Showing papers in "Notre Dame Law Review in 2006"

Setting Software Defaults: Perspectives from Law, Computer Science and Behavioral Economics

Abstract: Policymakers are increasingly pondering or evaluating the use of software and its influence on societal concerns such as privacy, freedom of speech, and intellectual property protection. A necessary step in this process is deciding what the “settings” should be for the relevant software. In this paper, we build upon work in computer science, behavioral economics, and legal scholarship to establish a well-defined framework for how default settings in software should be determined. This normative approach towards software settings stands apart from most previous scholarship, which focuses on the effect of software settings. Our recommendations include several scenarios where policymakers should intervene and ensure that defaults settings are set to enhance societal welfare. These recommendations are illustrated with three examples. If policymakers change the default settings in our examples, they would enhance competition, security, and privacy. We believe that the manipulation of software to enhance social welfare is a powerful tool and a useful complement to traditional legal methods. THIS IS A DRAFT. PLEASE DO NOT QUOTE, CITE OR DISTRIBUTE WITHOUT PERMISSION. 1 Setting Software Defaults: Perspectives from Law, Computer Science and Behavioral Economics Jay P. Kesan* & Rajiv C. Shah**

The City As An Ecological Space: Social Capital and Urban Land Use

Abstract: The notion that certain uses of public and private property can have negative effects beyond legally defined property boundaries is firmly embedded in land use law. We are now comfortable regulating land use to prevent and control for impacts to our natural resources, environmental quality, and nuisances to third parties. This idea is partly rooted in economic theory—i.e. the existence of negative externalities, but also in the theory of ecology—i.e. the notion that property is inextricably part of a network of social and economic relationships and that its impacts traverse legally defined property boundaries. But not all impacts, or costs, of land use are properly accounted for in land use regulation. This Article highlights a category of social costs that remain largely exogenous to the norms underlying our system of land use controls. Scholars from a variety of disciplines recognize the importance of social capital to, and the deleterious impacts from its loss on, urban communities. Yet legal scholars have not taken seriously social capital when normatively evaluating urban land use regulation and policy. This Article argues that the failure to account seriously for the ways that land use decisions interact with social capital, particularly in the most socially vulnerable communities, underlies many contemporary disputes involving the persistent fragmentation and *Albert A. Walsh Professor of Law, Fordham University School of Law. I am deeply grateful to the following individuals who read and commented on drafts of this Article at various stages: Elise Boddie, Colin Crawford, Lee Fennell, Rachel Godsil, Sonia Katyal, Carolyn Merchant, Wendell Pritchett, Cliff Rechtschaffen, Aaron Saiger, Benjamin Zipursky. I also want to thank the faculty at the Department of Environmental Science, Policy and Management at University of California, Berkeley, at University of Alabama Law School, and at Georgetown University Law Center, where I presented this Article in workshops. I am also grateful to the students in Wendell Pritchett’s Spring 2006 Urban Policy Seminar at the University of Pennsylvania School of Law and students in my Urban Land Use seminar at Fordham Law School where I presented this Article and received valuable feedback. This Article was made possible by the generous financial support from Fordham School of Law and benefited immensely from the excellent research assistance provided by Terry Kim. FOSTER_ABSTRACT 1/18/2007 10:44:27 AM 102 N O T R E D A M E L A W R E V I E W [VOL. 82:2 social inequities of urban metropolitan space. The Article concludes by suggesting that only through a rethinking of the city commons can we begin to take social capital seriously in land use policy and law. Instead of conceptualizing the city as an aggregation of private property rights, we should instead seek to identify and protect common resources and interests in the city commons through limited access rights and collaborative governance strategies that preserve and draw upon existing social networks to manage common city resources.

