Showing papers in "Notre Dame Law Review in 2013"

Communicative Content and Legal Content

Abstract: INTRODUCTION This Essay investigates a familiar set of questions about the relationship between legal texts (e.g., constitutions, statutes, opinions, orders, and contracts) and the content of the law (e.g., norms, rules, standards, doctrines, and mandates). Is the original meaning of the constitutional text binding on the Supreme Court when it develops doctrines of constitutional law? Should statutes be given their plain meaning or should judges devise statutory constructions that depart from the text to serve a purpose? What role should default rules play in the interpretation and construction of contracts? This Essay makes two moves that can help lawyers and legal theorists answer these questions. First, there is a fundamental conceptual distinction between "communicative content" (the linguistic meaning communicated by a legal text in context) and "legal content" (the doctrines of the legal rules associated with a text). Second, the relationship between communicative content and legal content varies with context; different kinds of legal texts produce different relationships between linguistic meaning and legal rules. I will proceed as follows. In Part I, "Distinguishing Communicative Content and Legal Content," I will investigate the questions raised by differentiating the linguistic meaning of legal texts from the legal content that the texts create. In Part II, "Communicative Content," I will provide an account of communicative content in general and then apply that account in more particular contexts (contract formation, constitutional interpretation, and the interpretation of judicial opinions). My aim is to show that the differences between these contexts lead to systematic differences in the ways we discern the communicative content of different types of legal texts. In Part III, "Legal Content," I will investigate the role that communicative content plays in the determination of legal content. Again, I will investigate different contexts of legal communication, but in this Part with the aim of showing that the role played by communicative content in determining legal content is context sensitive. In some contexts, the meaning of the text has pride of place, but in other contexts, communicative content plays only a secondary role. Finally, in the Conclusion, I will say something about the payoff of this investigation for legal theory and practice. I. DISTINGUISHING COMMUNICATIVE CONTENT AND LEGAL CONTENT For any given legal text, we can distinguish two kinds of content. First, legal texts have communicative content. The phrase "communicative content" is simply a precise way of labeling what we usually call the "meaning" or "linguistic meaning" of the text. Legal texts also have associated legal content. "Legal content" is a precise way of labeling the content of the legal norms the text produces. In the case of the Constitution, for example, we can distinguish the communicative content of the constitutional text and the legal content of the doctrines of constitutional law that are associated with the text. Here is a simple example of the distinction between communicative content and legal content. The text of the First Amendment reads as follows: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. (1) The word "Congress" in the First Amendment has communicative content, usually it is understood to refer to the Congress of the United States, consisting of the House of Representatives and the Senate. But the legal content of First Amendment doctrine is not limited in this way: for example, the freedom of the press applies to judicially created defamation law. (2) Consider some examples of the issues that arise once we distinguish communicative content and legal content. …

Policing the Firm

Abstract: 4. Industry-Level Factors The industry in which a firm operates may affect outcomes. There are factors exogenous to a particular firm that also may affect its predisposition to criminal behavior. Industry structure and poor industry performance may indicate criminality. (165) Similarly, firms in some industries are more prone to criminality than others based on industry culture. (166) Specific to antitrust compliance, antitrust scholarship provides a sense of the types of industry factors on which cartel stability seems to depend for its operation. (167) For example, industry or product cycle, competition within the sector, and cultural factors as to the nature and stability of the cartel influence the effectiveness of leniency. (168) Industry features such as high concentration, entry barriers, relatively inelastic demand, homogeneous products, and greater demand shocks affect the decisions of firms within an industry to participate in a cartel. These industry factors are important for enforcement because cartel stability mitigates the effectiveness of leniency. (169) Industry growth impacts internal compliance. Where there is rapid growth in an industry, it may be that internal controls may not yet be strong enough to prevent wrongdoing. (170) Accordingly, such industries may be more prone to cartel behavior because formal and informal monitoring mechanisms are not in place. (171) The monitoring mechanisms within the firm also impact the ability of a firm to create a distinct culture relative to that of other firms in the same industry. (172) II. CHANGING PENALTY STRUCTURES A. Compliance Programs and the Creation of Super Leniency To encourage cartel detection, DOJ Antitrust provides leniency for corporations and individuals. (173) The leniency program allows for firms to self-report their cartel activity in return for zero government penalties. In the United States, leniency creates a prisoner's dilemma to encourage defection--the firm that is the leniency applicant receives amnesty from criminal prosecution and a reduction from treble to single damages if it fully cooperates. Other firms involved in the cartel may receive lower financial penalties if they provide additional information to DOJ Antitrust that results in detection of other cartels, under a program known as Amnesty Plus. The possibility that firms might defect from a cartel and inform on its cartel members destabilizes many existing cartels and deters other cartels from being formed. (174) DOJ Antitrust now detects most cartels as a result of the leniency program. (175) Yet, the leniency program has certain limits. In particular, the leniency program does not reward the adoption of a rigorous compliance program (other than being the first to self-report). (176) Indeed, the leniency program utilizes a strict liability regime for wrongdoing. This is a departure from other areas of corporate crime where a compliance program allows for a penalty reduction under the Federal Sentencing Guidelines and programs are taken into account in enforcers' decisions on how to proceed against the company. (177) The motivation behind penalty mitigation and taking programs into account is to encourage companies to proactively set up compliance programs to minimize wrongdoing and build an infrastructure of good governance. Informally and at various practitioner conferences (such as those organized by the American Bar Association Section of Antitrust Law), DOJ Antitrust officials have stated that the proper application of the Guidelines almost always results in no credit being given for a compliance program in the sentencing calculations in an antitrust case because these violations are almost always participated in, condoned by, or occur with the willful ignorance of, high-level or substantial authority personnel. Under the Sentencing Guidelines, the three point credit for compliance programs simply does not apply (or, in the case of substantial authority personnel, there is a rebuttable presumption against credit) in such cases. …

The Law and Economics of Products Liability

Abstract: I. INTRODUCTION No area of the law is perfect, and this truism certainly applies to products liability. But products liability law has come in for some unusually harsh criticism in the law and economics literature of late, (1) and much of the treatment of this area by economically-oriented legal scholars has been negative for at least a generation. (2) This Article offers a balanced economic assessment of products liability law. Any reliable assessment of the overall welfare impact of the system will have to depend on empirical work. Economic theory can do no more than offer predictions about the incentives created by the law, hypotheses about the law's welfare effects, and identify the empirical questions that should be addressed. This Article is largely a positive analysis of products liability law, (3) in the sense that it aims to predict the incentive effects and the welfare consequences of the law, with close regard to its specific legal tests. The other major part of this Article is a normative assessment of the pieces of the law that arguably should be reformed. My overarching goal is to set up a framework that can be used both to understand and to criticize the law. In contrast to the law and economics literature suggesting that products liability law is one big mistake, and perhaps should be abolished, (4) I argue that the law probably improves social welfare, though it is in need of reform in several areas. For judges and lawyers who have to work within the existing framework, my hope is that a tailored set of reforms would be more useful than the broad-brush critiques that have dominated the law and economics literature on products liability. On the other hand, a strictly positive economic theory would also be less useful to courts because it would suggest that everything could be just fine. To the extent that there are puzzles about the effects and the likely function of the law, a positive theory can provide answers; (5) but the law is so well entrenched, and so often critiqued, that a normative component is clearly desirable in this case. Products liability law operates largely on products that have observable utility and hidden risks, relative to the safer alternatives available on the market. The observable-utility feature offers an advantage that attracts consumers. The hidden-risk feature leads to injuries. This combination of features is unlikely to be regulated well by the market. The market is likely to fail, for these products, in providing incentives for optimal consumption or for producers to make welfare-enhancing design changes. In contrast, for products with open and obvious risks, the market is likely to regulate optimally, in the sense that where alternative designs exist that offer equivalent utility and less risk, the market will effectively exclude the riskier products. The law has the potential to correct the market's failures. Moreover, the scope of the market that is regulated by products liability law is so vast that the work of courts cannot be supplanted by government regulatory agencies, even if it were possible to avoid problems such as agency capture and languid public-sector incentives. Even in the absence of capture or dull incentives, courts applying liability rules to producers have an advantage over government regulators because they respond to real injuries rather than breaches of regulatory orders, which may or may not generate serious injuries. However, there are some glaring inefficiencies in the products liability system. The cost of litigation is passed on, at least in part, to the consumer, in the form of an implicit liability premium substantially greater than the amount required to fund a compensation scheme for injured consumers. Effectively, consumers must pay a tax on products that supports a comparatively inefficient and administratively cumbersome litigation industry. (6) In addition, products liability law fails to send the right signals for precaution and for product search on the part of product buyers, a group that includes businesses as well as ordinary consumers. …

The Misbegotten Judicial Resistance to the Daubert Revolution

Abstract: INTRODUCTION Until approximately thirty years ago, expert witnesses hired by parties to litigation in the United States could testify almost without limit about any relevant issue within the scope of their expertise. (1) Beginning in the mid-1980s, federal law rapidly and radically evolved until by 2000 all expert testimony needed to pass a reliability test before it could be deemed admissible. (2) Much of this evolution took place in toxic tort cases, in the context of broader debate about the efficiency and justice of toxic tort litigation. (3) Controversy surrounded mass tort litigation involving the morning sickness drug Bendectin, silicone gel breast implants, and the herbicide Agent Orange, among other products and substances. (4) Many courts ultimately determined that much of this litigation relied on causation theories that were not supported by sound scientific evidence. This led to judicial rulings restricting the admissibility of expert testimony, which in turn created sufficient uncertainty and controversy to provoke Supreme Court intervention. (5) In a period of six years, the Supreme Court issued the so-called Daubert trilogy of opinions--Daubert v. Merrell Dow Pharmaceuticals, Inc., (6) General Electric Co. v. Joiner, (7) and Kumho Tire Co. v. Carmichael (8)--each of which tightened the standards for the admissibility of expert testimony. (9) In 2000, an amendment to Federal Rule of Evidence 702 codified a test that allows experts to testify only when their opinions meet a stringent reliability test. (10) The profound changes to the traditional laissez-faire law of expert testimony provoked resistance from some federal judges who favored more liberal rules of admissibility. These judges rejected the early precedents excluding expert testimony from toxic torts cases of the late 1980s, (11) applied Daubert narrowly in the mid-1990s, (12) and, in the late 1990s, exploited loopholes and ambiguities in Joiner and Kumho Tire to admit questionable expert testimony. (13) All of these actions, while broadly contrary to the trajectory of expert evidence law, were within the bounds of a reasonable interpretation of the extant law. Judicial resistance should have withered away, however, after the 2000 amendment to Federal Rule of Evidence 702. The rule provides that expert testimony that would otherwise be helpful to the jury is admissible only when (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. (14) To get a sense of the dramatic shift amended Rule 702 represents, just a decade before it went into effect no American jurisdiction applied such strict admissibility criteria. Most federal courts, recognizing their place in the scheme of things, (15) have acquiesced to the new regime. There has, however, been an extraordinary undercurrent of rebellion by a minority of federal judges who implicitly object to the radical changes (16) wrought by the "Daubert revolution." These judges ignore the text of Rule 702, and instead rely on lenient precedents that predate (and conflict with) not only the text of amended Rule 702, but also with some or all of the Daubert trilogy. (17) The most prominent example of such judicial truculence is the First Circuit's 2011 opinion in Milward v. Acuity Specialty Products Group, Inc. (18) In Milward, the First Circuit reversed as an abuse of discretion a district court's ruling excluding causation evidence in a toxic tort case. (19) In doing so, the appellate court ignored Rule 702, disregarded the Supreme Court's opinion in Joiner, relied on obsolete precedents, misunderstood the underlying rationale for exclusionary rules for expert testimony, misapplied basic scientific concepts, and credulously endorsed "weight of the evidence" as a valid scientific methodology. …

