Showing papers in "Notre Dame Law Review in 2009"

Does Unconscious Racial Bias Affect Trial Judges

Abstract: Race matters in the criminal justice system. Black defendants appear to fare worse than similarly situated white defendants. Why? Implicit bias is one possibility. Researchers, using a well-known measure called the Implicit Association Test, have found that most white Americans harbor implicit bias toward black Americans. Do judges, who are professionally committed to egalitarian norms, hold these same implicit biases? And if so, do these biases account for racially disparate outcomes in the criminal justice system? We explored these two research questions in a multi-part study involving a large sample of trial judges drawn from around the country. Our results--which are both discouraging and encouraging--raise profound issues for courts and society. We find that judges harbor the same kinds of implicit biases as others; that these biases can influence their judgment; but that given sufficient motivation, judges can compensate for the influence of these biases. INTRODUCTION Justice is not blind. Researchers have found that black defendants fare worse in court than do their white counterparts. In a study of bail-setting in Connecticut, for example, Ian Ayres and Joel Waldfogel found that judges set bail at amounts that were twenty-five percent higher for black defendants than for similarly situated white defendants. (1) In an analysis of judicial decisionmaking under the Sentencing Reform Act of 1984, David Mustard found that federal judges imposed sentences on black Americans that were twelve percent longer than those imposed on comparable white defendants. (2) Finally, research on capital punishment shows that "killers of White victims are more likely to be sentenced to death than are killers of Black victims" and that "Black defendants are more likely than White defendants" to receive the death penalty. (3) Understanding why racial disparities like these and others persist in the criminal justice system is vital. Only if we understand why black defendants fare less well than similarly situated white defendants can we determine how to address this deeply troubling problem. Two potential sources of disparate treatment in court are explicit bias and implicit bias. (4) By explicit bias, we mean the kinds of bias that people knowingly--sometimes openly--embrace. Explicit bias exists and undoubtedly accounts for many of the racial disparities in the criminal justice system, but it is unlikely to be the sole culprit. Researchers have found a marked decline in explicit bias over time, even as disparities in outcomes persist. (5) Implicit bias--by which we mean stereotypical associations so subtle that people who hold them might not even be aware of them--also appears to be an important source of racial disparities in the criminal justice system. (6) Researchers have found that most people, even those who embrace nondiscrimination norms, hold implicit biases that might lead them to treat black Americans in discriminatory ways. (7) If implicit bias is as common among judges as it is among the rest of the population, it might even account for more of the racially disparate outcomes in the criminal justice system than explicit bias. In this Article, we report the results of the first study of implicit racial bias among judges. We set out to explore whether judges hold implicit biases to the same extent the general population and to determine whether those biases correlate with their decisionmaking in court. Our results are both alarming and heartening: (1) Judges hold implicit racial biases. (2) These biases can influence their judgment. (3) Judges can, at least in some instances, compensate for their implicit biases. Our Article proceeds as follows. We begin, in Part I, by introducing the research on implicit bias and its impact on behavior. In Part II, we briefly describe the methods of our study. We provide a much more detailed account in the Appendix. …

The False Promise of Adolescent Brain Science in Juvenile Justice

Abstract: Recent scientific findings about the developing teen brain have both captured public attention and begun to percolate through legal theory and practice. Indeed, many believe that developmental neuroscience contributed to the U.S. Supreme Court's elimination of the juvenile death penalty in Roper v. Simmons. Post-Roper, scholars assert that the developmentally normal attributes of the teen brain counsel differential treatment of young offenders, and advocates increasingly make such arguments before the courts. The success of any theory, though, depends in large part on implementation, and challenges that emerge through implementation illuminate problematic aspects of the theory. This Article tests the legal impact of developmental neuroscience by analyzing cases in which juvenile defendants have attempted to put it into practice. It reveals that most such efforts fail. Doctrinal factors hamstring most claims--for example, that persons with immature brains are incapable of forming the requisite mens rea for serious crimes. Limitations intrinsic to the science itself--for example, individual variation--also hinder its relevance and impact. These factors both explain why developmental neuroscience has had minimal effects on juvenile justice in the courts and illustrate why it generally should. Moreover, direct reliance on neuroscience as the metric for juvenile justice policy may jeopardize equality and autonomy interests, and brain-based arguments too frequently risk inaccuracy and overstatement. The cases also strongly suggest that neuroscience does not materially shape legal decisionmakers' beliefs and values about youthful offenders but instead will be read through the lens of those beliefs and values. Developmental neuroscience nonetheless can play a small role in juvenile justice going forward. Legislatures and courts may regard that science as one source among many upon which to draw when basing policy choices on assumptions about juveniles as a group. To go further is unwarranted and threatens to draw attention away from critical legal and environmental factors--good schools, strong families, economic opportunities, mental health care, humane sentencing regimes, and rehabilitative services--that are both more important and subject to greater direct control. INTRODUCTION I. ADOLESCENT BRAIN SCIENCE AND JUVENILE JUSTICE: AN OVERVIEW A. Developmental Psychology and Neuroscience B. The Brain-Based Challenge to the Juvenile Death Penalty C. Adolescent Brain Science Beyond Roper II. THE LIMITED IMPACT OF ADOLESCENT BRAIN SCIENCE IN THE COURTS A. Doctrinal Obstacles 1. Adult Punishment 2. Transfer to Adult Court 3. Mental States B. Scientific Limitations 1. Individual Differences 2. Structure v. Behavior 3. Relative Deficiency 4. Age Limits 5. Equality and Autonomy Commitments C. Advocacy Pressures III. A LIMITED ROLE FOR ADOLESCENT BRAIN SCIENCE WITHIN JUVENILE JUSTICE CONCLUSION INTRODUCTION This is the decade of the adolescent brain. Popular media sources claim that contemporary developmental neuroscience (1) shows "What Makes Teens Tick" and explains their "exasperating" behavior, including criminal acts. (2) Allstate Insurance released a major national ad claiming that teens are "missing a part of their brain [s]" and therefore should gain driving privileges only gradually. (3) Parents can now choose among a number of self-help books offering brain-based explanations for why their adolescents are "primal" and "crazy." (4) Far from being confined to popular culture, the fascination with adolescent brain science has begun actively to percolate through legal theory, advocacy, and lawmaking. Prominent academics argue that an understanding of the teen brain both supports retention of a separate juvenile justice system and illuminates the proper perspective on the adjudication and treatment of young offenders. …

A Hands-off Approach to Religious Doctrine: What are We Talking About?

Abstract: INTRODUCTION At the 2008 Annual Meeting of the American Association of Law Schools, the program organized by the Section on Law and Religion presented for consideration the claim that "the United States Supreme Court has shown an increasing unwillingness to engage in deciding matters that relate to the interpretation of religious practice and belief." (1) The Court, it was proposed, is--more and more--taking a "hands-off approach to religious doctrine." (2) This proposal was, and remains, timely and important, as is illustrated by--to mention just a few, diverse examples--the ongoing property-ownership dispute between several "breakaway" Episcopal churches in Virginia, on the one hand, and the Episcopal Diocese of Virginia, on the other; (3) by the Supreme Court of Canada's recent ruling that an agreement regarding a religious divorce under Jewish law is enforceable in civil courts; (4) by a federal judge's ruling that the Georgia Institute of Technology had unconstitutionally taken on the task of instructing students about the merits of various traditions' positions on sexual morality; (5) and perhaps even by the Speaker of the House's controversial pronouncements, on "Meet the Press," about Roman Catholic teaching with respect to abortion. (6) In each of these controversies, a government actor is being asked to decide a question, or has presumed to resolve a dispute, involving the meaning or content of religious teaching. But, such examples notwithstanding, is the proposed claim true? That is, is it really the case that American courts are showing such an "increasing unwillingness," and that they are doing so in accord with any identifiable principle or "approach"? (7) If there is, in the Court's law-and-religion toolkit, something like a hands-off "rule," then what are that rule's scope, content, and justifications? (8) Which feared harms does it protect against, and which goods does it promote? When it comes to "matters that relate to the interpretation of religious practice and belief," (9) why is the Court doing, and should it be doing, what it is doing? I. Step back for a moment, seventeen centuries or so. As fans of the Da Vinci Code are (in a way) aware, (10) in the year 325, the Arian Controversy was raging. (11) The Emperor Constantine, a convert to Christianity, was troubled by the strife among Christians and--perhaps more acutely--by the civil unrest that in many places accompanied their theological disagreements. (12) Accordingly, he asked Christian bishops from around the world to gather for an ecumenical council, in present-day Turkey, to restore both religious concord and civil peace. Today, Constantine's move no doubt seems to most people a perfect example of that which the political authority cannot do and, indeed, should have no interest in doing. Most of us probably think that for the civil magistrate to inquire into--to even imagine the right or competence to inquire into--the "truth or falsity" of religious claims and doctrines is, as the Supreme Court put it in United States v. Ballard, (13) to enter a "forbidden domain." (14) We are confident that disputes over doctrine--disputes such as, for example, the fourth century argument over the divinity of Christ--are, as the Court insisted in Watson v. Jones, (15) "strictly and purely ecclesiastical in ... character." (16) In every involvement or interference by government officials in "controversies over religious doctrine and practice," (17) we think, the "hazards are ever present of inhibiting the free development of religious doctrine and of implicating secular interests in matters of purely ecclesiastical concern." (18) Religion is, after all, a "private matter." (19) But, is it really? Or, is it entirely? And, even if it is, so what? Presumably, with respect to the particular "controvers[y] over religious doctrine and practice" (20) that occasioned the first Council at Nicaea, Constantine was not mistaken in perceiving that his Christian subjects' strong views on the matter--and their equally strong view that the question did matter--were not unrelated to, and could not be neatly separated from, eminently "secular" matters about which he was quite, and appropriately, concerned. …

Litigation Realities Redux

Abstract: Both summarizing recent empirical work and presenting new observations on each of the six phases of a civil lawsuit (forum, pretrial, settlement, trial, judgment, and appeal), the author stresses the needs for and benefits from understanding and using empirical methods in the study and reform of the adjudicatory system's operation. INTRODUCTION I. FORUM A. Forum Selection B. Forum Effect II. PRETRIAL A. Steps to Termination 1. Pleading 2. Disclosure 3. Discovery 4. Conference 5. Settlement 6. Motion B. Time to Termination III. SETTLEMENT A. Importance of Settlement B. Rate of Settlement IV. TRIAL A. Decline of Civil Trial B. Trial by Judge or Jury V. JUDGMENT A. Win Rates B. Foreigner Effect VI. APPEAL A. Affirmance Effect B. Anti-Plaintiff Effect CONCLUSION INTRODUCTION A half-dozen years ago, Ted Eisenberg and I started our article entitled Litigation Realities (1) with a quotation of Louis XVI: his journal entry for July 14, 1789, was "Nothing." (2) Our point was that the modern lawyer who ignores empirical research, even though law has long ignored empirical methods, risks giving in retrospect the very same impression as the French king gave. From that starting point, our article tried to explain empirical methods and map an empirical agenda. Well, a new age has since dawned. The recent years have seen tremendous advances in empirical studies. Much remains to do, of course. But, as the even earlier French proverb put it (although arguably with inaccuracy under some circumstances), "Something is better than nothing." (3) I propose in this Article to discuss anew what all of us are now learning about litigation, thanks to this increasing use of empirical methods. I shall again treat separately the six phases of a lawsuit: forum selection, pretrial practice, settlement process, trial practice, judgment entry, and appellate practice. For each, I shall describe what I see as important insights from recent empirical publications, while also providing new data on the realities of that phase. As I shall demonstrate, the last half-dozen years have altered our earlier article's understanding of some features of litigation, which was to be expected given that any initial steps into a new field of study must be tentative ones. Thus, the emphasis in this redoing of Litigation Realities, as compared to the original, will appropriately be less on yesterday's news of empirical methods (4) and more on recent empirical results. I. FORUM A. Forum Selection The name of the game is forum shopping, as many have observed elsewhere. (5) Lawyers all know this and have lived by it forever. The contribution of recent empirical research, besides confirming the existence of the phenomenon, has been to show that all of those lawyers were not wasting their clients' money on forum fights--because, in fact, forum matters. Forum is worth fighting over because outcome often turns on forum, as I shall explain in the next subpart. Forum selection accordingly remains extraordinarily important in the American civil litigation system. Today, after perhaps some initial skirmishing, most cases settle, while few cases reach trial. (6) Yet all cases entail forum selection. The plaintiff's opening moves include shopping for the most favorable forum, be it some state's courts or the federal system, and be it any particular venue within the jurisdiction. (7) Then, the defendant's parries and thrusts might challenge the plaintiffs choice of forum and also might include some forum shopping in return, possibly by removal from state to federal court (8) or by a motion for change of venue. (9) As a consequence, the parties frequently dispute forum. Federal litigators, for example, deal with many more change-of-venue motions than trials. …

