Showing papers in "Notre Dame Law Review in 2008"

The Fundamental Goal of Antitrust: Protecting Consumers, Not Increasing Efficiency

Abstract: This article defines the relevant economic concepts, summarizes the legislative histories, analyzes recent case law in more depth than any prior article, and explores the most likely bases for current popular support of the antitrust laws. All these factors indicate that the ultimate goal of antitrust is not to increase the total wealth of society, but to protect consumers from behavior that deprives them of the benefits of competition. When conduct presents a conflict between protecting consumers and improving the efficiency of the economy (e.g., a merger that raises prices but reduces costs), no court in recent years has chosen efficiency over consumer protection. The only exception is the law’s determination to protect small sellers from price fixing and other anticompetitive behavior by buyers. This limited concern, however, is just the mirror image of Congress’ desire to protect consumers from exploitation. In both buy-side and sell-side cases, the overarching goal is the same—preventing firms that have unfairly acquired power from imposing

Opting Out of the Internet in the United States and the European Union: Copyright, Safe Harbors, and International Law

Abstract: This Article analyzes the legal and human rights implications of efforts by copyright owners such to "opt out" of the Internet in general, and out of Web 2.0 sites in particular. I argue that courts and legislatures should reject the argument by copyright owners that absent a license agreement respecting a copyrighted work, technology and Internet companies should be forced to monitor for and technologically filter out any quotations or clips on their sites unless a copyright owner affirmatively "opts in" to being included on a given site. Instead of this type of an "opt-in" framework, judges and policymakers should permit Internet companies to respond to allegations of infringement by removing offending files from their sites, and should require copyright owners to identify the location of specific infringing files on the Internet with adequate detail to enable Internet companies to investigate allegations of infringement. This "opt out" framework will better preserve technological innovation and freedom of expression than would a n "opt in" system, which would establish copyright holders and Internet companies as more intrusive filters of Internet users' speech. I briefly describe the development of "Web 2.0" services such as YouTube and Wikipedia, and the complex intellectual property issues that they engender. I then summarize the case law in the U.S. on opting out of the Internet, from the early cases in which courts struggled with the possibility that copyright law would chill the development of online services, to the more recent judicial consensus shielding online intermediaries from liability as long as they do not purposefully disregard opt-outs that identify specific infringing content, in cases such as Perfect 10 v. Google (9th Cir. 2007), Perfect 10 v. Visa (9th Cir. 2007), and Parker v. Google (3d Cir. 2007). My distinctive contribution to the field consists in showing that European courts have erected a similar knowledge-based opt-out framework for online intermediaries such as Internet service providers, creators of peer-to-peer file sharing software, and user-generated content platforms. Some cases have bucked this trend, of course, notably the Google News case in Belgium. The court's ruling in that case would restrain freedom of expression and the process of Web-enabled innovation, as would the similar rulings of the French courts in the Dailymotion and MySpace cases. If such cases become the norm, Internet companies will scramble to reduce user freedom so as to block infringing uploads. Many European courts base their rulings on the European Community's Electronic Commerce Directive of 2000, which provides that storing or hosting information provided by users does not give rise to monetary liability if an Internet company does not control the user and either does not have actual knowledge of infringement or expeditiously removes the infringing material upon becoming aware of its presence on the site. The developing consensus of the European courts resembles the celebrated ruling in Perfect 10 v. Google (9th Cir. 2007) that reproducing copyrighted work in order to improve access to information over the Internet constitutes a fair use, particularly when an Internet service provider respects clear opt-outs. Moreover, I address, and rebut, the common objection that international copyright treaties, and specifically the minimum level of copyright protection required by the Berne Convention and GATT-TRIPs agreement, preclude the establishment of an opt-out regime for copyright disputes. Finally, I discuss the implications of these findings for currently pending cases that will define the future of Web and Web 2.0 services such as digital libraries and online video sites. Search engines and hosting sites for books, news, and videos are the focus of this section.

What is the Erie Doctrine? (And What Does It Mean for the Contemporary Politics of Judicial Federalism?)

Abstract: As when Erie Railroad Co. v. Tompkins was decided seventy years ago, federal courts today are seen as more favorable to corporate and business interests than many of their state-court brethren. The current situation is due in no small part to federal courts’ comparatively pro-defendant approaches to summary judgment, class certification, and other procedural issues. The Court’s decision in Bell Atlantic Corp. v. Twombly, which tilts federal pleading standards in favor of defendants, will likely have similar federalism implications. This Article presents a straightforward argument that the Erie doctrine may require federal courts to follow state-law standards on summary judgment, class certification, and pleading. This argument has strong support in Supreme Court case-law and the black-letter framework for resolving Erie issues, yet it would significantly recalibrate the conventional understanding of judicial federalism in civil adjudication. Ironically, the 2005 Class Action Fairness Act (CAFA)—whose expansion of federal diversity jurisdiction over high-stakes civil litigation was a major political victory for the defense side— strengthens Erie’s preference for state law, because it confirms that procedural disparities between state and federal courts cause precisely the kind of forumshopping and inequitable treatment that Erie aims to prohibit. Because Erie is likely to play a critical role in the politically-charged arena of contemporary