Form over Use: Form-Based Codes and the Challenge of Existing Development

Abstract: INTRODUCTION My grandmother spent most of her adult life in Brownsburg, Indiana, a suburb of Indianapolis. When she first moved there in the 1950s, it was a traditional American small town. There was one stoplight at the corner of Main and Green Streets, with a two-block downtown area featuring a bank, a mom and pop drug store with a soda fountain, a movie theater, a restaurant, a bar, and a cafe. Just a few minutes' walk down the sidewalk was the public library. The owners of these downtown businesses lived above their stores in apartments. My grandparents' first house was on O'Dell Street, a residential, tree-lined street within walking distance of the downtown area. Everyone knew everyone, and my mother complained that she couldn't go to the drug store without her parents hearing about it from nosy neighbors. Over the years, however, more and more cars began crowding the narrow streets, and a one-stoplight town became two, then four. My grandparents moved to a house a mile outside of town, surrounded by cornfields, to get away from the traffic and noise. Eventually, the buildings at Main and Green were razed to make room for expanding streets, and the library was moved to the far end of town. In their place, large shopping centers with huge parking lots were built. No one walked on the sidewalks anymore because everyone needed a car to get where they wanted to be in a practical amount of time. The town began to sprawl out in cookie cutter subdivisions, office parks, and strip malls. For most of my childhood, my grandmother complained about all the "new folks in their ugly houses" and the "endless construction" in town, but was mostly immune to these changes in her little house amidst the cornfields. Then, a farmer nearby sold his lot to a developer who would build another subdivision, and another farmer across the street sold his lot to a church. Sprawl had finally come to her backyard. Today, on the corner of Main and Green Streets, there is a CVS on one side with a large, and usually empty, parking lot, and a bank on the other with an equally large, empty parking lot. In fact, in Brownsburg's new proposed zoning ordinance, over eleven pages are dedicated to parking standards and requirements alone. (1) The town is dominated by big box retail stores, fast food restaurant chains, and large thoroughfares allowing residents to travel in their cars from home, to work, to school, and to shop. In fact, they cannot get to any of these locations without traveling in their car. The reason Brownsburg has transformed from the cohesive, community-oriented small town it used to be to the sprawling, commercial, unremarkable place it is now is conventional, or Euclidean, zoning ordinances. By mandating single-use zones, such as residential, commercial, and office, and creating stringent setback, parking, and low-density requirements, conventional zoning incentivizes towns to spread indefinitely, often without a comprehensive plan in mind. (2) This spread then requires amply wide roads to accommodate the amount of resulting traffic, which is unsafe for pedestrians-and daily needs are usually so far away that they are not walkable at any rate--thus, a car-centric, rather than pedestrian-centric, culture results. (3) If my grandmother were around to see Brownsburg today, she would probably say she liked it better the way it was in the 1950s. And the New Urbanists, proponents of the new zoning alternative called form-based codes, would agree with her. The New Urbanism movement grew "out of widespread dissatisfaction with suburban sprawl," and advocates high density, mixed-use development in place of conventional zoning's low density, single-use pattern. (4) The choice, as New Urbanists see it, is between "either a society of homogenous pieces, isolated from one another in often fortified enclaves, or a society of diverse and memorable neighborhoods, organized into mutually supportive towns, cities, and regions. …

Free Exercise of Religion before the Bench: Empirical Evidence from the Federal Courts

Abstract: We analyze various factors that influence judicial decisions in cases involving Free Exercise Clause or religious accommodation claims and decided by lower federal courts. Religious liberty claims, including those moored in the Free Exercise Clause, typically generate particularly difficult questions about how best to structure the sometimes contentious relation between the religious faithful and the sovereign government. Such difficult questions arise frequently in and are often framed by litigation. Our analyses include all digested Free Exercise and religious accommodation claim decisions by federal court of appeals and district court judges from 1996 through 2005. As it relates to one key extra-judicial factor--judicial ideology--our main finding is that judicial ideology did not correlate with case outcomes. While judicial ideology did not emerge as a significant influence in the Free Exercise context, however, other variables did. Notably, Muslim claimants fared poorly, cases involving exemption from anti-discrimination laws were significantly more likely to result in pro-accommodation rulings, and Asian and Latino judges as well as judges who were former law professors were particularly amenable to Free Exercise and accommodation claims. On balance, our results paint a more complex and nuanced picture of how extra-judicial factors inform Free Exercise and accommodation litigation outcomes as well as judicial decision-making more generally. INTRODUCTION "Religion is among the most fragile of our freedoms," (1) and, as such, religious-based challenges pitting individuals against the State and framed by litigation frequently generate particularly difficult questions about the proper relationship between religiously faithful citizens and the sovereign government. Given our nation's early and continuing history as a place of refuge for religious dissenters, it surprises few that tensions and questions endure about the contours of individuals' religious conscience and practice as well as what the State can--and, sometimes, must--properly do to accommodate religious beliefs and practices. Such tensions and questions both reflect and inform evolving understandings of religion's proper role in American public and political life and the tolerance of religious autonomy against an ever-encroaching government. Similarly unsurprising is that the persistently evolving nature of contests over religious liberty in each generation help account for changes in religious liberty jurisprudence over time. Given the import of the issues incident to litigation over religious liberty issues, combined with increased public attention to the role of religion in public life, a deeper understanding of the various factors that influence judicial outcomes is both warranted and timely. Religious liberty claims moored in the Free Exercise Clause, including requests for accommodation, aptly illustrate the judiciary's frequently-changing approach toward resolving contests over individual religious practices and governmental regulations and commands. Of course, it was not until 1925 when the Supreme Court formally applied the Free Exercise Clause against the states. In Pierce v. Society of Sisters, (2) the Court precluded the State of Oregon from mandating public school attendance as a parent's sole way of complying with state compulsory education laws. (3) Pierce accommodated a claim for religious freedom by permitting parents to satisfy state compulsory education laws by sending their children to religious-based schools. To be sure, religious rights, even when the beliefs are practices that are deeply-held, are not absolute. For example, decades after Pierce the Supreme Court in Employment Division v. Smith (4) allowed the State of Oregon to sanction two workers for using peyote (a controlled substance) even though peyote use was part of a genuinely-held religious ritual. Moreover, the Court's decision in Smith made clear that the state need not demonstrate that enforcing a generally applicable law promoted a compelling interest, even if enforcing such a law made the practice of a religion impossible. …

The Pyrrhic Victory of American Higher Education: Bubbles, Lemons, and Revolution

Abstract: INTRODUCTION While mingling with an old high-school friend--let's call him Troy--at a wedding recently, the conversation took an unexpected turn I asked him how his work at the local grain elevator had been going; he retorted that it was great, aside from the $600 monthly remuneration he was paying in college loans After inquiring about how much longer he would be making these loan repayments, he despondently answered, "the rest of my life" Troy spent more than three years at a large state university in Ohio, but, feeling as if he never truly belonged, dropped out with nothing to show for it except tens of thousands of dollars of debt and nearly four years of his life seemingly wasted The prospect of insurmountable education debt, unfortunately, is one that plagues thousands of individuals across the country--degree in hand or not (1) Many of these dejected souls echo similar tales of peer, parental, and societal pressures, encouraging them to pursue the illusion of the "American Dream," where everyone goes to college and no one has to do "manual labor" Unfortunately, with the economy still reeling from the credit crisis and college enrollment at an all-time high, a large portion of those entering--or at least attempting to enter--the workforce will face the same fate as Troy While this predicament may be easy to dismiss as merely a negative effect of the current economic crisis that will eventually equilibrate, it is more likely that the crisis has exposed a larger problem with our educational system--the proliferation and devaluation of higher education, colloquially known as the "massification of higher education" (2) While a more educated populace is a noble goal, overeducating comes at an expense, and politicians and policymakers must weigh the benefits against the costs in ascertaining the ideal amount of education (3) This Note will attempt to expose a few of the myriad problems created by the over-education phenomenon and offer some suggestions on how to deal with them without major social conflict (4) First, Part I will begin with a brief introduction and rundown of the statistical trends in educational attainment in the United States Part II will then detail the history of higher education policies--political, societal, and economic--which affect Americans' educational choices Next, Part III will explain the serious side effects these policies have created--including, increasing education costs, lower wages for workers, and higher unemployment Part IV will then explore a potential solution, as well as suggestions proffered by others, to diffuse this delicate situation with some not-so-delicate ideas, including changing the high school curriculum and restricting the federal student loan program Finally, the Note closes with some concluding remarks I TRENDS IN HIGHER EDUCATION It is instructive to begin with a short summary of educational achievement trends in the United States Americans today are more educated than they ever have been in the past (5) A study by the United States Census Bureau in 2010 revealed that of adults between the ages of twenty-five to thirty-four, 311% had attained a bachelor's degree (6) In the early 1950s, this number was in single digits (7) The study also found that for adults twenty-five years and older, the percentage with high school degrees and the percentage with bachelor's degrees were both at all-time highs (8) Similar trends are present across all genders, (9) races, (10) and socio-economic backgrounds (11) Over the past few decades, there has also been a major increase in the cost of higher education From 2002 to 2007 alone, the average cost of attending a public four-year university shot up thirty-five percent, outpacing inflation over the same period by a significant margin (12) In fact, between the 1976-77 and 1986-87 academic years, the "average annual inflation-adjusted increase in public four-year college …

Why Gridlock Matters

Abstract: INTRODUCTION A week before the 2012 presidential election, I had the opportunity to speak with a former senator. I asked him about gridlock. I wondered what he would say to my law students who had lost hope in the legislative process because of the gridlock that defined the 112th Congress. He told me that they had good reason to have lost hope. He said that he conceived of the legislative process as a target; that the center of the target represented the areas that were most important to the country and the likeliest ones in which bipartisan agreement could be reached; and that the Patient Protection and Affordable Care Act ("ACA" or "Affordable Care Act"), (1) in which he said that President Obama had invested so much time and capital, was on the periphery, if not the outside, of the target. He explained that the ACA exceeded the scope of congressional power. He explained that opposing the ACA should be the top priority of legislators and citizens. When I asked him what issues were at the center of the target, he initially did not respond. After I politely pressed him for an answer, he eventually said that there was nothing more important than opposing the health care bill. For him, gridlock had become a constitutional necessity. The former senator's position on gridlock is hardly unique. Indeed, more than a year before President Obama's re-election, Antonin Scalia, the longest serving justice on the current Supreme Court, told the Senate Judiciary Committee that, "Americans should learn to love gridlock.... The framers (of the Constitution) would say, yes, 'That's exactly the way we set it up. We wanted power contradicting power (to prevent) an excess of legislation." (2) A few weeks after the 2012 presidential election, Justice Scalia repeated the same message to a packed auditorium at Princeton University, adding "God bless gridlock." (3) This kind of praise for gridlock, coupled with the fact that the last Congress was the least productive in memory, has led many people--both before and after the presidential election--to worry about whether gridlock has become either a permanent fixture, or a reflection of a serious defect, in our constitutional system. Is the gridlock we have witnessed over the past two years something to applaud, as Justice Scalia suggests, or does it reflect some serious defect in the Constitution, the current composition of Congress, the design of the legislative process, or some combination of these things? To what extent is gridlock not just a constitutional virtue but also a constitutional necessity? To what extent does fidelity to the Constitution require embracing or rejecting gridlock? While these and other similar questions motivated this symposium on constitutional gridlock, I do not believe that they are the right questions to ask. The critical question is, however, not whether gridlock is a constitutional necessity, virtue, or problem. If gridlock protects minorities, can it not also hurt them? If gridlock actually is a good thing, does transcending it produce harm? What does overcoming gridlock signify? Is it likely not the case that the failure of gridlock means that legislators somehow have failed minorities--or does it? The glorification of gridlock misses the point, perhaps deliberately so. After all, the framers did not design a constitution in which gridlock was the objective. The Constitution makes gridlock both possible and inevitable, but the purpose of the Constitution is not merely to allow gridlock. In fact, the Constitution makes federal lawmaking difficult but not impossible. Justice Scalia is thus only half correct: We should appreciate not only the salutary effects of gridlock but also its possible harms as well as what it means to say, as Justice Arthur Goldberg famously said in United States v. Mendoza-Martinez, (4) that, "while the Constitution protects against invasions of individual rights, it is not a suicide pact." (5) The most important question is whether Justices Goldberg and Scalia can both be right and, if so, how? …

