role to shape Third Branch policy unduly, scholars view the role as constitutionally benign.This Article questions the Chief's role. The Constitution authorizes Congress to vest the appointment of inferior officers in the "courts of law" but not the Chief Justice. History teaches that this was a deliberate choice (to curtail the corrupting influence of patronage powers) and one to which the nation's first Chief, John Jay, scrupulously adhered. After tracing the decline of the early practice, the Article proposes the return to a court-based appointment model.INTRODUCTIONEach year, the Chief Justice of the United States makes a variety of appointments to offices in the Article III bureaucracy, filling positions high and low.1 In 2011, for example, Chief Justice John G. Roberts participated in the appointment of a new director of the Federal Judicial Center (FJC), the research and teaching arm of the federal judiciary.2 And with the 2011 retirement of the head of the Administrative Office (AO) of the United States Courts, the Chief Justice bore sole responsibility for the appointment of a successor.3 Apart from these bureaucratic figures, the Chief Justice also selects the Article III judges, magistrates, and bankruptcy judges who serve on the various committees of the Judicial Conference of the United States, the policymaking body of the federal judiciary over which he presides at biannual meetings. Finally, the Chief chooses sitting judges to staff specialty courts, such as the courts established in the Foreign Intelligence Surveillance Act (FISA). Whatever their influence on the resolution of the cases that come before specialized courts, the Chief s appointment powers may give him a significant hand in the development of Judicial Branch policy.4Despite the familiarity of the practice, the power of Congress to vest the Chief with appointment authority poses a constitutional puzzle. After setting a default rule of presidential nomination and appointment, by and with the advice and consent of the Senate, Article II empowers Congress to vest the appointment of "inferior" officers in the President acting alone, in the heads of departments, and in the "Courts of Law."5 Notably, Article II makes no provision for the assignment of appointment authority to the Chief Justice, notwithstanding the fact that the Constitution elsewhere recognizes the existence of that official (in the provision that calls for the Chief to preside at the Senate's trial of presidential impeachments).6 So long as the Judicial Branch offices in question qualify as "inferior" within the meaning of Article II, the Constitution appears to foreclose the vesting of appointment authority in the Chief and to require its vesting in the Court instead.7Although scholars have criticized modern appointment practices in the Judicial Branch, the scholarly consensus holds that the vesting of appointment authority in the Chief does not violate the Constitution. In the leading assessment of the Chief's appointment power, Professor Theodore Ruger concludes that the practice is not "unconstitutional" in the modern sense that a federal court should invalidate legislation conveying such power.8 He bases this conclusion on a variety of considerations, including the gradual growth in the powers of the Chief over time and the plausible textual case for treating the "court of law" as synonymous with the Chief Justice of that court. As Professor Ruger notes, district courts in the nineteenth century often employed a single district judge, making the "court" and the "judge" one and the same. …

Veil of ignorance: tunnel constructivism in free speech theory

Abstract: -Modern free speech theory is dominated in the courts and the academy alike by a constructivist style of reasoning: it posits a few axiomatic purposes of speech and from these deduces detailed rules of law. This way of thinking can make the law blind to the actual consequences of legal rules and damage both individual liberty and democracy. I develop this claim through a critique of the work of Martin Redish, who has developed the most sustained and sophisticated constructivist theory of free speech. Free speech constructivism is not the only way to understand the First Amendment. It is a fairly recent development, emerging only in the 1970s. The idea of free speech, on the other hand, dates back to Milton's arguments in the 1640s. This Article identifies the pathologies of constructivism and recovers an older, more attractive free speech tradition.Thanks most of all to Martin Redish, who, in many conversations and in comments on an earlier draft, has generously abetted the development of a thesis that he regards as tragically misguided. This Article could not have been written without his help. It is affectionately dedicated to him.INTRODUCTIONModern free speech theory is dominated, in the courts and the academy alike, by a style of reasoning that posits a few axiomatic purposes of speech: "It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail . . . ."1 "The right to speak and the right to refrain from speaking are complementary components of the broader concept of 'individual freedom of mind.'"2 "The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self- government and a necessary means to protect it."3 From these axioms one deduces detailed rules of law and deems irrelevant any consequences that were not taken account of in that deduction. This way of thinking, which I will call "tunnel constructivism," can damage both individual liberty and democracy.Tunnel constructivism is a subset of a broader kind of political theory, called "constructivism" by John Rawls, that tries to derive concrete prescriptions for action from a parsimonious set of premises. Tunnel constructivism differs from generic constructivism in that the tunnel constructivist deliberately ignores the consequences of those prescriptions, including consequences that most people would deem relevant as a matter of common sense. The metaphor of tunnel constructivism is intended to capture both of these characteristics. In a tunnel, there is only one direction you can go, and the tunnel prevents you from seeing anything outside. Tunnel vision is to be expected in a tunnel. Tunnel constructivism is not confined to free speech-libertarian views about property and contract are other examples-but the theory is salient and increasingly influential in the free speech context.The conjunction of these two properties, deduction and consequence insensitivity, define tunnel constructivism. Deduction is necessary but not sufficient. The theorist must also be disposed to give deduction's consequences overriding weight. A principle can have a deductive provenance without having absolute strength.4Constructivism in some sense is unavoidable. For example, the deduction of a political prescription from a narrow set of premises is characteristic of all law. More generally, the procedure of inferring a plan of action from a few premises, and of following standardized behavioral protocols, is an inevitable and valuable part of normal human conduct. We could not get through a single hour without routines. But none of this requires blindness to consequences at the architectonic level, in the creation of the routines themselves. It is this blindness that distinguishes tunnel constructivism.5 Blindness to consequences usually reflects nothing more than the limits of human intelligence. In the specific pathology I am describing, the blindness is an effect of the constructivism: one clings to a plan of action in the teeth of manifestly destructive results because one is in the grip of a philosophical construct that tells him that these results don't matter. …