Does It Matter What Religion Is

Abstract: INTRODUCTION: THE MONTY PYTHON PROBLEM One memorable conceit of the Monty Python comedy troupe was the problematic weapon developed by the English military during World War II. The weapon was a joke so funny that upon hearing it the auditor died laughing. Unfortunately, the weapon suffered from a fatal defect: no one could learn the joke in order to deliver it without suffering the fate intended for the enemy. You can imagine how the sketch unfolds. (1) A dedicated soldier walks into a shed with sheaf of paper ... uncontrolled laughter is heard ... then a gasp and a crash. And so on, through many zany iterations. On some accounts, religious liberty may be self-destructive in much the same way as the undeliverable joke. The problem goes roughly like this: in order to protect religious liberty we have to define what religion is, and once we are in the business of saying that some beliefs, commitments, and projects are entitled to special treatment as "religious" while others are not, we are creating a sphere of orthodoxy of exactly the sort that any plausible understanding of religious liberty should deplore. In earlier work, we have illustrated this problem with the story of the two Ms. Campbells who live across the street from each other in a suburban community. (2) Both want to run soup kitchens for the poor, and both suffer from a zoning regulation prohibiting that activity. (3) One Ms. Campbell understands the teaching of her faith to demand good works of this sort, and believes herself to be under personal command from her god to run her soup kitchen. (4) The other Ms. Campbell, if asked, would say that religion has nothing to do with her enterprise; she cannot stand the suffering of innocent persons, and takes widespread, poverty-driven hunger to be something that any responsible person would seek to ameliorate. (5) Giving the first Ms. Campbell a privilege to disregard the ordinance on the grounds that she is religiously motivated, while denying that privilege to the second Ms. Campbell, seems patently unjust. Indeed, it seems to be an affront to religious liberty itself. Hence the possibility that religious liberty will of necessity come unstrung in the same paradoxical way as the Monty Python joke weapon. Can religious liberty be spared this fate of self-destruction? To put the question more narrowly, can an attractive regime of religious liberty be built which does not insist on decisions about whether one or another of our Ms. Campbells is appropriately religious to be its beneficiary? If not, then the Constitution's commitment to religious freedom would require the government to choose among controversial conceptions of religion for the very purpose of identifying which beliefs enjoyed constitutional protection. It would matter very much, in other words, that courts be able to say exactly what religion is. We have no doubt that it does matter, for many purposes and in many ways, what religion is. It matters, for example, that there is a domain of human activity and experience which we call religion, that we are broadly capable of distinguishing that domain from other realms of activity and experience, and that we can call out the cultural and personal characteristics that are common to much activity and experience that we recognize as religious. The distinction between religion and nonreligion is a significant ethical guidepost in many people's lives. Sociological studies of civil society almost certainly need to take account of religion and its impact. And it is hard to imagine how historical, philosophical, or legal conversations about religious freedom could proceed without a common, general understanding of what religion is and what role it has played and continues to play in a given time and place. But for these purposes--however profound and important they may be--close and controversial definitions of what counts as religion at the margins are not likely to be crucial. …

Democracy and international human rights law

Abstract: INTRODUCTION I. THE CHALLENGE OF INTERNATIONAL HUMAN RIGHTS LAW A. The Growing Scope of International Human Rights Law B. International Human Rights Law as a Justification for Changing Domestic Law 1. Direct Incorporation of Human Rights Law into Domestic Law Without Legislative Warrant 2. International Human Rights Law as a Rule of Construction for Domestic Law 3. International Human Rights Law as an Authority Justifying Legal Change II. ADVANTAGES OF DEMOCRATIC PROCESSES IN FORMULATING HUMAN RIGHTS Law A. General Benefits of Democratic Processes B. Is Human Rights Law Special? C. Advantages of Supermajoritarian Democratic Processes for Determining Human Rights Law D. What If Domestic Constitutional Law Is Also Produced by Undemocratic Processes? E. The Insufficiency of Democratic Override III. THE DEMOCRACY DEFICIT OF INTERNATIONAL HUMAN RIGHTS LAW A. The Influence of Nondemocratic States B. Multilateral Human Rights Treaties C. Customary International Law D. Other Sources of International Human Rights Norms 1. Committees Charged with Interpreting Multilateral Human Rights Law 2. The International Committee of the Red Cross IV. THE EFFECT OF THE DEMOCRACY DEFICIT ON INTERNATIONAL HUMAN RIGHTS LAW A. Hate Speech B. Comparable Worth C. The Right to Housing D. Humanitarian Law V. REPRESENTATION-REINFORCING RIGHTS" THE EXAMPLE OF FREE MIGRATION A. Representation-Reinforcing Rights B. The Advantages of "Foot Voting" C. Migration Rights in Current International Law D. Democracy, Foot Voting, and the Case for an Expanded International Right to Entry E. Migration Rights as a Form of Representation-Reinforcing International Law CONCLUSIONS AND IMPLICATIONS INTRODUCTION International human rights law has greatly expanded since World War II. Advocates argue that it should supplement and even displace the domestic lawmaking process in a wide range of settings. Such displacement would be desirable if international human rights law were likely to provide legal norms that are on average superior to those produced by domestic lawmaking processes. Unfortunately, the opposite is likely to be the case when international human rights law norms are used as authority to displace domestic law that would otherwise govern liberal democratic states. As we have discussed in an earlier article, (1) most international law is made through highly undemocratic procedures. (2) These processes lack the advantages of democratic processes, and have few, if any, off setting virtues of their own. Thus, on average, the quality of what we call "raw" international law rules that have not been ratified by domestic democratic processes is likely to be lower than that of domestic legal rules established by liberal democracies. (3) By contrast, international law that has been validated by the domestic lawmaking process of a democracy--either through ordinary legislation or treaty ratification--should on average be as good as other laws enacted by the same domestic processes. (4) In this Article, we extend our analysis of democracy and raw international law to the special case of international human fights law, including international humanitarian law. In that area, advocates of human rights law argue that international law has a special role to play because such rights are too fundamental to be left to the vagaries of domestic democratic processes. We demonstrate, however, that there is good reason for skepticism about the desirability of using international human rights law to change the domestic human rights law of democratic nations. Our analysis rests on both theory and example. As a matter of theory we show how domestic democratic processes are likely to generate human rights norms superior to those embodied in international law. …

Golden Rule Reasoning, Moral Judgment, and Law

Abstract: This article examines "Golden Rule reasoning"--reasoning according to the principle that we should treat others as we would have them treat us--as a basis for moral action and as a criterion for assessing the moral quality and implications of judicial decisions, legal rules, and proposals for legal reform. After distinguishing the Golden Rule from other ideas and principles with which it is sometimes associated, I embark upon a defense of the Golden Rule as a principle of fairness. The main approach to defending this principle has been to detach Golden Rule-based behavior from the desires of agents and recipients. The purpose of adopting this approach is to avoid reducing the Golden Rule to the proposition that we are entitled to impose on others preferences that we would happily have imposed on us. I examine various attempts to show that the Golden Rule requires that agents do not simply project their values and desires onto others and I argue that the most successful of these is R.M. Hare's explanation of Golden Rule reasoning in universal prescriptivist terms. Although the universal prescriptivist explanation is open to various criticisms--as becomes obvious when it is applied to particular moral problems such as euthanasia and abortion--it nevertheless provides a strong philosophical basis for claiming not only that Golden Rule reasoning need not be connected to particular tastes and preferences but also that, as a matter of moral principle, we should never tolerate double standards where cases are relevantly similar. While I accept and try to demonstrate the merits of interpreting the Golden Rule in universal prescriptivist terms, however, I conclude that a more robust interpretation of the Rule is one which is advanced by some natural law philosophers and which offers a philosophical justification for the proposition that doing to others as one would have done to oneself is necessarily a case of doing good towards others. The article ends with some reflections on the implications of this version of Golden Rule reasoning for legal policymaking, and in particular for the abortion debate. INTRODUCTION Sometimes, we try to transmit wisdom by formulating simple "rules" which we think others will do well to heed. These rules we occasionally refer to as "golden," to emphasize that if we start with these rules and abide by them in some particular activity, what we desire should be attained and what we do not desire avoided. Books abound offering "golden rules" of self-improvement--how to thrive at myriad tasks, pastimes, projects, and so on--and at one time or another most of us will either give or receive golden rule advice. My own favorite examples, qua recipient, are supposed golden rules of wallpaper-hanging (less paste, more speed) and freestyle swimming (choose the path of most resistance). Such examples typify golden rules: they are efforts to provide general guidance, efforts which are often lacking in subtlety and easily contradicted, rules only insofar as they are rules of thumb. Whether formulating or being told of golden rules, we usually recognize them, or are foolish if we do not recognize them, for what they are: pieces of advice which, though very likely memorable and possibly valuable, are not indispensable or capable of taking the place of endeavor and engagement. To apply this characterization to the golden rule most familiar to lawyers would be somewhat uncharitable. That ordinary words in statutes should be given their ordinary meanings (and technical words their technical meanings) unless absurdity would result is not described as a "golden rule" for nothing: if it were unreasonable to presume that courts will take words to have the meanings attributed to them in normal usage, it would be impossible for lawyers and others confidently to advise and act on the statutes that concern them. Yet, as every lawyer knows, this golden rule is not the only legitimate criterion for interpreting statutes and, in any event, where serious doubt as to the appropriate construction of a statute exists, courts are in effect making a judgment rather than determining which rule, or combination of rules, does the legislation the most justice. …