Putting Paradise in the Parking Lot: Using Zoning to Promote Urban Agriculture

Abstract: INTRODUCTION In March of 1997, Mary Seton Coroby and her then-business partner Tom Sereduk stood on the abandoned, trash-strewn lot of a former galvanized steel plant in Philadelphia. (1) The old industrial site located amongst the still-operating factories of York Street (2) and a neighborhood of tightly packed row houses was perhaps the furthest thing from an archetypal farm property. (3) Undeterred, Mary and Tom capitalized on the beginnings of the "buy local" movement, planting and hydroponically (4) growing thirteen varieties of lettuce and selling to the City's restaurants. (5) Years later, Greensgrow Farm has transformed that once dilapidated industrial lot into a thriving business that earns close to one million dollars a year. (6) Urban agriculture and the local food movement are altering the way Americans think about and experience food production, creating a "new wave of conscious eaters" (7) who want to buy fresh, local, and sustainably grown food. From Michelle Obama's organic vegetable garden on the South Lawn of 1600 Pennsylvania Avenue (8) to rooftop growing beds in Brooklyn, (9) Americans and their cities have begun to take notice of the urban agricultural movement (10) as a way to encourage health, food security, environmental stewardship, and economic and community development. (11) While the success of urban farms is tied to the vision and industriousness of local producers, (12) such as Mary Coroby, it is also inextricably tied to the municipal zoning regulations of the cities the farms call home. The establishment and operation of urban agricultural activities are significantly affected by municipal zoning and land use policies. (13) On a general level, urban agriculture can be defined as "the growing, processing, and distribution of food and other products through intensive plant cultivation and animal husbandry in and around cities." (14) As cities begin to recognize the numerous forms and benefits of urban agriculture, some have taken steps to actively promote it through "protective zoning," (15) which sanctions agricultural production. Conversely, local policies can also place inhibitive restrictions on urban agriculture. Outdated zoning regulations frequently, and often unintentionally, present obstacles to urban agricultural development. (16) Restrictive zoning can prohibit city residents from raising farm animals, constructing greenhouses, and even selling produce from a backyard garden. (17) Examining the policy regimes of cities that have been leaders in urban agricultural zoning (18) can facilitate responsible consideration of the different kinds of zoning and the purposes those models are designed to serve. This Note explores municipal zoning regulations related to urban agriculture and evaluates specific zoning mechanisms that can be implemented to promote the efficient accommodation of urban agriculture and access to locally grown food. Consideration of the benefits and costs of urban agriculture, alongside the zoning practices of leading cities, will assist in developing zoning laws that meet the needs of American cities and citizens. Part I of this Note introduces the concept and history of urban agriculture, providing an overview of its benefits and challenges. Part II examines municipal zoning and the principal zoning restrictions that impact farming and gardening in a city. Part III reviews the varied efforts of municipalities to support urban agriculture by incorporating it into local zoning codes. Part IV concludes by offering recommendations for the municipal integration of agriculture into the urban fabric, with particular attentiveness to participatory policymaking in the form of food policy councils. (19) I. THE CONCEPT OF URBAN AGRICULTURE A basic definition and knowledge of urban agriculture--its history, evolution, characteristics, benefits, and risks--is necessary to realizing how municipal planning and policy can promote farming and gardening in cities. …

The Politics of Statutory Interpretation

Abstract: In a new book, Reading Law: The Interpretation of Legal Texts, Justice Antonin Scalia and Bryan Garner describe and defend the textualist methodology for which Justice Scalia is famous. For Scalia and Garner, the normative appeal of textualism lies in its objectivity: by focusing on text, context, and canons of construction, textualism offers protection against ideological judging--a way to separate law from politics. Yet, as Scalia and Garner well know, textualism is widely regarded as a politically conservative methodology. The charge of conservative bias is more common than it is concrete, but it reflects the notion that textualism narrows the scope of federal law in ways that are attractive to Republicans but not to Democrats. Scalia and Garner hotly deny that charge. Like their critics, however, they fail to develop the argument, or to confront the association of textualism and conservatism in contemporary legal and political rhetoric. This Review explores the connections between textualist methodology and conservative politics, and between methodological and political argument more generally. It shows that textualism is not inherently conservative in design, nor does it reliably produce conservative results. Instead, I argue, the link between textualism and conservatism is historically contingent. It was fused in the rise of the New Right in the 1980s, when conservative judges and politicians embraced textualism in statutory interpretation (together with originalism in constitutional interpretation) as antidotes to the "judicial activism" of the Warren and Burger Courts. Adopting the language of methodology gave Reagan-era pundits an efficient--and legal--means of critiquing existing law and pushing for legal change. Although the story here is about textualism, the lesson is broader. To understand the relationship between textualism and conservatism is to appreciate the political potential of all methodological argument. The features that make methodology most law-like--its facial neutrality and its generality--may also, paradoxically, increase its value as a political tool. By focusing on the "how" of the law, methodology transcends individual cases and issues; it provides a basis for attacking wide swaths of judicial doctrine at once. Precisely because methodology offers a seemingly neutral basis for criticizing judges across a range of cases, it is a uniquely potent force for (and against) legal change--which, in turn, makes it an especially valuable device for popular and political contestation about the law. In this sense, debates over methodology may often, perhaps inevitably, have roots in something much bigger, something we might properly call "political." READING LAW: THE INTERPRETATION OF LEGAL TEXTS. By Antonin Scalia and Bryan A. Garner. St. Paul: West. 2012. Pp. 567. $49.95. INTRODUCTION In Reading Law: The Interpretation of Legal Texts, Justice Antonin Scalia and his co-author, legal lexicographer Bryan Garner, provide a blueprint for the textualist mode of statutory interpretation for which Scalia is famous. (1) The bulk of the book is devoted to explaining seventy "[s]ound [p]rinciples of [i]nterpretation," (2) many of them complicated canons of statutory construction. As such, the "treatise" (3)--as Scalia and Garner describe it--represents a valuable resource for anyone engaged in the work of statutory interpretation. Yet Reading Law is "unapologetically normative." (4) The authors present textualism as a model of what judges should be doing when they interpret texts, not as a description of what most judges already do. (5) The preface and introduction to the book make the normative case for textualism, contributing to an ever-expanding literature on the merits of competing interpretive methodologies. The appeal of textualism, for Scalia and Garner, is that it cabins the judicial role. Textualism instructs judges to give "democratically prescribed texts . …

The Phenomenology of Gridlock

Abstract: Assertions that our legislative process is gridlocked--perhaps even "hopelessly" so--are endemic. So many more of our problems would be fixed, the thinking goes, if only our political institutions were functioning properly. The hunt for the causes of gridlock is therefore afoot. This Essay argues that this hunt is fundamentally misguided, because gridlock is not a phenomenon. Rather, gridlock is the absence of phenomena; it is the absence, that is, of legislative action. Rather than asking why we experience gridlock, we should be asking why and how legislative action occurs. We should expect to see legislative action, the Essay argues, when there is sufficient public consensus for a specific course of action. "Sufficient," in this context, is determined with reference to our specific constitutional structure. And "public consensus" should be understood dialogically, as a function of political actors' engagements in the public sphere. In short, before we declare legislative inaction to be evidence of dysfunction, we should first be sure that the conditions sufficient to trigger legislative action in our constitutional regime have been satisfied. Part I spells out these conditions in greater detail. Once we understand what is constitutionally necessary to motivate congressional action, we are then better able to identify true dysfunctionalities. Part II gives an example of a procedural mechanism that does, in fact, prevent legislative action even when the constitutional conditions for action are met: the Senate filibuster. Attentiveness to the ways in which the filibuster plays out in the public sphere--specifically, the high degree of public support for efforts to circumvent the filibuster--demonstrates its democratic dysfunctionality. The conclusion tentatively suggests a few reasons that observers may be perceiving unusually high levels of gridlock today and considers which of these explanations, if correct, would indicate actual institutional dysfunction. INTRODUCTION: TWO MIRACLES (AND COUNTING) Early in the morning of Saturday, September 22, 2012, the miraculous happened. The Senate, by a vote of 62 to 30, passed HJ. Res. 117, a continuing appropriations resolution funding the federal government through March 27, 2013. (1) The House had passed the joint resolution nine days earlier, by a vote of 329 to 91, and President Obama signed it into law on September 28, averting a government shutdown that would have begun at the end of September. This stood in some contrast to early fiscal fights in the 112th Congress--after all, the government was within hours of shutting down in April 2011 before Congress agreed to fund the government through the end of September 2011; (2) then, in August 2011, the government was within hours of exhausting its borrowing power and therefore defaulting on its obligations before Congress agreed to raise the debt ceiling. (3) The compromise raising the debt ceiling included provisions meant to structure future budgets, including the fiscal year 2012 budget (4)--most notably, it created a joint committee tasked with reducing the deficit by at least $1.5 trillion over ten years (5) and provided for automatic spending cuts split between defense spending and certain discretionary nondefense spending to take effect if Congress did not, by January 15, 2012, pass a joint committee bill reducing the deficit by at least $1.2 trillion over that time. (6) The joint committee failed to report out a bill, (7) and work on a budget for fiscal year 2012 was fraught, with the government again nearly shutting down at the beginning of October 2011. (8) Finally, after operating under a series of short-term continuing resolutions, (9) Congress in November and December of 2011 passed appropriations bills for the remainder of the fiscal year. (10) This series of events was largely responsible for the new conventional wisdom that Congress is hopelessly gridlocked. Congressional scholars Tom Mann and Norm Ornstein, having titled their previous book The Broken Branch, (11) named their new bestseller It's Even Worse Than It Looks. …