Vetogates, Chevron, Preemption

Abstract: Article I, Section 7 of the Constitution creates a structure that makes it difficult to enact federal statutes: in order to become a “Law,” statutory proposals must be accepted in the same form and language by both the House and the Senate and must be presented to the President.1 Fifteen years ago, scholars from a variety of perspectives seized upon this structure to think about its implications for American public law.2 Professor Bradford Clark argues that the lawmaking process entailed in Article I, Section 7 is one constitutional structure that helps “safeguard federalism . . . simply by requiring the participation and assent of multiple actors” before there can be a national “Law” that can preempt state law under the Supremacy Clause.3 He also argues that the Article I, Section 7 structure provides a reason for the Supreme Court to rethink at least one feature of its Chevron doctrine, namely, the deference the Court sometimes gives to dynamic agency interpretations that have the effect of preempting state law.4 For

Doctrine Formulation and Distrust

Abstract: Legal scholars exhaustively debate the substantive wisdom of Supreme Court decisions and the appropriate methods for interpreting legal texts but rarely consider the more pragmatic need to craft rules that will be faithfully implemented by the lower court judges who have the last word in the overwhelming majority of cases. Political scientists, in contrast, invest tremendous effort seeking to determine whether lower courts “comply” with Supreme Court directives, but find themselves unable to explain why their own studies generally find high levels of compliance. This Article argues that part of the answer lies in the Court’s ability to craft legal doctrines that both shape a trial court’s initial decision and increase the efficacy of appellate monitoring. After identifying numerous strategies for increasing lower court control, this Article argues that appreciating the links between them helps illuminate recent developments in three areas of public law: the constitutional law of punitive damages; the rules governing “officer suits” brought under 42 U.S.C. § 1983; and the concept of “reasonable” searches and seizures under the Fourth Amendment.

The Original Meaning of an Omission: The Tenth Amendment, Popular Sovereignty and "Expressly" Delegated Power

Abstract: Today, courts and commentators generally agree that early efforts to strictly limit the federal government to only expressly enumerated powers were decisively rebuffed by Chief Justice John Marshall in McCulloch v. Maryland. According to Marshall, the fact that the Framers departed from the language of the Articles of Confederation and omitted the term “expressly” suggested that they intended Congress to have a broad array of implied as well as expressly delegated powers. As Supreme Court Justice Joseph Story later wrote, any attempt to read the Tenth Amendment as calling for strict construction of federal power was simply an attempt to insert “expressly” into the text. Today, Marshall's point regarding the significance of this omitted term is probably one of the least controversial claims about the original understanding of Tenth Amendment as currently exists in legal commentary. It is also almost certainly wrong. James Madison, Alexander Hamilton, early Supreme Court Justice Samuel Chase and numerous other members of the Founding generation regularly inserted into their description of federal power the very word that Marshall insisted had been intentionally left out. According to these Founders, Congress had only expressly delegated power. Upon investigation, it turns out that this rephrasing of the Tenth Amendment actually reflects the original understanding of the text and its underlying principle. Completely missed by generations of Tenth Amendment scholars, the addition of the phrase “or to the people” to the Tenth Amendment ensured that the Clause would be read as a declaration of popular sovereignty. According to this theory of government, the sovereign people were presumed to retain all powers not expressly delegated away. Repeatedly stressed by advocates of the Constitution as representing the proper construction of federal power, the principle of “expressly delegated powers” meant that Congress could utilize no other means except those necessarily or clearly incident to its enumerated responsibilities. Consistently read in combination with the Ninth Amendment's declaration of the retained rights of the people, the Tenth Amendment was broadly understand to establish a rule of strict construction of federal power the very interpretive principle rejected by John Marshall in McCulloch v. Maryland. * Professor and W. Joseph Ford Fellow, Loyola Law School (Los Angeles). J.D. Yale (1992). The author thanks Larry Solum, Gary Rowe, Clark Lombardi, Nelson Lund and the participants at the University of Washington Law School Faculty workshop series for their comments and suggestions on an early version of this paper. Special thanks to Chris Fritz for his help and advice on the vexing question of sovereignty in the early republic.

The Culpability of Felony Murder

Abstract: Legal scholars are almost unanimous in condemning felony murder as a morally indefensible form of strict liability. This Article provides the long-missing principled defense of the felony murder doctrine. It argues that felony murder liability is deserved for killing negligently by means of a violent or apparently dangerous felony involving an additional malign purpose independent of physical injury to the victim killed. This claim follows from the simple idea that the guilt incurred in attacking or endangering others depends on one’s reasons for doing so. The article develops this idea into an expressive theory of culpability that assesses blame for harm on the basis of two dimensions of culpability: (1) the actor’s expectation of causing harm and (2) the moral worth of the ends for which the actor imposes this risk. It contrast this theory of culpability with the narrowly cognitive theory of culpability prevailing among criminal law scholars. It shows that the cognitive theory is motivated by the aspiration to achieve a value-neutral criminal law. Next it shows that it is impossible to assign culpability for a particular injury like homicide without evaluating actor’s ends. In addition, the article shows that an expressive theory better fits the overall pattern of American criminal law doctrine than does a purely cognitive theory of culpability. Finally, it argues that liberal political theory does not require that criminal law maintain value neutrality.

