Showing papers in "Notre Dame Law Review in 2016"

Revising Our "Common Intellectual Heritage": Federal and State Courts in Our Federal System

Abstract: III. UNAVAILING COURTS: REVISITING PRESUMPTIONS ABOUT THE FEDERAL JUDICIARY'S REMEDIAL AUTHORITY A less inviting heritage has, however, emerged and, as Meltzer analyzed, the interaction between the courts and Congress is pivotal. During the latter part of the twentieth century, leaders of the judiciary looked at the pictures of growth and, rather than celebrate, bemoaned the expansion. A language of "crisis" became pervasive, (170) as filings came to be seen as a problem to be solved. Rather than pursue significant additional judgeships, prominent members of the judiciary called for the need to "cap" growth in life-tenured positions through a moratorium on new judgeships. (171) Chief Justice Rehnquist's era was not the first to seek to curb the federal courts; progressive era reformers also aimed to bound the aegis of federal judges, who were seen during the early part of the twentieth century as inhospitable to rights-claims by workers. Expanding administrative agency adjudication was one method of opening new for a for redress. Dislike of the federal courts is not novel. (172) Hostility by members of the Supreme Court towards the diverse users of the federal courts is. Thus, and in contrast to earlier campaigns to limit federal court use, the more recent effort is embedded within the judiciary, as the Supreme Court aimed to make structural and group-based redress less unavailable. The techniques ranged from developing new doctrines, reinterpreting statutes, expanding federal preemption, orienting incoming judges through educational programs, reshaping federal rules, issuing court strategic plans, and lobbying Congress to cut back on its openness to creating new federal rights. (173) These initiatives were, in turn, part of a larger effort to constrain government's regulatory capacities and activities. (174) A. Curbing Rights and Remedies: Constricting Congressional Powers and Immunizing the Government Chief Justice William Rehnquist oversaw a growing bureaucracy able to gain funds for new courthouses, more judges, and staff. Yet he was also deeply skeptical of an expansive role for adjudication. Under his leadership and then that of Chief Justice John Roberts, the Court has limited the ability to bring lawsuits alleging illegal actions of state and federal governments as well as of private actors. (175) While guarding judicial prerogatives, the commentary and jurisprudence create an intellectual gestalt skeptical of the role of courts in generating remedies and in filling congressional gaps. During his decades on the Court, Chief Justice Rehnquist steered the law towards ceding authority to state courts, thereby narrowing access to the federal courts for various groups, such as civil rights plaintiffs and habeas corpus petitioners. The doctrinal techniques varied. For example, in the 1970s in his decision (before becoming Chief Justice) in Wainwright v. Sykes, (176) Rehnquist began the line of cases finding that criminal defendants had forfeited federal constitutional claims, sometimes through their lawyers or their own inadvertence, and were therefore precluded from obtaining post-conviction review of alleged federal constitutional error. Rehnquist--era case law also began the decline in implying causes of action from statutes and the Constitution. (177) In addition, the Rehnquist Court imposed limits on congressional reliance on the Commerce Clause. Chief Justice Rehnquist wrote the five-person decision in United States v. Lopez, holding that Congress had exceeded its authority by creating the federal crime of possession of guns within a certain distance from schools. (178) Rehnquist also wrote the five-person majority in United States v. Morrison, ruling that Congress lacked authority under either the Commerce Clause or the Fourteenth Amendment to enact the civil rights remedy in the Violence Against Women Act (VAWA), which had provided a federal civil action for victims of violence if they could prove gender-based animus. …

The Promises and Perils of Evidence-Based Corrections

Abstract: Public beliefs about the best way to respond to crime change over time, and have been doing so at a rapid pace in recent years. After more than forty years of ever more severe penal policies, the punitive sentiment that fueled the growth of mass incarceration in the United States appears to be softening. Across the country, prison growth has slowed and, in some places, has even reversed. Many new laws and policies have enabled this change. The most prominent of these implement or reflect what have been called "evidence-based practices" designed to reduce prison populations and their associated fiscal and human costs. These practices--which broadly include the use of actuarial risk assessment tools, the development of deterrence-based sanctioning programs, and the adoption of new supervision techniques--are based on criminological research about "what works" to reduce convicted individuals' odds of committing future crimes. Because evidence-based practices focus on reducing crime and recidivism, they are usually promoted as progressive tools for making the criminal justice system more humane. And while many have the potential to do just that, evidence-based practices are not inherently benign with respect to their effect on mass incarceration and the breadth of the penal state. In their reliance on aggregate data and classification, many such practices have as much in common with the "new penology " that enabled mass incarceration as with the neorehabilitationism they are ordinarily thought to represent. Without denying the contribution that such practices are making to current reform efforts, this Article seeks to highlight the unintended ways in which evidence-based tools could be used to expand, rather than reduce, state correctional control over justice-involved individuals. It explains what evidence-based practices are, why they have gained traction, and how they fit into existing paradigms for understanding the role of the criminal justice system in the lives of those subject to its control. Finally, it calls on policymakers and practitioners to implement these practices in ways that ensure they are used to improve the quality and fairness of the criminal justice system and not to reinforce the institutional constructs that have sustained the growth of the penal state. INTRODUCTION The criminal justice system has long been in the business of trying to prevent crime by controlling the behavior of known past offenders. Methods of control have varied over time, from execution to banishment to forms of "rehabilitation" ranging from mentoring and job counseling to forced psychosurgery. Always, system actors have justified their methods by reference to a mix of values and science, which change over time. In recent years, the American conversation about punishment is again changing, and with it the forty-year trend of ever-increasing correctional populations. Every year from 1970 to 2008 saw an increase in the number of convicted people under the control of the penal state, whether on probation, in jail, or in prison. (1) Beginning in 2008, however, the United States saw five consecutive years of reductions in the total number of people confined in state and local correctional institutions, and in those serving terms of community supervision on probation and parole. (2) While those national statistics mask significant regional variations, they speak to a notable shift in the way punishment is being imposed and executed in the United States today. The recent reduction in the U.S. prison population has been facilitated by laws and policies designed to stem the growth of custodial populations. These include the decriminalization of some drug and traffic offenses, (3) repeal of mandatory sentencing provisions for many lower level drug offenses, (4) increases in pre- and post-charge diversion programs, (5) and the expansion of early release mechanisms, such as "good time" credit. …