Death of Paradox: The Killer Logic beneath the Standards of Proof

Abstract: The prevailing but contested view of proof standards is that fact-finders should determine facts by probabilistic reasoning. Given imperfect evidence, they first should ask themselves what they think the chances are that the burdened party would be right were the truth to become known, and they then should compare those chances to the applicable standard of proof. I contend that for understanding the standards of proof the modern versions of logic--in particular, fuzzy logic and belief functions--work better than classical logic and probability theory. This modern logic suggests that fact-finders first assess evidence of an imprecisely perceived and described reality to form a fuzzy degree of belief in a fact's existence, and they then apply the standard of proof by comparing their belief in a fact's existence to their belief in its negation. This understanding nicely explains how the standard of proof actually works in the law world. While conforming more closely to what we know of people's cognition, the new understanding captures better how the law formulates and manipulates the standards and it also gives a superior mental image of the fact-finders' task. One virtue of this conceptualization is that it is not a radical reconception. Another virtue is that it nevertheless manages to resolve some stubborn problems of proof including the infamous conjunction paradox. TABLE OF CONTENTS INTRODUCTION I. ASSESSING EVIDENCE A. Theories 1. Psychology Theories 2. Probablity Theories 3. Zadeh's Fuzzy Logic B. Legal Application: Oradated Likelihood II. COJOINING ASSESSMENTS A. Fuzzy Operators 1. Maximum and Minimum 2. Product Rule Contrasted 3. Negation Operator B. Legal Application: Conjunction Paradox III. ANALYZING BELIERS A. Shafer's Belief Functions 1. Basics of Theory 2. Negation Operator 3. Lack of Proof B. Legal Application: Burden of Production IV. APPLYING STANDARDS A. Comparison of Beliefs B. Legal Application: Burden of Persuasion 1. Traditional View 2. Reformulated View 3. Implications of Reformulation CONCLUSION Le seul veritable voyage, le seul bain de Jouvence, ce ne serait pas d'aller vers de nouveaux paysages, mais d'avoir d'autres yeux, de voir l'univers avec les yeux d'un autre, de cent autres ** INTRODUCTION We have made tremendous strides, albeit only recently, toward understanding the process of proof. The wonderful "new evidence" scholarship has made especial progress by shifting the focus of evidence scholarship from rules of admissibility to the nature of proof, while opening the door to interdisciplinary insights, including those from psychology. (1) Yet the new work has tended to remain either too wedded or overly hostile to subjective probabilities for evaluating evidence (2) and to Bayes' theorem for combining evidence, (3) and so caused the debates to become "unproductive and sterile." (4) In any event, the debates have left unsolved some troubling problems and paradoxes in our law on proof. The "New Logic" One specific diagnosis of this shortcoming is that the new evidence tended to neglect the contemporaneous advances in logic. (5) The new, so-called nonclassical logic looks and sounds much like standard logic but refuses to accept some critical assumptions. (6) Most commonly, the assumption rejected is that every proposition must either be true or be false, an assumption called the principle of bivalence. But if propositions are not bivalent, so that both P and not P can be true and false to a degree, then one can show that sometimes P equals not P--which is a rather disquieting contradiction. (7) Fashioning the new logic thus faced some challenges in its development. The first move in the new logic of special interest to lawyers relates to and builds on the branch of modern philosophy, beginning with Bertrand Russell's work, that struggled with the problem of vagueness. …

Optimizing English and American Security Interests

Abstract: INTRODUCTION Security is a relationship between collateral and monetary obligations. The essence of the relationship is that if the obligations are not paid, the collateral may be sold and the sale proceeds applied to pay the obligations. The security concept is embodied in mortgages, security interests, and liens. Security enjoys a highly privileged position in American law. A simple-sentence grant of a security interest, (1) combined with the filing of notice in an obscure set of public records, will give the secured creditor's claim priority over employees' wage claims, (2) child support obligations, (3) tax claims, (4) civil damage judgments, (5) criminal fines and forfeitures, (6) claims for unjust enrichment, (7) and just about any other kind of debt imaginable. (8) Scholars have attempted to justify security on both contract and property theories. On the American side, Dean David Leebron best articulated the contract argument: The priority claim of a secured creditor rests almost entirely on principles of contract and notice. A persuasive theory of secured credit financing has been elusive, but the priority of a secured creditor over other financial creditors can be justified on the grounds that non-secured creditors grant a loan knowing that some assets are subject to security interests or could be subjected to security interests without their permission. If particular creditors will not tolerate other creditors having security interests in the borrower's assets, they can refuse to make a loan or make it only if the borrower agrees not to subject its assets to any security interests. (9) Contract cannot, however, justify security because security agreements "[are] effective according to [their] terms ... against purchasers of the collateral, and against creditors." (10) That includes purchasers and creditors who did not consent to the security agreement, had no way of knowing of its existence, or never chose to become creditors at all. (11) Agreement is the essence of contract, but the affected purchasers and creditors have not agreed. As Professors Lynn LoPucki and Elizabeth Warren put it, "[s]ecurity is an agreement between A and B that C take nothing." (12) Other scholars attempt to justify security on property theories. For example, Professors Stephen Harris and Charles Mooney argued: It seems clear enough that security interests, under Article 9 and real estate law alike, are interests in property. The legal regime for security interests reflects property law functionally as well as doctrinally. We believe it follows that the law should honor the transfer or retention of security interests on the same normative grounds on which it respects the alienation of property generally. (13) The property theory begins from the generally accepted premise that a building owner can, by conveying the building in an otherwise unobjectionable transaction, cut off the rights of the debtor's creditors to the building. By analogy, the property theory holds that by conveying the first $100,000 of the value of the building in return for a $100,000 loan, the owner should be able to cut off the rights of the debtor's other creditors to the first $100,000 of the value of the building. Frequent American literature references to security interests as "property" (14) and English literature references to charges as "proprietary" (15) are invocations of this theory. A necessary implication of the property conveyance theory is that encumbered property has multiple owners. The secured creditor owns the value of the collateral up to the full amount of the debt. The debtor owns the value of the collateral in excess of the amount of the debt, the right to redeem the property by paying the debt, (16) and the right to use the property in the interim. The principal policy objections to security are that it is deceptive (17) (the "Deception Problem") and that it distorts incentives for the management of property (the "Incentives Problem"). …

Participation as a Theory of Employment

Abstract: B. Defining "Scope of Employment" Unlike the competing definitions for the term "employee," the term "scope of employment" has not been the subject of various theoretical approaches. The term is not generally used in labor and employment statutes, as in most cases the nature of the rights provided to employees guarantees that those rights concern activities within the scope of employment. (168) The one primary exception is workers' compensation, which only provides protections against injuries incurred within the scope of employment. (169) Outside of labor and employment law, employers are only liable for the torts and crimes of their employees in such actions as are taken within the scope of employment. (170) And intellectual property protections generally only apply to works made within the scope of employment. (171) Scope of employment is defined as that zone of conduct in which the employee is performing her job duties. (172) Efforts to define employees' duties as excluding all torts, statutory violations, or criminal activity have generally been unavailing. (173) Under the doctrine of respondeat superior, if the employee is on the job or within a zone of activity related to the employment duties, the employer will generally be liable for the employee's tort, regardless of the employer's efforts to define such conduct as outside of the employee's duties or authority. Instead, courts have adopted something along the lines of a foreseeability test, in which the employer is liable if the employee's actions are in some way foreseeable. In two famous cases involving drunken sailors, both Judge Hand and Judge Friendly found employers liable for acts of violence to person and property taken by intoxicated employees. (174) In both cases, however, the courts found that the actions were taken within the sailors' overall context of employment and that therefore the employer was liable. (175) Moreover, an employer may be liable for employee actions taken outside of the scope of employment if the master retains some level of responsibility (through intent, recklessness, or non-delegable duty) or if the employee was aided in some way by apparent authority or the agency relationship itself. (176) Given "the proclivity of seamen to find solace for solitude by copious resort to the bottle while ashore," their acts of violence--while regrettable and unauthorized--were sufficiently foreseeable to be part of the costs of doing such business. (177) As a result, "scope of employment" categorization questions have usually concerned not whether the particular employee is following the script of her particular contractual relationship with the employer, but rather whether the activity is part and parcel of the overall employment relationship. (178) The employer is expected to absorb the costs of doing business as a firm, which includes a certain level of employee activity that may not directly inure to the employer's benefit. As the Restatement (Second) of Agency put it, the "ultimate question" in determining the scope of employment is "whether or not it is just that the loss resulting from the servant's acts should be considered as one of the normal risks to be borne by the business in which the servant is employed." (179) Or, as then-Judge Cardozo put it, The risks of injury incurred in the crowded contacts of the factory through the acts of fellow workmen are not measured by the tendency of such acts to serve the master's business. Many things that have no such tendency are done by workmen every day.... The test of liability is the relation of the service to the injury, of the employment to the risk. (180) III. EMPLOYEES AND THE THEORY OF THE FIRM Although we think of employees as defined by their work or labor, the legal definitions of "employee" have much more to do with the relationship between the individual worker and the person or entity for whom she works. …

Gridlock, Legislative Supramecy and the Problem of Arbitrary Inaction

Abstract: INTRODUCTION Gridlock has Congress in a headlock. Gripped by stalemate, America's chief lawmaking body can barely muster the ability to make law. Some argue that this is as it should be--or, at least, as the Framers planned. (1) In actuality, rather than furthering the Framers' vision, gridlock undermines many principles that, together, establish our governmental structure. Specifically, gridlock threatens the fundamental constitutional doctrines of separation of powers and legislative supremacy. Moreover, as many scholars have noted, (2) the Framers were concerned with preventing arbitrary governmental action. Gridlock not only makes the arbitrary exercise of governmental power more likely, but also implicates a new concern: the problem of arbitrary inaction. From tax cuts and the budget deficit, to immigration policy, to taking up key executive and judicial nominations, gridlock prevents Congress from acting on matters that undoubtedly rest within the proper realm of the federal government. My central thesis, then, is this: congressional gridlock threatens our constitutional structure--both as originally constructed in 1787 and as it currently stands. As discussed below, stalemate undermines the core constitutional principles of separation of powers and legislative supremacy, while heightening the risk of arbitrary government decisions--and indecision. Though these core ideas are linked, I will discuss each concept in turn, in hopes of better illustrating the constitutional problems posed by congressional gridlock. I. WHAT IS GRIDLOCK? This Symposium rests on a basic premise: congressional gridlock presents a problem serious enough to warrant a day and valuable ink spent discussing it. I agree. But what is "gridlock?" Put simply, gridlock--or stalemate, as I will use these terms interchangeably--is the inability of Congress to make substantive policy decisions. (3) In other words, the failure by Congress to enact legislation is not, in and of itself, gridlock. Nor are plummeting confirmation rates for judicial and executive branch nominees necessarily signs that the Senate is suffering from stalemate. If Congress chooses to maintain the status quo or if the Senate decides to reject a nominee, that amounts to a substantive decision. But that's not what is happening. With increasing frequency, Congress fails to make policy decisions. For that reason, we've seen far fewer laws enacted during recent Congresses than in the past; (4) the percentage of nominees for whom the Senate takes no action is increasing; (5) the number of cloture votes is at record highs; (6) and Congress is routinely turning to new legislative procedures and gimmicks to overcome gridlock, but those often serve only to allow Congress to avoid making substantive policy decisions. (7) Moreover, gridlock does not always result in preserving the status quo. It depends instead on the default rules in place. Take the recent example of the tax cuts enacted during President George W. Bush's first term. Those cuts were set to expire on December 31, 2012. (8) President Obama and congressional Democrats supported renewing the tax cuts for Americans earning less than $250,000. (9) Republicans preferred to extend the cuts across the board. (10) Despite the shared desire to maintain the tax cuts for most people, gridlock nearly kept Congress from enacting any extension. In that case, the absence of a substantive decision from Congress would have been a change in the status quo. There are many possible causes of gridlock: congressional rules (11)--and specifically, the Senate rules surrounding the filibuster (12)--gerrymandered congressional districts, (13) and a polarized electorate, (14) to name a few. The purpose of this piece, however, is not to debate the causes of, and possible fixes to, congressional stalemate. Instead, the focus is on the constitutional concerns raised by this period of acute gridlock, no matter its roots. …