Hacking speech: Informational speech and the first amendment

Abstract: -The Supreme Court has never articulated the extent of First Amendment protection for instructional or "informational" speech-factual speech that may be repurposed for crime. As technology advances and traditional modes of speech become intertwined with code speech, crafting a doctrine that expressly addresses the First Amendment limits of protection for informational speech becomes pressing. Using the case study of "vulnerability speech"-speech that identifies a potentially critical flaw in a technological system but may indirectly facilitate criminality-this Article proposes a four-part "repurposed speech scale" for crafting the outer boundaries of First Amendment protection for informational speech.Our cases have not yet considered whether, and if so to what extent, the First Amendment protects . . . instructional speech.-Justice John Paul Stevens[dagger]INTRODUCTIONThis is the story of Jack and the jackpot. In July 2010, an information security researcher named Barnaby Jack1 caused an Automated Teller Machine (ATM) to spew pretend money2 into an uproariously cheering audience of "hackers"3 at DEF CON, a leading information security conference held annually in Las Vegas.4 Although his ability to succeed in this "exploit"-or act of information security compromise-demonstrated his skill as a security researcher, his ability to control the ATM in this manner existed not only because of his hacking prowess, but also because of flaws in the way that the software running the ATM had been coded.5 Step by step, Jack demonstrated the vulnerabilities in the build of the machine to the audience. He also highlighted critical problems in physical security around the machine: the ATM was available for purchase and delivery on eBay, a key circumstance that had facilitated the months of code analysis (from the comfort of Jack's own home) and had led him to select that particular ATM.6This is also the story of the First Amendment and instructional speech, or, what Professor Martin Redish has termed "informational" speech7-speech that conveys factual information that can be repurposed for crime.8 The idea of someone explaining how to cause a potentially improperly programmed ATM to eject-or, as the industry calls it, "jackpot"9-money will viscerally strike many legal academics and judges as speech that brazenly advocates criminality. They will question the social value of such speech and ask whether it treads into the territory of unprotected speech under the First Amendment. Meanwhile, this initial legal instinct sits diametrically opposed to the dominant thinking in the burgeoning information security research community: the default assumption among seasoned researchers and ingenues alike is one of full First Amendment protection for this type of speech. In reality, the doctrinal First Amendment truth lies somewhere in the middle: the law is unclear.10 The Supreme Court has never expressly addressed the doctrinal question.Building on the work of Professor Redish, this Article grapples with the legally undertheorized but critically important doctrinal tensions around the First Amendment status of informational speech-a doctrinal question flagged but leftunresolved by the Supreme Court. 11 Specifically, this Article examines the broader dynamics of informational speech through a case study of what I term "vulnerability speech"-informational speech that identifies a potentially critical flaw in a technological system or product but also indirectly potentially facilitates criminality. Technology advancements further complicate the doctrinal tensions the Court has leftunresolved regarding informational speech. Informational speech, such as vulnerability speech, now blends traditional modes of informational speech with a second bundle of doctrinally unresolved First Amendment issues-those around code speech.12This Article offers a novel technology-neutral First Amendment paradigm for addressing informational speech-a "repurposed speech scale. …