Mandatory Arbitration and Fairness

Abstract: Until recently, it was understood that mandatory arbitration was "do-it-yourself tort reform": corporate defendants could reduce their liability in consumer and employment disputes through an adhesion contract clause requiring predispute arbitration. But now that there is a significant possibility that Congress will amend the Federal Arbitration Act to make predispute arbitration clauses unenforceable, critics have been stymied by the reemergence of an argument that mandatory arbitration is "fairer" than litigation. Mandatory arbitration supporters argue that (1) critics have failed to make an empirical case against mandatory arbitration, because existing studies seem to show that plaintiffs do at least as well in arbitration as in court; and (2) mandatory arbitration is a more egalitarian forum than litigation because it is more accessible to smaller claims and claimants. This argument for mandatory arbitration's "fairness" has effectively tabled the discussion of whether tort reform through mandatory arbitration is justified, and whether an adhesion contract, rather than legislation, should be the vehicle for creating a "fair" dispute resolution system. This Article argues there is no "fairness" justification for imposing a dispute resolution system through adhesion contracts. The economic incentives of the mandatory arbitration system only work by reducing the prospects of plaintiffs with high-cost/high-stakes cases. And while shifting the empirical "burden of proof" onto critics is clever rhetorical strategy, in fact it is the egalitarian argument for mandatory arbitration that is empirically unfounded as well as illogical. INTRODUCTION I. THE CONCEPT OF "FAIRNESS" IN THE MANDATORY ARBITRATION DEBATE A. "Fairness" Defined: Process, Outcome and Access 1. Process Fairness 2. Outcome Fairness 3. Access Fairness B. Fairness to Whom--and Compared to What? C. The Empirical Game: Who Has the Burden of Proof II. AN ANALYTICAL APPROACH TO ASSESSING FAIRNESS ARGUMENTS: FORUM PREFERENCE AND COST A. Arbitration and Litigation Preferences as a Function of Cost 1. Defendants' Arbitration Preference: Robbing Litigation-Preferring Plaintiffs to Pay Arbitration Claimants 2. The Costs of Disputing: Process and Liability 3. The Heart of the Matter: PLDA Cases Are High Cost/High Stakes B. Characteristics of High-Cost/High-Stakes (PLDA) Cases: A Closer Look 1. Discovery and Proof 2. Appeals III. AN EMPIRICAL DEAD END? THE (PERHAPS INSURMOUNTABLE) DIFFICULTIES OF OUTCOMES ANALYSIS A. The Difficulty of Collecting Data and Defining the Universe B. The Problem of Sampling Error 1. Establishing Baseline Values 2. Arbitration and Litigation Case Streams 3. Comparing Trials and Arbitrations While Omitting Settlements 4. Improper Sampling and Sorting C. A Case in Point: The Eisenberg and Hill Study 1. "Censoring": Analyzing the Wrong Cases 2. The Sorting Error 3. Reinterpretation of the Data D. Other Fairness-Related Issues 1. The "Repeat Player" Effect 2. Is Arbitration Faster and Cheaper than Litigation? IV. THE EGALITARIAN (PSEUDO-POPULIST) ARGUMENT FOR MANDATORY ARBITRATION A. The Accessibility Myth: Is Arbitration Really "The People's Court"? 1. Precision About Claimants and Forum 2. Empirical Evidence of Relative Access of Arbitration and Litigation 3. The Theoretical Limits of the "Populist Effect" B. Disguised Tort Reform: The Truth Behind the Pseudo-Populist Argument 1. The "Takes Two" Paradox 2. The Failure to Consider Alternatives 3. Mandatory Arbitration as a Workers' Compensation Bargain V. …

Congress' New Infrastructural Model of Medical Privacy

Abstract: INTRODUCTION I. FDAAA SECTION 905 As AN INFRASTRUCTURE REGULATORY MANDATE A. The Section 905 Public Health Benefit Standard B. The Section 905 Patient Protection Standard II. COMPETING REGULATORY OBJECTIVES IN SECTION 905 III. THE SCOPE OF ALLOWED DATA DISCLOSURES UNDER SECTION 905 A. Keeping Data Uses Within the Scope of Section 905 B. Keeping Data Uses Within the Scope of Public Health Activities 1. Criteria for Distinguishing Public Health Uses from Research 2. Release of Identifiable Data Under HIPAA's Public Health Exception C. Ensuring Ethical Research Use of Sentinel System Data 1. HIPAA Provisions for Waiver of Privacy Authorization 2. FDA Policy on Research Use of Identified, User- Identifiable, Coded, and Anonymized Data 3. Human-Subject Protections in Research with Sentinel System Data IV. THE COERCIVE NATURE OF DECISIONS ALLOWING ACCESS TO SENTINEL SYSTEM DATA V. LESSONS FROM OTHER INFRASTRUCTURE REGULATORY CONTEXTS A. Industry Structure B. Contracts vs. Rules to Set Regulatory Standards C. Degree of Centralization of Discretionary Decisions D. Ensuring Independence and Legitimacy of Regulatory Decisionmaking and Adequate Resources for Credible Regulatory Oversight E. Appropriate Risk Sharing to Support System Financing and Privacy CONCLUSION INTRODUCTION Efforts have been underway for several years in the private sector and in the United States Department of Health and Human Services (HHS) to conceptualize how a Nationwide Health Information Network (NHIN) would work. (1) Until recently, Congress had not authorized large-scale implementation of any concrete pieces of such infrastructure. That changed with passage of the Food and Drug Administration Amendments Act (FDAAA) in September 2007. (2) FDAAA's section 905 (3) authorizes the Food and Drug Administration (FDA) to oversee development of a nationwide data network, the Sentinel System, (4) aimed at including data for 25 million patients by July 2010 and 100 million by July 2012. (5) Speculative concerns about health database privacy suddenly are enlivened with a riveting immediacy. This is here, now. One in three Americans is slated to be inducted into this data network within four years. (6) Section 905 responds to shortcomings in FDA's traditional approach to drug safety, which relied heavily on pre-approval clinical trials. Clinical trials, which typically test a drug on several hundred to a few thousand people (7) for fewer than twenty-four months, may fail to detect rare risks, risks that emerge only in long-term use, and risks of off-label uses not tested in the original clinical trials. (8) The 2004 scandal involving rofecoxib, which was widely marketed under the brand name Vioxx, was one in a series of instances where serious risks escaped detection in clinical trials. (9) Designed in the mid-twentieth century, FDA's drug safety regulatory framework was failing to harness modern information technology to glean additional drug safety information in the postmarket period after drugs are in wide clinical use. (10) In 2005, the HHS Secretary directed FDA to explore the potential for using information technology to improve drug safety monitoring. (11) In 2006, FDA decided to harness the power of bioinformatics as one of its top six priorities under the agency's Critical Path Initiative. (12) That same year, reports by the Institute of Medicine (13) and Government Accountability Office (14) called on Congress to grant FDA additional authority and resources to modernize its drug safety information systems. Section 905 implements recommendations in those reports. (15) Sentinel System data will include patients' Medicare, military, and private insurance claims data, health records, pharmaceutical purchase data, and "other data as the Secretary [of HHS] deems necessary. …

Abolishing the Time Tax on Voting

Abstract: A "time tax" is a government policy or practice that forces one citizen to pay more in time to vote compared with her fellow citizens. While few have noticed the scope of the problem, data indicate that, due primarily to long lines, hundreds of thousands if not millions of voters are routinely unable to vote in national elections as a result of the time tax, and that the problem disproportionately affects minority voters and voters in the South. This Article documents the problem and offers a roadmap for legal and political strategies for solving it. The Article uses as a case study NAACP State Conference of Pennsylvania v. Cortes, the first-ever case in which a court has granted prospective relief to plaintiffs who sought to reduce wait times at the polls, as well as the first successful voter access case since the Supreme Court discouraged facial challenges to state voting restrictions in Crawford v. Marion County Election Board. Drawing on the litigation strategy in Cortes, the Article canvasses the available constitutional and statutory avenues for a legal challenge to the time tax and identifies conditions for relief to be granted. Those conditions include exhausting the political process, targeting a momentous election and choosing appropriate plaintiffs, using primary election experiences and expert testimony to develop an adequate evidentiary record, and seeking narrow and politically neutral relief. The Article concludes by suggesting policies that can be implemented at the state and federal levels to mitigate the time tax. INTRODUCTION I. THE TIME TAX IN PENNSYLVANIA A. Unsuccessful Lobbying Efforts B. The Court Battle C. Lowering Pennsylvania's Time Tax II. THE TIME TAX NATIONWIDE A. Its Scope B. Reasons for Concern III. CHALLENGING TIME TIME TAX A. Equal Protection Clause B. Due Process Clause C. First Amendment D. Twenty-Fourth Amendment E. Section 2 of the Voting Rights Act F. Section 5 of the Voting Rights Act IV. MODEL FOR VOTER ACCESS LITIGATION A. Exhausting the Political Process B. Momentous Elections C. Pre-Election Litigation D. Facial Challenges After Crawford E. Narrow and Politically Neutral Remedies V. BEYOND THE COURTS CONCLUSION INTRODUCTION On April 22, 2008, Richard Brown, a resident of North Philadelphia, arrived at his polling place to cast his ballot in the primary election. He arrived even before the polls opened and joined a line of eager voters. But when the polls opened at 7:00 a.m., both machines at his precinct were broken. No one could vote. The line of voters first grew longer and then shorter as voters left without casting their ballots. After 9:00 a.m., Brown and remaining voters finally cast their ballots on a repaired voting machine. Others did not have time to spare that morning. From 7:00 a.m. to 8:45 a.m., approximately seventy-five to one hundred voters left the precinct without casting a ballot. (1) Did Brown and other voters at his precinct have a constitutional right to vote without having to wait an inordinately long period of time? If so, could they enforce that right before the election in which they sought to vote? State and local officials in Pennsylvania said no. When questioned by a reporter about the likelihood of many voters leaving the polls because of long lines in the 2008 general election, Fred Voight, the Deputy Election Commissioner of Philadelphia, responded: "Are there lines? Of course there are. Tough. That's the way it works.... People are always going to have to wait in line. I mean, get a life." (2) It is hardly surprising that Voight and other government officials could not fathom that long lines at the polls could violate a voter's constitutional rights. (3) Waits at the polls have long been considered "garden variety election irregularities" (4) that are par for the course in every election. …

Sticky Expectations: Responses to Persistent Over-Optimism in Marriage, Employment Contracts, and Credit Card Use

Abstract: Most people underestimate the likelihood that they will experience negative events and overestimate the likelihood that the law will protect them if those events occur. Many of these mispredictions are highly resistant to change even in the face of accurate and available information. This Article illustrates the consequences of these "sticky" expectations using examples from marriage, employment, and credit card regulation. In each of these areas, erroneous expectations create costs. The largest and most common cost is the failure to adequately self-insure against future negative events like divorce, job loss, or high debt. But proposals for correcting irrational expectations can be costly, in part because unrealistic optimism can also create benefits. This Article develops a Calabresian cost-benefit framework to help us to assess those costs and benefits sensibly, arguing that policy makers should seek to minimize the sum of the cost of disparities between expectations and reality and the cost of reducing those disparities. This approach can help to determine whether it is worth implementing legal reform to close the gap between expectations and reality, and if so, whether to do so by attempting to change the expectations or by changing the law to correspond to existing expectations. This framework provides reasons to rethink existing proposals aimed at informing or debiasing people through law. INTRODUCTION I. STICKY EXPECTATIONS A. The Above-Average Effect, Comparative Optimism, and Overconfidence B. The Self-Serving Bias II. A CALABRESIAN APPROACH A. Debiasing Strategies 1. Dispositional Heterogeneity 2. Situational Heterogeneity B. Regulating in the Face of Limited Knowledge: Asymmetric Paternalism III. CASE STUDIES A. Marriage and Divorce 1. Evidence of Sticky Expectations 2. Is Debiasing Possible? 3. Collateral Costs of Debiasing 4. Alternate Proposals B. Employment Contracts 1. Evidence of Sticky Expectations 2. Is Debiasing Possible? 3. Collateral Costs of Debiasing 4. Alternate Proposals C. Credit Card Usage 1. Evidence of Sticky Expectations 2. Is Debiasing Possible? 3. Collateral Costs of Debiasing 4. Alternate Proposals CONCLUSION INTRODUCTION Many people have erroneous beliefs about whether and under what circumstances the law will shield them from the consequences of a negative event. In some contexts, the vast majority of the population systematically mispredicts both the content of the law and its likely effects on their lives. Many of these mispredictions are highly resistant to change even in the face of accurate and available information. This Article illustrates the consequences of these "sticky" expectations using examples from marriage, employment, and credit card regulation. In each of these areas, erroneous expectations create costs. The largest and most common cost is the failure to adequately self-insure against future negative events like divorce, job loss, or high debt. This Article develops a Calabresian cost-benefit framework to assess possible legal responses to sticky expectations. This framework provides reasons to rethink existing proposals aimed at informing or debiasing people through law. In many aspects of their lives, most people are irrationally optimistic about their futures. They do not think that negative events will happen to them, (1) and sometimes also believe that the law will protect them if the negative event occurs. (2) For instance, couples entering marriages radically underestimate their likelihood of divorce. (3) They also radically overestimate the likelihood that, if they do divorce, the law will provide a financial safety net for the poorer partner by awarding alimony. (4) This irrational optimism can create substantial costs. …