Standing at the Crossroads: The Roberts Court in Historical Perspective

Abstract: After eleven years, the longest period in Supreme Court history with no change in membership, the Roberts Court commenced in the year 2005 with two new justices. John Roberts replaced William Rehnquist as the seventeenth Chief Justice and Samuel Alito replaced Sandra Day O'Connor as Associate Justice. The conventional wisdom suggests that on the nine-justice Supreme Court, these two appointments have produced a single-increment move, ideologically, to the right. The two Chief Justices occupy roughly the same ideological position. In contrast, whereas O'Connor was generally viewed as occupying the Court's centrist, or median, position, Alito has instead continued to embrace the same conservative judicial philosophy that characterized his fifteen-year career on the United States Court of Appeals for the Third Circuit. It now appears that the Roberts Court is one justice shy of what conservatives had long hoped for, namely a core conservative majority that would ensure predictable rulings in key areas of constitutional law, including most notably abortion, equal protection, and criminal procedure. This Article will explain that while this conventional wisdom is generally sound, it is also incomplete in a critical respect. The increasingly prominent conservative center of gravity in the Supreme Court coincides with an overwhelmingly conservative set of federal circuit courts of appeals. This uncommon judicial occurrence becomes all the more significant when we factor in one more consideration. The Supreme Court has proved most willing to alter its standing doctrines, which govern access to the federal judiciary and ultimately to the Court itself, when this combination coincides with a set of standing rules that threaten to undermines the Court's ability, working in alignment with the lower federal judiciary, to further its emerging doctrinal mandate. This even rarer combination has happened only one prior time in the post New Deal period, and that was during the Warren Court.This Article's thesis is ironic: With respect to standing doctrine, which affects the timing of doctrinal transformation, the Roberts Court is most likely to resemble the Warren Court, the very Court whose historical legacy it seeks to counteract. Further core conservative appointments to the Roberts Court will place stress upon strict standing doctrines developed in the Burger and Rehnquist Courts, as the Supreme Court, working in alignment with the conservative lower federal judiciary, seeks to move substantive constitutional doctrine in its preferred ideological direction. Over time, an increasingly conservative Roberts Court will seek to relax the strictest features of standing doctrine to facilitate its broader doctrinal agenda.To support this thesis, this Article develops and presents two new sets of data. Adapting the Martin-Quinn scoring system, the first data set tracks the ideological center of gravity and the stability of dominant coalition structures on the Supreme Court itself from 1937 through 2005. The second data set is the product of original research drawn from the Federal Judges Biographical Database, compiled by the Federal Judicial Center. These data track the ideological balance of the federal circuit courts, for each year from 1933 through 2006 based upon the party of appointing President. This Article transforms these two sets of data into a readily comparable form and presents them together in a chronological table covering the Supreme Court and circuit courts from 1933 through 2006. This Article relies upon these data to explain the conditions under which the Supreme Court has historically developed and transformed its principal doctrinal gatekeeper, namely standing, in an effort to control developing constitutional doctrine in concert with the lower federal courts. The Article then places the Roberts Court in a broader theoretical and empirical perspective that tracks the Court's internal coalition structures and accounts for the historical relationship between ideological dominance on the Supreme Court and the majority of the federal circuit courts. The analysis helps not only in assessing the significance of the Roberts and Alito appointments, but also of potential future appointments in affecting doctrinal change.The Supreme Court's standing rules have long been viewed as a conservative set of doctrines. The Court's most recent, and controversial, standing pronouncement, Massachusetts v. Environmental Protection Agency ('EPA'), which over the dissents of the four core conservatives, afforded standing to the Commonwealth of Massachusetts to challenge the EPA's denial of rulemaking respecting the regulation of greenhouse gas emissions under the Clean Air Act, is consistent with casting standing in such ideological terms. A longer historical view, however, belies the claim that strict standing inevitably serves conservative interests. Since the doctrine's inception in the New Deal, the Supreme Court has willingly modified standing to fit its changing circumstances and in doing so, has also changed the doctrine's ideological cast. This Article provides theoretical and empirical support for the thesis that as the Roberts Court moves further in a conservative direction, it will be poised once more to modify the strict form of standing that characterized that doctrine in the Burger and Rehnquist Courts as a means working with the aligned conservative lower federal judiciary to move doctrine in its preferred ideological direction.