Bringing Jury Instructions Into the Twenty-First Century

Abstract: There have been numerous empirical studies of the instructions used in American jury trials. These instructions are supposed to inform jurors about their role and the law. Instead, these studies show that jury instructions with their legal formulations are incomprehensible to the layperson, poorly structured, and delivered ineffectively. Given the strong evidence that jurors do not understand the instructions, the focus of this Article will be on two related questions: Why have American jury instructions been so resistant to reform? What can be done so that jury instructions enter the twenty-first century? Some states, such as California and Arizona, have made large-scale efforts to improve their jury instructions. In California, a group consisting of lawyers, law professors, linguists, and even some laypersons have rewritten the civil and criminal jury instructions in “plain language.” In Arizona, when a jury informs the judge that it has reached an impasse, the judge, rather than delivering a traditional Allen charge, can engage in a dialogue with the jury to see if additional information or clarification would be useful. However, in most state and federal courts, jury instructions remain incomprehensible and the question is why? I identify one explanation as the “institutional process” because it considers who drafts the instructions, the process they use, and their priorities. Jury instructions are typically drafted by committees consisting of lawyers and judges who strive to encapsulate the law correctly in their instructions. They write instructions that they and appellate judges understand, but that laypersons will not necessarily grasp. A second explanation, which I label the “acculturation ∗ Professor of Law, Chicago-Kent College of Law. I want to thank Jay Tidmarsh and Notre Dame Law Review for inviting me to contribute to this symposium issue; participants at the International Conference: Clarity and Obscurity in Legal Language in Boulogne-surMer, France, for their comments when I presented this paper as part of a panel on “Clarity in Communication with Citizens;” and Lucy Moss at Chicago-Kent for her outstanding library assistance. MARDER_ABSTRACT.DOC 11/2/2005 1:35:25 PM N O T R E D A M E L A W R E V I E W [VOL. 81:2 process” considers whether jury instructions have remained so resistant to change because they accomplish other, unstated goals like inspiring in jurors respect for the trial process. This Article will explore these and other explanations for the tradition of incomprehensible jury instructions. This Article also will consider how jury instructions should change. The instructions have long been delivered orally by the judge. One fairly recent change has been to give each juror a written copy of the instructions in addition to the judge's reading. In some courtrooms, the judge's reading is recorded on videotape or audiotape so that the jury can replay the instructions as needed. How else might jury instructions be given to the jury? Are there other technologies that could be employed? How can the language of the instructions be made more comprehensible? For example, what if former jurors sat on the committees that write these pattern instructions? This Article explores efforts to simplify the language and to use new methods to deliver the instructions, which are critical if the jury is to remain a vital institution to the next generation of jurors.

Exile, Amnesty and International Law

Abstract: This article examines recent state and international practice regarding amnesties for jus cogens crimes, particularly cases from Latin America as well as international courts and tribunals, and explores the transnational legal dialogue between courts, and to a lesser degree, legislatures, that has led to international norm creation in this area, strengthening the prohibition against amnesties considerably. At the same time, constraints upon the exercise of universal jurisdiction, whether imposed by legislatures, articulated in judicial opinions, or created by international treaty, have provided a political check to the otherwise unbounded exercise of universal jurisdiction by states and the exercise of universal international jurisdiction by the international community taken as a whole. Indeed, the article suggests that the question of amnesties for war crimes, crimes against humanity and genocide raises profound questions about the nature and form of international criminal law— its substantive content, temporal dimensions, and constitutional status. The article challenges the conventional wisdom that “swapping justice for peace,” is morally and practically acceptable. Instead, what longitudinal studies we have suggest that amnesty deals typically foster a culture of impunity in which violence becomes the norm, rather than the exception. This Article considers amnesties from a jurisdictional approach, in which domestic, ∗ Henry H. Oberschelp Professor of Law, Washington University in St. Louis and Former Commissioner, U.S. Commission on International Religious Freedom. Thanks to the many colleagues who have commented on earlier versions of this Article or offered intellectual critiques, particularly William Aceves, Rosa Brooks, Alison Danner, Laura Dickinson, Mark Drumbl, John O. Haley, Laurence Helfer, Mark Janis, Bill Jones, Stephen Legomsky, David Luban, William Schabas, Michael Scharf, Margo Schlanger, David Sloss, David Wippman and the participants in the Workshop on the Princeton Principles of Universal Jurisdiction, the Vanderbilt Colloquium on International Law and the International Conference on Atrocities in Galway, Ireland, and the Washington University School of Law Faculty Colloquium series. A very special thank you is owed to Diane Orentlicher, who shared her considerable time and expertise with the author. Finally, thanks to T.H. Clark, Ilissa Gould, Jennifer Lin, Andres Pacheco, Terri Payne and Matthew Bunda for their able research assistance, and to the Washington University School of Law for its generous support. SADAT_AUTHOREDIT 1/28/2006 1:39:11 PM 102 N O T R E D A M E L A W R E V I E W [VOL. 81:3 transnational and international amnesties are considered in both horizontal and vertical perspective. Finally, while noting that international criminal justice is not a “one size fits all” proposition, and that carefully tailored and culturally sensitive approaches suitable to individual cases are required, the article underscores the importance of the emerging normative and legal structure apparent in international criminal law, as well as the need for imperial powers such as the United States to submit themselves to the rule of law in order to enhance the legitimacy and effectiveness of the rules.

Modern Public Trust Principles: Recognizing Rights and Integrating Standards

Abstract: The public trust doctrine has a long history from its beginnings as an obligation on states to hold lands submerged under navigable waters in trust for the public, to its resurgence in the 1970s as a protector of natural resources, to its influence on state statutory and constitutional law as the public embraced environmental protection principles. However, many have argued that the public trust doctrine has not lived up to its potential as a major player in environmental and natural resources law. This article proposes a new framework for the public trust doctrine as a state tool for environmental protection that relies heavily on state constitutional law and environmental statutes to give additional content and power to this ancient common law doctrine. By using this new theoretical framework based on recent judicial trends, the statutory, constitutional, and common law manifestations of public trust principles can all become mutually reinforcing rather than remain trapped in the “either-or” dichotomy engrained in prior scholarship.