Essay: A Fresh Look at Tests for Nonliteral Copyright Infringement

Abstract: -Determining whether a copyright has been infringed is often straightforward in cases involving verbatim copying or slavish imitation. But when there are no literal similarities between the works at issue, ruling on infringement claims becomes more difficult. The Second and Ninth Circuits have developed five similar yet distinct tests for judging nonliteral copyright infringement. This Essay argues that each of these tests is flawed and that courts have generally failed to provide clear guidance about which test to apply in which kinds of cases.This Essay offers seven specific strategies to improve the analysis of nonliteral infringements. Courts should do more, for instance, to tailor infringement analysis based on the nature of the works at issue (that is, are they fanciful or artistic works or are they factual or functional?). The goal of this Essay is to offer these strategies as a way to bring greater coherence and consistency to the determination of nonliteral infringements, and to do so in a manner that properly balances the interests of first and subsequent generations of creators.INTRODUCTIONA central puzzle for U.S. copyright law in the twentieth and twenty- first centuries has been how to test for infringement of the exclusive right this law gives authors to control the reproduction of their works in copies. No subtlety of analysis is required when a work is copied word-for-word, line-for-line, or note-for-note or when second comers have made merely "colourable and fraudulent variations."1 But as Professor Kaplan once observed, "[w]e are in a viscid quandary once we admit that 'expression' can consist of anything not close aboard the particular collocation in its sequential order."2This Essay offers several strategies for refining infringement analysis so that it becomes less viscid in cases alleging what the Nimmer treatise describes as "nonliteral" similarities between two works.3 Nonliteral infringement may arise, for instance, when a second comer appropriates detailed plot sequences from another author's drama but uses different dialogue.4Part I discusses the five most frequently utilized tests for infringement of the reproduction right in nonliteral similarity cases.5 It compares these tests and explains why each test is flawed in one or more respects. Apart from these flaws, it is problematic that there are so many different tests and so little guidance about which test to use when.Part II recommends, among other things, that courts tailor infringement tests based on characteristics of the works at issue. The more artistic or fanciful a work is, for example, the more appropriate it is to focus infringement analysis primarily on similarities in the aesthetic appeal of the two works rather than on a dissective analysis of similarities and differences. The more factual or functional a work is, by contrast, the "thinner" is said to be its scope of copyright protection,6 suggesting that infringement analysis should place more emphasis on dissecting similarities and differences of these works and less on impressions. Courts should also give more guidance about what constitutes protectable expression in copyrighted works and what aspects, besides abstract ideas, are unprotectable by copyright.I. WHY CONVENTIONAL TESTS FOR JUDGING NONLITERAL INFRINGEMENT ARE PROBLEMATICOne reason why conventional tests for judging nonliteral copyright infringement are problematic is that there are too many tests and not enough guidance about which one to use in what kinds of cases. Occasionally, courts have applied several different tests without being sure which test is the right one.7 The Second and Ninth Circuits have been the most influential of the appellate courts in addressing nonliteral infringement claims. This section will critique the five tests these courts have utilized. Each test is similar, but none is the same. Each test has flaws, although each is flawed in a somewhat different way. …

Reviving the Privacy Protection Act of 1980

Abstract: -The federal privacy legislative scheme is composed of a fragmented patchwork of aging sector-specific statutes-many enacted prior to the advent of the home computer-that supplement the Fourth Amendment to regulate government access to information. The Privacy Protection Act of 1980 is one such statute, though few understand or utilize its protections. The Act prohibits law enforcement officials from searching for or seizing information from people who disseminate information to the public, such as reporters. Where it applies, the Act requires law enforcement officials to instead rely on compliance with a subpoena or the target's voluntary cooperation to gain access to information. While the Act clearly protects the press, its text reaches more broadly. Changes that have occurred in the information industry since the Act's passage underscore ambiguities in who and what it now protects. To revive its original privacy and speech protections, this Note advocates a reading of the Act to leverage its clear text to protect the privacy, speech, and business interests of information disseminators. Alternatively, compelling interest requirements for searches and ex ante procedural protections would protect similar privacy, speech, and business-continuity interests relevant to all sectors of today's information society.INTRODUCTIONThe federal privacy legislative scheme is a notoriously fragmented patchwork of aging sector-specific statutes.1 Where privacy interests intersect with criminal law enforcement, privacy statutes supplement the Fourth Amendment to regulate government access to information. Public interest campaigns have exhorted Congress to enact comprehensive information privacy rules2 and update key statutes such as the Electronic Communications Privacy Act.3 In the meantime, decades-old statutes passed prior to the advent of the home computer govern information privacy and compelled disclosure.The Privacy Protection Act of 19804 is an example of one such privacy statute. The Act prohibits law enforcement officials from searching for or seizing information from people who disseminate information to the public. Where it applies, the Act requires law enforcement officials to instead rely on compliance with a subpoena duces tecum5 or the target's voluntary cooperation to gain access to information from reporters and others engaged in information dissemination.6Congress enacted the Privacy Protection Act of 1980 as a response to an unpopular Supreme Court decision stemming from a controversial newsroom search at Stanford University.7 As a result, the Act clearly protects the press, but its text reaches more broadly.8 Since 1980, the pool of those potentially covered by the Act has increased dramatically as a result of changes in the information industry. As early as 1998, one Justice Department attorney acknowledged these changes.9 He stated that Congress didnot anticipate the "explosivegrow[th] of the computer world," andthat given the dramatic expansion of digital publishing and home computer usage, the Act might now in fact protect any person who publishes online.10As that Justice Department attorney indicated, Congress did not deliberate over the Act with our modern information landscape in mind. As a result, three important aspects of the Act lack clarity: (1) what people it protects, (2) how the statutory classifications should be applied to digital content, and (3) what interests it protects. As to the first ambiguity, the Act can be construed to protect any individual intending to communicate to the public or some narrower subset of actors.11 A textual reading of the Act reaches broadly, but the Act's muddled origins as a "First Amendment bill" and the realities of law enforcement searches and seizures of increasingly technology-intensive environments beg consideration of borderline cases.As to the second ambiguity, how the statutory classifications apply to digital content is unclear rn two ways. …

Informal Deference: A Historical, Empirical, and Normative Analysis of Patent Claim Construction