The Myth of the Written Constitution

Abstract: The government of the Union rests almost entirely on legal fictions. --Alexis de Tocqueville (1) Many Americans have long subscribed to what this Article calls the myth of the written constitution--the claim that the nation's Constitution consists entirely of those texts that the sovereign American people have formally ratified, and the claim that the will of the American people, as expressed in those ratified texts, determines the way in which properly behaving judges resolve constitutional disputes. Drawing on two different meanings of the term myth, this Article contends that neither of those claims is literally true, but that Americans' attachment to those claims serves at least three crucial functions. Subscribing to the myth helps to ease the tension created by the American people's paradoxical beliefs that they are morally entitled to govern themselves and that human beings often cannot be trusted to behave in morally praiseworthy ways; it helps to ease the tension between Americans' commitment to self-rule and their attraction to judicial supremacy; and it helps to secure the strong sense of nationhood that so many Americans deeply desire. The Article suggests that embracing the myth of the written constitution for its functional value need not be seen as a shameful act of self-delusion, despite the fictive qualities of the myth's claims. So long as courts and scholars maintain the necessary conditions, the American people can responsibly embrace the myth as an act of "poetic faith." INTRODUCTION I. THE MYTH AS FICTION A. Our Unratified Constitution B. The Ratified Texts' Lack of Adjudicative Primacy 1. The Fictive Quality of Originalism 2. The Fictive Quality of Living Constitutionalism II. THE MYTH AS TRUTH A. Easing the Tension Between Conflicting Commitments 1. Reconciling Self-Rule with Moral Fallibility 2. Reconciling Self-Rule with Judicial Supremacy B. Preserving a Meaningful Sense of Nationhood CONCLUSION: CONFRONTING THE PREDICAMENT INTRODUCTION Either explicitly or implicitly, two claims commonly appear in American citizens' debates about the content of their nation's fundamental law: (1) the United States' Constitution consists solely of those texts that the sovereign American people have formally ratified using the procedures proposed by the Philadelphia Convention in 1787, (2) and (2) when judges properly adjudicate constitutional disputes, their rulings are determined by the collective will of the American people as expressed in those ratified texts. Referring to those two claims together as the myth of the written Constitution, I shall argue in this Article that both of those claims play central roles in helping to legitimize and stabilize the political regime in which the American public wishes to live, but that neither of those claims is literally true. Judges and constitutional scholars thus face an extraordinary dilemma, one that they have not yet fully appreciated: should they work to reinforce the American people's attachment to the myth because of the benefits that attachment yields, or should they take on the demythologist's usual task of urging the rejection of fictitious claims no matter what the costs? The term myth carries two paradoxically different meanings, and I intend to invoke both of them here. First, the term frequently is used as a synonym for fiction. (3) To say that a belief or story is a myth is to say that it rests upon premises or makes claims that are--in some noteworthy sense--false. (4) In the realms of science and history, for example, where we place a post-Enlightenment premium on literal accuracy, the term sometimes is used to describe those things that our benighted forebears quaintly accepted as true, but that we find ourselves no longer able to believe. (5) Second, the term often is used to describe a story or belief that, although false in some respects, nevertheless reflects a community's convictions about fundamental matters or helps the community achieve important objectives. …

The Zoning Diet: Using Restrictive Zoning to Shrink American Waistlines

Abstract: INTRODUCTION Would you like fries with that? Unfortunately, this phrase has become all too common to American adults and children alike. Fast food has become imbedded in American culture. McDonald's golden arches are more recognizable than the Christian cross. (1) In a survey of American children, ninety-six percent were able to identify Ronald McDonald, who was the second most recognized fictional character after Santa Claus. (2) Each year, Americans spend more money on fast food than on higher education, personal computers, or new cars. (3) The amount of money that Americans spend on fast food trumps their combined spending on movies, books, magazines, newspapers, videos, and recorded music. (4) Americans are taking advantage of the ubiquity of fast food restaurants in the United States. Nearly one-quarter of the country's population visits a fast food restaurant on any given day. (5) The omnipresence of fast food is receiving much of the blame for the obesity epidemic in America. (6) Experts agree that a strong correlation exists between the abundance of fast food restaurants and obesity. (7) This correlation is due, in part, to the availability of large, inexpensive, energy-dense portions at fast food restaurants, coupled with the high frequency with which Americans consume fast food. (8) Many states are responding to this epidemic by employing a variety of tools to foster public health, including "snack taxes," public education campaigns, and bans on trans fats. (9) Additionally, many communities are using zoning regulations to restrict or exclude fast food restaurants. These types of zoning ordinances have traditionally been enacted under the guise of community aesthetic concerns, but, within the past several years, local governments have begun to consider employing land use restrictions for the express purpose of promoting public health. In July 2008, the Los Angeles City Council unanimously approved an Interim Control Ordinance (ICO) "designed to address the imbalance in food options currently available in South Los Angeles." (10) The ordinance proposes a one-year moratorium on new fast food restaurants in the South Los Angeles, Southeast Los Angeles, West Adams, Baldwin Hills, and Leimert Park community planning areas. (11) The ordinance defines a fast food restaurant as "[a]ny establishment which dispenses food for consumption on or off the premises, and which has the following characteristics: a limited menu, items prepared in advance or prepared or heated quickly, no table orders, and food served in disposable wrapping or containers." (12) The ICO was drafted and passed in order to provide a strong and competitive commercial sector which best serves the needs of the community, attract uses which strengthen the economic base and expand market opportunities for existing and new businesses, enhance the appearance of commercial districts, and identify and address the over-concentration of uses which are detrimental to the health and welfare of the people of the community. (13) The over-concentration of fast food restaurants in the South Los Angeles region motivated the drafting and passage of the ordinance. (14) The goal of the ICO is to allow city planners to analyze the quantity of fast food restaurants in these communities and to develop solutions to combat the extreme imbalance that has resulted in these areas from decades of spot zoning and neglect in community planning and development. (15) With minimal land remaining for development in these areas, the ICO allows city planners to determine what types of businesses best suit a community with the highest incidence of diabetes in the county and an obesity rate that is nine percent above the county average. (16) The ICO enables council members to actively attract healthier options to these communities, including grocery stores and sit-down restaurants, by preserving the limited existing land for such uses. …

This Constitution: Constitutional Indexicals as a Basis for Textualist Semi-Originalism

Abstract: Debate over proper methods of constitutional interpretation is interminable, in part because the Constitution seems not to tell us how it should be interpreted. I argue here that this appearance is misleading. The Constitution repeatedly refers to itself with the phrase "this Constitution," and claims to make itself supreme law of the land. Debates over what should be supreme for constitutional interpretation can be resolved if, but only if, we have a sufficiently-detailed understanding of what the Constitution is. I consider seven possibilities for what might be the interpretively-supreme "Constitution": (1) the original expected applications; (2) the original ultimate purposes; (3) the original textually-expressed meaning or Fregean sense (the alternative I favor); (4) a collection of evolving common law concepts; (5) a text expressing meaning by today's linguistic conventions; (6) a collection of moral concepts refined through an evolving tradition of moral philosophy; and (7) a collection of non-binding recommendations. Resolving between these alternatives is possible if, but only if, we know that "this Constitution" means. The phrase "this Constitution" on its own is not perfectly perspicuous; the "this Union" clause in Article IV shows that "this" can refer to entities that are neither composed of text nor fixed and unchanging. It is not immediately clear what event--what "constituting"--the word "Constitution" refers to. Canvassing in detail the indexical language of the federal and state Constitutions, I argue that the Constitution is composed of language whose meaning is fixed at the time of the Founding. The close textual relationship of "this Constitution" to forms of "here" and to "enumerate" and explicit references in state constitutions to "this Constitution" appearing on parchment, including bits of language, and doing things "expressly" all point toward a Constitution that is composed of language, and so to textualism. The use of "now," the distinction in the Preamble between "ourselves" and "our posterity, "the specification in the Preamble and Article VII of ratifying conventions as the constitutional author, and the reference to "the time of the Adoption of this Constitution" all point toward a non-intergenerationally-authored constitution that speaks at the time of the Founding and is historically fixed. INTRODUCTION I. THE "WHAT IS THE CONSTITUTION" ISSUE: SEVEN POSSIBLE ANSWERS A. Three Historically Bound Definitions 1. The Constitution as Original Ultimate Purposes 2. The Constitution as Collection of Original Applications 3. The Constitution as Historically Situated, Sense-Expressing Text B. Other Distinctions: Intent v. Understanding v. Meaning, Objective v. Subjective, and Ratifiers v. Framers C. Three Nonhistorical Forms of Textualism 1. The Constitution as Set of Moral Principles 2. The Constitution as Historically Unanchored, Contemporary Meaning-Expressing Text 3. The Constitution as Collection of Common Law Concepts D. The Constitution as Nonbinding E. The Contingency of Constitutional Ontology II. CONSTITUTIONAL INDEXICALS AS A BASIS FOR TEXTUALIST SEMI-ORIGINALISM A. The "This Union" Problem B. "Shall Be Bound" and the Binding Constitution C. Textualism 1. Here is the Constitution: "This" and Forms of "Here" 2. "Enumeration in the Constitution" 3. Engrossing "This Constitution" on Parchment 4. "This Constitution" as Composed of Language 5. "This Constitution" Performing Actions "Expressly". D. Semi-Originalism: The Historically Confined, Nonintergenerational Constitutional Author 1. The Distinction Between "Ourselves" and "Our Posterity," and Ratifying Conventions as "We the People". …