Virtue Jurisprudence and the American Constitution

Abstract: INTRODUCTION For most of the current period of legal thought, legal realism or instrumentalism have been the strongest forces at work in the field. (1) This has coincided with the rise in popularity of the theories of deontology or consequentialism in the field of moral philosophy. However, since Elizabeth Anscombe's famous 1958 paper Modern Moral Philosophy was published, (2) the theory of virtue ethics (3) has captured a small but growing group of adherents. Moral philosophy, of course, is necessarily and intricately tied to legal theory, and because of this, a corresponding theory is slowly developing in legal academia. For example, Lawrence Solum has already written of the effect of virtue jurisprudence on some areas of the law, (4) and together with Colin Farrelly, has called for a return to the principles of virtue jurisprudence as the basis of law. (5) At best, this project is in utero. (6) Virtue ethics is not, of course, a new field. In one form, its roots in western thought can be traced as far as Plato; (7) however, the treatment given to it by his pupil Aristotle received more attention and is generally regarded as the true birth of the theory. (8) Most early Christians disregarded Aristotelian and other Greek philosophies as pagan, and therefore the theory of virtue and law proposed by Aristotle fell into disfavor among western cultures. (9) The next serious treatment of the theory was in the medieval period, when St. Thomas Aquinas revived peripatetic thought and gave his own detailed account of how exactly the flourishing of human virtue was the goal of government, as well as what a regime was and was not permitted to do in pursuit of this goal. (10) This outline, while by no means exhaustive of the literature on the interaction of virtue and the law, provides a brief sketch of the primary influences on the field of virtue ethics from the pre-Enlightenment western canon. Until the recent treatment of the field, it had remained largely undeveloped from these roots. Recently, as noted above, some have attempted to build on this tradition and adapt our current legal system to virtue ethics, thereby creating a framework which most actively and effectively promotes the common good. (11) In many areas of the law, it remains to be seen or fully explored what sort of effect virtue jurisprudence might have and what the broader implications will be. One of these areas is constitutional interpretation. While the effect of virtue jurisprudence on constitutional adjudication has been explored, (12) the question of whether or not the Constitution may reasonably be interpreted as consistent with the ends of law according to virtue jurisprudence is valid and as yet little-discussed. If the Constitution is incompatible with virtue jurisprudence, then we must choose whether to have our cake or eat it. Such a discovery would not, of course, invalidate the theory of virtue jurisprudence; it would instead require us to conclude that the Constitution does not have a sturdy basis in a valid moral philosophy. (13) For many Americans, this choice between the Constitution and virtue ethics is easy: the Constitution functions neatly enough and is dear enough that it is the clear selection over what is, to most Americans, a nebulous and relatively unknown philosophical mindset. This Note will argue, however, that the two are not only compatible but ideally paired. This is not to say that adopting virtue jurisprudence as the philosophical foundation of the Constitution would be without consequence. Rather, it will argue that the Constitution is compatible with virtue jurisprudence if the reader interprets it in a particular way which is consistent with the founders' general worldview and beliefs. This Note will not attempt to establish that virtue jurisprudence is a superior system to any other, nor that the constitutional interpretation it provides ought to be the preferred method. Instead it will give a theoretical framework by which we as a people might base our Constitution on virtue jurisprudence, if we desired to do so. …

Is Expert Evidence Really Different

Abstract: INTRODUCTION Daubert v. Merrell Dow Pharmaceuticals, Inc. (1) has transformed much of American evidence law. In assigning judges the role of "gatekeepers" of scientific and other expert evidence, (2) and in setting out a list of factors (3) designed principally to keep so-called junk science out of the courtroom, (4) the Supreme Court launched the trial process on a course in which Daubert hearings and Daubert-inspired exclusions of expert evidence are a pervasive feature of modern federal and state litigation. (5) Daubert has been subject to many criticisms. Some focus on the majority's clumsy philosophy of science. (6) Others note the poor fit between the Daubert criteria and the diverse types of expert evidence to which Daubert now applies. (7) Still others express the concern that Daubert's heightened evidentiary hurdles disproportionately burden the mass tort and employment discrimination plaintiffs who are more likely to rely on non-traditional experts and expertise. (8) And there is the broad worry that law should not outsource its own irreducibly legal determinations to science and scientists with different goals and consequently different standards. (9) These criticisms are not without force, but the difficulties with Daubert go deeper. The real problem is not so much about Daubert and the subsequent cases in its line of authority (10) as it is about the very way in which evidence law treats expertise generally. Using experts is, of course, invaluable in numerous litigation settings. But as the price of allowing experts to testify about matters of which they have neither first-hand nor case-specific factual knowledge, (11) evidence law requires expert evidence to satisfy a higher threshold for admissibility than that which ordinarily applies to non-expert evidence. In other words, it is the law of expert evidence generally, and not merely Daubert's gloss on it, that excludes a great deal of otherwise relevant evidence. Excluding relevant evidence might be thought something of a concern, (12) but of course that is what much, and perhaps even most, of evidence law does. (13) Sometimes the exclusion of relevant evidence is a function of a goal extrinsic to the truth-finding process (as with most privileges, for example). (14) More often, however, relevant evidence is excluded because of the fear that certain kinds of admittedly relevant evidence will be overvalued by the trier of fact. (15) It is this fear of overvaluation that grounds, for example, the exclusion of hearsay (16) and much of the bar on the use of character evidence. (17) The same fear of overvaluation also explains much of the exclusion of relevant expert evidence. (18) The risk that juries will overvalue the evidence of experts has long been thought so likely that a standard for admissibility higher than mere relevance emerged as the barrier to jury overvaluation of expert testimony. (19) But the claim that juries (or even judges) will overvalue the testimony of experts is an empirical one, and may well be unsound. (20) Moreover, the contention that juries will overvalue expert evidence is based on an implicit comparison with the presumed accuracy, or at least lack of overvaluation, of more direct evidence, such as the testimony of an eyewitness observer. But that presumption may also be empirically unsound. (21) And if the empirical assumptions about overvaluation of expert opinion and accuracy of direct factual testimony are both mistaken, then the traditional restrictions on expert evidence may be mistaken as well. Thus, the problem with expert evidence is not the inappropriateness of the Daubert approach. The narrow focus on Daubert is misplaced. The real problem is with the more deeply entrenched view that expert evidence should be excluded under circumstances in which analogous non-expert evidence would be admitted. Daubert embodies the distinction between expert and non-expert evidence, but it is that very distinction, and not just Daubert, that is the problem. …

The Union as a Safeguard against Faction: Congressional Gridlock as State Empowerment

Abstract: This short essay, written for Notre Dame Law Review's conference on congressional gridlock, argues that gridlock is an expected and integral component of the legislative process. The bicameralism and presentment requirements of Article I of the U.S. Constitution make legislation difficult to pass in order to protect the public from the whims of shifting congressional majorities. Nevertheless, gridlock that is based primarily on partisan considerations rather than policy differences can be unconstitutional, as defined by Supreme Court caselaw, if it stymies legislation that is in the public interest. The remedy for "unconstitutional" gridlock is not judicial action, however; the solution lies in devolving policymaking authority down to the states, allowing them to address the problem as it manifests within their borders. While not ideal, this temporary fix has some federalism benefits as it encourages experimentalism in law and policy as well as citizen participation in democratic processes at the state level. Moreover, as illustrated by recent controversies over immigration reform, when states take the initiative and craft policy to address national problems, their assertiveness can help break the gridlock by forcing Congress's hand. INTRODUCTION In September of 2012, Republicans in the U.S. Senate blocked a jobs bill that would have provided one billion dollars over five years to help military veterans find work. (1) Veterans have one of the highest unemployment rates in the country, exceeding the national average of 7.8%. (2) Most states are facing their own budget deficits, making it unlikely that they could fund such an initiative. Despite the importance of this legislation, the media reported that Republicans in the Senate blocked the bill in order to deny the Democratic President, Barack Obama, any legislative accomplishments prior to the November 2012 election. (3) This struggle over legislation that was once supported by members of both parties illustrates how the United States political system is a paradox of contrasts. It is governed by a Constitution designed to minimize faction and disperse ambition, (4) yet political scientists concede that "democracy is unthinkable save in terms of parties." (5) Despite our reliance on them, however, political parties in Congress have been responsible for blocking legislation that would further the interests of their constituents and that solves problems that have proven intractable when approached on a state by state basis, like the Veterans Jobs Corp Act of 2012. The notion that our democracy cannot function without parties has led us to overlook whether the efforts of parties to block or defeat legislation in Congress that would otherwise be in the interest of the people is unconstitutional. Perhaps a more precise question would be whether there are constitutional safeguards in place that can and should prevent such gridlock from occurring. (6) This Essay argues that gridlock that is "excessively partisan," as defined by U.S. Supreme Court precedent, is unconstitutional. Thanks to political parties, gridlock has reached beyond Congress and infected the states, and it has the potential to put the entire system into a state of paralysis. Nevertheless, the solution lies, not with the courts, but in those aspects of the constitutional structure that devolve lawmaking down to the states. In particular, the bicameralism and presentment requirements of Article I that make federal legislation difficult to pass allow states to experiment with different policies and procedures to address some of these problems on a local scale. (7) The Framers of the Constitution adopted the bicameralism and presentment requirements to slow the process of federal lawmaking, permitting a certain level of gridlock to persist within the federal system. (8) This structural quirk makes excessively partisan and unconstitutional gridlock difficult to address, but the fact that states can exercise significant authority during these times suggests that partisan gridlock, although unconstitutional, may result in a net positive for helping to recalibrate the balance of power in our federal system. …

New governance and industry culture

Abstract: New governance scholarship argues that a blend of public and private regulation is playing an increasing role in influencing firm behavior. Despite its burgeoning growth, new governance scholarship is critiqued as lacking practical examples. This Article begins to fill that void by conducting a new institutional economics analysis of forest sustainability certifications, an example of new governance. This Article analyzes the features of the domestic forest industry to trace why new governance emerged within it and has persisted for over seventy years. The industrial characteristics that contribute to this longstanding new governance regime include strong norms within the industry, a resource-type that favors user-developed rules, and robust competition among private actors to regulate the industry. These findings suggest that new governance may emerge as a regulatory tool to address environmental problems in other industries that possess similar characteristics. The Article also sheds light into the broader discussion of how to measure the "success" of new governance regimes. B identifies stakeholder involvement relative to the democratic process and displacement of other regulatory tools as two key considerations in evaluating new governance approaches. INTRODUCTION New governance--legal reform emphasizing the role of non-state actors in influencing behavior against a backdrop of the state (1)--is an important emerging intellectual movement. (2) New governance scholars are "engaged in developing a broad menu of legal reform strategies that involve private industry and nongovernmental actors in a variety of ways while maintaining the necessary role of the state to aid weaker groups in order to promote overall welfare and equity." (3) A central feature of new governance is extralegal regulation that privileges private actors in rule setting and rule enforcement, (4) which marks a shift from the previous state centric or market mechanism regulatory approaches. (5) Although the term "new governance" appeared in the literature relatively recently, (6) the underlying idea of private regulation against a backdrop of state enforcement is not new. This Article traces that idea through a review of literatures addressing corporate social responsibility; (7) environmental nongovernmental organizations, (8) and the study of norms in law and economics. (9) Each of these literatures foreshadowed the emergence of new governance by observing that industrial action can be regulated by private regulatory schemes operating against the backdrop of state regulation. Critiques of new governance scholarship center on the lack of detailed empirical studies illustrating the principles in action. Leading articles are critiqued as having a "high level of generality" (10) and focusing on "ambiguous" and "scattered" policy assessments with innovations found "here and there." (11) As a result, examples in the field appear "aberrational, idiosyncratic, or unproven, and the anecdotes and case studies heralding these developments unconvincing...." (12) Adherents to new governance agree that there is a pressing need for detailed studies examining the circumstances of when non-state regulation succeeds. (13) This Article joins in the task of providing examples of new governance (14) to provide a detailed analysis of new governance operating within a particular industrial setting. It conducts a new institutional economics (15) analysis of the industrial features that led to voluntary, market-based sustainability certifications for forests and forest products. Sustainability certifications are a voluntary, primarily private (16) regulatory regime that incentivizes firms to conduct their operations in accordance with what the certification identifies as socially desirable standards. (17) For reasons previously unexplored, the forest industry contains an unusually longstanding example of sustainability certifications. …