Abstract: Patent scope plays a central role in the operation of the patent system, making patent claim construction a critical aspect of just about every patent litigation. With the resurgence of patent jury trials in the 1980s, the allocation of responsibility for interpreting patent claims between trial judge and jury emerged as a salient issue. While the Supreme Court’s Markman decision usefully removed claim construction from the black box of jury deliberations notwithstanding its "mongrel" mixed fact/law character, the Federal Circuit's adherence to the view that claim construction is a pure question of law subject to de novo appellate review produced an unusually high reversal rate, distorting the evidentiary foundation of claim construction determinations, delaying settlement of patent cases, running up litigation costs, and turning appellate review of nearly every patent case into re-litigation of patent claim terms.In 2004, the Federal Circuit undertook to reassess this regime in the Phillips case. The majority en banc opinion largely stayed the course. Indeed, the empirical studies to have emerged since Phillips suggest that not much has changed, finding that the reversal rate remained high and that the Federal Circuit's analytical framework remained largely unchanged. This article presents the results of a comprehensive empirical analysis of the Federal Circuit's claim construction jurisprudence from 2000 through 2011. In contrast to prior analyses, we find that the claim construction reversal rate has dropped precipitously since the Phillips decision from 37.6% to 23.8% on a per claim term basis. Reversal rates have fallen for all members of the Federal Circuit and across all technology fields except business methods. During 2011, the average reversal rate dipped to 17%.This does not mean, however, that the problems of de novo review have been adequately resolved. So long as the Federal Circuit clings to the view that claim construction is a question of law subject to de novo review, district courts will downplay their resort to experts and fact-finding in managing claim construction. This will undermine the quality of adjudication and appellate review by failing to elicit relevant evidence and perpetuating opaque analysis and reasoning. We propose a "mongrel" standard of appellate review of claim construction decisions that better reflects the comparative strengths of trial judges in determining how skilled artisans understand patent claim terms. Formal recognition of this more deferential standard promises to improve the quality of claim construction at the trial court level while improving transparency and encouraging earlier settlement of patent disputes.

Abstention, Separation of Powers, and Recasting the Meaning of Judicial Restraint

Abstract: -In his 1984 landmark article, Abstention, Separation of Powers, and the Limits of the Judicial Function, Professor Martin H. Redish advanced the thesis that the abstention doctrines constituted a violation of separation of powers. Redish's theory was, and is, controversial. The suggestion that an embedded area of federal courts law is unconstitutional is, at the least, highly provocative. It is also ultimately unpersuasive. There are too many justifications underlying the legitimacy of abstention to support the conclusion that it violates the Constitution. Yet, as this Essay demonstrates, one does not have to be persuaded by Redish's constitutional conclusion to appreciate the landmark significance of his project. Prior to Abstention, Separation of Powers, and the Limits of the Judicial Function, the virtues of judicial restraint had been reflexively characterized as judicial deference to the decisions of political actors. Professor Redish, however, replaced this understanding with the more nuanced view that judicial restraint might also mean courts performing the tasks to which they were assigned. In so doing, Redish fundamentally recast the debate as to the proper understanding of the role and obligations of the federal judiciary and the meaning of judicial activism and judicial restraint.INTRODUCTIONAbstention allows federal courts to avoid deciding disputes affecting the states and state law, or at least to delay hearing such disputes until the matters have been heard by the state courts. In so doing, abstention accomplishes a number of goals. It lessens the possibility that federal courts will needlessly decide constitutional issues. It minimizes federal court friction with state courts, state executives, and state legislatures. It protects against unnecessary federal court intrusion into sensitive matters of state policy. For these reasons, the abstention doctrines have been generally considered models of judicial restraint.Professor Martin H. Redish, however, powerfully challenged this view of abstention. In Abstention, Separation of Powers, and the Limits of the Judicial Function,1 Redish contended that the abstention doctrines were not exercises of judicial restraint and humility; they were examples of judicial hubris. Abstention was not an instance of the federal judiciary's deferring to the other branches; it was an example of the federal courts rejecting the duly imposed obligations that the other branches had placed upon them.2 Abstention, Redish concluded, was a violation of the separation of powers.3Redish's theory was, and is, controversial. The suggestion that an embedded area of federal courts law is not only ill-advised but actually illegal is, at the least, a dramatic departure from a settled understanding. Redish's theory, moreover, is ultimately not convincing. There are too many strong justifications underlying the legitimacy of abstention to support the conclusion that it violates the Constitution.Yet, one does not have to be persuaded by Redish's constitutional conclusion to appreciate the landmark significance of his project. And that is the point that I intend to develop in this Essay. Abstention, Separation of Powers, and the Limits of the Judicial Function rightly holds status as one of the most important and transformative accounts of the law of federal courts that has yet been written. But as I will argue, Redish's article holds this status not because it is correct but because it changed the way that the meaning of judicial restraint was conceptualized.Part I of this Essay briefly describes the abstention doctrines and the nature of Redish's attack upon them. Part II discusses the academic reaction to Redish's thesis, including the arguments as to why Redish's bottom line that the abstention doctrines violate separation of powers has not proved convincing. Part III demonstrates why, nevertheless, Redish's thesis was, and is, so fundamental to the proper understanding of the role and obligations of the federal judiciary and to the meaning of judicial activism. …