DNA and Distrust

Abstract: Over the past three decades, government regulation and funding of DNA testing has reshaped the use of genetic evidence across various fields, including criminal law, family law, and employment law. Courts have struggled with questions of when and whether to treat genetic evidence as implicating individual rights, policy trade-offs, or federalism problems. We identify two modes of genetic testing: identification testing, used to establish a person's identity, and predictive testing, which seeks to predict outcomes for a person. Judges and lawmakers have often drawn a bright line at predictive testing, while allowing uninhibited identification testing. The U.S. Supreme Court in Maryland v. King, for example, held that entering arrestee DNA in databanks does not implicate substantial Fourth Amendment concerns, since police do not test for genetic predispositions "not relevant to identity. " We argue that policy implications of genetic testing laws cannot be so neatly demarcated. For example, federal welfare laws require states to use DNA to establish paternity to collect child support from "deadbeat dads, " which may be relevant to identity, but also creates potentially destabilizing effects on families. We explore how genetic testing has been regulated across a variety of fields. We identify two dominant modes of regulatory action dealing with genetics: data-driven and ethics-based. Data-driven legislation is ostensibly focused on short-term benefits of gathering a population's genetic information. Ethics-based legislation, in contrast, is concerned with long-term consequences, such as effects on privacy. We particularly critique data-driven legislation, and we argue that judges, legislators, and scholars should focus squarely on the individual and government interests at stake. We set out a list of five factors that legal actors should consider when considering genetics regulation: (1) equality, (2) accuracy, (3) privacy, (4) finality, and (5) federalism. In particular, equality concerns permeate the short history of DNA regulation. In each of the areas explored, comparatively disadvantaged groups such as arrestees, convicts, juveniles, noncitizens, and welfare recipients have received the most intrusive regulation and collection of their genetic evidence, while comparatively privileged persons benefit from enhanced genetic privacy. We conclude that the regulation of genetic evidence deserves far more careful legal scrutiny, since the ways that genetic evidence is deployed can profoundly affect constitutional rights and the structure of legal and social institutions. INTRODUCTION DNA testing, widely available for over twenty-five years, has revolutionized the way local, state, and federal governments understand identity by making it inexpensive to obtain a person's genetic profile and link people to biological evidence and to each other. With the benefit of different types of DNA testing, the state can now say with greater certainty whether a particular suspect was the culprit of a crime or whether a particular person is the biological parent of a child. DNA testing has been embraced with enthusiasm by courts, legislatures, and agencies, state and federal, across areas of law ranging from criminal law, employment law, family law, and health law because it is easy to obtain and offers apparent certainty. This Article critically assesses these developments, focusing on the seemingly unobtrusive collection of genetic data, and argues that heightened legal scrutiny of genetic regulation is needed. As with any new technology, genetic testing has captured the imagination of scholars. Early on, some scholars predicted that genetic tests would supplant traditional legal tests. Many legal standards, particularly constitutional tests, are broad and vague, while DNA tests have the appealing ability to seemingly make evidentiary determinations certain. In 1992, Rochelle Cooper Dreyfuss and Dorothy Nelkin called the trend to reduce questions to genetics "genetics essentialism. …

Privacy and Markets: A Love Story

Abstract: INTRODUCTION In 2014, a former congressional staffer by the name of Matthew Colbert developed a software application he called "BuyPartisan." (1) The app invites consumers with smart phones to scan the barcodes of just about any product and learn the political leanings of the company that sells it. The display consists of a meter displaying blue or red, depending on the campaign contributions of the company's leadership. "Wouldn't it be great," Colbert asks, "if you could spend how you believed?" (2) Occasionally market participants depart from the traditional market criteria of price and quality. A conscientious consumer might strongly prefer her coffee to be "free trade" or a diamond to be "conflict free." A certain kind of religious flower shop owner might refuse on moral grounds to provide flowers to a wedding with two grooms. (3) Economists would chalk these departures up to "exogenous preference"--attributes that the market can take into account. But imagine if consumers and businesses knew everything. Not just the circumstances under which a product was made or the politics of its seller, but whether each other market participant supports a rival sports team, believes in God, or bakes erotic cakes on the weekend. In other words, imagine a marketplace without privacy. Would such a marketplace be desirable? Would it be efficient? Would the market mechanism work at all if price and quality took a backseat to salient but arguably extraneous information about market participants? This Article examines the complex relationship between privacy and markets. In so doing, it rejects both law and economics' skepticism toward privacy and the hostility many privacy law scholars have toward markets. The thesis of this Article is that privacy and markets are in important ways sympathetic. To paraphrase contract theorist Charles Fried, it is not that privacy will help markets work better, but that the market mechanism quietly assumes and relies upon privacy to work in the first place. (4) And the reverse is true as well. Privacy supports the basic market mechanism by hiding enough distracting, value-laden information from market participants. A certain absence of knowledge focuses us on market-relevant considerations such as quality and price over salient but distorting information such as personal or political commitments. The beauty of the market mechanism is that you do not need to know that the person you are dealing with voted for a politician you hate or doubts we landed on the moon, or for any other basis for distrust or discrimination, only that he is offering the best quality good at the lowest price. Privacy also enables the longevity of business partnerships through the facilitation of economic intimacy. Market relationships face an ever-present specter of defection--the prospect of a better deal somewhere else--which participants manage in part through the selective disclosure of preferences and expectations without penalty. In business, as in life, privacy helps you let the right one in, and in the process engenders the trust necessary for economic stability. (5) Finally, privacy helps keep a check on information asymmetry between people and firms. While economists agree that information asymmetry is undesirable, the standard remedy is to introduce additional information--for instance, through mandatory disclosure laws. (6) But today's firms are increasingly more capable than consumers of processing new information, such that introducing more information only exacerbates asymmetry and its discontents. Privacy can interrupt this dynamic and help save the market from itself. These arguments build the case for protecting privacy in the market context, including through the force of law. It is important to note, however, that privacy assumes and relies upon markets as well. Privacy is best understood as an instrument of human flourishing. (7) To flourish, people need the separation from others that privacy affords. …

The Privacy Policymaking of State Attorneys General

Abstract: Accounts of privacy law have focused on legislation, federal agencies, and the self regulation of privacy professionals. Crucial agents of regulatory change, however, have been overlooked: the state attorneys general (AGs). This Article is the first in-depth study of the privacy norm entrepreneurship of state attorneys general. Because so little has been written about this phenomenon, I engaged with primary sources by examining documentary evidence received through Freedom of Information Act (FOIA) requests submitted to attorney general offices around the country and interviewing state attorneys general and current and former career staff. Much as Justice Louis Brandeis imagined states as laboratories of the law, offices of state attorneys general have been laboratories of privacy enforcement. State attorneys general have been nimble privacy enforcers whereas federal agencies have been more constrained by politics. Local knowledge, specialization, multistate coordination, and broad legal authority have allowed AG offices to fill in gaps in the law. State attorneys general have established baseline fair-information protections and expanded the frontiers of privacy law to cover sexual intimacy and youth. Their efforts have reinforced and strengthened federal norms, further harmonizing certain aspects of privacy and data security policy. Although certain systemic practices enhance AG privacy policymaking, others blunt its impact, including an overreliance on weak informal agreements and a reluctance to issue closing letters identifying data practices that comply with the law. This Article offers ways state attorneys general can function more effectively through informed and formal proceedings. It addresses concerns about the potential pile-up of enforcement activity, federal preemption, capture, and the dormant Commerce Clause. It urges state enforcers to act more boldly in the face of certain shadowy data practices. INTRODUCTION Accounts of privacy law have focused on legislation, (1) federal agencies, (2) and the self-regulation of privacy professionals. (3) Crucial agents of regulatory change, however, have been neglected: the state attorneys general. This Article fills that void with the first in-depth study of the privacy policymaking of state attorneys general. The privacy norm entrepreneurship of state attorneys general is ripe for assessment. In the past fifteen years, attorneys general have devoted significant time and energy to privacy and data security enforcement. State attorneys general have worked on privacy and data security issues individually, collectively, and through the National Association of Attorneys General (NAAG). (4) The Privacy Working Group, coordinated by NAAG, has enabled offices to share expertise and resources. (5) Some offices have led the charge; (6) others have played a supporting role by joining multistate efforts. (7) State attorneys general have been on the front lines of privacy enforcement since before the intervention of federal agencies. (8) In the 1990s, while the Federal Trade Commission (FTC) was emphasizing self-regulation, state attorneys general were arguing that consumer protection laws required the adoption of Fair Information Practice Principles (FIPPs). (9) Then, as now, state unfair and deceptive trade acts and practices laws (known as "UDAP laws") were central to privacy-related enforcement activity. In certain areas, the proactivity of state attorneys general has preceded that of their federal regulatory counterparts. Their offices established baseline protections for privacy policies, data-breach notification, do-not-track browser settings, and certain uses of bank-history databases. (10) Even as attorneys general shaped conceptions of what privacy enforcement should achieve, they extended privacy enforcement to new frontiers, including sexual intimacy and youth. (11) State attorneys general have been nimble privacy enforcement pioneers, a role that for practical and political reasons would be difficult for federal agencies to replicate. …