Framework Legislation and Federalism

Abstract: In Separation of Powers as a Safeguard of Federalism,1 Bradford Clark identifies the Supremacy Clause as a powerful protection of principles of federalism because it allows federal action only if the “precise procedures” for lawmaking are followed.2 He describes the requirements of bicameralism, presentment, and, in the case of some federal actions, supermajority votes.3 He also emphasizes the Senate’s role in policymaking.4 The Senate historically has been the arena in which states have significant influence; although that influence has decreased after passage of the Seventeenth Amendment, the rule of equal representation of states in that body continues. Throughout the article, Professor Clark quotes the Supreme Court’s description of the constitutional procedures governing lawmaking as “ ‘finely wrought and exhaustively considered.’”5 The Constitution’s mandates with respect to congressional procedures, however, are also relatively sparse; most of the procedures governing lawmaking in the House and Senate are part of the internal rules of each body, adopted pursuant to Article I, Section 5 of the

Much Ado about Twombly - A Study on the Impact of Bell Atlantic Corp. v. Twombly on 12(b)(6) Motions

Abstract: Serving as the gate through which all disputes must pass, pleadings are fundamental to the operation of the federal judiciary. The standards that federal courts employ to evaluate the sufficiency of these pleadings can frame issues, control access to the promised land of liberal discovery, and shape settlement proceedings. Thus, when the United States Supreme Court recently spoke on this issue in the

Brandenburg in a Time of Terror

Abstract: For four decades, the Supreme Court's decision in Brandenburg v. Ohio has been celebrated as a landmark in First Amendment law. In one short unsigned opinion, the Court distanced itself from the embarrassment of the Red Scare and adopted a highly protective test that permits advocacy of unlawful conduct in all but the most dangerous cases. But 9/11 and the threat of terrorism pose a new challenge to Brandenburg. Although the government has not resorted to the excesses of McCarthyism, it has taken disturbing steps to silence the speech of political dissenters. These efforts raise questions about the adequacy of Brandenburg to protect speech during a time of crisis and fear. They also highlight ambiguities in the Brandenburg test that have been largely ignored by courts. For instance, does Brandenburg apply during war as well as peace? Does it apply to private advocacy as well as public advocacy? And is there anything about the current terrorist threat that would make its protections inapplicable? To answer these and other important questions, this Article undertakes a comprehensive reexamination of Brandenburg and the issue of criminal advocacy. It begins by demonstrating that Brandenburg has been gradually eroded by lower courts, both before and after 9/11. It then examines two fundamental questions at the heart of Brandenburg that have never been adequately answered: (1) Why should criminal advocacy be protected in the first place? and (2) How much protection should it receive? The Article argues that criminal advocacy should be protected because it furthers the underlying values of the First Amendment, including the search for truth, self-government, and self-fulfillment. It then rejects claims that criminal advocacy should receive less than full protection and explains, for the first time, that Brandenburg is properly understood as an application of strict scrutiny to a particular category of speech. Finally, the Article draws upon this reconceptualization of Brandenburg to resolve the many ambiguities in its framework. INTRODUCTION I. CRIMINAL ADVOCACY AND THE FIRST AMENDMENT; BRANDENBURG AND BEYOND A. The Brandenburg Decision B. Brandenburg in the Lower Courts C. The al-Timimi Case II. WHY SHOULD CRIMINAL ADVOCACY BE PROTECTED? III. How MUCH PROTECTION SHOULD CRIMINAL ADVOCACY RECEIVE? A. Criminal Advocacy and Situation-Altering Utterances B. Speaker Intent C. Dangerousness D. Brandenburg As Strict Scrutiny IV. FILLING IN THE BRANDENBURG FRAMEWORK A. What Does "Likely" Mean? B. What Does "Imminent" Mean? C. Is the Gravity of the Harm Relevant? D. Public v. Private Speech and Ideological v. Nonideological Speech E. Brandenburg in War and Peace F. Is Advocacy of Terrorism Different? CONCLUSION INTRODUCTION One of the oldest and most important questions in First Amendment law is whether the government can prohibit speech that encourages others to break the law. This question was at the heart of the Supreme Court's first major speech cases in the early twentieth century and was the focus of significant debate until the 1969 case of Brandenburg v. Ohio. (1) In that decision, the Court ruled that "advocacy of the use of force or of law violation" cannot be punished unless it is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action." (2) More protective of speech than any prior test, (3) the Brandenburg test has provided the governing standard in this area for four decades and is often hailed as the final word on the government's power to restrict criminal advocacy. (4) As the distinguished scholar Harry Kalven once said, the Court's decision in Brandenburg was "the perfect ending to a long story." (5) But the story may not be over after all. The fallout from 9/11 and the "war on terror" are placing new pressures on the First Amendment that even Brandenburg may not be able to bear. …

Preemption and Federal Common Law

Abstract: Brad Clark warned me about becoming a federal courts professor. When I was a young attorney in private practice in Washington, D.C., and thinking about applying for law teaching positions, Brad— then just a friend of a friend—was kind enough to advise me about how to “package” my candidacy to appeal to law schools. “Federal courts and constitutional law are the kiss of death,” he said, urging me to pick subjects in greater demand. I failed to heed his warning, but found out in short order why he had given it. When I interviewed with Jack Goldsmith, then representing the University of Chicago, the first thing Jack said to me was, “I think federal courts is a dead field.” I did not get the job. The truth is that the careful doctrinal work that characterizes the federal courts field is not much in favor these days in “cutting edge” circles of legal academia. I have presented papers at faculty colloquia urging continued attention to the insights of the legal process school, only to be looked at as if I had two heads. Over a decade ago, many of the federal courts field’s leading lights gathered for a symposium at Vanderbilt University to consider (very earnestly) Jack Goldsmith’s question—that is, whether the federal courts field is somehow “dead.”1 Some of the best evidence for the field’s continued vitality,