Reclaiming the Equitable Heritage of Habeas

Abstract: Equity runs through the law of habeas corpus. Throughout the seventeenth and eighteenth centuries, prisoners in England sought the Great Writ primarily from a common law court—the Court of King’s Bench—but that court’s exercise of power to issue the writ was built around equitable principles. Against this backdrop, it is hardly surprising that modern-day habeas law draws deeply on traditional equitable considerations. Criticism of current habeas doctrine centers on the risk that its rules—and particularly the five gatekeeping doctrines that preclude consideration of claims—produce unfair results. But in fact, four of these five bars exhibit significant equitable characteristics. The sole outlier, the Supreme Court’s retroactivity bar, strictly prohibits relief when an applicant relies on a new rule of constitutional procedure, without regard to the blamelessness of the applicant’s conduct or the nature of the claim. The nonequitable nature of the retroactivity bar causes both individual and institutional harms. Of particular importance, because it operates irrespective of how compelling the individual claim of error may be, it blocks the opportunity to secure relief on claims in approximately one quarter of all capital habeas cases. The nonretroactivity rule also makes it impossible for courts to recognize new rights applicable to collateral proceedings, no matter how sound such new rights might be. This Article argues that the Supreme Court should modify its retroactivity doctrine to reflect equity’s traditions. In particular, the Court should adopt three individualized equitable exceptions to the now-absolute retroactivity bar that take account of applicants’ conduct in pursuing claims, the merits of the claims and the stakes involved, and the unavailability of alternative remedies. These exceptions might not alleviate all of the inequities created by the nonretroactivity rule. They would, however, bring it more in line with its four companion habeas bars, providing a measure of coherence to these gatekeeping doctrines and reconnecting the nonretroactivity rule with the writ’s deep equitable roots. AUTHOR—Associate Professor, University of Georgia School of Law. I greatly appreciate the comments provided by Dan Coenen and Stephen Vladeck. I also want to thank my research assistants Lennon Haas (‘12), Matthew Onyett (‘13), and Ryan Tuck (‘12) for all of their work. N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W 140 INTRODUCTION 140 I. THE HISTORY OF HABEAS CORPUS AND ITS GATEKEEPING LIMITATIONS 143 II. THE EQUITABLE ROOTS OF (MOST OF) THE HABEAS BARS 150 A. Habeas Bars and Their Traditional Equitable Corollaries 151 B. Focus on the Applicant’s Conduct 155 C. Equitable Exceptions 157 III. TEAGUE’S EQUITABLE OUTLIER STATUS 163 A. Teague’s History and Operation 163 B. The Effects of Teague 166 C. The Anomalous and Inequitable Nature of the Teague Rule 170 IV. EQUITY AND NONRETROACTIVITY REVISITED 172 A. Restoring Equity 173 B. The Costs of Equity 184 CONCLUSION 186

Bomb Throwing, Democratic Theory, and Basic Values-A New Path to Procedural Harmonization?

Abstract: -From the beginning of his career, Marty Redish has been something of a bomb thrower, repeatedly challenging legal orthodoxy. During the last decade, democratic theory has been at the center of many of his challenges to widely accepted procedural rules. Meanwhile, American proceduralists are gradually waking up to the reality that the rest of the world handles procedure quite differently. Redish's theoretical challenge to U.S. procedure-premised on political theory-therefore also corresponds to efforts to harmonize American procedure more closely with that of the rest of the world. But the United States remains stubbornly resistant to that harmonization, and even limited shifts in the direction Redish endorses excite very vigorous opposition. This Article recognizes the ways in which Redish's democratic theory could lead to greater harmonization with the rest of the world, but contrasts several other political theory explanations for American exceptionalism that support retaining our current methods. It concludes by recognizing that this tension presents considerable challenges to American rulemakers.INTRODUCTIONMarty Redish has long been a bomb thrower. By that, I mean that he has launched trenchant critiques of established doctrine that shake up the academic and, sometimes, the judicial establishment. When he was new to academia, for example, he established himself with major articles-bombs-about the right to jury trial,1 the Erie doctrine,2 the timing of appellate review,3 the Anti-Injunction Act,4 and the proper handling of due process limitations on personal jurisdiction.5Many begin as bomb throwers but end up staid Establishment defenders. Not so with Marty. He has persisted in his clear-eyed and rigorous scrutiny of the solemn precedents in many fields, and has become a giant in constitutional law and federal courts, in addition to civil procedure, the only field I can claim to have mastered even partly.In the last decade or so, Marty's civil procedure bomb throwing, broadly construed, has shifted from the focus of his first decade in teaching. In particular, he has raised a series of challenges to the foundations on which many of the principles of modern American civil procedure have been built.6 In other words, he has invited us to get back to basics, most recently by emphasizing the foundations of modern procedure. As in his other endeavors, Marty has shaken those foundations. That's what good academic bomb throwers do.I want to reflect on Marty's recent challenges to orthodoxy, partly from the perspective of one who has found himself laboring in the vineyards of the procedure establishment, at least in relation to several of the topics Marty has within his sights. In addition, I've had some exposure (more than most American proceduralists) to efforts at procedural harmonization in the rest of the world, and I approach these topics with that effort in mind. In the process, I will take some liberties with Marty's actual positions, hopefully not too many, to elaborate on a theme that I take from his recent writings. I will suggest that the combined effect of Redish's critiques could be seen as endorsing a revision of American procedure that would move our practice toward harmonization with the rest of the world. The contrasting attitude might be generalized as the procedure of Continental Europe, which relies on precise specification of factual allegations and evidentiary support, leaves fact-gathering to the judge rather than party-controlled discovery, generally allows less generous monetary relief, and permits the winner to recover its attorney's fees. Drawing then on this comparative perspective, I intend to offer some political theory explanations for the persistence of American procedure in what Marty (and much of the rest of the world) would likely call its erring ways. And then I finish with brief reflections on the consequent messiness of contemporary American procedure reform. …