Police Body-Worn Camera Policy: Balancing the Tension Between Privacy and Public Access in State Law

Abstract: INTRODUCTION "The system failed us again." (1) The sounds of gunshots and broken glass swirled in air full of smoke and tear gas. On November 24, 2014, the streets of Ferguson, Missouri, erupted into "a new wave of anger" after a St. Louis grand jury refused to indict Officer Darren Wilson, who fatally shot unarmed teenager Michael Brown a few months prior. (2) On August 9, 2014, Wilson observed Brown walking down the middle of the street and ordered him to the sidewalk. (3) Seconds later, a physical struggle emerged through the open driver-side window of Wilson's police vehicle. (4) Many witnesses agreed that Wilson's firearm went off inside the vehicle, causing Brown to flee, and Wilson to pursue on foot. (5) At this critical juncture--just moments before the fatal shooting--accounts drastically diverged. (6) Some witnesses recalled Brown moving toward Wilson "possibly in a threatening manner," while others asserted Brown "was not moving and may even have had his hands up when he was killed." (7) The inability to recon die these conflicting accounts is, perhaps, the dispositive reason why the grand jury refused to indict. (8) Outrage on the streets of Ferguson represented "the latest illustration of deep divisions between minorities and police that have simmered for generations" (9)--the result of "a gulf of mistrust exist [ing] between local residents and law enforcement." (10) The wake of Brown's shooting led to calls for policing reforms. At the forefront: the implementation of police body-worn cameras, (11) which the White House believes will "help strengthen accountability and transparency" because "officers and civilians [will] both act in a more positive manner when they're aware that a camera is present." (12) Despite political pressures calling for cameras, and their many apparent benefits, legal scholars and policy experts warn against rapid implementation (13) occurring at law enforcement agencies around the country, because many important policy questions remain unanswered. For example, what interactions should police record? Who will have access to observe recordings? Or disclose video recordings to the public? And how will privacy interests be respected? (14) Body camera implementation remains in its infancy stage. As such, there is a dearth of legal scholarship analyzing the policy considerations associated with body cameras. Instead of raising the issues involved and assessing arguments for and against implementation, this Note assumes body cameras are a force for good and are here to stay for the long haul. Consequently, the goal of this Note is to analyze various issues involved in administering body cameras against a backdrop of recently enacted state legislation--focusing specifically on the tension between protecting privacy interests while also ensuring public access to recordings. This Note examines these competing values and makes limited policy judgments, and in light of these determinations, outlines recent body camera legislation and assesses to what degree current laws conform to these standards. This Note argues state laws have identified and sought to remedy the core issues created by body cameras; however, only some state laws strike a proper balance between respecting privacy interests and granting the public access to video recordings. Thus, many state laws continue to leave important gaps in their body camera policies. Part I examines various visual technologies utilized by law enforcement and compares them to body-worn camera technology, identifying what makes body cameras unique and worthy of careful policy considerations. Part II discusses the benefits and drawbacks of body cameras, in order to contextualize the challenges of implementing policies. This Part functions in two ways. First, it assesses the benefits to understand why the technology is desired and rapidly being adopted. And second, it provides an overview of two major concerns body cameras create--privacy protections, and public access--and makes limited judgments about how policies should address these factors. …

Misalignment: Corporate Risk-Taking and Public Duty

Abstract: This Article argues for a "public governance duty" to help manage excessive risk-taking by systemically important firms. Although governments worldwide, including the United States, have issued an array of regulations to attempt to curb that risk-taking by aligning managerial and investor interests, those regulations implicitly assume that investors would oppose excessively risky business ventures. That leaves a critical misalignment: because much of the harm from a systemically important firm's failure would be externalized onto the public, including ordinary citizens impacted by an economic collapse, such a firm can engage in risk-taking ventures with positive expected value to its investors but negative expected value to the public. The Article analyzes why corporate governance law should, and shows how it feasibly could, take the public interest into account. INTRODUCTION I. THE REGULATORY MISALIGNMENT A. Compensation B. Contingent Capital C. Too Big to Fail D. Volcker Rule E. Firm-Specific Financial Requirements II. Redesigning Regulation A. Additional Regulation Is Needed B. Regulating Substance C. Regulating Governance III. Towards Regulatory Alignment: A Public Governance Duty A. Analyzing a Public Governance Duty Under Corporate Governance Legal Theory 1. The Stakeholder Model of Governance 2. The Contractarian Model of Governance 3. The Shareholder-Primacy Model B. Implementing a Public Governance Duty 1. Legally Imposing the Duty 2. Assessing Costs and Benefits 3. Balancing Costs and Benefits 4. Enforcing a Public Governance Duty 5. Business Judgment Rule as a Defense 6. Protecting Managers Under D&O Liability Insurance CONCLUSION APPENDIX: MODEL REGULATORY LANGUAGE FOR A PUBLIC GOVERNANCE DUTY Public Governance Duty Act SECTION 1. TITLE SECTION 2. DEFINITIONS SECTION 3. PUBLIC GOVERNANCE DUTY SECTION 4. LIABILITY AND ENFORCEMENT SECTION 5. DEFENSES AND INSURANCE SECTION 6. WHISTLEBLOWING RIGHTS AND OBLIGATIONS INTRODUCTION Should corporate governance law take into account risk-taking that could systemically harm the public? Corporate risk-taking is certainly economically necessary and often desirable. (1) Successful risk-taking increases profitability, thereby enhancing welfare by generating jobs and purchasing power. (2) But corporate risk-taking can sometimes cause harm. There is widespread agreement that excessive corporate risk-taking was one of the primary causes of the systemic economic collapse that became the 2008-2009 global financial crisis (the "financial crisis"). (3) There is also a consensus that existing regulatory measures to curb that risk-taking and prevent another crisis are inadequate. (4) Many of the regulatory responses to the financial crisis, both in the United States and abroad, seek to mitigate excessive risk-taking by systemically important financial firms. (5) Various of those responses are designed to control that risk-taking by aligning managerial and investor interests to reduce agency costs and make managers less likely to engage their firms in risky business ventures that could jeopardize investors. These responses implicitly assume that the investors themselves would oppose excessively risky business ventures. That assumption, however, is flawed, and therefore financial regulation based on the assumption's validity is unreliable. The assumption is flawed because what constitutes "excessive" risk-taking depends on the observer. Risk-taking is excessive from a given observer's standpoint if it has a negative expected value to that observer (i.e., the expected costs to that observer exceed the expected benefits). …