The Troublesome Religious Roots of Religious Neutrality

Abstract: The Supreme Court has repeatedly said that neither it nor any other branch of the state can decide matters that relate to the interpretation of religious practice or belief. The state may not attempt to determine the "truth or falsity" of religious claims, (1) courts may not try to resolve "controversies over religious doctrine and practice," (2) may not undertake "interpretation of particular church doctrines and the importance of those doctrines to the religion," (3) may make "'no inquiry into religious doctrine,'" (4) and may give "no consideration of doctrinal matters, whether the ritual and liturgy of worship or the tenets of faith." (5) This has meant most concretely that, for cases involving disputes within religious organizations, the Court has had to craft special rules, distinct from those governing other controversies. At English common law, if issues of religious doctrine arose in disputes over contract obligations, tort claims, criminal fraud charges, or the administration of a trust, the courts would resolve those issues. (6) Most notably, property contributed to a religious body by a member would bear an implied trust in favor of the fundamental doctrines of that religious body, and in a dispute would be awarded to the group most faithful to those doctrines. (7) The Supreme Court has repudiated that approach. So the Court gives more deference to the decisions of church tribunals than it would give to similarly situated secular bodies. (8) This doctrine has elicited objections: (1) The rule is incoherent as applied to actual practice, since government in fact constantly makes religious judgments, notably when deciding who is entitled to a religious accommodation, or who the relevant religious tribunal is. (9) The rule is even self-contradictory, because it requires courts to decide which controversies are religious and thus beyond the state's cognizance. Because the rule can't be applied consistently, it in fact is applied inconsistently and arbitrarily. (10) (2) "In reality, virtually every action taken by government at least tacitly teaches, if not the truth, then the falsity of some religious beliefs." (11) Thus, for example, teaching Darwin in the public schools implicitly contradicts the views of biblical literalists and creationists. Even the laws against murder contradict the religious beliefs of Aztecs. (12) (3) Sometimes the state has a legitimate need to explicitly contradict, and attempt to change, the religious beliefs of some people. (13) Thus, for example, many American political leaders have noted the importance of encouraging the "ascendancy of a ... version of Islam that is ... friendly to pluralism, [free] markets, and secularism." (14) To evaluate these claims, we must consider why the challenged rule exists--why it is regarded as appropriate for government to keep its hands off religious doctrine. The government should be neutral with respect to religious doctrine just insofar as neutrality is entailed by these reasons. Government neutrality toward religion is based on familiar considerations: the importance of avoiding religious conflict, alienation of religious minorities, and the danger that religious considerations will introduce a dangerous, irrational dogmatism into politics and make democratic compromise more difficult. (15) Here I want to emphasize one consideration that is often overlooked: the idea that religion can be damaged and degraded by state involvement with it. The neglect is apparent, for example, in Frederick Gedicks' (in many ways excellent and insightful) analysis of the Supreme Court's treatment of religion. Gedicks thinks that the Court is nominally committed to principles of secular individualism, which are suspicious of and hostile toward religion, (16) while much of the country is devoted to a very different ethic, "religious communitarianism," which permits the community to define itself and its goals in expressly religious terms, and which exerts a gravitational pressure of its own on constitutional interpretation. …

The Emperor's new Clothes: Exposing the Failures of Regulating Land Use through the Ballot Box

Abstract: This Article analyzes the recent trend of regulating land use through ballot initiatives. Most of this activity occurs in jurisdictions west of the Mississippi River, and as the West becomes the new political battleground, the significance of these initiatives continues to grow. Supporters tout ballot initiatives as a positive mechanism of direct democracy, but this Article makes two normative claims to the contrary. First, regulation of land use from the ballot box produces a deliberative failure. Second, such regulation leads to a planning failure. To prove these claims, the analysis focuses on three areas of land use law at both the state and local levels: private property rights; traditional land use regulations; and environmental law. This examination highlights the negative impacts of replacing traditional land use planning and decision-making implemented by elected officials with ballot measures decided by an uninformed and off-manipulated electorate. In so doing, the Article exposes the reality behind the rhetoric of direct democracy. Following this multivariate analysis, the Article makes four proposals for mitigating the harmful effects of legislating at the ballot box. This Article is the first step in a larger project of defusing the rhetoric, with the ultimate aim of making land use law more efficient, ethical, and democratic. INTRODUCTION I. THE DEVELOPMENT OF BALLOT INITIATIVES IN THE UNITED STATES. A. Ideological Origins . B. Early Development C. The Continuing Debate 1. Support for the Use of Ballot Initiatives 2. Criticisms of the Use of Ballot Initiatives II. THE PRIMARY FAILURES OF BALLOT INITIATIVES IN LAND USE A. Deliberative Failure B. Planning Failure III. LAND USE BALLOT INITIATIVES A. Property Rights Initiatives 1. Eminent Domain 2. Regulatory Takings 3. Eminent Domain and Regulatory Takings B. Development Control Initiatives 1. Zoning 2. Growth Controls C. Environmental Initiatives 1. Alaska: Ballot Measure 4, the "Clean Water" Initiative 2. Arizona: Propositions 105 and 106, State Trust Lands IV. MITIGATING MEASURES A. Indirect Initiatives B. Single-Subject Requirements C. Waiting Periods D. Independent Citizen Boards CONCLUSION [The] portrayal of legislatures as forums for "systematic analysis, in-depth research [and] critical compromise" is pure fantasy. On the most controversial issues, lobbyists backed by big campaign contributors block major reforms. [W]hen the going gets tough, the politicians often freeze up. But in the 23 states with a state-wide initiative process, the voters have the power to make government responsive even when the politicians aren't. --David D. Schmidt (1990) (1) Direct legislation, the creation of progressives of another era, today poses more danger to social progress than the problems of governmental unresponsiveness it was intended to cure. --Derrick A. Bell, Jr. (1978) (2) INTRODUCTION Over the past few decades, citizens have voted in state and local plebiscites on a number of controversial public policy issues, including abortion, (3) affirmative action, (4) education, (5) environmental law, (6) same-sex marriage, (7) medical marijuana, (8) smoking, (9) term limits, (10) and taxes, (11) to name just a few. Twenty-four states and the District of Columbia and about one-half of all U.S. cities authorize the use of ballot initiatives and/or referenda, (12) and approximately eighty percent of those jurisdictions are west of the Mississippi River. The exercise of this form of direct democracy heated up in the 2006 election year cycle. In that year, there were more ballot initiatives and referenda up for consideration than any year in the country's history with the exception of only two years. (13) In 2006, land use regulation was the "signature issue" for ballot measures, (14) and it figured prominently in the 2008 election cycle as well. …

Boumediene's Quiet Theory: Access to Courts and the Separation of Powers

Abstract: Ronald Dworkin may not have been exaggerating when he referred to the Supreme Court's June 2008 decision in Boumediene v. Bush (1) as "one of the most important Supreme Court decisions in recent years." (2) The Court there held that the Constitution's Suspension Clause: (3) "has full effect at Guantanamo Bay," (4) and that the Military Commissions Act (MCA) of 2006 (5)--which precludes federal jurisdiction over habeas corpus petitions brought by noncitizens detained as "enemy combatants" (6)--fails to provide an adequate alternative to the writ of habeas corpus, (7) As such, the Boumediene majority struck down section 7 of the MCA, (8) only the second instance in which the Supreme Court has invalidated a statute because it unconstitutionally removes federal jurisdiction, (9) and the first time it has ever concluded that an act of Congress violates the Suspension Clause. (10) Courts and commentators alike have already felled many forests grappling with the hard questions Boumediene leaves in its wake. Just for starters, do other constitutional provisions "ha[ve] full effect" at Guantanamo? (11) Does the Court's analysis of the availability of habeas corpus to noncitizens at Guantanamo open the door--and the potential floodgates--to habeas petitions from noncitizens held elsewhere overseas, particularly in Afghanistan and Iraq? (12) Does the right articulated by the Boumediene majority protect a remedy for claims other than "core" challenges to executive detention? (13) Does it even include a right to be released (into the United States) when there is nowhere else to send those whom the government lacks the legal authority to detain? (14) Indeed, these questions are only a sampling; it will no doubt be years before the direct implications of Boumediene are fully fleshed out. (15) My project in this Article is not to take up these necessarily fluid questions of application, but to look more carefully at the implications of the "quiet theory" (16) underlying Justice Kennedy's lengthy and complex opinion for the Boumediene majority. In particular, my focus is on what we should take away from his repeated allusions to the relationship between habeas corpus and the separation of powers--a recurring (if surprising) theme of the seventy-page opinion, typified by passages like the following: The [Suspension] Clause protects the rights of the detained by a means consistent with the essential design of the Constitution. It ensures that, except during periods of formal suspension, the Judiciary will have a time-tested device, the writ, to maintain the "delicate balance of governance" that is itself the surest safeguard of liberty. The Clause protects the rights of the detained by affirming the duty and authority of the Judiciary to call the jailer to account. The separation-of-powers doctrine, and the history that influenced its design, therefore must inform the reach and purpose of the Suspension Clause. (17) The Boumediene majority opinion expressly invokes the separation of powers in at least ten additional passages, (18) even though the questions before the Court had to do with the geographic scope and substantive content of the Suspension Clause, and not with a more general alleged violation of the separation of powers (as was the case in Hamdan). (19) Reading Boumediene, one is left with the distinct impression that for Justice Kennedy, at least, the writ of habeas corpus is in part a means to an end--a structural mechanism protecting individual liberty by preserving the ability of the courts to check the political branches. Thus, at other points in Boumediene, Kennedy took pains to emphasize that "the Framers deemed the writ to be an essential mechanism in the separation-of-powers scheme," (20) that, per Alexander Hamilton, "the writ preserves limited government," (21) and, perhaps most pointedly, that "the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers. …

Environmental Enforcement in Dire Straits: There is No Protection for Nothing and No Data for Free

Abstract: Those charged with drafting and enforcing our environmental laws have had to work with little or no information about whether or not these programs are actually working properly. There are a host of reasons for this, many of them having to do with availability of data that can be examined empirically. Using newly available data on state actions in environmental enforcement, and a new data set of state environmental expenditures which they created, the authors of this Article are able to examine for the first time the relationship between state environmental expenditures and the effectiveness of state environmental enforcement for all permitted sources. They conclude that state expenditures on environmental programs are strongly associated with effective environmental compliance, which has important implications for environmental law and policy. The authors also examine the debate over the effectiveness of cooperative- versus deterrence-based enforcement, relate that to findings on state expenditures, and make suggestions for improving the availability of data and environmental enforcement generally. INTRODUCTION While much of the world debates what our environmental laws should be, (1) the less esoteric question of whether the environmental laws we do have are being properly enforced continues to be insufficiently examined. Yet this question is absolutely critical to any discussion of environmental protection or policy. Whether or not one agrees with the goals of our current environmental statutes, determining whether and how environmental laws are enforced is critical to the successful operation of any environmental law, present or future. The question of how well environmental enforcement works is really the question of whether our environmental laws get the jobs of cleaning the environment and protecting public health done. In a world of limited financial resources, the answer to this question must include whether the job is done in the most effective and efficient way possible. As we approach the fortieth anniversary of modern environmental laws, the answer to this "$64 billion question" still is not clear. We are told that the environmental laws provide extraordinarily high benefits if enforced properly. In its Draft Report to Congress on the Costs and Benefits of Federal Regulation, the Office of Management and Budget noted that the EPA estimated the total benefits of ten years of Clean Air Act (2) (CAA) enforcement would be $1.45 trillion, and the benefits for enforcement of the more stringent regulation of criteria pollutants since 1990 would exceed costs of $54 billion. (3) Various assumptions exist, however, relating to these estimates. (4) More importantly, we don't know if these laws are being properly enforced. Even though we can identify the many areas where pollution has been reduced and environmental improvements have occurred, we are unable to clearly determine whether we are valuing and protecting the environment in the most cost-effective and efficient way possible. Numerous commentators have noted that the difference between environmental laws that actually protect the environment and those that do not is highly dependent on whether, and in what way, these laws are enforced. (5) Testing whether we are correctly and/or adequately enforcing our environmental laws, however, has proven remarkably difficult as measures of environmental quality have changed over time and differ between locations. (6) This makes the actual connection between enforcement action and environmental improvements very difficult to ascertain. The possibility of having any more than broad-based measures of actual environmental quality improvements or changes seems so difficult, especially when related to enforcement mechanisms, that their pursuit may be impossible. Throughout much of the history of environmental law, the assumption has been that vigorous enforcement deters noncompliance with laws, and thus, brings about the desired outcomes. …