Copyright False Positives

Abstract: Copyright enforcement is riddled with false positives. A false positive occurs when enforcement actions are taken against uses that are not actual infringements. Far from benign occurrences, copyright false positives inflict significant social harm in the form of increased litigation and transaction costs, distortions of licensing markets through rent-seeking behavior, increased piracy due to diminished public adherence with copyright law, and the systemic erosion of free speech rights and the public domain. To combat this problem, this Article analyzes the causes that give rise to false positives, as well as their legal and social effects, and offers policy recommendations targeted at mitigating the damage of false positives. These policy recommendations include heightening the registration requirements to include a substantive review of all copyright claims, the promulgation of regulations dictating that copyright registrations be periodically renewed, and revision to the statutory damage provisions of the Copyright Act in order to encourage litigation that would help to excise false positives from the copyright corpus. INTRODUCTION In the geography of intellectual property law, copyright occupies a vast and verdant terrain, but its borders are poorly marked. The imprecise delineation of individual copyrights is both an intentional feature and an inherent flaw of the system: copyrights take minimal effort to acquire, (1) but the metes and bounds of the interests staked are often uncertain. (2) Unlike patents, where property rights are restricted to the claims contained in a successfully prosecuted application, (3) or trademark law, which only protects registered marks actually used in commerce, (4) copyrights inure at the moment of fixation (5) without any procedural or substantive inquiry into their scope. (6) As such, an author (7) of a putatively original work does not know, ab initio, the amount of protected expression contained in this work, (8) and so is unable to assess accurately the strength of her property claims. (9) Her original expression is protected, but the amount of originality her expression contains is often not readily discernible from the work on its face. (10) Similarly, it is often difficult to determine what part of another author's work is protected without extensive analysis of the substance of the work and the circumstances surrounding the work's creation. Every form of creative expression--from the crudest imitation to the highest reaches of originality--draws in part from prior art, both in form and in substance. (11) As a result, the boundaries of any copyright are vague and vulnerable to interpretation and second-guessing. Such lacunae, in combination with other factors, (12) give rise to an abundance of copyright enforcement false positives, (13) where rights holders erroneously believe that their interests in a particular work extend beyond the bounds of what is actually protected. (14) These false positives often motivate copyright owners to seek enforcement of rights that are non-existent or outside the scope of copyright. (15) Such misguided enforcement actions impose significant social costs. (16) For example, automated enforcement technologies frequently send cease-and-desist letters or DMCA notice-and-takedown requests (17) for non-infringing uses. (18) In theory, such actions would seem relatively harmless given the numerous legal means available for alleged infringers to contest these erroneous claims. (19) In practice, however, even if successfully challenged by alleged infringers, the litigation costs (20) involved in correcting enforcement errors impose a burden on creative expressions (21) and the rightful exercise of public rights and copyright exceptions. (22) Second, and even more problematic, are instances where transaction costs and risk aversion inhibit wrongly accused infringers from opposing copyright infringement actions. …

Erie's four functions: Reframing choice of law in federal courts

Abstract: III. ERIE'S IMPLEMENTATION: RETHINKING DOCTRINAL PUZZLES Parts I and II focused on Erie's functions; this Part focuses on its form. The morass of cases constituting Erie jurisprudence address several recurring problems that pose enduring puzzles. This Part illustrates how a more nuanced account of Erie's components can provide a new perspective on puzzles that have confounded courts and commentators for decades. For each puzzle, courts need to know whether their task is to create federal law, interpret federal law, prioritize conflicting laws, or adopt non-federal law. Courts likewise must recognize the difference between choosing an authoritative government, an authoritative institution within that government, and a rule that the institution would endorse. The following sections analyze seven puzzles implicating all four of Erie's components. The goal is not to provide definitive answers, although I do offer some. Instead, the discussion exposes common themes underlying ostensibly dissimilar puzzles and places each puzzle in a context that helps to identify solutions. First, analyzing multiple puzzles in the same article highlights how confusion in each area arises for similar reasons. This similarity is often difficult to discern because judicial opinions and scholarship usually address individual puzzles in isolation. Each problem might therefore appear to be difficult for idiosyncratic reasons. The analysis in this Part reveals that many puzzles arise from or become more difficult because of a shared pathology: a failure to parse Erie into its components. Each puzzle may raise some unique issues, but a more precise account of Erie's distinct components would place those issues in a context that can lead to better solutions. Second, the analysis in this Part situates each puzzle within one of Erie's components and shows how that context can lead to doctrinal reform. A more precise account of where each puzzle fits within the broad Erie landscape helps determine what questions courts should ask and how to formulate coherent answers. A. Creation and the Puzzle of General Law: When Can Federal Common Law Incorporate or Choose General Law Rules that Could Not Apply of Their Own Force? Erie's central holding that "[t]here is no federal general common law" walks a semantic tightrope between the concepts of "federal common law" and "general common law." (128) Shaking the rope highlights how Erie failed to articulate a normative theory that could shape the role of general law in the federal system. The potential utility of such a theory is evident in debates about whether federal common law should apply in some diversity cases and about the status of customary international law in United States courts. The Court in Erie could not reject "federal common law" because federal courts routinely apply such law in multiple contexts. Judges and scholars often do not agree on when to apply and how to craft federal common law. But there is a broad consensus that courts can create federal common law in at least some cases that need a federal solution, but for which the Constitution, legislative action, and executive action have not directly supplied an answer. (129) Examples include rules governing interstate and foreign relations, the federal government's proprietary interests, and admiralty. (130) Likewise, the Court could not deny the existence of "general common law" because the Court itself had been diligently consulting such law since the Founding. Justice Brandeis doubted whether general law was a stable and legitimate source of judicial authority. (131) However, he could not deny general law's historical and contemporary salience as a source of ideas and guidance. (132) Indeed, on the same day the Court decided Erie, Justice Brandeis filed another majority opinion applying a "federal common law" rule of "equitable apportionment" for resolving interstate water disputes. …

Sotomayor's Empathy Moves the Court a Step Closer to Equitable Adjudication

Abstract: INTRODUCTION On August 6, 2009, then-Judge, now-Justice, Sonia Sotomayor was confirmed as the nation's first Latina Supreme Court Justice. (1) While many Latinos embraced the idea of having "Sonia from the Bronx" (2) on the bench, others were fearful that her jurisprudence, combined with her background, would result in "reverse racism." (3) These fears, while arguably unfounded at the time, have been completely dispelled. Just as Justice Thurgood Marshall transformed the adjudications of the Supreme Court through experiential discourse, so too, to a lesser extent, has Justice Sotomayor. In both oral arguments and written opinions, Justice Sonia Sotomayor has demonstrated educative leadership--enlightening her colleagues to other perspectives--while utilizing empathy shaped by her experiences to facilitate her decisionmaking. This empathy has allowed her to give a voice to the habitually unheard, which inevitably generates fairer decisions. Part I discusses two competing theories of judicial adjudication: the traditional model and the empathic model. This Part will call attention to the pitfalls of the formalist mode of decisionmaking, while contending that the use of empathy is the more realistic and humane paradigm of adjudication. This Part will also address and dispel some of the criticisms leveled at empathic decisionmaking. Part II maintains that in spite of the attacks directed toward empathy, it has played a vital role in significant Supreme Court decisions. Both Brown v. Board of Education (4) and Safford Unified School District No. 1 v. Redding (5) demonstrate how the use of empathy has allowed the Court to reach more just and equitable decisions. Part III examines Justice Sotomayor's empathic decision making. This Part first provides a brief history of her life, highlighting the challenges she has overcome. This Part then discusses how Sotomayor believes empathy participates in the decisionmaking process. Finally, in examining oral arguments and her separate opinion in Calhoun v. United States, (6) this Part reveals that, while Sotomayor's empathy gives a voice to those who are typically less heard, it does not amount to bias. In fact, her majority opinion in J.D.B. v. North Carolina (7) refutes accusations of unfair bias by demonstrating how the use of empathy facilitated Sotomayor's ability to be influenced by other perspectives. By taking into account the real-world consequences of her decisions, and acknowledging the litigants' differing perspectives, Sotomayor assists the Court in reaching more evenhanded decisions. I. FORMALISM V. EMPATHY IN ADJUDICATION A. The Traditional View: Formalism In the nineteenth century, the central legal theory was formalism. Under this paradigm, it was understood that "judges decided cases in mechanical, 'scientific' fashion." (8) Judges were likened to pharmacists, prescribing the appropriate rule to correct the legal issue presented. (9) The human element of judicial decisionmaking was altogether rejected; judges were merely the instrument through which relevant legal rules were applied to the particulars of a controversy. Today, this view, which demands that judges abandon the lessons learned from life experiences, has softened slightly. Judge Cardozo was instrumental in the transformation of the prevailing legal theory by calling attention to the impracticability of such a model: "We may try to see things as objectively as we please. None the less, we can never see them with any eyes except our own." (10) To put it simply, a judge cannot separate herself from the experiences that have shaped her, (11) nor should she have to. Judge Cardozo's insights have become established in legal jurisprudence and have triggered various gradations of formalism. While there are those who still believe in "the myth of judge-as-oracle," (12) there are others who propose a quasi-formalist approach. In this method of adjudication, a judge is not a robot, but must "exercise good judgment in reaching decisions. …

Too Many Cooks in the Kitchen: The Potential Concerns of Finding More Parents and Fewer Legal Strangers in California's Recently-Proposed Multiple-Parents Bill

Abstract: "When it comes to parenting, three's a crowd." (1) INTRODUCTION While "family life" remains an important source of joy for the vast majority of Americans, (2) the shape and structure of American family units have changed rapidly such that many American families today would have been almost inconceivable even fifty years ago. (3) Just over one-third of Americans say that the institution of marriage is becoming obsolete, and increasingly fewer Americans think that the traditional family structure of one father and one mother living together with their biological children is worth pursuing. (4) As of 2008, only 52% of Americans adults were married. (5) A large majority of Americans no longer think of marriage as the only way to form a new family--86% of Americans identify a single parent and child as a family, 80% identify an unmarried couple living together with a child as a family, and 63% agree that a gay or lesbian couple raising a child together constitutes a family. (6) Families, once established, are becoming increasingly more fluid--more than 40% of American adults have at least one step-relative in their family. (7) In this developing cultural landscape, fewer women feel the need to wait until they are married to bear children, (8) and, as of 2010, roughly 27% of American fathers lived apart from at least one of their children. (9) Multi-partner fertility (having children with more than one partner) has become more prevalent, and accordingly children live in an increasingly diverse array of households. (10) While family units come in a variety of shapes and sizes, there are a number of ways for a child to enter the world as well. Individuals or couples wishing to have a child have many options open to them, including purchasing donor eggs or sperm, arranging for a traditional or gestational surrogate, procuring embryo donations, or some combination thereof. (11) An estimated 30,000-60,000 children are conceived in the United States annually through sperm donations. (12) Over 1% of all children born in the United States every year are conceived using artificial reproductive technologies, which include methods described above as well as methods in which eggs are removed from a woman's ovaries, combined with sperm in a laboratory, and then returned to that woman or another host. (13) In cases where an egg from one person is combined with the sperm from another and implanted into a surrogate, with the intention that the resulting child will be placed with an entirely different set of parents, what a court should do when the surrogate wants to keep the baby (14) or when one or both of the intended parents back out (15) can be an entirely open question. Determinations of parenthood and appropriate custodial arrangements can also be difficult when children are conceived "the natural way." Courts routinely face situations in which a married woman has a child by another man, (16) or where a lesbian woman and a male friend conceive with the intention that she raise the child with her partner (with or without the man's involvement). (17) Determining who a child's parents are has been and remains a very important endeavor undertaken by courts, as state law is largely built on a system that prefers parents over non-parents in making custody determinations and confers certain rights and responsibilities only on the very limited number of people that the state recognizes as "parents." (18) Traditionally, this limited number has been two, but some judges have responded to the unique families that come into their courtrooms by increasing that number. Legislators have considered ways to increase the flexibility that judges have when adjudicating family structures. One such legislator, California State Senator Mark Leno, who was moved by a particularly messy dependency action that turned on the court's determination of a child's parentage, (19) introduced Senate Bill No. …