The Textualization of Precedent

Abstract: Statutes have long been regarded as quintessentially written law. In contrast, the other main source of law in a common-law system, judicial opinions or precedents, have traditionally been extolled as lex non scripta, or “unwritten law,” even though cases have been reported in writing since the thirteenth century. In fact, it is true that the common law was traditionally unwritten in an important way. For many hundreds of years, English judges expressed their opinions orally; those opinions were only later summarized in writing by a reporter, and sometimes not reported at all. Even today, precedential opinions may be delivered orally in England, and they are, moreover, often delivered seriatim. Because there may be no clearly authoritative text of a judicial opinion, the nature of English precedent remains relatively conceptual. In such a system, the ratio decidendi, or holding, of a case is something that must be deduced by reasoning rather than by close analysis of the text. In the United States, on the other hand, precedent has become far more textual as a result of judicial innovations such as requiring judges to write their opinions, elimination of seriatim opinion delivery, the appointment of official reporters, and the increasing availability of verbatim copies of the judge’s opinion. Additionally, appellate courts have started to express their holdings in formulaic or canonical fashion, which results in language that resembles the authoritative texts produced by legislatures. Lawyers and judges are consequently interpreting opinions in more textual ways. A related development is the adoption by many state and federal courts of rules that designate only certain appellate opinions for * This Article has benefited greatly from comments made by Peter Alldridge, Stephen Barnett, Richard Cappalli, Charles Collier, Sid DeLong, Jan Engberg, Bryan Garner, Allan Ides, Michael Sinclair, Larry Solan, participants at a Loyola Law School faculty workshop, and participants at a lecture at the Wolfgang Goethe University in Frankfurt (sponsored by the Deutsch-Amerikanische Juristenvereinigung). I would also like to thank Heidi Brooks and Dale Kim for research assistance. TIERSMA_AUTHOREDIT 1/24/2007 3:09:39 PM 102 N O T R E D A M E L A W R E V I E W VOL. 82:3 publication, thus entailing that only those opinions are binding precedent. Opinions not designated for publication have been reduced to persuasive status or may not be cited at all. Recently, there has been a counter-movement that aims to allow all cases to once again be cited as authority. If adopted, such a measure might return us to an earlier state of the common law, where all cases were precedents, but where the value of a precedent was variable, depending on factors such as the prestige of the judges, the strength of their reasoning, or the number of other cases reaching a similar result. The attraction of this proposal is its potential to detextualize precedent by affording judges greater flexibility to reinterpret earlier cases. In reality, however, changes in the profession (the vastly increasing numbers of lawyers and judges), as well as technological innovations (especially the development of large online databases of cases) make it likely that allowing all cases to function as precedents will only further textualize the common law. The textualization of precedent has some real advantages in a large and relatively bureaucratic jurisdictions, particularly in promoting the rule of law. At the same time, it reduces the flexibility of courts that must apply the rules. In writing their opinions, judges should therefore carefully consider just how textual their holdings ought to be.

Ambiguity Aversion and the Criminal Process

Abstract: This is the first article to examine the effects of ambiguity aversion on the criminal process. Ambiguity aversion is a person’s rational attitude towards probability's indeterminacy. When a person is averse towards such ambiguities, he increases the probability of the unfavorable outcome to reflect that fear. This observation is particularly true about a criminal defendant who faces a jury trial. Neither the defendant nor the prosecution knows whether the jury will convict the defendant. Their best estimation relies on a highly generalized probability that attaches to a broad category of similar cases. The prosecution, as a repeat player, is predominantly interested in the conviction rate that it achieves over a long series of cases. It therefore can depend on this general probability as an adequate predictor of this rate. The defendant only cares about his individual case and cannot depend on this general probability. From the defendant's perspective, his individual probability of conviction is ambiguous. The defendant consequently increases this probability to reflect his fear of that ambiguity. Because most defendants are ambiguity-averse, while the prosecution is not, the criminal process systematically involves and is thoroughly affected by asymmetric ambiguity-aversion.