Constitutional Compromise and the Supremacy Clause

Abstract: All laws are the product of compromise. In some cases, compromise leads to ambiguity and imprecision. On these occasions, courts may be unable to ascertain and enforce the underlying compromise with precision.1 In other cases, compromise produces relatively clear and precise provisions that establish specific powers, procedures, or restrictions.2 On these occasions, courts pursuing interpretive fidelity should strive to uphold the specific compromises incorporated into enacted legal texts, especially the Constitution. By design, the procedures governing the adoption and amendment of the Constitution give political minorities extraordinary power to block constitutional change and exact compromise as the price of assent.3 At the Constitutional Convention, the smaller states convinced the larger states to

The Foundations of the American Common Market

Abstract: The United States Constitution commits the United States to a common market system, yet, unfortunately, the nature and scope of the American common market have been incompletely—and, at times, inconsistently—described by the U.S. Supreme Court. This Article provides an original, theoretical account of the Court’s commitment to national economic union. As I argue, the central constitutional commitment is one of deliberative equality—that is, states and localities may regulate or tax interstate commerce if and only if the government gives equal regard to similarly situated in-state and out-of-state interests burdened by the regulation or tax. Deliberative equality provides a powerful normative justification for the judicial review of state measures that inhibit interstate trade. Yet, at the same time, deliberative equality provides ample room for states to respond to public policy issues in divergent ways consistent with the desires of the local citizenry. In this way, deliberative equality offers a superior theoretical foundation than alternative theories embraced by the Court, which overemphasize either free trade or state regulatory autonomy. The relative superiority of deliberative equality and the defects in the alternative approaches are both illustrated by the Supreme Court’s recent decisions involving the states’ power to regulate commerce, which inject further confusion into an area already in need of analytical clarity.

Rules of Weight

Abstract: A central assumption of modern evidence law is that its rules are rules of admissibility only. That is, they tell judges whether or not a given piece of evidence may be viewed by the factfinder, but they do not purport to tell the finder of fact how to evaluate the evidence once admitted. One can imagine, however, a system of rules that helps factfinders weigh evidence by instructing them, for instance, that the law considers a class of evidence (say, hearsay) to be of “low weight.” In fact, such rules—rules of weight—are an old idea with roots in Roman law. But they have long been ignored by evidence scholars or, when considered, judged to be anachronistic and deeply inconsistent with a system of trial by jury. This Article argues that such hostility to rules of weight is unjustified and that their use should be taken seriously as a possible direction for evidence reform. Given that jury trials are now increasingly rare and that, when a jury is used, its discretion is already constrained in a number of ways, the orthodox view of rules of weight now itself seems outdated. Furthermore, there are reasons to think that such rules could be beneficial for forensic factfinding. The past use of them by courts, their current role in administrative adjudication, and recent research in cognitive psychology all suggest ways in which rules of weight could make factfinding fairer, more efficient, and, most important, more accurate. Such benefits make the Supreme Court’s recent condemnation of the use of rules of weight in the administrative context that much more difficult to justify.

Arbitrating Human Rights

Abstract: The article addresses the vexing problem of holding corporations liable for assisting in the sovereign abuse of human rights. Currently domestic human rights litigation against corporations appears to be a proxy fight in which the accomplice is pursued while the principal evades punishment. Typically the principal malfeasor - the sovereign - is immune from suit because of foreign sovereign immunity. But corporations can be found liable for aiding and abetting those violations. This article suggests a solution to this problem, drawing on principles from contract law and arbitration. If a corporation is found liable for aiding and abetting sovereign abuse, it may invoke contractual provisions in the agreement with the sovereign to arbitrate the question of shared responsibility. While the victims may not pursue the sovereign because of immunity, there is no impediment for a corporate joint malfeasor to pursue the sovereign in arbitration to secure its share of liability, either in the form of contribution or indemnification. In short, human rights litigation against the corporation could lead to "who pays" cross-claim arbitration against the sovereign. Using Guido Calabresi's scheme of cost avoidance, this approach establishes a system of cost avoidance for human rights, in which corporations incur costs, and then seek to transfer those costs to the cheapest cost avoider - the sovereign. But the tools of contract law and arbitration are not simply for the corporation that aids and abets human rights abuse. They also are available to the majority of corporations that are good corporate citizens. For these corporations, contract law and arbitration procedures create opportunities to impose human rights obligations on transnational contractors, vendors, and suppliers. Human rights obligations can be internalized by contract and subjected to effective dispute resolution procedures, including international arbitration. Finally, some corporations may wish to go even further and create opportunities for non-contracting parties - such as employees or NGOs - to invoke third party beneficiary rights to facilitate compliance with human rights obligations embedded in the contract. These corporations thereby can incorporate a mechanism for those third parties to initiate an effective dispute resolution process to address core human rights concerns.