Aggregate litigation and the death of democratic dispute resolution

Abstract: -Professor Redish has anchored the modern class action in American political and constitutional theory, raising serious questions about the legitimacy of this procedural device for resolving aggregate claims. Professor Redish's major insight is his argument that the courts and litigants have transformed the modern class action from a mere procedural device into a means for controlling and altering substantive law in ways that he considers to be highly undemocratic.Others, however, have suggested that the class action is dead. The Article surveys accounts of the death of class actions and explains the continued endurance of class litigation, which, it turns out, is hard to kill off. The Article then documents the changing landscape of aggregate dispute resolution, documenting a significant paradigm shiftin the twenty-first century towards increased use of private claims resolution mechanisms. The Article focuses on settlement classes, multidistrict litigation procedure, contractual nonclass settlements, the quasi-class action, and fund approaches to mass claim resolution.Finally, the Article critically evaluates this paradigm shiftand concludes that Redish's critique of class action litigation has even greater relevance in the new world of nonclass, aggregate claims resolution: that Professor Redish's critique applies with even greater force in the nonclass universe. With the paradigm shifttowards nonclass aggregate claims resolution, the arc of history may be bending towards greater injustice-a shiftthat is more significant because it is largely unbounded by rules and unmoored from judicial oversight.Class actions are dead.-Kenneth R. Feinberg[dagger]INTRODUCTIONNo one has written as passionately and well about the democratic theory of class action litigation than Professor Martin H. Redish.1 Indeed, no one else has written about it at all.2 Through a series of landmark articles,3 Professor Redish has anchored the modern class action in American political and constitutional theory and, at the same time, raised serious questions about the legitimacy of this procedural device.Professor Redish's major insight into class action litigation is his argument that the courts and litigants have transformed the modern class action from a mere procedural device into a means for controlling and altering substantive law in ways that he considers to be highly undemocratic.4 In particular, Redish has identified and challenged the driftof the modern class action into what he has labeled the "bounty hunter" remedial model,5 characterizing such litigation as "faux" class actions.6In addition to taking aim at the problem of faux class actions, Redish rightly has focused much of his critique on the modern settlement class action, a mechanism greatly expanded in the late 1990s that generated enormous controversy in the courts and academic arena.7 Redish has argued that settlement classes, "where all sides are in total agreement from the very initiation of the proceeding," raise serious questions about the constitutionality of the entire process.8Specifically, Professor Redish contends that settlement classes violate the Article III requirement that federal courts adjudicate only "real cases and controversies," and that ginned-up disputes that are resolved through settlement classes violate Article III of the Constitution.9 In addition, Redish has persuasively argued that settlement classes are the poster child for procedural mechanisms that transgress the Rules Enabling Act,10 and therefore that settlement classes under Rule 23 are an unconstitutional exercise of judicial authority.11As a consequence of his critique of the class action mechanism, Professor Redish suggests that "major constitutionally dictated changes" to Rule 23 and prevailing judicial applications of Rule 23 doctrine are necessary.12 In this view, federal courts should hold that settlement classes contravene the Article III case or controversy requirement because current doctrine sanctions the judicial resolution of faux disputes, without any real case or controversy. …

The Contraception Mandate

Abstract: -Under the new health care regime, health insurance plans must cover contraception. While religious employers are exempt from this requirement, religiously affiliated employers are not. Several have sued, claiming that the "contraception mandate" violates the Free Exercise Clause, the Free Speech Clause, and the Religious Freedom Restoration Act. This Essay explains why the contraception mandate violates none of them.INTRODUCTIONHealth care in the United States is undergoing a sea change thanks to the Patient Protection and Affordable Care Act.1 Among the many firsts: employers that offer health insurance must cover certain preventive services for women, including contraception.2 This requirement-often called the "contraception mandate"-has generated a huge outcry, especially from the U.S. Catholic hierarchy.3 Although churches, synagogues, mosques, and other religious institutions that predominately serve and employ people of their own faith are exempt, religiously affiliated institutions that serve and employ people of many different faiths-such as schools, hospitals, and social services providers-are not.4 It is the lack of an exemption for the latter organizations that has generated protests.According to the United States Conference of Catholic Bishops (the "Bishops"), forcing their religiously affiliated institutions to facilitate access to contraception-the use of which clashes with fundamental tenets of the Catholic faith-violates their religious conscience.5 President Obama's proposed compromise, where insurance companies rather than the religious employers would pay for the coverage, did not assuage them: "The only complete solution to this religious liberty problem is for [the government] to rescind the mandate of these objectionable services."6 When the White House declined to revoke the contraception mandate, over forty Catholic dioceses, schools, and social services organizations filed lawsuits against the federal government. The complaints a?gue that making religiously affiliated organizations offer comprehensive insurance coverage contravenes, among other things, the Free Exercise Clause, the freedom of association guaranteed by the Free Speech Clause, and the Religious Freedom Restoration Act (RFRA).7In fact, the contraception mandate violates none of these. As a neutral law of general applicability, it does not violate the Free Exercise Clause. Nor does it interfere with associational membership in violation of freedom of association. It does not trigger RFRA because it fails to qualify as a substantial burden on anyone's conscience and would survive strict scrutiny in any case. To start, most American Catholics do not consider the ban on contraception central to their faith,8 as a vast majority of Catholic women have ?sed birth control.9 In addition, the claim that the contraception mandate illegally forces Catholic institutions to send a message that clashes with their fundamental beliefs overlooks the way that the genuine and independent choice of individuals to use contraception breaks the chain of causation, such that contraception use cannot be attributed to the religious entity. Finally, whatever burden "facilitating" prohibited conduct imposes, it is simply too attenuated to justify an exemption when balanced against the direct burden on women's autonomy and equality.I. FREE EXERCISEThere is little basis for a constitutional free exercise claim. As its name indicates, the Free Exercise Clause protects the free exercise of religion.10 However, it only protects religious practices against discriminatory laws; Employment Division, Department of Human Resources v. Smith held that neutral laws of general applicability do not violate the Free Exercise Clause.^ A law is neutral as long asit does not intentionally single out a religion for disfavor,12 and it is generally applicable if it applies across the board." Given that' the mandate neither targets religiously affiliated institutions nor is riddled with exceptions, it meets the neutrality and general applicability requirements. …