Attorney Choice of Forum in Class Action Litigation: What Difference Does It Make

Abstract: Legislation designed to change class action litigation practices has centered on attorney choice of forum. The Class Action Fairness Act of 2005 (CAFA) rests on two related assumptions: that plaintiff attorneys choose state forums to achieve better outcomes for the proposed class they seek to represent and that, in the view of CAFA supporters, federal courts present a superior venue for resolving multistate class actions. The first assumption appears to be based exclusively on anecdotal information suggesting that state courts favor plaintiffs and federal courts favor defendants. On behalf of the Federal Judicial Center and the Advisory Committee on Civil Rules, we collected and analyzed survey responses from attorneys for both sides in closed class action cases. This Article presents empirical data concerning attorney choice of federal or state forums and compares legal rulings and outcomes in a sample of cases filed orginally in state court and removed to federal court and resolved either in federal court or in state court after remand. These data shed light on the limitations of the above assumptions. The Article also presents and analyzes data about the outcomes, monetary recoveries, settlements, and attorney fees in the above cases as well as in a sample of cases filed as original actions in federal * Senior Researcher, The Federal Judicial Center. The study that generated the data in this report was originally undertaken by the Federal Judicial Center (FJC) in response to a request by the United States Judicial Conference’s Advisory Committee on Civil Rules (“Advisory Committee”) and is in furtherance of the FJC’s statutory mission to conduct and stimulate research and development for the improvement of judicial administration. Any views expressed in this Article are those of the authors and not necessarily those of the Advisory Committee or the FJC. The authors extend their appreciation to other members of the Project Team at the FJC: George Cort, Vashty Gobinpersad, Tyeika Hartsfield, Andrea Henson-Armstrong, Maria Estelita Huidobro, Dean Miletich, Robert Niemic, and Robert Timothy Reagan. In addition, Gregory Stein, a candidate for J.D. and M.B.A. degrees at the State University of New York at Buffalo, provided research assistance during the summer of 2005. † Notice Director, Hilsoft Notifications. Dr. Wheatman was a research associate at The Federal Judicial Center from 2000 to 2004. WILLGING_ABSTRACT 1/30/2006 12:18:35 PM N O T R E D A M E L A W R E V I E W [VOL. 81:2 courts. Our data support the conventional wisdom that attorney choice of forum is influenced by attorneys’ perceptions of how state and federal forums are likely to rule on class certification, motions on the merits, and settlement approval. Our data, however, lend little support to the view that state and federal courts differ greatly in how they resolve class actions. For example, state and federal courts were equally unlikely to certify cases as class actions (which occurred in 22% of the remanded cases and 20% of the cases retained in federal courts). Along similar lines, we found no statistically significant differences in state and federal court rulings on dispositive motions or in motions to approve a class-wide settlement. Attorney perception of the predisposition of judges to rule in favor of their clients’ interests was a major factor affecting plaintiff attorneys’ choice of forum. Other factors also strongly influenced on those choices, including the source of law (state or federal), and the linkage of class members and their claims to the state. Favorable substantive law and discovery rules also played a role. Likewise, defendants who removed cases to federal court perecived a predisposition on the part of federal judges to rule favorably toward interests like those of their clients, for example, by applying class certification rules strictly. Those attorneys also perceived and that federal substantive law, discovery rules, and expert evidence rules would favor their side. In examining the actual rulings and outcomes in particular cases we found little indication that attorney perceptions of perceived judicidal predispositions were even accurate. Indeed, the percentage of class actions certified, the percentage dismissed, and the percentage of settlements approved were indistinguishable in state and federal courts without regard to whether an attorney perceived a predisposition in that court or not. In the end, one is left to wonder about the source of the attorneys’ perceptions and the extent to which attorneys themselves may have been influenced to accept without question or empirical data a general set of preconceptions about state and federal courts and judges.

Character and Context: What Virtue Theory Can Teach Us about a Prosecutor's Ethical Duty to Seek Justice

Abstract: A critical issue facing the criminal justice system today is how best to promote ethical behavior by public prosecutors. The legal profession has left much of a prosecutor’s day-to-day activity unregulated, in favor of a general, catch-all admonition to “seek justice.” In this article the author argues that professional norms are truly functional only if those working with a given ethical framework recognize the system’s implicit dependence on character. A code of professional conduct in which this dependence is not recognized is both contentless and corrupting. Building on the ethics of Aristotle and modern philosophers Alasdair MacIntyre and Bernard Williams, the author argues that virtue theory can help bridge the gaps in prosecutorial ethics where other forms of moral reasoning fail. The author analyzes three especially difficult ethical problems frequently confronted by prosecutors in the field. He demonstrates not only that the Model Rules of Professional Conduct and the ABA Criminal Justice Standards fail to answer any of these complex questions, but also that future attempts to more closely regulate how prosecutors should act in any of these nuanced situations are unlikely to succeed. The author argues that honesty, fairness, courage, and prudence are the primary virtues that citizens have a right to expect of their public prosecutors. He then demonstrates how these four key virtues might provide important guidance to conscientious prosecutors striving to do what is right. The author concludes by offering several insights into how the field of virtue ethics might inform both the structure and organization of government law * Associate Professor, Boston College Law School. I thank my colleagues Judy McMorrow, Ray Madoff, and Paul Tremblay for their thoughtful comments on an earlier draft, and my students Joshua Gallitano, Martha Wilson-Byrne, and Robert Frederickson for their capable and energetic research assistance. CASSIDY_FINALREAD 1/18/2007 10:43:02 AM 102 N O T R E D A M E L A W R E V I E W [VOL. 82: 2 offices, and the manner in which individual prosecutors working within these offices might perceive and fulfill their professional roles.