The Supreme Court's Hands-Off Approach to Religious Doctrine: An Introduction

Abstract: Although the current state of the United States Supreme Court's Religion Clause (1) jurisprudence is an area of considerable complexity, (2) the Court's approach is largely premised upon a number of basic underlying principles and doctrines. In 1971, the Court decided Lemon v. Kurtzman, (3) which delineated a three-part test for determining whether a law violates the Establishment Clause. (4) While the precise contours of the Lemon test have been subject to substantial refinement and modification, (5) the decision has not been overruled, and it remains the starting point for the Court's rulings in this area. (6) In 1990, in Employment Division v. Smith, (7) the Court seemed to upset settled free exercise law, in favor of a broad policy rejecting religious challenges to neutral statutes of general applicability. (8) The Court's decision in Smith prompted considerable criticism, (9) as well as subsequent legislation aimed at reversing and limiting its effect. (10) Nevertheless, the decision stands and, with some exceptions, represents the current state of free exercise law. This Symposium issue of the Notre Dame Law Review explores another underlying principle of the Supreme Court's current Religion Clause jurisprudence, the Court's hands-off approach to questions of religious practice and belief. The Symposium is based on the program of the Law and Religion Section at the 2008 Annual Meeting of the Association of American Law Schools, in which a panel of leading scholars was asked to evaluate the Court's approach. The program description invited a variety of modes of analysis, ranging from descriptive considerations of the extent to which the Court's doctrine can, indeed, be characterized as hands-off, to normative justifications for--and critiques of--the Court's approach, to more practical and consequentialist arguments supporting or opposing the Court's position. (11) On a descriptive level, there is ample Supreme Court case law supporting the proposition that the Court generally eschews decisionmaking that requires adjudication of religious doctrine. (12) As a thresh old matter, as far back as 1944, the Court emphasized that it may not determine the "truth or falsity" of a religious belief. (13) More recently, beginning in 1969, when faced with differing views of religious tenets, the Court has refused to engage in "interpretation of particular church doctrines and the importance of those doctrines to the religion," (14) and has stated plainly that "[c]ourts are not arbiters of scriptural interpretation." (15) Notably, though, in some cases, aspects of the majority's hands-off approach have faced objections leveled by a number of Justices in concurring and dissenting opinions. (16) Moreover, the current iteration of the Court's approach arguably represents the final product of a process in which, over the course of just a few decades, the hands-off doctrine has undergone considerable modification and extension. (17) Additionally, there remain areas of church-state law in which courts may not always be able to avoid the types of judgments that the hands-off approach seems to preclude. (18) Nevertheless, just as Smith and Lemon continue to depict the general contours of the Court's approach to Free Exercise and Establishment Clause law, respectively, the hands-off approach accurately describes the Court's general attitude toward resolving questions of religious doctrine. (19) Therefore, rather than addressing the substantive nature of the Court's hands-off doctrine, the contributors to this Symposium focus on the normative and practical justifications for the Court's approach. As Professor Richard Garnett observes in his Symposium essay, (20) descriptively, the hands-off rule is clear: "state actors should not render religious decisions--decisions involving the resolution of religious questions or the enforcement of religious obligations; we should not, the rule would suggest, use secular law to assure observance of practices with religious significance. …

Condemning Religion: RLUIPA and the Politics of Eminent Domain

Abstract: Should religious landowners enjoy special protection from eminent domain? A recent federal statute, the Religious Land Use and Institutionalized Persons Act (RLUIPA), compels courts to apply a compelling interest test to zoning and landmarking regulations that substantially burden religiously owned property. That provision has been controversial in itself, but today a new cutting-edge issue is emerging: whether the Act's extraordinary protection should extend to condemnation as well. The matter has taken on added significance in the wake of Kelo, where the Supreme Court reaffirmed its expansive view of the eminent domain power. In this Article, we argue that RLUIPA should not give religious assemblies any extraordinary ability to resist condemnation. We offer two principal reasons for this proposal. First, the political economy surrounding condemnation is markedly different from that of zoning, so that broadening the law's protections beyond zoning to cover outright takings would be unnecessary and ineffective. Second, the costs of presumptively exempting congregations from condemnation are likely to be far higher than the costs of doing so with respect to zoning. In conclusion, we identify an important implication of our argument for the law's core zoning provision--namely, our proposal invites local governments to circumvent RLU1PA by simply condemning religious property that they find difficult to zone because of the Act. On the one hand, this gives local governments a needed safety valve while, on the other hand, requiring them to pay just compensation to religious groups. Our proposal therefore suggests a powerful compromise. INTRODUCTION I. AN UNSETTLED QUESTION A. Maximalism B. Minimalism C. An Intermediate Approach II. THE POLITICAL ECONOMY OF RLUIPA A. Zoning and Prophylaxis 1. RLUIPA's Best Defense 2. A Broader Defense B. The Political Economy of Condemnation C. The Costs of Limiting Condemnation 1. The Comparative Costs of Zoning and Condemnation 2. Holdouts 3. Inverse Condemnation III. RLUIPA AS LIABILITY RULE CONCLUSION INTRODUCTION Should religious landowners enjoy special protection against eminent domain? That provocative question is driving the latest fight over the Religious Land Use and Institutionalized Persons Act (1) (RLUIPA). Enacted by Congress in 2000, RLUIPA requires courts to presumptively exempt religious groups from zoning and landmarking laws that substantially burden religious exercise. (2) It provides a powerful legal tool to congregations that wish to, say, build a parking lot or expand their buildings in defiance of municipal restrictions. But does it also confer the power to resist condemnation? If so, then churches, mosques, and synagogues would gain a legal weapon that would threaten the development of municipal infrastructure, economic redevelopment, and even general regulatory power. If not, RLUIPA's core zoning provisions would be deranged because localities that found themselves unable to zone could simply condemn church property and avoid RLUIPA's substantive zoning provisions. In this Article, we side with the latter position and argue that RLUIPA should not apply to eminent domain. We conceptualize RLUIPA as a prophylaxis against intentional discrimination, we offer a political economy account of how such discrimination works in zoning as compared to condemnation, and we propose that the availability of condemnation is an important counterweight to RLUIPA's otherwise expansive protection. RLUIPA should not be extended to outright takings despite the fact that--or indeed because--allowing unfettered condemnation would effectively take some of the bite out of the Act's core zoning provisions. Individually, RLUIPA and condemnation are at the leading edge of current but seemingly unrelated legal controversies. RLUIPA is the latest installment in an ongoing battle over First Amendment protection, and it has rightfully drawn widespread attention, some of which has been supportive and some of which has been highly critical. …

Hands Off: When and about What

Abstract: I. TWO GENERAL THOUGHTS I was very pleased to have the chance to comment on these four thoughtful and challenging papers when they were delivered orally at the Association of American Law Schools (AALS) Convention in January, and I am glad to have the opportunity to share some of my unsystematic thoughts about their published versions. I begin with two general observations before addressing the individual essays in turn. When I came up with the phrase "Hands Off' to liven the title of my article on judicial resolutions of property disputes generated by splits in religious groups, (1) I had not reflected on the wide range of issues that might be couched similarly. The themes of the AALS symposium and the substance of these papers, as well as Samuel Levine's Introduction, show just how broadly that concept may stretch. A great many problems regarding the law of the religious clauses (2) might be put in terms of whether the government should refrain from involving itself with religion. With recognition of the hands-off implications of various issues, we need to keep in mind an important caution. That concept is far from capturing all the constitutional values that are relevant, and the dangers of hands on are much more worrisome in some instances than in others. Here is one illustrative comparison. Were the courts to delve into religious doctrines to resolve intrachurch property disputes, they would be choosing the understanding of one group of sincere worshippers over the understanding of another such group. These disputes arise just because practitioners understand the requisites of their faith in sharply opposed ways. To decide in favor of one side promotes the exercise of religion of that side at the expense of the exercise of religion of the other side. By contrast, if the courts make some inquiry into the content of the religious belief of an individual who seeks an exemption from some standard requirement (say, to be willing to work on Saturday in order to receive unemployment compensation), (3) it may fail to keep its hands off; but it does something that is necessary to facilitate certain forms of free exercise, it does not need to resolve any competing religious claims, and it does not frustrate the religious exercise of one of two competing groups. (4) One may conclude (as I do) that the reasons for the government to stay out of assessing religious claims is much stronger when resolving disputes by reference to church doctrine than when the content of an individual's claim is at stake, and that the value to free exercise of making the latter inquiry is well worth the cost. But whatever conclusion one draws about this particular comparison, one needs to keep in mind that the rubric of hands off is one possible beginning, not the end, of analysis, My second general point concerns a difference between what one needs to resolve in theory in order to have a coherent, systematic approach to a range of issues, and what actual decisionmakers must settle in order to deal with most practical issues. Despite the aspirations and entirely appropriate efforts of legal scholars to critique murky confusions and compromises and offer proposals to clarify, judges and other legal actors manage to stumble along with fair success without resolving certain deeply troubling theoretical issues. One such issue is exactly what constitutes legislative intent. Another may be what precisely counts as religious for various constitutional and statutory purposes. (5) Of course, if the law requires classification in terms of religion, decisionmakers need some notion of what religion is. A number of scholars, including myself, have offered suggestions for how to draw the necessary line(s). (6) But if in the vast majority of cases, a claim or attribute is definitely religious or definitely not religious without regard to which of the competing approaches one follows, judges may manage adequately almost all of the time without clearly adopting one approach in lieu of others. …

The War on Antiquities: United States Law and Foreign Cultural Property

Abstract: INTRODUCTION On the morning of January 24, 2008, federal agents raided four California museums, (1) combing through their galleries, offices, storerooms, and computers in search of evidence that museum officials had knowingly acquired looted antiquities and archaeological materials. (2) According to warrants issued in the investigation, Robert Olson, an antiquities dealer living in California, allegedly led a smuggling ring that, over the course of many years, had succeeded in transporting thousands of ancient artifacts from Thailand, China, Myanmar, and Native American archaeological sites to art dealers in the United States. (3) Mr. Olson conspired with Jonathan Markell, a respected art gallery owner, to sell some of these looted antiquities to an undercover National Park Service agent posing as a collector. The undercover agent then donated the pieces to museums in exchange for inflated tax write-offs. (4) Museum officials, who had varying degrees of knowledge about the antiquities' provenance, agreed to the donations. (5) As the culmination of a five-year undercover investigation, the raids sent shockwaves through the museum community. (6) Prior to the raids, newsworthy scandals involving high-profile collections of stolen art tended to be the result of complaints brought by foreign governments. (7) The 2008 California museum raids are therefore important not only because they mark the first major U.S.-led crackdown on museums for alleged looting, but also because they establish what may be a new level of criminal liability for museum officials under the National Stolen Property Act (8) (NSPA) and Archaeological Resources Protection Act (9) (ARPA), statutes that hold accountable those who deal in stolen property. The use of these statutes to target art dealers and museum officials makes some observers wary, and they warn that it could lead to an increase in the black market trade of art and antiquities. (10) To others, however, the raids are a welcome change in U.S. policy. (11) These observers argue that museums that acquire looted cultural property are like any other crime network, and that the loot should be treated like contraband drugs or endangered species. (12) If in fact these raids indicate that the United States is now treating museum officials who acquire looted art and antiquities like drug traffickers, it is clear that the United States is not alone in its new approach. In October 2008, London's Metropolitan Police began cracking down on the illicit trade in Afghan antiquities, ominously cautioning that "'[i]f [the art] industry fails to heed ... warnings about the purchasing of these items, then ... officers will move on to consider specific intelligence led operations to enforce the law.'" (13) These operations, no doubt, will look something like the 2008 California museums investigation. The use of NSPA and ARPA to prosecute individuals who buy, sell, or otherwise deal in cultural property stolen or illegally exported from a foreign state is in direct tension with the Convention on Cultural Property Implementation Act (14) (CPIA). CPIA is a statute enacted in accordance with an international treaty to which the United States is a party. (15) This Note explores how criminal liability under U.S. law for museum officials and others who acquire art, archaeological materials, and especially antiquities (16) originating in foreign nations conflicts with CPIA's treatment of foreign cultural property. Part I discusses the principle of protection of cultural property in international law and the manifestation of this principle in the United Nations Educational, Scientific and Cultural Organization's 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (17) (1970 UNESCO Convention). Part II examines the 1970 UNESCO Convention's influence on U.S. civil law and policy regarding foreign cultural property, and on the acquisitions policies of inter national and domestic museums. …