A Jurisdictional Perspective on New York Times v. Sullivan

Abstract: -New York Times v. Sullivan, arguably the Supreme Court's most significant First Amendment decision, marks its fiftieth anniversary next year. Often overlooked in discussions of the case's impact on the freedom of speech and freedom of the press is that it arose from a complex puzzle of constitutional, statutory, and judge-made jurisdictional and procedural rules. These kept the case in hostile Alabama state courts for four years and a half-million-dollar judgment before the Times and its civil-rights-leader co-defendants finally could avail themselves of the structural protections of federal court and Article III judges. The case's outcome and the particular First Amendment rules it established are a product of this jurisdictional and procedural background.Martin H. Redish has produced a lengthy record of influential and cutting-edge scholarship on civil procedure, federal jurisdiction, and the First Amendment, and has been a sharp and unforgiving critic of many of the jurisdictional rules that kept the case out of federal court for so long. It is appropriate to recognize Redish's scholarly legacy by examining this landmark case, which sits at the intersection of his three scholarly pursuits and demonstrates why many of his arguments and criticisms are precisely correct.INTRODUCTIONNew York Times v. Sullivan,1 arguably the Supreme Court's most significant First Amendment case,2 marks its fiftieth anniversary next year. Sullivan took an area of law-state libel law-that had not previously been recognized as subject to federal constitutional constraint and moved it "from far out frozen darkness to the sunny warmth of the first amendment."3 The Court employed sweeping language about the importance of the freedom of speech; about the liberty of citizens and the press to criticize public officials in even the most caustic, vehement, and occasionally erroneous terms; and about the fundamental idea that speech on matters of public concern must be "uninhibited, robust, and wide-open."4 It also resolved a 160-year-old historical debate by declaring that seditious libel or anything like it is inconsistent with fundamental notions of free expression.5 These ideas launched the modern First Amendment and have informed free speech jurisprudence for half a century.6 No wonder the Court's unanimous decision was celebrated as "an occasion for dancing in the streets."7Underlying the state law defamation action in which the Court made these pronouncements was a complex puzzle of federal jurisdiction and civil procedure. The speaker-defendants were unable to obtain a federal forum for their federal constitutional claims for four years, meaning they endured two layers of overwhelming and costly defeat in state court before finally getting to an Article III tribunal. Even then, they got to federal court only because the Justices, exercising unchecked discretion and to the surprise of many (including the lead media defendant), found the case worth hearing. This circuitous and uncertain route to federal court was dictated by jurisdictional and procedural rules-constitutional, statutory, and judge made-in effect at the time and still in effect today. The speech-protective outcome in Sullivan and the doctrine it spawned are a product of this jurisdictional and procedural background. At the same time, had things gone slightly differently, the case might never have reached the Supreme Court or any other federal forum, just as it remains conceivable that the next Sullivan might never do so. The substantive First Amendment consequences of that possibility are obvious and troubling.This volume of the Northwestern University Law Review honors the work of Martin H. Redish, who in forty years in the academy has produced a record of influential and cutting-edge scholarship on civil procedure, federal jurisdiction, and the First Amendment. This is the ideal forum to consider the extent to which the First Amendment's greatest judicial victory was awash in procedure and federal jurisdiction. …