Punishing Children in the Criminal Law

Abstract: The Article examines two intuitions which fuel widespread scholarly opposition to punishing children for crime. Part I discusses the elements of criminal responsibility and examines the bases for what I call the Culpability Thesis—the claim that children, by definition and as a class, do not possess the understanding, experience, and cognitive capacities necessary to be held criminally liable. None of these arguments mandates the conclusion that children must be categorically excluded from criminal responsibility. Part Two examines the "Redemption Thesis"—the claim that, whatever their mental state and understanding at the time of the harmful act, children's capacity for redemption should exculpate them from criminal responsibility. The Article concludes that if the capacity for redemption really is a value that should inform criminal punishment, it is a value that cuts against separating children and adults for purposes of the criminal law. * Professor of Law, College of William and Mary.

Pound=s century, and ours

Abstract: The centennial anniversary of Roscoe Pound=s famous speech on the Popular Causes of Dissatisfaction with the Administration of Justice provides an occasion to look back at the procedural system that Pound successfully engineered, as well as to look forward to the ways in which the pressures that the system is undergoing in the early twenty-first century is likely to reshape Pound=s vision. Pound argued for a highly discretionary procedural system in which cases were decided on their merits. The costs of that system have become apparent during the last few years. At present, the American litigation system is under severe competitive pressures from its encounters with foreign legal systems and from various methods of alternative dispute resolution. The costs of a system of discretionary rules have become clear, and legitimate questions exist whether judges should be entrusted with discretionary power to both create and apply procedural rules. Adversarial process, to which America are more committed than any other major legal system, poorly corresponds to the needs of complex litigation, as does jury trial. Yet we adhere to Pound=s century-old ideal of a procedural system, rather than trying to find a new set of ideas in more recent jurisprudential scholarship that might lead the procedural system forward. This article raises a number of topics that might be considered in a future reform effort: merging the best of litigation and ADR, perhaps eliminating jury trial and excessive reliance on adversarial process, and making the procedural system fit better with modern jurisprudential ideals.

Eminent Domain and the Sanctity of Home

Abstract: The Supreme Court's decision in Kelo v. New London has caused alarm over how easy it is for government to take private homes through eminent domain. The image of government officials ousting people from their homes for unnecessary projects has sparked movements to reform eminent domain in many states. Typically, such reform efforts are focused on the public use doctrine and what government agencies plan to do with property after taking it, rather than the unique nature of home property and its value to homeowners. This article concludes that the root of the problem lies beyond the public use doctrine. Government takes too many homes from unwilling homeowners, and for too cheaply, even for traditional public use projects. The article explores potential methods of protecting homes against unjustified condemnation, including substantive and procedural methods. The article concludes that while various methods have advantages, adjusting the compensation structure of eminent domain to require significantly greater compensation in the case of home takings is most likely to produce optimal results. A system of compensation that recognizes more accurately what homes are typically worth to their owners would produce greater deterrence against government takings, and would improve the bargaining process between government officials and homeowners, while still allowing governments to overcome holdouts in cases of genuine public necessity.

Bad History: The Lure of History in Establishment Clause Adjudication

Abstract: This article argues that because bad history is so prevalent in Religion Clause adjudication, history as an analytical tool should be circumscribed. Part One briefly traces the Court’s use of historical analysis and documents the historical shift in the substantive answers to the Court’s historical inquiries. Part Two discusses the appropriate uses of history in Establishment Clause adjudication and recommends a model of analysis. Part Three then applies the model to four more recent controversies: the persistence of “originalism;” the relevance of “Blaine Amendment” in religious funding cases (Locke v. Davey); the Ten Commandments cases (McCreary v. ACLU of Kentucky; Van Orden v. Perry); and Justice Thomas’ advocacy of a “federalism” approach to establishment cases.