Time-Bars: RICO-Criminal and Civil-Federal and State

Abstract: III. STATUTES OF LIMITATIONS IN CIVIL RICO CASES A. History and Justifications Civil statutes of limitations were not a part of English common law, but were creatures of the legislature. (137) The first English statutes of limitations did not specify a time beyond which they barred actions. Instead, the English Parliament chose "certain notable times;"-like the beginning of the reign of Henry I, the return of John from Ireland, or the coronation of Richard I-and barred civil actions involving realty that accrued before that date. (138) In 1540, during the reign of Henry VIII, the Parliament, recognizing the limitations of the old system, passed a permanent statute of limitations that created civil limitations periods. (139) In 1623, the Parliament finally enacted a comprehensive statute of limitations that became a model for American civil statutes of limitations. (140) Many of the same justifications that animate criminal statutes of limitations also apply to civil statutes of limitations. Civil statutes of limitations save defendants from having to defend themselves against stale charges (141) and keep those stale cases out of court. (142) They provide repose for the parties (143) and certainty by notifying potential defendants of the length of their exposure to liability, (144) and they give plaintiffs an incentive to litigate claims without unreasonable delay. (145) Legislatures must balance these justifications for civil statutes of limitations with the interests of the injured party and give the party a fair chance to litigate a valid claim. (146) As with criminal statutes of limitations, legislatures must strike a balance. Plaintiffs should be able to sue for compensation when injured, but at some point the defendant's "right to be free of stale claims ... comes to prevail over the [victim's] right to prosecute them." (147) B. Determining the Limitations Period for Civil RICO Usually, determining whether a civil action is timely involves three questions (148): (1) what is the period of limitations, (2) when does the period accrue, and (3) when did the plaintiff commence the suit? The period of limitations is easy to determine where the legislature has specified it in the statute, but, with federal RICO and many state RICO statutes, the legislatures did not designate a limitations period. 1. Federal RICO a. Before Agency Holding Corp. v. Malley-Duff & Associates, Inc. Before 1987, when the Court decided Agency Holding Corp. v. Malley-Duff & Associates, Inc., (149) federal civil RICO cases did not have an applicable limitations period. Except in rare circumstances, when a federal claim for relief lacks an express limitations period, federal courts adopt the most closely analogous limitations period provided by state law. (150) In theory, at least, adopting state limitations periods (151) ensures that some limitations period will apply to bar stale federal claims, implementing by judicial judgment a policy that rightly belongs with the legislature. (152) In practice, however, the adoption of state limitations periods tends to undermine the purposes of statutes of limitations (e.g., certainty) and leads to forum shopping and unfairness. (153) These frustrating and entangled problems were on stark display when, before Malley-Duff federal courts adopted for varying, and not always consistent, reasons a variety of state statutes of limitations to apply to civil RICO cases. To determine which state claim for relief, if any, was most analogous to civil RICO, federal courts had to "characterize" civil RICO claims. (154) Courts could characterize civil RICO based on the alleged predicate offenses, the nature of the relief requested, or as a distinctive separate offense. Many courts looked to the predicate acts alleged by the plaintiff, analogizing these to state law claims for relief. (155) The decision to "categorize" civil RICO based on the character of the predicate offenses was problematic, however, because of the wide variety of possible predicate offenses that a civil RICO complaint could include, many of which, taken individually, have different periods of limitations under state law. …

Incentivizing Local Reform and Urban Renewal during an Economic Crisis

Abstract: INTRODUCTION "We've reached the limits of suburban development: People are beginning to vote with their feet and come back to the central cities." --Shaun Donavan (1) More and more people, especially young people, are choosing to live in central cities instead of the surrounding suburbs. In the largely free market system for housing within a metropolitan area, suburban localities have traditionally dominated the competition. But with a new generation and a recession times are changing. The question becomes, can local city governments finally compete with their suburban counterparts in the market battle for desirable, long-term residents, and if so, how? Local governments control three major policy areas: education, land use, and law enforcement. (2) Only in these areas can local governments affect the competition for residents. In the ideal world, all localities would produce a strong education system, affordable housing, and effective law enforcement to keep the residents of each locality well-educated, sheltered, and safe, at least at some satisfactory baseline level, but that is not reality. In reality, each government depends on its constituents for tax revenue and many residents, especially in the current economic crisis, cannot afford seemingly basic amenities. Acknowledging the dependency of residents for revenue as an issue, localities across the country have attempted many different reform programs in education, land use, and law enforcement. These reforms can be at the federal level, the state level, or the local level. (3) Academics and politicians alike hotly debate the effectiveness of reforms in each of these categories. Frequently absent from the discussions on urban reform are the motivations (or lack thereof) of the government actors actually implementing the reforms. For example, providing mixed-income housing may address economic and racial segregation most effectively in cities, but without additional incentives developers will not provide mixed-income housing (privately or publicly) because mixed-income developments are not as economically profitable. Effectiveness is only one half of the equation and an effective reform means nothing without the incentives required to motivate political and economic actors to implement it. Therefore, attempts at successful reform must not only consider effectiveness but also incentives. This Note considers the effectiveness of various education, land use, and law enforcement reforms and the political and economic incentives guiding government action, concluding that law enforcement reforms provide the best, and only tenable, strategy for cities looking to attract more "desirable" residents. Part I lays the foundation for a public choice analysis of local governance and inter-locality competition for residents. It discusses the predictive accuracy of the Tiebout hypothesis and outlines the inefficiencies and inequalities that currently result from a free-market localism approach. Next, Part II addresses some of the major societal trends currently occurring and explains why these trends are leading more people to live in cities. From changes in preference, to the availability of jobs, to the opportunity to buy cheap urban land, more and more residents choose city life over suburban life. Nevertheless, the long-term success of cities and the ability to achieve permanent and lasting urban reform will depend on keeping residents in the city. Part III addresses the three main areas where local governments govern: education, land use regulation, and law enforcement. For each area, I explain ways which local governments can make their locality more attractive to prospective residents. Part III details the many steps that have been taken to address concentrated poverty and crime in U.S. cities and why none have been truly successful. While many programs and policy decisions do provide benefits on some level, all fall short on three main fronts--integrating the urban poor with the affluent, improving city public services, and making the city a more attractive place to live. …

Hierarchically Variable Deference to Agency Interpretations

Abstract: II. POSSIBILITIES FOR INSTITUTIONAL. IMPLEMENTATION If the case for hierarchically variable deference is appealing in principle, could our judicial system implement it in practice? This Part presents some structural and doctrinal possibilities for realizing a hierarchically variable regime. First, however, it describes some ways in which our judicial system manifests hierarchical variation even now. The analysis of this Article helps to explain and justify these existing patterns of variation. A. Ways in Which Our System Already Displays Hierarchically Variable Deference 1. Unofficial Doctrinal Divergences? As stated at the outset, official doctrines of deference do not openly embrace hierarchical heterogeneity. (103) Nonetheless, standards of review may be hierarchically variable in practice. Specifically, the Supreme Court may already give agencies less deference than the lower courts typically do. Admittedly, it is hard to be sure: despite the significant and still growing body of empirical literature on deference, (104) the existing research does not allow firm conclusions about differences across courts. Simply comparing agency win rates in different courts will not suffice. For one thing, the Supreme Court's docket is small and highly unrepresentative, reflecting the strategic choices of litigants to seek certiorari and the Justices to grant it. Moreover, it is hard to calculate true levels of deference in any court, for courts might cite a deference regime (or mention facts that would trigger deference) because they plan to defer, rather than the other way around. (Thus, a 100% agency win rate in cases citing Chevron would not necessarily reveal great deference if Chevron went ignored in similar cases that the agency lost.) Nonetheless, despite these complications, there is at least some reason to believe that the Supreme Court is not as deferential as a faithful application of current doctrine would direct. Eskridge and Baer present evidence that the Court does not invoke any deference regime in the majority of cases that involve agency interpretations; this frequently happens even in cases that are, according to prevailing doctrine, Chevron-eligible. (105) The failure to invoke a deference regime is, in turn, associated with lower agency win rates. (106) Further empirical analysis by Raso and Eskridge leads them to the conclusion that the Justices invoke deference regimes episodically and inconsistently, which is not what one would expect if the Court regarded deference regimes as having true stare decisis effect. (107) By way of contrast, there is at least some evidence that the Supreme Court's deference doctrines do have a substantial effect in the lower courts, though to be sure the findings are hardly definitive. (108) Eskridge and Baer float the possibility that the Court regards deference regimes as guides for lower courts but does not regard them as binding or necessary in the Court itself. (109) Even in the absence of definitive statistical evidence, there are some circumstantial and structural reasons to suspect that the Supreme Court is less deferential than lower courts. First, because the Supreme Court has no reviewing court above it, it need not fear reversal for ignoring or misapplying deference regimes in order to reach particular favored outcomes. Second, the Justices might feel (with some justification) that their relatively favorable decision-making environment-their advantages in resources, time, perceived expertise, and so forth (110)--makes deference less necessary for them than for their more "limited" colleagues in the lower courts. Third, it is easier to write an opinion affirming an agency than an opinion reversing it, and so one imagines that deference is an especially appealing path of least resistance for a busy lower court that lacks the luxury of a discretionary docket. (111) If it is true that the Court flouts its own deference doctrines, one response is to lament the Court's disobedience. …