Product Hopping: A New Framework

Abstract: One of the most misunderstood and anticompetitive business behaviors in today's economy is "product hopping, " which occurs when a brand-name pharmaceutical company switches from one version of a drug to another. These switches, benign in appearance but not necessarily in effect, can significantly decrease consumer welfare, impairing competition from generic drags to an extent that greatly exceeds any gains from the "improved " branded product. The antitrust analysis of product hopping is nuanced. It implicates the intersection of antitrust law, patent law, the Hatch-Waxman Act, and state drug product selection laws. In fact, the behavior is even more complex because it occurs in uniquely complicated markets characterized by doctors who choose the product but don't pay for it, and consumers who buy the product but don't choose it. It is thus unsurprising that courts have offered inconsistent approaches to product hopping. They have paid varying levels of attention to the regulatory structure, offered a simplistic analysis of consumer choice, adopted an underinclusive antitrust standard based on coercion, and focused on whether the brand firm removed the original drug from the market. Entering this morass, we offer a new framework that courts, government enforcers, plaintiffs, and manufacturers can employ to analyze product hopping. This rigorous and balanced framework is the first to incorporate the economic characteristics of the pharmaceutical industry. For starters, it defines a "product hop" to include only those instances in which the brand manufacturer (1) reformulates the product in a way that makes the generic non-substitutable and (2) encourages doctors to write prescriptions for the reformulated product rather than the original. The test also offers two safe harbors, which are more deferential than current caselaw, to ensure that the vast majority of reformulations will not be subject to antitrust scrutiny. The analysis then examines whether a brand's product hop passes the "no-economic-sense" test. In other words, would the reformulation make economic sense for the brand if it did not have the effect of impairing generic competition ? Merely introducing new products would pass the test. Encouraging doctors to write prescriptions for the reformulated rather than the original product--"cannibalizing" the brand's own sales--might not. Imposing antitrust liability on behavior that does not make business sense other than through its impairment of generic competition offers a conservative approach and minimizes "false positives" in which courts erroneously find liability. Showing just how far the courts have veered from justified economic analysis, the test would recommend a different analysis than that used in each of the five product-hopping cases that have been litigated to date, and a different outcome in two of them. By carefully considering the regulatory environment, practicalities of prescription drug markets, manufacturers' desire for clear-cut rules, and consumers' needs for a rule that promotes price competition without deterring valued innovations, the framework promises to improve and standardize the antitrust analysis of product hopping. INTRODUCTION One of the most misunderstood and anticompetitive business behaviors in today's economy is "product hopping." A brand-name pharmaceutical company switches from one version of a drug (say, capsule) to another (say, tablet). The concern with this conduct is that some of these switches can significantly decrease consumer welfare, impairing competition from generic drugs to an extent that greatly exceeds any gains from the "improved" branded product. The antitrust analysis of product hopping is nuanced. It implicates the intersection of antitrust law, patent law, the Hatch-Waxman Act, and state drug product selection laws. In fact, the behavior is even more complex because it involves uniquely complicated markets characterized by buyers (insurance companies, patients) who are different from the decisionmakers (physicians). …

Catholic Constitutionalism from the Americanist Controversy to Dignitatis Humanae

Abstract: This Article, written for a symposium on the fiftieth anniversary of Dignitatis Humanae, or the Roman Catholic Church's Declaration on Religious Freedom, traces a brief history of Catholic constitutionalism from the Americanist controversy of the late nineteenth century up until the issuance of Dignitatis Humanae as part of the Second Vatican Council in 1965. It argues that the pluralist experiment enshrined in the First Amendment of the U. S. Constitution was a crucial factor in shaping Church attitudes towards religious freedom, not only in the years immediately preceding the revolutionary Second Vatican Council but ever since the late nineteenth century, when Catholicism became a potent social force in the United States. This history offers an opportunity to reflect on what the new global geography of Catholicism portends in the future. INTRODUCTION Dignitatis Humanae is best known as a watershed moment in the doctrinal history of the Roman Catholic Church's stance on freedom of religion. More than any other document produced by the Second Vatican Council, it was both an exercise in, and the very expression of, the spirit of aggiornamento that ushered the Catholic Church into the modern world. Prior to the issuance of the Declaration in 1965, the Church held the view that religious freedom was doctrinally and conceptually erroneous because error possessed no rights. "Truth and error are incompatible; to dialogue with error is to put God and the devil on the same footing," or so went the ultra-traditionalist narrative that persisted even after the conciliar moment but which has since fallen into complete disrepute. (1) In addition, only a Catholic confessional state could ensure the protection and promotion of religious truth because religious error was considered damaging to the common good. Dignitatis Humanae, also known as the Declaration on Religious Freedom, thus embodied a principled volte-face in its categorical pronouncement that "the human person has a right to religious freedom." (2) In doing so, it created the conditions for a new kind of Catholicism that made a dialogue between the Church and the secular world possible. Easily the most celebrated document of the Second Vatican Council, and certainly among non-Catholics, the text of the Declaration itself appears modest. Religious freedom is minimally defined as immunity from coercion in civil society and was explicitly grounded in the dignity of the human person. (3) It appeared to be silent on the issue of the confessional state, notwithstanding the amount and the intensity of the discussion that surrounded the topic preceding the Council. But by emphasizing freedom of religion rather than religious tolerance as held in then-existing church teachings, it was clear that the days of a preferred Catholic establishment were gone. The document thus represented an important paradigm shift. As a principle, religious freedom could attract consensus on many grounds, but it was the first time that Catholic political thought and theology could endorse its substantive basis as innately its own. It is impossible to discuss Dignitatis Humanae without canvassing the biography and intellectual contributions of John Courtney Murray S.J., the American Jesuit priest who briefly served as peritus, or expert, during the Council proceedings and who had been writing on the subject of religious freedom long before Pope John XXIII made the surprise announcement of convening a council in 1959. Murray, one of the two towering Catholic intellectuals of the twentieth century, alongside the French philosopher Jacques Maritain, was the one responsible for developing a principled Catholic defense of religious liberty. From his prodigious writings on the subject between the 1940s and 1950s, the defense roughly involved three main, intertwined components: the dignity of the human person, freedom of religion, and the nature of the state. …

Lights, Camera, Legal Action: Assessing the Question of Acting Performance Copyrights Through the Lens of Comparative Law