The Enemy Combatant Cases in Historical Context: The Inevitability of Pragmatic Judicial Review

Abstract: In this article, Professor Pushaw analyzes generally the U.S. Supreme Court’s jurisprudence regarding the President’s war powers authority and applies his analysis to the recent “enemy combatant” cases. Professor Pushaw asserts that the quest for a coherent jurisprudential framework is futile because the Constitution’s text and history do not clearly reveal any single proper way to reconcile judicial review with was powers. This uncertainty has led the Court to eschew black-letter rules in favor of a flexible approach that reflects political and practical considerations. Professor Pushaw argues that judicial discussions of statutory and constitutional meaning in this arena tend to mask three impressionistic judgment calls. First, the Court evaluates the gravity and immediacy of the military crisis, as well as the necessity for the President’s responsive measure. Second, the Justices consider the egregiousness and magnitude of the legal violation. Third, the Court calculates the likelihood that its orders will be obeyed, which depends primarily upon the President’s political strength and secondarily upon whether the crisis is ongoing or has passed. This last criterion is never articulated but often seems pivotal. In short, the rigor of judicial review waxes and wanes depending upon the context of each case. Professor Pushaw concludes by asserting that the Court’s jurisprudence is largely appropriate, with one exception. When a politically powerful President has made an irreversible decision in seeming violation of a particular constitutional provision because he believes doing so is essential to the war effort, and when he will likely defy any judicial order to desist, the Court should not affirmatively legitimate such conduct, such as in Roosevelt’s incarceration of Japanese-Americans. Rather, the Court should either decline to review the case altogether or employ a jurisdictional avoidance mechanism such as the political questions doctrine, thereby shifting responsibility solely to elected officials.

Lessons in Losing: Race Discrimination in Employment

Abstract: This paper provides a comprehensive, national examination of race and national origin employment discrimination lawsuits. Through empirical studies of 661 such cases, it discovers something previously not reported. While employment discrimination litigation is widely known for its lopsided outcomes - defendants overwhelmingly prevail - it turns out that race and national origin cases are even harder for plaintiffs to win in federal district court than other types of employment discrimination claims. In revealing that race and national origin cases are harder for plaintiffs to settle and easier for defendants to win on a pretrial motion, this Article identifies what it terms an anti-plaintiff ideology in race and national origin litigation. Through an examination of this anti-plaintiff ideology, the author attempts to shift the current debate over judicial decision making in employment discrimination litigation to one recognizing that courts do more than defer to defendants in race and national origin cases and are more than unable to prohibit subtle discrimination. Instead, courts appear to have an anti-plaintiff mind set against race and national origin plaintiffs.

Framing Effects and Regulatory Choice

Abstract: Behavioral law and economics suggests that the ways in a choice is framed will have an effect upon the choice that is taken. The literature has yet to take proper account of the impact of framing effects in a standard legal setting faced by policymakers—the question of which regulatory instrument to employ to achieve a given policy goal. This Article analyzes the ways in which the framing of regulatory options may have an impact upon the ultimate regulatory instrument choice. The Article uses as a case study the underutilization of market-based regulatory devices in the area of environmental control, and demonstrates that regulatory framing effects contribute to the continued dominance of command-and-control regulation despite the advantages of market-based regulatory forms. The Article identifies three framing effects that render market-based regulatory instruments more susceptible to criticism than their command-and-control counterparts. First, market-based regimes tend to deemphasize the role of government, identifying the government only as the source of pollution rights that are distributed to societal actors. Second, market-based instruments are seen to partition the pollution emissions of societal actors from the socially beneficial activities that the actors undertake. Third, while command-and-control regulations are seen to impose limits or restrictions on polluters’ ability to pollute, market-based regulation tend to depict polluters as receiving anew the right to pollute; in this sense, marketbased regimes are framed as achieving an environmental loss. A careful examination of various environmental regulatory tools reveals that these effects are grounded in framing, not reality. Nonetheless, they provide the basis for criticisms, such as the “right to pollute” and “commodification” critiques, that have been lodged successfully against market-based regulatory forms. Thus, these framing effects have influenced the choice of regulatory instruments. Having established the effects of framing on environmental instrument choice, the Article proceeds to recommend ways * Robert C. Cudd Associate Professor of Environmental Law, Tulane Law School; Visiting Scholar, Columbia Law School, Fall 2005. NASH_ABSTRACT 11/6/2006 6:15:12 PM 102 N O T R E D A M E L A W R E V I E W VOL. 82:1 in which the frames of market-based instruments might be changed so as to reduce the barriers to their implementation that result from framing effects.

Habeas Corpus, Suspension, and Detention: Another View

Abstract: This Article considers a number of timely and important issues in the interpretation and application of the Habeas Corpus "Suspension Clause" of the Constitution. After discussing several preliminary issues—including (1) whether the Clause imposes an affirmative obligation on the federal government; (2) if so, the nature of that obligation; (3) the locus of authority to suspend the writ; (4) the limitations on the availability of the writ that may violate the Clause; and (5) the availability of judicial review of the validity of a purported suspension—the Article turns to the principal question addressed: the effect of a valid suspension of the writ upon underlying rights. * William Nelson Cromwell Professor of Law, Emeritus, Harvard University. My deepest thanks to Bruce Hay, Dan Meltzer, and Amanda Tyler for their insightful comments and suggestions on earlier drafts.