The Plight of the Secular Paradigm

Abstract: Ever since the Peace of Westphalia, or in any case since the Enlightenment, or possibly from the enactment of the American Constitution, or at least since the early twentieth century, or most definitely over the last couple of decades or so, it has been accepted in western nations and their progeny, among dominant minorities anyway (to borrow a term (1)), that governments and the laws they impose must be "secular" (whatever that means). (2) This requirement of governmental secularity has been argued for, or at least asserted, or in any case assumed, in law (3) and in political theorizing. (4) "[T]here is a broad consensus," Jocelyn Maclure and Charles Taylor approvingly report, "that 'secularism' is an essential component of any liberal democracy composed of citizens who adhere to a plurality of conceptions of the world and of the good...." (5) The requirement of secular government has been central to what I will call the prevailing "paradigm of legitimacy." Governments or laws that transgress the requirement by straying beyond the secular and lapsing into "religion" (whatever that is (6)) thereby imperil their legitimacy and compromise their claim on their subjects' respect and obedience. Or at least so it has been widely supposed. The secular paradigm as a basis of political and legal legitimacy was not always in place, (7) however, and it is not foreordained that the paradigm always will be in place. On the contrary, there are indications that the paradigm is already losing its grip--that it may even be in a condition of crisis, or breakdown. Thus, Rajeev Bhargava argues for a rehabilitation of secularism precisely because, as he observes, "[o]nly someone with blinkered vision would deny the crisis of secularism." (8) This Essay explores this perceived crisis. Part I discusses the nature of a "paradigm of legitimacy." Part II outlines the strategies of assimilation and marginalization that historically have supported such paradigms and, borrowing from the work of Thomas Kuhn and Arnold Toynbee, considers the paradigm shifts that can occur when these strategies prove ineffective. Part III illustrates these observations by reviewing the process by which, beginning in the fourth century, a Christian paradigm replaced an earlier Roman one and then in turn was displaced by a more secular view. These first three Parts are a prelude to Part IV, the longest in the essay, which discusses the rise of the secular paradigm, the strategies that have supported it, the increasing futility of those strategies, and the consequent present distress. As part of that discussion Part IV considers a potentially crucial distinction--between a secular paradigm of legitimacy and a paradigm of secular legitimacy--that is usually overlooked in contemporary discussions. The conclusion briefly reflects on the prospects. I. PARADIGMS OF LEGITIMACY Governments claim legitimacy. Not everyone will be persuaded by such claims, of course, or even by the proposed distinction between "legitimate" and "illegitimate" rule. Augustine recounted the story of a pirate captured by Alexander the Great. Asked by Alexander what he meant by marauding on the seas, the pirate answered, "What you mean by warring on the whole world. I do my fighting on a tiny ship, and they call me a pirate; you do yours with a large fleet, and they call you Commander." (9) The story is provocative precisely because it challenges a distinction that is familiar, and a claim that governments make, probably of necessity. Governments claim that there is such a thing as "legitimacy," that they possess it, and that in this respect they are different from other wielders of power (such as pirates, or gangsters). Legal theorists make a similar point with respect to law. Law claims "authority," which can be another name for, or alter ego, or at least close sibling of, legitimacy. (10) There is a crucial difference, H.L.A. Hart famously maintained, between the mugger who demands your wallet and the tax collector who demands your payment; unlike the mugger, as an agent of the (presumptively legitimate) government the tax collector claims authority and imposes, or purports to impose, obligation. …

Legislative Gridlock and Nonpartisan Staff

Abstract: INTRODUCTION In a recent book, former Congressman Mickey Edwards blames much of the gridlock in Congress on the political parties because of their influence over both the electoral process and legislative governance. To address the latter issue, he would revise various congressional rules and procedures (including the Senate filibuster and the role of the House Rules Committee) and institute nonpartisan selection of leadership, committees, and committee staff in Congress. (1) This Essay considers his last suggestion--use of nonpartisan professional committee staff--separate from his other proposals. While his other ideas may have merit, they would require reversal of longstanding traditions in Congress. (2) In contrast, up until around 1970, the existence of nonpartisan professional committee staff was more the rule rather than the exception in Congress. Further, Congress currently delegates important legislative tasks to nonpartisan professionals and has done so for many years. In addition, the significant role staff plays in the legislative process is well-recognized. Thus, a change to nonpartisan professional committee staff might be an idea that could be effected in the near term and have some impact on legislative outcomes. Part I provides background on the principal nonpartisan professional staffs in Congress, past and present. It describes the use of nonpartisan professionals by the committees and a number of legislative support organizations. Part II then explores the impact of nonpartisan professional committee staff on legislative gridlock. It first sketches out a "theoretical case" for why such staff might help reduce gridlock. The case is premised on nonpartisan staff having an expertise distinct from that of partisans, and sufficient influence in Congress to effect legislative outcomes. The remainder of Part II then raises several questions about this theoretical case, including whether the required "expertise" and "influence" of nonpartisan staff are, to some extent, incompatible. Before we begin, a few cautionary notes. The role of political parties in Congress is sometimes explained as a way to make the legislative process more efficient. Members of the same party are thought to have certain preexisting relationships that can be drawn upon to help negotiate and produce legislative outcomes. Under this view, parties help to reduce the transaction costs of legislating. (3) Diminishing the role of the parties in Congress could, therefore, make legislative solutions more costly and even harder to attain. Moreover, increased party influence in Congress (and the greater centralization of power that often accompanies it) has generally operated in the past to counter the decentralizing effect of the committee system (another labor-saving device used by Congress). (4) Reduced importance of the parties in Congress, therefore, could result in strengthened committees and subcommittees. Yet strong committees (and the seniority system) have themselves been blamed in the past for producing legislative stalemate. (5) Thus, even if Edwards is correct that party control over congressional governance somehow contributes to gridlock, it is not clear that the default arrangement (if party influence is reduced) would be an improvement. (6) In addition, although this Essay concerns the use of staff in Congress, it takes no position on what the proper role of staff should be. Some have questioned, for example, whether the prominence of staff activities and influence is consistent with principles of representative democracy. (7) This Essay simply accepts as a given the role staff plays, and explores whether the unelected nature of staff might provide some advantage to help Congress overcome the forces causing gridlock. Finally, this Essay also assumes, without passing judgment on, the underlying premise of this symposium--the existence of gridlock in Congress. The remarkable lack of productivity of the nation's divided government during the just-completed 112th Congress (2011-2012)--complete with a frantic, ludicrous effort at the very end of the Congress to unwind mechanisms the same legislature had created earlier to force itself to act on fiscal matters--nevertheless followed a two-year period of much greater legislative productivity (when control of government was unified under one party and the country faced a financial and economic crisis). …

Mandatory National Service: Creating Generations of Civic Minded Citizens

Abstract: I. INTRODUCTION While on the campaign trail in the fall of 1960, Senator John F. Kennedy addressed students at the University of Michigan, proposing a novel idea: How many of you who are going to be doctors, are willing to spend your days in Ghana? Technicians or engineers, how many of you are willing to work in the Foreign Service and spend your lives traveling around the world? On your willingness to do that, not merely to serve one year or two years in the service, but on your willingness to contribute part of your life to this country, I think will depend the answer whether a free society can compete. I think it can! And I think Americans are willing to contribute. But the effort must be far greater than we have ever made in the past. (1) With this call to action, Kennedy launched the Peace Corps, (2) a federal program that continues to place thousands of Americans in service-work opportunities abroad. (3) While Kennedy evoked higher principles to draw young Americans on college campuses to action, young Americans on the same college campuses--and elsewhere--were publicly raging against a public duty: the military draft. (4) As the war in Vietnam ramped up, and more and more young American males were conscripted into the armed services, people asked more and more questions about the legitimacy--both constitutionally and practically--of requiring military service. While many proposed eliminating the draft completely, others proposed a broader and more creative solution: expanding service to create an obligation for all Americans. (5) While the scope of such proposals varied, the intentions were the same. None of these suggestions gained much traction, however, and calls for an expanded national service program faded, especially as increased hostilities in Vietnam distracted America's leaders. (6) In the late-1980s and early-1990s, the efforts of both Presidents George H. W. Bush (7) and Bill Clinton (8) led to the creation of AmeriCorps, a federal organization with goals similar to those of the Peace Corps, focused on domestic service. (9) AmeriCorps, and the many organizations under its umbrella, (10) have spiked in popularity, (11) attracting highly qualified young Americans and placing them in some of the most impoverished areas of the United States. (12) Despite the popularity of such programs, some scholars, mainstream media members, and politicians argue this is not enough, calling on the government to broadly expand the national service programs. (13) Many modest expansions of existing programs are met with little controversy. (14) However, a few have advocated for sweeping changes in the form of mandatory national service. (15) Merely mentioning mandatory national service can invoke calls of socialism and slavery, sparking pointed criticism regarding the merits and the constitutionality of such a program. (16) This Note will focus on the constitutionality of such a compulsory national service program in hypothetical form. While debate in the media has focused on the socio-economic and vocational benefits of a broad national service program, legal scholars have said little on the issue of whether such a program would even withstand the scrutiny of the Supreme Court. Although no court has addressed the issue, legal scholars in the 1980s briefly engaged in a dialogue regarding the validity of mandatory service. (17) This dialogue will serve as a good starting point, with a set of circuit opinions providing an additional analytical framework for what remains an open issue. This Note will argue that such a scheme, though unprecedented in scope and impact, would withstand constitutional scrutiny. Politicians, scholars, and--ultimately--voters must decide whether or not a program similar to that proposed by this paper should move beyond the hypothetical and become reality; such a normative argument, however, is beyond the scope of this Note. …

Senate Gridlock and Federal Judicial Selection

Abstract: One crucial locus of gridlock is appointments to the United States Courts of Appeals, which have grown extremely contentious, as the circuits resolve disputes about controversial issues and can effectively be tribunals of last resort for designated areas Continuous Republican and Democratic charges, recriminations, and divisiveness have roiled the process for decades The bench constitutes 179 judgeships; however, seventeen remained vacant at President Barack Obama's second inauguration notwithstanding his pledge to end the "confirmation wars" by assiduously consulting senators Laboring without ten percent of the appellate court members subverts prompt, inexpensive and fair case disposition and undermines citizen respect for selection and the government These propositions demonstrate that upper chamber gridlock and circuit appointments merit review, which this piece undertakes Part One explores the conundrum The assessment concludes that it derives from rampant partisanship and skyrocketing caseloads, which necessitate more judicial positions; they enlarge the number of vacancies, which complicates selection The paper next descriptively and critically recounts developments in Obama's tenure Scrutiny reveals that appointees principally comprised very qualified ethnic minority and female jurists who averaged fifty-five years of age upon nomination Their confirmations improved diversity and signaled the realization of a career judiciary while marginally widening the experience and age range of the appeals courts Determining that Obama has proffered sufficient, highly competent individuals, whom the Senate Judiciary Committee has robustly approved, to facilitate processing, but that the chamber has neglected to expeditiously vote on many, this Article canvasses promising ideas that will enhance selection and counter gridlock I THE HISTORY OF THE JUDICIAL SELECTION DIFFICULTY A Introduction The history of the appointments predicament requires limited consideration in this Article because the concern's origins and development have experienced comprehensive investigation elsewhere (1) and the contemporary situation is most relevant The problem actually comprises two aspects One salient element has been the persistent vacancies dilemma, which resulted from expanding federal court jurisdiction and soaring dockets initially manifested throughout the 1960s These enlarged the regional circuit and district court judgeships, radically increasing the quantity and frequency of open posts while slowing confirmations Another essential dimension of the modern vacancy conundrum is political and can be ascribed to conflicting Republican and Democratic control of the White House and Senate that commenced about a quarter century ago (2) B The Persistent Vacancies Problem Congress enhanced federal jurisdiction around the 1960s (3) It criminalized much behavior and recognized numerous federal civil actions, developments that have contributed to accelerated cases and concomitant burgeoning appeals (4) Congress mainly addressed the rises by expanding judgeships to the present complement: 179 (5) A study of the decade and a half following 1980 concluded that appointment times rapidly mushroomed (6) Circuit nominations demanded one year and confirmations three months, and both perceptibly increased (7) Conditions acutely worsened subsequently For example, nominations consumed practically twenty months while appointments reached six months in 1997--the earliest year of President Bill Clinton's last term--and in 2001--the starting year of President George W Bush's inaugural administration (8) The specific periods closely resemble Obama's term and merit systematic comparative analysis The numerous and convoluted steps and number of participants in the contemporary nomination and confirmation processes mean that a certain amount of delay seems inevitable (9) Presidents and staff charged with responsibility for picking appellate nominees traditionally consult home state elected officers, pursuing much support and constructive advice regarding putative choices …