Abstract: INTRODUCTION In a controversial opinion released in May 2015, the United States Court of Appeals for the Ninth Circuit addressed an unusual, and highly publicized, copyright question: Can an actor claim a copyright in his or her individual dramatic performance, distinct from the film at large? (1) In Garcia v. Google, Inc., the court initially held that an actor, like the plaintiff, Garcia, could possibly claim a copyright interest for her individual performance in a film, so long as that contribution met the threshold requirements of copyrightability laid out in the Copyright Act. (2) After an uproar from third-party content distributors, film industry players, and a variety of others, the court revisited the case en banc. (3) In an amended opinion, the court did a full one-eighty, holding instead that Ms. Garcia had no copyright claim in her performance and suggesting that actors may never obtain a copyright of this sort. (4) The Garcia litigation has ignited extensive debate in both professional and academic communities regarding the possibility of granting copyrights in actors' individual performances. (5) On one side, commentators argue that recognizing such rights will lead to a "splintering" problem in the film industry, as anyone who contributes something minimally creative to a film could claim a copyright interest, leading to a title searching problem for downstream users, (6) imposing practical burdens on producers of creative works, (7) and violating the Constitutional mandate that copyright law "promote ... [p]rogress." (8) On the other side, however, parties assert that these fears are exaggerated, and so long as an acting performance meets the minimal requirements for copyrightability set forth in the Copyright Act, (9) it should receive protection. (10) The fact that the Ninth Circuit, arguably most equipped to evaluate claims relating to motion pictures, (11) came out on each side of this argument at some point during the Garcia litigation (12) illustrates the complicated nature of this question. In its en banc opinion, the court noted that Garcia's claim was inconceivable under American copyright law, but intimated that she might have had a viable claim had her case arisen in a foreign jurisdiction. (13) According to the court, Garcia's claim was more attuned to a system that recognizes either moral rights (14) or a right to be forgotten, (15) which would better enable Garcia to "have her connection to the film forgotten and stripped from YouTube." (16) American copyright law has historically rejected any notion that authors are entitled to prevent the use of their works as a matter of natural right (17)--as asserted under moral rights and the right to be forgotten (18)--instead justifying copyright law as a tool for regulating economic efficiency so as to generate public benefits. (19) As the court explained, moral rights are only recognized in America in an extremely limited category of visual arts, (20) from which motion pictures are explicitly excluded. (21) According to the court, American copyright law was not the proper source of Garcia's relief. (22) Despite the United States' apparent aversion to moral rights, the court's allusion to foreign policies in its opinion invites a deeper look into foreign copyright policy to craft a potential solution for the problem of individual performance copyrights. Rather than analyzing the arguments in the Ninth Circuit's en banc opinion, this Note will explore the issues raised by Garcia in light of international intellectual property law. As mentioned, the Ninth Circuit made clear that an actor does not have a distinct copyright interest in his or her individual performance within a film under current American copyright law. (23) This Note will use comparative methods to consider whether an actor should have such an interest based on America's international obligations under various intellectual property treaties, the treatment of acting performances in parallel foreign jurisdictions, and the current framework of American copyright law. …

Arbitrariness Review Made Reasonable: Structural and Conceptual Reform of the "Hard Look"

Abstract: As Representative John Dingell remarked in the best sentence ever said on the power of procedure over substance, "I'll let you write the substance ... you let me write the procedure, and I'll screw you every time." (1) Accordingly, designing procedures for legislative rulemaking, a dominant feature of modern governance, has spawned one of the most contentious debates in all of administrative law. Compounding the stakes, over the last fifty years, the courts, with help from Congress and presidents, have relentlessly made rulemaking procedures more burdensome, impeding efforts to preserve the environment, protect workers, and forestall financial collapse, among other important agency missions. Review for "arbitrariness" is the source of most of the burdens that courts have imposed on agency rulemaking. Modern doctrine, often called "hard look review, " requires an agency to have, at the moment it adopts a rule, a justification strong enough to satisfy the demands of "reasoned decisionmaking. " As a corollary, an agency can never rely on post hoc justifications to save a rule. This requirement of reasoned decisionmaking might itself sound eminently reasonable. As implemented in rulemaking, however, its demands are highly artificial, force agencies to waste time and resources on developing impenetrable explanations for their rules, encourage regulated parties to bloat the process, and increase the risk of judicial vacation of reasonable rules. To correct these problems, courts should allow agencies to defend their rules based on post hoc justifications--so long as they are based on information exposed to public scrutiny during the rulemaking process itself. This proposal may sound like administrative law heresy, but it has surprisingly strong roots both in historical and current practice. Adopting it would enhance agency effectiveness without undermining other important values, notably including accountability, fairness, and accuracy, served by current doctrine. The proposal also highlights a better, more flexible conception of "arbitrariness" review. Ai they discharge this ambiguous task, courts have an ongoing duty to recognize and balance the various competing values served by both rulemaking and its judicial review. Courts should abandon their current rigid orthodoxy and adopt the proposal because, in short, it strikes a better balance among these values. ********** "Explain all that," said the Mock Turtle. "No, no! The adventures first," said the Gryphon in an impatient tone: "explanations take such a dreadful time." (2) INTRODUCTION Just last year, in Perez v. Mortgage Bankers Association, the Supreme Court reiterated the forty-year-old Vermont Yankee principle, insisting that courts have no authority to impose rulemaking procedures on agencies to serve judicial "notion [s] of which procedures are 'best' or most likely to further some vague, undefined public good." (3) Given the central role of agency rulemaking in modern American governance, the importance of this stance is hard to exaggerate. In terms of sheer quantity, the Code of Federal Regulations is far longer than the United States Code. (4) Many agency rules, such as the Obama Administration's recently promulgated Clean Power Plan, determine critical policies with massive national or even global impacts. (5) The power to write procedures for these rules carries with it a great deal of power to impact substance because, as Representative John Dingell remarked in the best sentence ever said on this subject, "I'll let you write the substance ... you let me write the procedure, and I'll screw you every time." (6) Considered in this light, the Court's categorical refusal to allow judicial usurpation of control over rulemaking procedures has a noble, even majestic, air. It is also pretty hilarious, proving that the Justices are masters of that obscure and underappreciated art: administrative law comedy. …