Stare Decisis and the Constitution: Four Questions and Answers

Abstract: This Article joins the growing debate about the relationship between stare decisis and the Constitution by addressing four important questions that have recently been raised: (1) Is stare decisis constitutionally required; (2) Is stare decisis constitutionally prohibited? (3) Can Congress abrogate stare decisis? (4) Should courts defer to the judgments of elected officials when deciding whether to adhere to precedent? My answers to these questions (with some qualifications) are no, no, no, and sometimes. First, as I and several other writers have demonstrated, history does not support the claim that stare decisis is dictated by the framers' understanding of "judicial power." Second, stare decisis does not conflict with the Supremacy Clause because the Constitution does not preclude judges from deferring to the reasonable constitutional interpretations of other governmental actors, which is what stare decisis amounts to. Third, Congress cannot abrogate stare decisis because doing so would interfere with the power of courts to choose the methodology by which they determine what the law is, which in turn would undermine their ability to justify their decisions as legitimate. And fourth, courts should defer to the views of elected officials when deciding whether a prior decision has induced significant reliance or rests on outdated facts, but only where those views are based on the superior fact-finding capabilities of the other branches. Courts should also give serious weight to the thoughtful and considered judgment of elected officials that a prior decision was egregiously wrong. But courts should not defer to the views of elected officials when deciding whether a prior decision is practically unworkable or a remnant of abandoned doctrine because these are quintessentially legal questions that judges are best equipped to answer.

Liars and Terrorists and Judges, Oh My: Moral Panic and the Symbolic Politics of Appellate Review in Asylum Cases

Abstract: Point: The larger problem with the majority’s opinion is its know-it-all approach, an error oft repeated when our circuit reviews immigration cases in which an IJ [immigration judge] has made an adverse credibility determination. First, the majority lays out the applicant’s story as if it were the gospel truth, making it seem like denial of rehearing will cause a huge miscarriage of justice. Then the majority picks apart the IJ’s findings piece by piece, scrutinizing his every sentence as if it is completely unconnected to the rest of his opinion. Don’t agree with the IJ that the applicant is lying? Not to worry; just label the IJ’s finding “speculation and conjecture.” Finding it difficult to dispute that the applicant is lying? No problem; just label the inconsistencies “minor,” or “merely incidental to [the] asylum claim.” The net effect is that any asylum applicant who is a skillful enough liar—and many who aren’t—must be believed no matter how implausible or far-fetched their story. It also means that IJs, who are doubtless chary of being vilified by august court of appeals judges, become even more reluctant to make adverse credibility findings, even when they have good reason to believe the asylum applicant is lying.

Corporate Misconduct and the Perfect Storm of Shareholder Litigation

Abstract: When it comes to combating corporate misconduct, is more litigation necessarily better? The conventional wisdom is that we should deploy every weapon in the law’s arsenal to combat corporate misconduct. This wisdom, however, reflects legal scholarship that is confined to analyzing securities class actions and derivative suits in isolation, with little inquiry into the interplay between them. By failing to take a broader view of shareholder litigation, legal scholars have missed an opportunity to provide courts with the conceptual tools necessary to meet the complex challenges of complex corporate litigation. In courtrooms and boardrooms across the country, a debate is raging over whether courts should permit shareholders to file parallel securities class actions and derivative suits arising out of the same allegations of corporate wrongdoing—a debate that has gone almost entirely unnoticed in the legal academy. The time has come for legal theory to catch up with legal practice. We must re-conceptualize the tools we use to combat corporate misconduct, recognizing that securities class actions and derivative suits can work together to achieve the diverse goals of shareholder litigation. We should then bring these new conceptual insights to bear on the current legal debate over how courts should handle parallel securities class actions and derivative suits. Now is the perfect time to calm the perfect storm of shareholder litigation.

Fulfilling the Promise of Brown - What Parents Involved Means for Louisville and the Future of Race in Public Education

Abstract: In the summer of 2007, the Supreme Court declared unconstitutional the Jefferson County1 Board of Education’s race-based studentassignment plan in Parents Involved in Community Schools v. Seattle School District No. 1.2 The decision was both long-awaited and controversial.3 Parents Involved marked the first time that the Roberts Court was given the opportunity to address the issue of race in public education. The Court’s invalidation of the Seattle and Louisville public school assignment plans demonstrated what some perceived to be the Court’s clear movement to the right, prompting Justice Breyer to declare from the bench, “It is not often in the law that so few have so quickly changed so much.”4 This Note explains what Parents Involved means for the future of race-based student assignment plans. Specifically, Parents Involved will be examined through the vantage point of the community of Louisville, whose leaders have attempted to rework the city’s

It Belongs in a Museum: Appropriate Donor Incentives for Fractional Gifts of Art

Abstract: Paul Cezanne’s Boy with a Red Vest, Rene Magritte’s Kiss, and Henri Matisse’s Plum Blossom share one unexpected characteristic: each became accessible to the museum-going public through fractional giving.2 These important works as well as entire collections have been donated through this method. The Metropolitan Museum of Art (MMA) in New York, for example, owes its Annenberg Collection to a fractional giving plan.3 That impressive collection comprises fifty-three Impressionist and Post-Impressionist works, including renowned artists Claude Monet, Edgar Degas, Edouard Vuillard, and Paul Cezanne.4 Thanks to fractional giving, these works are now on public display.5 Fractional giving allows a collector to donate an artwork to a museum incrementally by gradually increasing the portion of each