Constitutional False Positives and the Populist Moment

Abstract: This Article examines how the failure of a broad and robust movement for constitutional change can displace the law in the opposite direction. The possibility of this legal false positive is a crucial missing link that explains why doctrine shifted so dramatically in the 1890s during the Populist Party's doomed attempt to achieve power. With its sharp attack on established principles and impressive popular support, the Populists triggered equally strong resistance from conservatives in the White House and the Supreme Court. That resistance was so intense that it warped the fabric of the law on issues including the role of the Commerce Clause, the meaning of the Fourteenth Amendment, and the incorporation of the Bill of Rights against the States. With this background, many of the great landmarks from this era and the modern interpretive assumptions drawn from them appear in a new light. * Associate Professor, Indiana University School of Law, Indianapolis. Many thanks to Brian C. Kalt, Amanda L. Tyler, and the participants at the Southeastern Association of Law Schools Conference for their comments. 1 WILLIAM J. BRYAN, THE FIRST BATTLE: A STORY OF THE CAMPAIGN OF 1896, at 596 (Chicago, W.B. Conkey & Co. 1896). 2 165 U.S. 578, 589–90 (1897).

Is resisting genocide a human right

Abstract: Closely examining the Darfur, Sudan, genocide, and making reference to other genocides, this Article argues that the genocide prevention strategies which are currently favored by the United Nations are ineffective. This Article details the failures of targeted sanctions, United Nations peacekeepers, and other antigenocide programs. Then, this Article analyzes the Genocide Convention and other sources of international human rights law. Because the very strong language of the Genocide Convention forbids any form of complicity in genocide, and because the Genocide Convention is jus cogens (meaning that it prevails over any conflicting national or international law), this Article concludes that the Genocide Convention forbids any interference, including interference based on otherwise valid laws, against the procurement of defensive arms by groups which are being victimized by genocide. Available at SSRN: http://ssrn.com/abstract=1022114 Language: en

The Mysterious Survival of the Policy against Informed Consent Liability for Hospitals

Abstract: The role of hospitals in managing the informed consent process for hospital-based treatments has expanded substantially over the last several decades Most recently, many hospitals have installed multi-media platforms designed to provide a patient with basic information about a recommended procedure, including its associated risks, and to record the patient’s consent to or rejection of the procedure Yet, despite the substantial control that hospitals exercise over the informed consent process, state courts routinely dismiss informed consent claims brought against hospitals, holding that only physicians have the training and expertise to satisfy informed consent obligations and therefore that only physicians may be held liable for a breach of those obligations While there is good reason to overturn the policy against imposing informed consent liability on hospitals, history suggests that it is unlikely to happen Current law imposing such liability on physicians only has proven its staying power, persisting despite several developments in both health care and law that justify institutional liability This Article argues that the survival of the policy against imposing informed consent liability on hospitals is both remarkable and mysterious It then attempts to resolve the mystery by offering a trust-based explanation for the reluctance of courts to act

Auditing Executive Discretion

Abstract: Executive branch officials routinely make thousands of decisions affecting public security and welfare. While it is rare that such discretionary decisions are entirely immune from some kind of judicial review, courts’ role is often so circumscribed or deferential that in some domains the probability of uncovering problems through such review almost certainly falls close to zero. The resulting amount of executive discretion carries considerable risks along with rewards. Some discretionary decisions undoubtedly benefit from the speed and flexibility that results from limiting judicial review. Yet judicial review’s evisceration as a tool to restrain certain forms of discretion also makes it easier for government officials to subtly manipulate their discretion to promote appealing political impressions, for others to engage in outright malfeasance, and for still other (more virtuous) officials to simply fail to learn from their mistakes. Reliance on judicial review to generate information about executive discretion makes it difficult to address these concerns in part because courts routinely define much of their work in terms of applying the same standard of deference to every potential case in a particular class, making it difficult to increase the stringency of review in some policy domains without making the costs allegedly prohibitive. When deciding how stringently to review a discretionary decision – whether a prosecutorial charging decision, an administrative compliance order, or an enemy combatant designation – judges almost invariably mull the potential consequences of their choice on all future executive decisions of that kind. As a conceptual alternative, this article develops a framework akin to that employed by courts engaged in sample adjudication for class action and government fraud cases. It relies on the possibility of systematically auditing samples of discretionary decisions and making those results public. Although the efficacy of such a system depends on the political context and details of its institutional design, audits have the potential to sever the connection between the perceived costs of encroaching on discretion and the stringency of review. They also avoid the potentially distorted picture of bureaucratic activity created by a litigation-driven process. Despite their potential value, such audits are nonetheless almost never undertaken by existing federal audit bureaucracies (the Government Accountability Office and the department-specific Inspector General Offices), nor does the legislature seem to conduct them in connection with oversight hearings. I conclude by discussing the political and bureaucratic dynamics working against these audits and suggesting how they may be weakened.