Law in the Time of Cholera

Abstract: Thousands die each day from infections related to water, as evidenced in the ongoing crises of cholera in Haiti, Zika in the Western Hemisphere, and Legionnaires' Disease in Flint, Michigan. Yet water law focuses primarily on two agendas. First, the "Blue Agenda " aims to provide an equitable allocation of water to individuals and communities while encouraging sustainable water management. Second, the "Green Agenda " aims to efficiently protect water in the natural environment from pollution. These two agendas often ignore, and can be inconsistent with, the "Red Agenda. " The Red Agenda addresses prevention of waterborne infections, like cholera, and the habitat of water-related disease vectors, like mosquitoes transmitting malaria. Additionally, the Red Agenda focuses on access to water for sanitation and hygiene, with implications for epidemics like Ebola. In simplified terms, the Blue Agenda is about water quantity, the Green Agenda about water quality, and the Red Agenda about water diseases. Laws made in pursuit of the Blue Agenda, like building a dam or irrigation system, can interfere with the Red Agenda by bringing mosquito habitat closer to human communities. And laws made in the pursuit of the Green Agenda, like prohibiting discharges of pesticides into a river, can interfere with the Red Agenda by preventing a response to a malaria outbreak. This Article is the first to introduce the Blue, Green, and Red framework for water law, and explains why these agendas often conflict with each other and how to more effectively integrate these agendas into water law. Introduction In an epic example of insight and courage, John Snow saved countless lives and forged a heroic legacy. (1) His triumph in the face of crisis represented a turning point in history, tipping the balance in the ongoing battle between mankind and one of mankind's greatest threats. (2) In 1848, one of a series of massive outbreaks of cholera in the nineteenth century swept through London. (3) Snow observed that the patterns of the outbreak were not consistent with the then-prominent miasma theory of disease transmission--the theory that "bad air" was the cause of epidemics like cholera and bubonic plague. (4) Snow theorized that the mode of transmission was water, and distributed a pamphlet advising hand-washing and boiling drinking water. (5) In 1854, another cholera epidemic struck London. (6) Snow observed that competing distribution companies delivered water within the Soho neighborhood of London. (7) One of these companies, Vauxhall, derived its water supply downstream of major sewer discharges into the Thames River. (8) The other obtained its water supply upstream of the sewer discharges. (9) Snow, in what is called the "Grand Experiment," compared data on households consuming water supplied from these two companies. (10) Snow noted that the cholera rate was 8.5 times higher in households supplied by Vauxhall than its competitor. (11) He further noted that nearly a quarter of all cholera deaths in London occurred within a short distance of a hand pump on Broad Street, which was installed on top of a cesspit. (12) After speaking with families near the pump, most had lost multiple members of their households to cholera, and all had taken water from the pump. (13) Legend has it that Snow removed the handle from the Broad Street pump, and saved the city. (14) In one of history's greatest examples of inductive reasoning and scientific acumen, Snow ushered in the germ theory of disease transmission and became the father of modern epidemiology. (15) John Snow's work also began the integration of epidemiology with the development and implementation of law. (16) In March of 1855, Snow testified before Parliament regarding the development of laws to address sanitation. (17) At the time, a bill was proposed to regulate "offensive trades," including bone boiling and gas works, which many believed contributed to the miasma of bad air and thus to disease transmission. …

Symposium: The Disclosure Function of the Patent System

Abstract: A fundamental goal of the patent system is to encourage the dissemination of technical knowledge.1 The patent system achieves this goal through a quid pro quo-in exchange for the right to exclude, the inventor must fully disclose the technical details of the invention.2 As soon as a patent document publishes, there is hope that the public will use the technical details disclosed therein to improve upon the invention, to design around it, or to engage in other innovative activities.3 So while the patentee maintains the right to exclude others from practicing the invention until the patent expires, the technical information disclosed in the patent document has potential immediate value to the public.4 This supports the patent system's broader mission to promote scientific progress and extend the frontiers of knowledge.5The Supreme Court has stated that the patent system's ultimate goal is to bring new ideas and technologies into the public domain through disclosure.6 In fact, the entirety of the patent system hinges on disclosure.7 For example, requiring a full disclosure of how to make and use the invention not only demonstrates that the inventor actually possessed what is claimed in the patent, but also ensures that the public will gain full possession of the invention once the patent expires.8Achieving a robust disclosure from patent applicants is no easy task because it brings to the fore competing goals of the patent system. For example, the law must strike a balance between its interest in early disclosure and the need to transform the patent into a substantive technical document that can itself promote innovation.9 The law must also strike a delicate balance between the public's interest in disclosure and the inventor's incentive to disclose.10 A lax disclosure requirement compromises the quid pro quo, meaning that the public might get shortchanged in the so-called patent bargain.11 But a stringent disclosure requirement might push some inventors toward trade secrecy (i.e., no disclosure)-the antithesis of the patent system.12Despite its central role in the patent system, only recently have scholars begun to seriously wrestle with the theoretical and doctrinal aspects of the disclosure function. Hopefully, this Symposium issue will stimulate future debate over and inquiry into this important issue in patent law.[Footnote]1. Brenner v. Manson, 383 U.S. 519, 533 (1966).2. See Graham v. John Deere Co., 383 U.S. 1, 9 (1966) (describing a patent as \"a reward, an inducement, to bring forth new knowledge\"); Pennock v. Dialogue, 27 U.S. (2 Pet.) 1, 19 (1829) (recognizing that the patent system seeks to promote the progress of the useful arts and to reward inventors).3. Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 481 (1974) (explaining that when the information disclosed in a patent becomes publicly available it adds to the \"general store of knowledge\" and assumedly will stimulate ideas and promote technological development); MICHAEL A. Gollin, Driving Innovation: Intellectual Property Strategies for a Dynamic World 15-19 (2008) (explaining that disclosure adds to the pool of accessible knowledge that other creative individuals can use and improve upon). …

Corporate Criminal Minds

Abstract: In order to commit the vast majority of crimes, corporations must, in some sense, have mental states. Lawmakers and scholars assume that factfinders need fundamentally different procedures for attributing mental states to corporations and individuals. As a result, they saddle themselves with unjustifiable theories of mental state attribution, like respondeat superior, that produce results wholly at odds with all the major theories of the objectives of criminal law. This Article draws on recent findings in cognitive science to develop a new, comprehensive approach to corporate mens rea that would better allow corporate criminal law to fulfill its deterrent, retributive, and expressive aims. It does this by letting factfinders attribute mental states to corporations at trial as they ordinarily do to similar groups out of the courtroom. Under this new approach, factfinders would be asked to treat corporate defendants much like natural person defendants. Rather than atomize corporations into individual employees, factfinders would view them holistically. Then, factfinders could do just what they do for natural people--in light of surrounding circumstances and other corporate acts, infer what mental state most likely accompanied the act at issue. Such a theory harmonizes with recent cognitive scientific findings on mental state and responsibility attribution, developments that corporate liability scholars have mostly ignored. INTRODUCTION American criminal law adopted the fiction that corporations are people so it could hold them accountable for wrongdoing. (1) But it left the project incomplete. Though crimes typically require an actus reus and a mens rea, (2) courts have no real theory of how corporations, which have no bodies or minds, could instantiate either. (3) The best they have is an antiquated gimmick--respondeat superior--for holding corporations vicariously responsible for the crimes of their employees. (4) That approach may have the benefit of making courts somewhat consistent in deciding when to hold corporations accountable. But even that lone virtue is now threatened as respondeat superior, at this stage in corporate history, increasingly produces outcomes at odds with any sensible notion of criminal justice. Sometimes respondeat superior lets patently criminal corporations off the hook. This could be because, in complex and opaque organizations, the paper trail may be too long and incomplete to find individuals who committed crimes attributable to the corporation. (5) Or it could be because there literally is no individual employee who did anything proscribed by law. For example, in one case, a ferry capsized after setting sail with her bow doors open, killing nearly 200 passengers. (6) From top to bottom, the corporation that ran the vessel "was infected with the disease of sloppiness." (7) Prosecutors brought manslaughter charges against the corporation, but no individual employee was so sloppy as to have been grossly negligent, the required mens rea. (8) Applying respondeat superior, the court found the corporation not guilty. (9) Other times, respondeat superior exposes a corporation to criminal charges despite the overwhelming sense that the true criminal is not the corporation but some rogue employee within its ranks. (10) In United States v. Sun-Diamond Growers of California, (11) a corporation's in-house lobbyist defrauded the corporation in order to make illegal payments to politicians who were his friends. (12) Since the lobbyist could have been acting "also, with an intent (however befuddled) to further the interests of his employer," the court upheld charges against the corporation. (13) Though, in the court's opinion, the corporation "look[ed] more like a victim than a perpetrator," it felt its hands were bound to uphold the conviction by prevailing doctrine and a poor exercise of prosecutorial discretion. (14) Even if one is not moved by the particular facts in Sun-Diamond, rogue employees are a pervasive concern. …