Originalism and the Ratification of the Fourteenth Amendment

Abstract: -Originalists have traditionally based the normative case for originalism primarily on principles of popular sovereignty: the Constitution owes its legitimacy as higher law to the fact that it was ratified by the American people through a supermajoritarian process. As such, it must be interpreted according to the original meaning that it had at the time of ratification. To give it another meaning today is to allow judges to enforce a legal rule that was never actually embraced and enacted by the people. Whatever the merits of this argument in general, it faces particular hurdles when applied to the Fourteenth Amendment. The Fourteenth Amendment was a purely partisan measure, drafted and enacted entirely by Republicans in a rump Reconstruction Congress in which the Southern states were denied representation; it would never have made it through Congress had all of the elected Senators and Representatives been permitted to vote. And it was ratified not by the collective assent of the American people, but rather at gunpoint. The Southern states had been placed under military rule, and were forced to ratify the Amendment-which they despised-as a condition of ending military occupation and rejoining the Union. The Amendment can therefore claim no warrant to democratic legitimacy through original popular sovereignty. It was added to the Constitution despite its open failure to obtain the support of the necessary supermajority of the American people. This Article explores the fundamental challenge that this history poses to originalism.INTRODUCTIONOriginalists have traditionally based the normative case for originalism1 primarily on principles of popular sovereignty: the Constitution owes its legitimacy as higher law to the fact that it was ratified by the American people through a supermajoritarian process. As such, it must be interpreted according to the original meaning that it had at the time of ratification. To give it another meaning today is to allow judges to enforce a legal rule that was never actually embraced and enacted by the people. And there is no warrant in a democratic nation for unelected judges to strike down popularly enacted statutes unless those statutes violate higher laws by which the people collectively agreed to be bound.2Whatever the merits of this argument in general, it faces particular hurdles when applied to the Fourteenth Amendment. The Fourteenth Amendment was a purely partisan measure, drafted and enacted entirely by Republicans in a rump Reconstruction Congress in which the Southern states were denied representation; it would never have made it through Congress had all of the elected Senators and Representatives been permitted to vote. And it was ratified not by the collective assent of the American people, but rather at gunpoint. The Southern states had been placed under military rule, and were forced to ratify the Amendment- which they despised with an (un)holy hatred-as a condition of ending military occupation and rejoining the Union.3 The Amendment may have enjoyed military legitimacy-might makes right, and the victor on the battlefield can dictate the terms of the peace.4 And it surely enjoyed moral legitimacy-right is right, and the evil of racism flies in the face of freedom and justice.5 But it can claim no warrant to democratic legitimacy through original popular sovereignty. It was added to the Constitution despite its open failure to obtain the support of the necessary supermajority of the American people.This Article explores the fundamental challenge that this history poses to originalism-a challenge that originalists have ignored.6 The point of this Article is not to question whether, as a formalist matter, the Fourteenth Amendment was properly promulgated and ratified. Despite some vigorous objections in the past,7 that question has been put to rest by the judgment of history, if nothing else.8 And the point is certainly not to suggest that judges err today in enforcing the Fourteenth Amendment judicially. …

Contested Shore: Property Rights in Reclaimed Land and the Battle for Streeterville

Abstract: -Land reclaimed from navigable waters is a resource uniquely susceptible to conflict. The multiple reasons for this include traditional hostility to interference with navigable waterways and the weakness of rights in submerged land. In Illinois, title to land reclaimed from Lake Michigan was further clouded by a shift in judicial understanding in the late nineteenth century about who owned the submerged land, starting with an assumption of private ownership but eventually embracing state ownership. The potential for such legal uncertainty to produce conflict is vividly illustrated by the history of the area of Chicago known as Streeterville, the area of reclaimed land along Lake Michigan north of the Chicago River and east of Michigan Avenue. Beginning in the 1850s, Streeterville was subject to repeated waves of litigation, assertions of squatters' rights (most notably by George Wellington Streeter, for whom the area is named), conspiracies to obtain federal land grants based on veterans' rights, schemes in reliance on claims of Native Americans, and a public works project designed to secure the claims of wealthy riparian owners. The riparian owners eventually won the many-sided battle, but only after convincing institutions such as Northwestern University to build substantial structures on the land. The history of Streeterville suggests that when legal title to reclaimed land is highly uncertain, conflict over control of the land is likely to persist until one or more persons succeed in establishing what is perceived to be possession of the land.INTRODUCTIONThe history of Chicago suggests that reclaimed land-that is, land artificially created where water once stood-is a resource uniquely prone to conflict. This Article recounts a particular multisided dispute over reclaimed land in the Chicago neighborhood called Streeterville.1 The land in question was created by a combination of natural accretion, unauthorized landfilling, and a legally sanctioned public works project. The result was great uncertainty about who had title to the new terra firma. This uncertainty over property rights ignited a struggle lasting decades that featured not only litigation and special interest legislation but also fraud and outright violence.The battle over property rights in Streeterville can be divided into three periods. The first, which lasted from roughly 1850 to 1885, was relatively decorous, consisting largely of litigation over rights to land formed by natural accretion. The second, from roughly 1885 to 1915, was intense and largely extralegal. This period included, most famously, gun battles between the followers of the notorious squatter, George Wellington Streeter, and private guards hired by wealthy Chicago landowners who claimed title to the area based on riparian rights. This period also featured a conspiracy to secure the land using scrip given to the survivors of a Mexican War hero and a scheme to claim the land for a branch of the Potawatomi Indians, who had occupied the area before white settlers arrived. The third period, from roughly 1915 to 1930, was when the wealthy landowners who claimed the land by riparian rights consolidated their control over the area, abetted by construction of structures by institutions of impeccable social standing, most notably Northwestern University.One question raised by the history of Streeterville is why it took so long for the struggle over the newly formed land to be resolved. The answer would seem to be that as long as the reclaimed land stood vacant, it remained, in the minds of many, a resource that was up for grabs-and as long as it was perceived as being up for grabs, competition to establish property rights in the land continued. This competition, in turn, discouraged development of the land, which meant that it remained vacant and hence continued to be perceived as being up for grabs. The matter was resolved only when the claimants with the most resources started to build substantial structures on the reclaimed land. …