Lincoln and Judicial Authority

Abstract: In this Article, I trace the development of Abraham Lincoln's stance on judicial authority, and his eventual repudiation of judicial supremacy, from his first major speech addressing the Dred Scott decision in 1857, through the Lincoln-Douglas debates of 1858, the presidential campaign and "secession winter" of 1860, and, finally, during Lincoln's presidency, from his first inauguration in March 1861 to his assassination in April 1865. The moral of this story, I conclude, is one I have advanced in other writing: the President, and other nonjudicial political actors swearing an oath to the Constitution and acting within the spheres of their separate constitutional powers, are not constitutionally bound by erroneous decisions of the Supreme Court that they in good faith conclude are antithetical to the Constitution and harmful to the nation. One may reject this proposition -- nearly all constitutional scholars, judges, and elected officials today do -- but only by rejecting one of Lincoln's most important political and constitutional positions, fundamental to everything else he said and did as President. Lincoln's rejection both of Dred Scott specifically and more generally of judicial supremacy in constitutional interpretation was an essential part of the platform on which Lincoln rose to national prominence and was elected President. That stance, and Lincoln's election on such a platform, was featured among prominent Southerners' purported constitutional justifications for secession: the nation had just elected a lawless, anticonstitutional President who would invade the South's constitutional rights, as duly determined by the United States Supreme Court, with respect to slavery. The decision by Lincoln and the Union to fight secession thus depends, for its legitimacy, on a rejection of the Southern position on the legitimacy of Lincoln's constitutional views. The judicial supremacist stance accepted by most people today is the anti-Lincoln stance. It is the position of Lincoln's early political arch-adversary, Senator Stephen Douglas, in support of the binding authority of Dred Scott and of any subsequent decision of the Supreme Court extending slavery throughout the nation. And it is the position of Jefferson Davis and the South, in opposition to the constitutional legitimacy of a President and party elected on a platform of opposition to the controlling force of the Supreme Court's interpretations of the Constitution. In short, if the Douglas-Davis view is right -- that judicial decisions bind subsequent judicial actors, and all political actors -- then Lincoln was wrong in nearly everything he stood for. Indeed, Lincoln's election as President rested on fundamentally anticonstitutional premises. If judicial supremacists are correct, the South was not only within its rights in seceding, but did so for just constitutional cause -- rebelling against an administration and government premised on a grave breach of the Constitution.

The Procedural Safeguards of Federalism

Abstract: In the article giving rise to this Symposium, I argued that the Supremacy Clause safeguards federalism by conditioning supremacy on adherence to precise lawmaking procedures prescribed elsewhere in the Constitution.1 These procedures were designed to preserve the governance prerogatives of the states both by making federal law relatively difficult to adopt and by assigning lawmaking solely to actors subject to the political safeguards of federalism.2 The Supremacy Clause recognizes only three sources of law as “the supreme Law of the Land”—the “Constitution,” “Laws,” and “Treaties” of the United States.3 Not coincidentally, the Constitution prescribes precise procedures to govern the adoption of each of these sources of law, and all of these procedures specifically require the participation of the Senate or the states.4 These procedural safeguards of federalism were central to the crucial compromise reached between the small and large states at the Convention concerning the structure of the new Constitution.

Lessons from a Nondelegation Canon

Abstract:  2008 John F. Manning. Individuals and nonprofit institutions may reproduce and distribute copies of this Essay in any format, at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision and copyright notice. * Bruce Bromley Professor of Law, Harvard Law School. I thank Bradford Clark, Richard Fallon, Debra Livingston, Daniel Meltzer, Henry Monaghan, Peter Strauss, and Adrian Vermeule for valuable comments on an earlier draft. I am grateful to the Notre Dame Law School and to the Notre Dame Law Review for putting together a wonderful Symposium on the relationship between separation of powers and federalism. 1 See Cass R. Sunstein, Nondelegation Canons, 67 U. CHI. L. REV. 315, 331–32 (2000). The idea of nondelegation canons recurs frequently in contemporary public law scholarship. See, e.g., Adam B. Cox, Deference, Delegation, and Immigration Law, 74 U. CHI. L. REV. 1671, 1674–79 (2007) (using the nondelegation canons idea as a frame of reference for considering judicial approaches to immigration cases); William K. Kelley, Avoiding Constitutional Questions as a Three-Branch Problem, 86 CORNELL L. REV. 831, 840 (2001) (identifying Professor Sunstein’s theory of nondelegation canons as a prominent modern justification for the canon requiring courts to interpret statutes to avoid serious constitutional questions); Trevor W. Morrison, Constitutional Avoidance in the Executive Branch, 106 COLUM. L. REV. 1189, 1214–15 (2006) (same). 2 See Sunstein, supra note 1, at 316. R 3 See, e.g., Gregory v. Ashcroft, 501 U.S. 452, 460 (1991) (requiring a clear statement of legislative intent before interpreting a statute “to alter the ‘usual constitutional balance between the states and the Federal Government’” (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985))); Atascadero, 473 U.S. at 242–43 (requiring a clear statement of congressional intent before inferring a waiver of sovereign immunity). 4 See, e.g., Landgraf v. USI Film Prods., 511 U.S. 244, 263–80 (1994) (requiring a clear statement for retroactive liability); Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208–09 (1988) (same).