The Unsung Virtues of Global Forum Shopping

Abstract: Forum shopping gets a bad name. This is even more true in the context of transnational litigation. The term is associated with unprincipled gamesmanship and undeserved victories. Courts therefore often seek to thwart the practice. But in recent years, exaggerated perceptions of the "evils" of forum shopping among courts in different countries have led U.S. courts to impose high barriers to global forum shopping. These extreme measures prevent global forum shopping from serving th ree unappreciated functions: protecting access to justice, promoting private regulatory enforcement, and fostering legal reform. This Article challenges common perceptions about global forum shopping that have supported recent doctrinal developments. It traces the history of concerns about global forum shopping and distinguishes between domestic and global forum shopping to discern the core objections to the practice. It then identifies these unappreciated virtues of global forum shopping and suggests balanced ways for courts to protect them. Introduction In September 2015, Volkswagen announced it had rigged diesel emissions tests to make its "Clean Diesel" cars seem to comply with U.S. environmental regulations while they were being tested. (1) In fact, the cars emitted pollutants up to forty times more than U.S. law permits. After that announcement, which affected 11 million cars worldwide, (2) Volkswagen's market value dropped by about $25 billion, or thirty percent. (3) Volkswagen owners, car dealerships, and shareholders around the world started wondering how they could hold Volkswagen accountable. Outside the United States, affected consumers, car dealerships, and shareholders are suing Volkswagen. (4) Aggregate litigation is pending in countries from Canada, (5) to Australia, (6) to South Korea. (7) In Europe, Volkswagen is facing litigation in many different countries on civil, criminal, and regulatory fronts. (8) Litigation funding firms and U.S. law firms are leading many of these efforts. (9) In Germany, Volkswagen faces private securities fraud litigation. (10) Consumer suits are in the works. (11) Within the United States, groups of Volkswagen owners sued in many different state and federal courts, seeking the best forum under different criteria. (12) These efforts were examples of domestic forum shopping. Volkswagen shareholders around the world have also sought out the best possible forum for their securities litigation. Some who bought American Depositary Receipts (ADRs) on U.S. exchanges have sued in federal district court. (13) But many shareholders have filed suit in Germany, Volkswagen's home forum. (14) It is possible that as the litigation progresses, groups of shareholders may ultimately seek out a court in the Netherlands to recognize a global settlement. These choices are examples of transnational or global forum shopping. From one perspective, these lawsuits represent efforts of scheming, opportunistic lawyers searching worldwide for the best forum for extorting the highest possible judgment or settlement out of Volkswagen. (15) From another perspective, however, Volkswagen's actions harmed parties all over the world; since many different nations empower private citizens to sue Volkswagen under such circumstances, it is only natural for those parties to hold Volkswagen accountable anywhere they can. Indeed, one might even view with sympathy affected parties' efforts to seek out courts that might consider experimenting with innovative approaches to affording them relief. Nevertheless, the practice of global forum shopping is widely reviled. (16) It is called "a dirty word," (17) "evil," (18) "deplorable," (19) and something that "must be deterred." (20) The Supreme Court speaks of the practice with great disdain, vowing to protect U.S. courts from it. (21) One of global forum shopping's most vocal opponents, the U.S. Chamber of Commerce, equates global forum shopping with fraud and other "out-of-court tactics. …

The Supreme Court's Quiet Revolution in Induced Patent Infringement

Abstract: The Supreme Court over the last decade or so has reengaged with patent law. While much attention has been paid to the Court's reworking of what constitutes patent-eligible subject matter and enhancing tools to combat "patent trolls, " what many have missed is the Court's reworking of the contours of active inducement of patent infringement under 35 U.S.C. [section] 271(b). The Court has taken the same number of [section] 271(b) cases as subject matter eligibility cases--four. Yet this reworking has not garnered much attention in the literature. This Article offers the first comprehensive assessment of the Court's efforts to define active inducement. In so doing, it identifies the surprising significance of the Court's most recent case, Commil USA, LLC v. Cisco Systems, Inc., where the Court held that a good faith belief on the part of the accused inducer that the relevant patent is invalid cannot negate the mental state required for inducement--the intent to induce acts of infringement. In so doing, the Court moved away from its policy of encouraging challenges to patent validity as articulated in Lear, Inc. v. Adkins and its progeny. This step away from Lear is significant and surprising, particularly where critiques of the patent system suggest there are too many invalid patents creating issues for competition. This Article critiques these aspects of Commil and then addresses lingering, unanswered questions. In particular, this Article suggests that a good faith belief that the induced acts are not infringing, which remains as a defense, should only act as a shield against past damages and not against prospective relief such as injunctions or ongoing royalties. The courts so far have failed to appreciate this important temporal dynamic. INTRODUCTION The Supreme Court has taken a considerable, if not somewhat odd, interest in patent law over the last few years. (1) Of all of the Court's interventions, its substantial reworking of the law surrounding patentable subject matter under 35 U.S.C. [section] 101 (2) has garnered most attention and commentary. (3) Many have missed, however, the quiet revolution the Court has instigated with respect to active inducement of patent infringement under 35 U.S.C. [section] 271(b). The provision somewhat tersely states, "Whoever actively induces infringement of a patent shall be liable as an infringer." (4) Given this general, unenlightening language, the courts have been left to determine the contours of this provision, and the Supreme Court has been paying attention. Since the October 2004 term, the Supreme Court has decided four cases interpreting that provision, (5) the same number of cases as the Court's subject matter eligibility cases. (6) In the October 2015 term, the Court issued its most recent interpretation of [section] 271 (b) in Commil USA, LLC v. Cisco Systems, Inc., holding that an accused infringer's good faith belief that the relevant patent is invalid does not negate the requisite intent for inducing infringement. (7) These cases provide important and interesting insights into the Supreme Court's views of patent law. At a minimum, the Court's active inducement decisions have favored the patent owner for the most part, which contrasts sharply with the general anti-patentee trend in the Court's other patent cases. (8) These four decisions, and particularly Commil, signal significant changes in the Supreme Court's views of patent law and policy. By holding that a good faith belief that the relevant patent is invalid does not negate the scienter requirement for active inducement, Commil represents a step away from the Court's policy preference of encouraging patent validity challenges in courts, as previously articulated in Lear, Inc. v. Adkins (9) and its progeny. This Article is the first to provide a comprehensive assessment of this quiet revolution. It unpacks these important developments, particularly highlighting the implications of Commil. …