Medellin, Norm Portals, and the Horizontal Integration of International Human Rights

Abstract: The Medellin v. Dretke line of capital cases challenging U.S. non-compliance with the notification provisions of the Vienna Convention on Consular Relations (VCCR) provides an example of effective transnational horizontal integration of international human rights norms notwithstanding lack of domestic vertical enforcement and persistent government objection to the outside norm. As an international treaty that codifies the right of nation states to mediate between two legal systems on behalf of their nationals detained abroad, the VCCR acts as a "norm portal" - a formal gateway permitting the entry of an international human rights norm into the legal system of a state that has persistently rejected the norm. In the Medellin death penalty cases, a transnational advocacy support network comprised of defense counsel, NGOs, and foreign governments adopted the VCCR as a norm portal through which to mediate between the external abolitionist norm and the U.S. criminal justice system. The result was increased compliance with consular notification and assistance, which in turn has led to a decline in death sentences for foreign nationals and the avoidance of several executions. The VCCR norm portal has thus helped chip away at the application of capital punishment in the United States, notwithstanding consistent official U.S. government objection to importation of the international abolitionist norm and the refusal of the Supreme Court in Sanchez-Llamas to give domestic legal effect to an International Court of Justice decision requiring creation of a judicial remedy for violations of the VCCR notification provisions. The Medellin cases demonstrate that while transnational vertical processes of norm enforcement play an important role in elaborating rules and framing legal arguments, the ability to engage actors at the local and state level may prove most salient to shifting practices and attitudes toward the international standard. These cases further suggest that formal procedural mechanisms that permit direct norm mediation by transnational advocates have an important role to play in the integration of international human rights norms across borders. Extradition treaties and international refugee law are other examples of norm portals that permit the import and export of international human rights norms across state borders. Because they reflect formal legal obligations adopted through treaty and are subject to political reversal, norm portals may prove more robust and less potentially dilutive of democratic processes than the use of non-binding foreign and international legal authority in judicial opinions. Human rights advocates are therefore likely to continue to seek out and exploit norm portals as a means through which to bring U.S. human rights practice in line with external standards.

Against Sovereignty: A Cautionary Note on the Normative Power of the Actual

Abstract: Drawing on classical and contemporary jurisprudence and political philosophy, this Essay argues that the Roberts Court should seize the next apt moment to abandon the doctrines of "sovereignty" and "sovereign dignity" that the Rehnquist Court developed over the decade that began with the 1996 decision in the Seminole case. Although pursued in service of the laudable goal of "our federalism," these doctrines work a corruption of our legal, political, and moral self-understanding. As they do so, they distract the Court and the citizenry from the disciplined commitment to the rule of law and legal justice by which a body politic and its state earn their true dignity (but not sovereignty). The Court's baroque and unconvincing metaphysics of sovereignty and sovereign dignity should be retired in favor of a political and legal vision informed by a constitutional commitment to natural law and natural rights, which stand in every season as a bulwark against the overreaching claims of putative sovereigns. A state that by supreme judicial self-profession is axiologically incompetent to pass on questions of the meaning or value of human life is demonstrably not sovereign or possessed of sovereign dignity.

Constructive Knowledge, Probable Cause, and Administrative Decisionmaking

Abstract: This article examines the emergence, over the last two decades, of a doctrine that bases probable cause on the unshared knowledge of different law enforcement agents working together on an investigation. Thus if an officer conducts a search or arrest without probable cause, the action may be validated by looking to the other officers' knowledge. So far the rule has been confused with the "collective knowledge" rule and has traveled under that name. The article argues that the new rule (here called the "constructive knowledge" rule) depends on constructive belief and may establish constructive, not actual, probable cause. While the rule might seem to be justifiable on the ground that the officers would have pooled their information in any case, research on cognitive bias suggests that an after-the-fact analysis of the officers' knowledge would likely exaggerate any inculpatory evidence while disregarding exculpatory evidence. Fourth Amendment law imposes few formal ex ante requirements on officers, but some de minimis formality is appropriate here, as we may see by looking to the role of collaborative decision-making in administrative law. The article argues that courts should make explicit the rule's "inevitable communication" premise, and should refuse to aggregate the unshared information. Failing that, courts should require the prosecution to show that the officers would have shared their knowledge before leaving the scene. The "constructive knowledge" problem reveals the difficulty of factoring the risk of error into the analysis of probable cause when the requisite quantum of cause remains fixed in all cases. That difficulty, in turn, suggests that the probable-cause calculus may be likened to the Mathews v. Eldridge formula for termination of governmental benefits. This analogy points up other difficulties with the notion of "transsubstantive" probable cause.