Misguided fairness? Regulating arbitration by statute: Empirical evidence of declining award finality

Abstract: The Federal Arbitration Act (FAA) created a national policy that promotes arbitration. Congress passed this law to end judicial hostility to arbitration. So far, no one has questioned this premise. My Article shows, however, that nineteenth century courts enforced arbitrator awards, even those that failed to conform to technicalities and niceties. Acting on the mistaken advice that judges excessively interfere with arbitration, Congress enacted a law that transfers oversight of arbitration from the judiciary to legislatures. This change is affecting how court reviews arbitrator awards. I collected data in 426 federal and state court rulings in employment disputes from June 1975 through April 2007. Federal district judges confirmed 92.7% of arbitrator awards, compared to 78.8% for state courts. This statistically significant difference was also observed for appellate courts, where the confirmation rate in federal courts was 87.7%, contrasted to 71.4% for state courts. The anomalous structure of the FAA explains why federal courts are more deferential than state courts. The statute allows litigants to choose federal or state court to challenge an award. In federal court, the standard of review is among the narrowest in the law. Oddly, however, the FAA also allows states to define their own standards. Fewer states now replicate the FAA, as a growing number adopt more intrusive standards. The Revised Uniform Arbitration Act is exacerbating this situation. Passed in 2000, RUAA has been enacted by 12 states - and the number is likely to grow. RUAA aims to curb recent abuses in arbitrations by legislating fairness into this process. However, by strictly regulating arbitrator disclosures, and limiting arbitrator powers to order attorney's fees and other relief, RUAA creates new and more conditions that erode the finality of arbitration decisions. Fairness principles in RUAA are laudable, but RUAA drafters ignored an ancient maxim of fairness - the Magna Carta's injunction that justice delayed is justice denied. They never imagined that so many arbitrations at the state level would leave the underlying arbitration agreements, which secure a promise for a final and binding award, in tatters. The apparent winner in arbitration is therefore deprived of justice. These recent developments trace to 1925, when Congress transferred oversight of arbitration from courts to legislatures. Today, this means that arbitration is more exposed to lobbying efforts by special interests who want to tailor ADR processes - under the aegis of the FAA - to suit their preferences. My data show that the U.S. has two different justice systems for enforcing arbitration awards. The federal domain is minimalist, rooted in centuries of common law experience, and also devoid of political maneuvering. Many states, however, naively promise more fairness in arbitration while subjecting this private process to special deals that are worked out in obscure legislative committees. State expansion of reviewing standards poses three significant problems: (1) Foremost, this trend is fragmenting the national policy that favors arbitration by allowing a plurality of judicial review standards. When Congress and the Supreme Court beat the drum to proclaim that the FAA provides a national arbitration policy, they are wrong. (2) The results imply that RUAA will stimulate forum shopping. Award winners should run to federal court to confirm their awards, while challengers should race to state court to improve their odds of vacatur. In time, the judicial inconsistency that I document will undermine cost, efficiency, and time saving advantages of arbitration over court adjudications. (3) A moral hazard is created when losers at arbitration are tempted to renege on their contractual promise to submit to binding arbitration in order to pursue do-over adjudication. As more courts vacate awards, more disputes remain unresolved; and as the vacatur rate increases in state courts, this will lead to more award challenges. Congested court dockets will become a bigger problem if parties cannot rely on contractual promises for final and binding arbitration. Losing confidence in award finality, more parties will bypass arbitration and resort to filing more lawsuits. The Congress that passed the FAA sought a quick, efficient, and low-cost alternative to court adjudication. These lawmakers would be alarmed by empirical trends that depict the unbinding of arbitration.

The Elephant in the Classroom: A Proposed Framework for Applying Viewpoint Neutrality to Student Speech in the Secondary School Setting

Abstract: In Morse v. Frederick,1 the Supreme Court’s latest (and, some might say, futile) foray into student speech rights, Justice Stevens chastised the majority for creating a jurisprudential test that “invites stark viewpoint discrimination”2 in violation of a “cardinal First Amendment principle[].”3 However, just as quickly as Stevens condemned the Court’s abandonment of viewpoint neutrality, he conceded that, in light of the special characteristics of the school environment, “it might well be appropriate to tolerate some targeted viewpoint discrimination in this unique setting.”4 Stevens’ dissent, which held tightly to the notion that viewpoint discrimination is a most “egregious”5 constitutional violation, but seemed inclined to loosen its grip in the school setting, epitomizes the uncertainty characterizing the Court’s application of viewpoint neutrality to student speech.