Rethinking Prisoner Litigation: Shifting from Qualified Immunity to a Good Faith Defense in 1983 Prisoner Lawsuits

Abstract: INTRODUCTION The vindication of constitutional and federal statutory rights is a significant source of litigation in federal courts. Section 1983 of Title 42 (1) of the United States Code provides an avenue of redress for citizens whose constitutional or federal statutory rights have been violated under color of state law. (2) Section 1983 has been used to enforce such rights, especially by plaintiffs who otherwise might not have the ability to seek effective redress. (3) Prisoners constitute one such class of plaintiffs, (4) as most of their interactions with prison officials involve action under color of state law. (5) The current state of prisoner [section] 1983 litigation is marked by inconsistency. A prisoner whose constitutional or statutory rights have been violated by prison officials faces significant challenges to even have her grievances heard in court as new laws require that a prisoner exhaust all administrative procedures before filing her suit. (6) Assuming the prisoner meets the requirements, her suit will progress differently depending upon whom she sues. If the defendant is a state prison official, he may be allowed to assert qualified immunity, thus diminishing the prisoner's chance of successfully achieving redress. (7) If the defendant is a privately employed guard, however, he is not allowed to assert qualified immunity, but may be able to assert some form of good faith defense. (8) Under this current regime, both prisoners and prison guards are treated unjustly. Adding to the mix is the argument that the federal courts have been inundated with mostly frivolous prisoner lawsuits. While some allege the use of excessive force by guards, others allege the denial of their constitutional right to a certain kind of peanut butter. (9) Given the characterization of the frivolous nature of the latter and the perception that the majority of prisoner suits fit that mold, (10) prisoner suits have become a convenient target for those seeking to limit access to the federal courts under [section] 1983. When the Prison Litigation Reform Act (PLRA) of 1995 (11) was passed in 1996, (12) the prevailing thought was that prisoner litigation would be curtailed significantly. (13) Congress passed the Act in response to the increasing number of prisoner lawsuits being filed and their perceived collective frivolity. (14) An initial examination of the Act's effects seemed to indicate that it had been successful in decreasing the number of prisoner suits. (15) However, it is unclear whether this represents only a decrease in the amount of frivolous prisoner suits, or whether the decrease has also managed to keep legitimate claims out of federal court. (16) Although [section] 1983 prisoner litigation currently suffers from several deficiencies that threaten to undermine the just result [section] 1983 seeks, this Note does not advocate for a complete overhaul of the system. Rather, it hopes to resolve one of the most glaring flaws in the current system--the varying defenses afforded to private and public prison guards. This Note proposes that courts abandon the doctrine of qualified immunity and replace it with a good faith defense in the prisoner litigation context. Such a shift would make it easier for prisoners with meritorious claims to have their cases heard. Further, it would introduce a measure of consistency and fairness with respect to prison guard defendants in [section] 1983 lawsuits. This may be palatable to those afraid of federal court inundation as the flooded courtroom concern--a concern that helped justify the use of qualified immunity-has been somewhat alleviated by the PLRA. Moreover, such a shift would further the important principles underlying [section] 1983 by removing the obstacles facing prisoners who allege violations of their constitutional or federal statutory rights. In Part I, this Note discusses the history and purposes of [section] 1983 litigation and the immunities and defenses available to defendants. …

Giving Teeth to Sherman Act Enforcement in the Intrabrand Context: Weaning Courts off Their Interbrand Addiction Post-Sylvania

Abstract: INTRODUCTION The evasion of antitrust liability for anticompetitive conduct in the intrabrand market is a frequent occurrence, which receives little to no attention from courts. (1) Within many intrabrand markets, anticompetitive and monopolistic conduct is a real threat, if not already a reality, and deserves more attention from the courts than it currently receives. To illustrate the problem, imagine two companies (X and Y) that wish to provide distribution/dealership services for a group of manufacturers of distinct, but similar, products. Imagine, for example, that X and Y both want to open car dealerships in the same geographic area and BMW, Mercedes, and Lexus would all like to have their cars sold by either X or Y. (2) Because the car companies just want their inventory sold, they do not care which one sells their cars. Now let us assume that X has more bargaining power than Y from having leased potential car lots in locations that are more attractive and accessible and can thereby promise the car companies a superior presence in the local luxury automobile market. This sway is enough for X to convince the manufacturers to enter into exclusive distributorship agreements whereby the manufacturer agrees with X that it will not allow competing dealers to sell its products where other dealers might compete with X, (3) which of course includes Y. Due to X's business acumen and excellent locations, X is able to convince all three of the manufacturers to agree to exclusive distributorships. (4) For the duration of each agreement, Y, or any other competitor who wishes to enter this market, will be unable to procure cars to sell from that particular manufacturer. The more exclusive agreements a firm like X is able to secure, the less variety of luxury cars other would-be dealers will have, thus drawing customers away from them and toward X. Eventually, new dealers seeking to enter the luxury car market will find it nearly impossible to contract with one of these manufacturers to sell their cars due to X's exclusive distributorships. Additionally, if the majority of the luxury automobile manufacturers deal exclusively with X, entrants into the luxury dealership business will find themselves with only a few, less popular brands, hardly worth selling. Downstream customers will also lose out-decreased competition among the dealerships due to the exclusive arrangements will manifest itself in higher sticker prices and monopolistic premiums. So, can Y bring a claim under section 1 (5) or 2 (6) of the Sherman Act for anticompetitive dealing or monopolization against X? Although it technically could under the current antitrust regime, Y's chances of surviving a motion to dismiss or summary judgment would be small. (7) As a result, firms in the intrabrand market that are the victims of collusion among competing distributors and their suppliers have little hope of vindicating their right to participate in a competitive market. Thus, ironically, the very laws created to foster competition and punish unreasonable restraints of trade offer the very loopholes through which intrabrand distributors are legally pushed out of the market because, according to the courts, it serves a greater, "pro-competitive" good of increased interbrand competition and efficiency. This Note's analysis is particularly germane in two oft-occurring circumstances. It applies in markets with few distributors and many manufacturers. It also applies, with much overlap, to any market where a distributor is offering an indispensable service to its supplier, and based on its recognition of its own necessity, the distributor insists on exclusive vertical nonprice agreements. These agreements prevent the supplier from allowing other distributors to carry its goods or provide its services--effectively driving the distributor's competitors out of the market. For example, this same issue has arisen in the ticket vending market (involving companies such as Ticketmaster) as well as in the movie theater business, both of which will be discussed below. …

Power, Protocol, and Practicality: Communications from the District Court during an Appeal

Abstract: INTRODUCTION I. COMMUNICATIVE RULINGS A. Incidental Communications 1. Gatekeeping Decisions 2. Other Ancillary Rulings B. Intentional Communications C. Invited Communications 1. Extraordinary Writs 2. Limited Remands D. Assessing Communicative Rulings II. INDICATIVE RULINGS A. Current Practice B. The Proposed New Rules C. Assessing Indicative Rulings CONCLUSION INTRODUCTION It is a commonplace that when a litigant files a notice of appeal from the judgment of a district court, authority over the matters encompassed within the appeal passes from that court to the court of appeals. (1) As the Supreme Court stated in Griggs v. Provident Consumer Discount Co., (2) "a federal district court and a federal court of appeals should not attempt to assert jurisdiction over a case simultaneously." (3) Thus, "[t]he filing of a notice of appeal is an event of jurisdictional significance--it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal." (4) But, as the Supreme Court has suggested in other contexts, (5) describing this transfer in jurisdictional terms may cause confusion. In particular, the term "jurisdiction" might suggest that the vesting of appellate control over the appeal entirely deprives the district court of the ability to communicate any views that bear upon the merits of the appeal. (6) This Article takes issue with that absolutist view. It is true that control passes from the trial court with the filing of a valid notice of appeal, and that the trial court generally must not act with respect to the subject matter of the appeal except to facilitate the appeal's progress. But that does not mean that the district court's views on the case are invariably set in amber as of the filing of the notice of appeal. In this Article, I survey the opportunities for the district court to communicate to the court of appeals its views on matters touching the merits of the appeal, even after the notice is filed. Part I.A observes that a number of matters, ancillary to the appeal, that are entrusted to the district court may permit or require the district judge to reflect on the merits of the appeal. Part I.B notes that, even apart from such ancillary rulings, the district court may sometimes add to its prior statements on the merits of the case even after the filing of the notice of appeal. And Part I.C discusses instances in which the court of appeals may invite or direct such augmentation. The activities canvassed in Part I may provide opportunities for the district court to opine on merits-related issues while the appeal is pending, but--except in rare instances at the margins--they do not permit the district court to alter the judgment that is under review, because it is well established that such an alteration lies beyond the power of the lower court during the appeal. Part II describes a mechanism by which the district court can nonetheless express its view on a request for such relief: when asked for relief that it lacks power to grant because of the appeal, the district court may indicate its view that the request has merit. That "indicative ruling" can then be communicated to the court of appeals, which can decide whether to remand for the purpose of permitting the district court to grant the motion. As this summary suggests, the interaction between the trial and appellate court, during an appeal, can be much more dynamic than a bald quotation of the Griggs rule might suggest. The boundaries of the trial court's authority are, of course, set by the Griggs rule; the lower court must not take actions that would impinge on the appellate court's control over the judgment that is under review. The nuances of those boundaries, though, are influenced by practical considerations--such as efficiency and fairness to litigants--as well as by concerns stemming from notions of the appropriate judicial role. …

The "New Protectionism" and the American Common Market

Abstract: For nearly two centuries, the U.S. Constitution through the dormant Commerce Clause has protected the American common market from protectionist commercial state regulations and taxes. During the past two terms, however, the U.S. Supreme Court created a new exception to the dormant Commerce Clause for protectionist state and local taxes and regulations that favor public rather than private entities. In this Article, we describe this "New Protectionism" and argue that the Court's embrace of it is profoundly misguided. As we document, there is no material difference, economically or constitutionally, between public protectionism and private protectionism. As illustrated by the variety of ways in which government and private enterprise interact, there is no coherent distinction between public and private activities, and ensuing efforts to draw such a line will only serve to embroil the courts in tasks for which it is ill suited. Worse, this new exception only encourages state and local governments to engage in protectionism in a variety of contexts, such as education and local economic development, in which the dangers to national economic union are paramount. Coupled with the Court's recently declared unwillingness to subject nondiscriminatory regulations and taxes to minimal judicial scrutiny, this endorsement of public protectionism threatens to emasculate the constitutional protections for the American common market and should therefore be rethought by the Court or legislatively superseded by Congress. INTRODUCTION I. THE DORMANT COMMERCE CLAUSE, UNITED HAULERS, AND DAVIS A. The Pre-United Haulers Dormant Commerce Clause: A Doctrinal Summary B. United Haulers C. Davis II. ANTIDISCRIMINATION AND THE NEW PUBLIC-ENTITIES EXCEPTION A. The Court's Proffered Justifications B. Evaluating the Proffered Rationales 1. The Likelihood of Nonprotectionist Motivation. 2. Traditional Governmental Functions 3. Virtual Representation 4. Public vs. Private Protectionism 5. Municipal Bond Market Exceptionalism III. THE PUBLIC-ENTITIES EXCEPTION AND THE BIRTH OF THE NEW PROTECTIONISM A. Municipal Garbage Processing and Bond Favoritism B. Public Protectionism C. Quasi Public-Private Protectionism D. Whither the Dormant Commerce Clause? IV. THE NEW PROTECTIONISM AND THE MARKET-PARTICIPANT EXCEPTION A. Summary of the Market-Participant Exception B. Davis's Market-Participant Revisionism C. The Implications of an Expanded Market-Participant Exception V. THE TWILIGHT OF PIKE BALANCING A. Davis on Balancing B. The End of Balancing? Four Readings of Davis C. Against Premature Abandonment of Balancing CONCLUSION INTRODUCTION For close to two centuries, the United States Supreme Court has actively sought to protect interstate trade from undue disruption by state or local governments. Pursuant to the so-called "dormant Commerce Clause," the Court has reviewed state and local legislation to ensure that local measures do not unreasonably disrupt the American common market. (1) Although the Court has deployed different doctrinal formulas over the years to distinguish between legitimate state commercial regulations and illegitimate measures that unduly interfere with interstate trade, (2) one constant has been a strict prohibition on protectionist measures that seek to insulate in-state economic activity from out-of-state competition. Beginning as early as the middle of the nineteenth century, the Court actively rooted out and invalidated state laws that sought to discourage the sale of out-of-state goods or services so as to favor local economic interests. (3) Since then, numerous "discriminatory" measures have been struck down by the Court. (4) Indeed, as others have noted, this antipathy to local protectionism has been a hallmark of the Court's Commerce Clause jurisprudence. …

If an (Endangered) Tree Falls in the Forest, and No One is Around....: Resolving the Divergence between Standing Requirements and Congressional Intent in Environmental Legislation

Abstract: INTRODUCTION During the mid-twentieth century, Congress passed a series of statutes that changed the face of American law. (1) Legislative protection was extended to the air, water, endangered species, and tracts of land where "the earth and its community of life [remain] untrammeled by man." (2) Many of these statutes include "citizen suit" provisions, an innovation designed to foster public participation in environmental protection. (3) The participation encouraged by citizen suits, however, did not follow the traditional model of civic involvement. Indeed, citizen suits were designed to "replace deficient programs of administrative enforcement" (4) with a body of "private attorneys general," (5) encouraging citizens to air their grievances in Article III courts rather than through the political process. (6) Understandably, this new (7) model of enforcement has evoked a wave of commentary and criticism. (8) In the court system, the influx of citizen suits has been accompanied by an evolution (or, many would say, devolution) of the doctrine of standing. Although the exact contours of the standing doctrine still remain unclear, (9) its most recent "phase" has proved challenging to plaintiffs attempting to enforce environmental statutes through citizen suits. (10) In several notable cases, plaintiffs have been barred from court despite Congress' apparent intent to enable "any person" to proceed with a citizen suit. (11) These plaintiffs were barred because they failed to assert a cognizable injury to themselves, although the statutes were seeking to protect the environment, (12) and citizen suit provisions do not require personal harm. (13) An old riddle comes to mind: "If a tree falls in the forest, and no one is around to hear, does it make any sound?" Adapted to the context of environmental law, the question can be posed: "If a tree falls in the forest, and no one is around, can statutory protections be enforced via citizen suit?" By barring plaintiffs who do not sustain a "particularized" injury, (14) courts answer in the negative. Congress, however, in deciding to protect the tree itself, seems to desire an affirmative answer to the question. This divergence between the apparent will of Congress and the doctrine of standing stems from the courts' view of their proper role within the constitutional scheme of government. The Article III judiciary is established to adjudicate disputes between individuals, or "private rights," while the political branches are charged with creating law and taking care that it be faithfully executed. (15) Although a bright-line "public-versus-private rights" rule has not been adopted as the touchstone for what can (or must) be adjudicated in Article III courts, (16) this view of separation of powers has heavily influenced modern standing requirements. (17) Via the doctrine of standing, courts have resisted congressional attempts to use them as a means through which ordinary citizens can influence execution of the law. Rather, an individual may approach a court only when his or her suit seeks to vindicate a "private right"; in other words, when the plaintiff suffers some injury to him or herself and approaches the court seeking relief. (18) Many disagree with this conception of the judiciary's role, and the doctrine of standing has been thoroughly criticized. (19) However, perhaps these criticisms are misplaced. After all, it was Congress that decided to protect the environment, while granting persons the right to sue. Additionally, it was Congress that determined to enforce these statutory protections (at least partially) in the courts, whose jurisdiction is cabined by Article III. Thus, it makes sense that Congress should attempt to resolve the resulting conflict between the branches. This Note assumes that the doctrine of standing properly articulates the role of Article III courts in our tripartite system, and looks to how Congress can repair the disconnect between the purpose of environmental statutes and the injuries required to convey standing. …

Tinkering with Tinker: Protecting the First Amendment in Public Schools

Abstract: The Supreme Court has long recognized that students are protected by the First Amendment in public schools. In the seminal case, Tinker v. Des Moines Independent Community School District,1 the Court affirmed that neither students nor teachers “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”2 However, the Court also laid out two instances in which schools may regulate student speech: when the speech (1) “materially disrupts classwork or involves substantial disorder”3 or (2) “colli[des] with the rights of other students to be secure and to be let alone.”4 Although Tinker laid out two instances in which student speech may be regulated, the Court has largely ignored the “rights of others” prong of the test and instead relied solely upon the “substantial disruption” prong.5 Tinker itself was decided using the “substantial disruption” prong,6 as were the vast majority of other Supreme Court

The (Non)Problem of a Limited Due Process Right to Judicial Disqualification

Abstract: With respect to the people that are supporting me [in my election bid], my position has been the same, which is: if the law's in your favor, then I may find for you. If it's against you, then understand that I may find against you, that's the way it is.... That's what I stand for. --West Virginia Supreme Court Justice Brent D. Benjamin (1) INTRODUCTION When West Virginia Supreme Court Justice Brent D. Benjamin cast the deciding vote--twice--to overturn a $50 million award against Massey Energy Co. (Massey), (2) one hopes that the law was on Massey's side. But, despite Justice Benjamin's assurances that it was, (3) several commentators are not so convinced. (4) Their contentions are not with Justice Benjamin's legal reasoning (though that might also be suspect (5)), but rather with his participation in the case to begin with. Indeed, Caperton presented Justice Benjamin and the West Virginia Supreme Court with an unusual scenario: the CEO of appellant Massey, Don Blankenship, was a vocal and generous supporter of Justice Benjamin's recent West Virginia Supreme Court election campaign. (6) He was, one might say, Justice Benjamin's best supporter. Blankenship donated over $3 million to Benjamin's 2004 election bid--more than all other donors combined--while Massey's case was preparing for appeal. (7) Understandably, Massy's opponents in Caperton sought to remove Justice Benjamin from the case, but Benjamin refused, and he ultimately voted with a three-to-two majority to overturn the verdict against Blankenship and Massey. (8) However, Massey's opponents would have another chance at the casenas it turns out, Blankenship is remarkably well connected in West Virginia, and that first decision was fraught with potential biases. Shortly after the decision, photographs surfaced of then-Chief Justice Elliott "Spike" Maynard (who also sided with the three-Justice majority) vacationing with Blankenship in Monte Carlo while the appeal was pending. (9) Blankenship's opponents requested, and were granted, a rehearing and Maynard removed himself from the case. (10) On the motion of Massey, a third justice, Larry Starcher, also sat out the second case. (11) In his outrage over the first decision (in which he was half of the two-Justice minority), Justice Starcher had proven to not be Blankenship's biggest supporter. Justice Starcher had in fact vocally berated Blankenship, calling him, among other things, "stupid, evil and a clown." (12) But Justice Benjamin did not follow the lead of his colleagues and remained on the case--as acting Chief Justice--and he once again cast the deciding vote for a three-to-two majority in Massey's favor. (13) The Massey saga is, in many senses, alarming, and the public has taken notice. News outlets across the country have followed the story, and editorials from the Charleston Gazette (14) to the New York Times (15) have criticized the West Virginia justices' behavior. Chief Justice Maynard has been called "unworthy of the bench," (16) Justice Benjamin has been attacked for a lack of ethics, (17) and the West Virginia Supreme Court as a whole has been described as a "supreme mess." (18) Maynard has already lost his reelection bid, (19) and West Virginia lawmakers are reconsidering how the State selects its justices in the first place. (20) Famed novelist John Grisham has even used the episode to promote his newest legal thriller. (21) And now, the Supreme Court of the United States has heard the case, and will consider whether Justice Benjamin's participation was unconstitutional. (22) But, perhaps most troubling, the Massey scandal is not as rare as it might seem. Throughout the twentieth century, the United States has intermittently been scandalized by similar judicial ethics controversies. In the 1940s, Justice Hugo Black's participation in a case (23) tried by his former law partner (from twenty years earlier) drew harsh criticism from his colleague Justice Robert Jackson, and "brought the subject of judicial disqualification sharply into the focus of public and professional attention. …

The Accused's Bad Character: Theory and Practice

Abstract: [T]her can be no great smoke arise, but ther must be some fire, no great reporte without great suspition. --John Lyly (1) INTRODUCTION Propensity character evidence has long been a source of consternation for jurists and policymakers in the United States and the United Kingdom. The two systems have struggled to strike an appropriate balance between the relevant nature of such evidence and its prejudicial effects. Until the twenty-first century, both systems had settled upon an exclusionary approach: all propensity character evidence as such was considered inadmissible. However, the Criminal Justice Act 2003 radically altered this landscape in making British character law inclusionary: it now allows prosecutors to adduce evidence of a defendant's bad character provided it passes through one of seven gateways. (2) While the particulars will be addressed later in this Note, (3) suffice it to say that the Act broadly expanded the role of character evidence in criminal prosecutions, as compared to previous British law and current law in the United States. However, a closer look indicates that United States law, in practice, already provides plenty of methods for a competent prosecutor to introduce any piece of propensity character evidence she wishes. In this sense, Britain's recent inclusionary bad character law may be only nominally different from the exclusionary counterpart that the United States has been utilizing all along. This Note argues that the Criminal Justice Act, with its subsequent revisions, sets forth the best statutory approach to the issue of bad character evidence in criminal prosecutions. However, that is not to say that the British approach is superior. Indeed, the flexibility that inheres in the U.S. system has allowed it to evolve into a body of law that mirrors the British law under the Criminal Justice Act, despite statutory language that would suggest otherwise. Part I will establish a baseline, providing a factual overview of the statutory differences between American and British bad character evidence law. Part II will examine the most common justifications for the United States' ostensibly exclusionary approach to evidence of the accused's bad character and will indicate that the better approach would be one of inclusion. Part III concludes that in practice, the United States is already there, through use and misuse of Federal Rule 404(b). Part IV considers recent changes relating to an accused's character evidence in relation to rape and child molestation and points out that the legal changes have not led to changes in practice or results. It also underscores the futility of restricting the legal changes to such a small portion of criminal law. In light of the "true" state of American character evidence, Part V concludes that the Criminal Justice Act could almost as easily be a description of U.S. law as a proclamation of British law. All told, the United States, whose approach is only nominally different from the British approach, reaches the best compromise possible in its propensity character evidence scheme. I. THE LAW The United States, through Federal Rule of Evidence 404, disallows all propensity character evidence as such. (4) Britain, however, with the Criminal Justice Act of 2003, generally allows such evidence. (5) The details of the United States and British approaches to evidence of the accused's bad character wit! here be addressed in this Part. The starting point for any analysis of U.S. evidence law is Federal Rule of Evidence 403, a general rule applicable to all forms of evidence. (6) It mandates that a judge weigh the probative value of any piece of evidence against factors such as the danger of unfairly prejudicing a jury, confusing the jury as to the issues of the case, overtly misleading the jury, or inhibiting the speedy and smooth flow of a trial. (7) Rule 404 is the first rule to directly address the admissibility of character evidence. …