Federalism and State Marijuana Legislation

Abstract: INTRODUCTION An increasing number of states have passed legislation legalizing medical and recreational marijuana. This Note provides a survey of the language utilized by these states in their legislation and legislative materials, searching for and highlighting those purposes and intentions of the states, which implicate, explicitly or implicitly, federalism. Through this survey of mostly primary source materials, various trends and similarities among the materials will be apparent, and this Note will provide a useful resource for those trying to understand why the states may have enacted these laws. The Note proceeds in four Parts. Part I provides information on the current legal landscape surrounding marijuana and its regulation as a controlled substance, briefly exploring the federal position on marijuana to provide necessary context for the actions of the states. Part II explores the state legislation and materials related to medical marijuana legalization, examining and surveying the primary source material from many states. Part III explores state legislation and materials related to recreational marijuana legislation in a similar way. Part IV takes a brief glance at a historical issue, which presented a conflict between state and federal law, and provides tentative suggestions for why marijuana legalization might be unique. Throughout, this Note puts forward propositions regarding why states may have included particular language, also noting when explicit and implicit federalism arguments could be at work. I. CURRENT LEGAL LANDSCAPE A. Controlled Substances Act The Controlled Substances Act (CSA) (1) was enacted in 1970 by Congress as part of the Comprehensive Drug Abuse Prevention and Control Act. (2) In the CSA, Congress declared that while many "drugs included within this subchapter have a useful and legitimate medical purpose and are necessary to maintain the health and general welfare of the American people," it was nonetheless true that "[t]he illegal importation, manufacture, distribution, and possession and improper use of controlled substances have a substantial and detrimental effect on the health and general welfare of the American people." (3) To further this purpose, the CSA created a classification system comprised of five "schedules," designated I, II, III, IV, and V. (4) Schedule I substances are those considered to have no accepted medical use and high potential for abuse. (5) Schedules II through V have increasing levels of accepted medical use and decreasing potential for abuse. (6) The Attorney General is charged with applying the provisions of the CSA to the controlled substances and is also able to add or alter the scheduling of any controlled substance. (7) For the purposes of this Note, what is most relevant is that marijuana was placed in Schedule I, (8) and since that time has been considered by the federal government to have no accepted medical uses, a high potential for abuse, and a lack of accepted safety for use under medical supervision. B. State Action Beginning with California in 1996, (9) numerous states have passed their own measures legalizing the medical use of marijuana, and recently recreational use as well. Currently, twenty-four states and the District of Columbia have laws permitting the medical use of marijuana, (10) and Washington, (11) Colorado, (12) Alaska, (13) Oregon, (14) and the District of Columbia (15) passed laws legalizing the recreational use of marijuana. The states have offered various reasons for the passage of these laws, and federalism has explicitly and implicitly been among them. While the Supreme Court in recent years has discussed the importance of federalism in numerous cases, in 2005 Gonzales v. Raich (16) dealt with Congress's ability to prohibit the cultivation, possession, or use of medical marijuana pursuant to the Commerce Clause as part of the regulatory scheme of the CSA. …

Partly Accultured Religious Activity: A Case for Accommodating Religious Nonprofits

Abstract: INTRODUCTION Many of today's most vexing problems concerning the accommodation of religious conscience involve religious groups and activities that straddle the perceived boundary of the public versus private. For example, in disputes over same-sex marriage and religious liberty, it is generally agreed that churches and clergy should be able to refuse to host or perform marriages, because these entities fall within the private sphere. (1) But religious entities that reach out to provide services to the broader public provoke much more controversy. Think, for example, of Catholic Charities adoption agencies that decline to place children with same-sex couples. (2) Or think of the intense controversy over religious nonprofit institutions--social service and educational institutions, primarily--that are seeking a full exemption from the mandate to cover contraception in employees' health insurance. (3) To many critics, it is plainly improper to make any accommodation for religious freedom in such cases. They say that when a religious organization hires people outside of the narrow confines of its faith, or becomes a significant social-service provider, it should not be allowed to continue to act on norms that the government has determined are unjust. Once an organization reaches out to others, it must follow whatever rules the state sets, no matter what burden these rules place on religion. That tendency lay behind the original, very narrow exemption from the contraceptive mandate--an exemption that gave no relief to anyone except churches and denominations. (4) And opponents of exemptions from the mandate argue that exemptions are forbidden--in the words of Fred Gedicks and Rebecca Van Tassell--whenever a religious nonprofit "hire[s] from the general pool of applicants, rather than exclusively from a specific religious group," because such a group employs "nonadherents or adherents who understand the requirements of the affiliated religion differently." (5) Similarly, Caroline Corbin argued, in the early stages of debate over the mandate, that any exemption for religious nonprofit employers would improperly "foist[] the Catholic Bishops' religious views onto employees, whether or not they are Catholic." (6) On the other side, of course, critics of the mandate believe that exemptions for nonprofits are essential to preserve religious freedom. This Article explores the idea that such problems involve cases of "partly acculturated" religious activity. This kind of activity falls somewhere between two poles. One pole is "unacculturated" religion: the activity of the small sect or minority faith whose doctrines are strange to the American majority or whose adherents are mostly ethnic minorities or immigrants. Think of Muslims, Sikhs, Amish, or Jehovah's Witnesses. The other pole is "acculturated" religion, usually engaged in by a larger faith, and defined primarily by the harmony between its doctrines or practices and mainstream secular norms. Acculturated groups tend to think that current secular morality helps realize the true meaning of their faith, and they tend to be deeply involved in the world. Think of mainline Protestant denominations and non-Orthodox Jewish bodies. But as Part I of this Article discusses, many religious activities and groups have features from both poles. They are "acculturated" in that they seek to reach out to the broader society and provide services that people of all beliefs value: education, health care, social services of all kinds, from homeless shelters to adoption to job training. Their approach to these services overlaps significantly, although to a varying degree, with the approach of other providers of these services. And yet these religious providers are "unacculturated" in that some of their doctrines and practices sharply clash with the dominant secular values in their relevant sphere. These groups make a claim to be able to continue to provide services while continuing to follow their countercultural doctrines and practices, which often reflect the core values that inspire their service in the first place. …

The Meanings of the "Privileges and Immunities of Citizens" on the Eve of the Civil War

Abstract: [I]n a given State, every citizen of every other State shall have the same privileges and immunities--that is, the same rights--which the citizens of that State possess. --Lemmon v. People, 20 N.Y. 562, 608 (1860). The citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States; and shall have the right of transit and sojourn in any State of this Confederacy, with their slaves and other property; and the right of property in said slaves shall not be thereby impaired. --CONF. CONST. art. IV, [section] 2, cl. 1 (1861). Resolved, That we deeply sympathize with those men who have been driven, some from their native States and others from the States of their adoption, and are now exiled from their homes on account of their opinions; and we hold the Democratic Party responsible for this gross violation of that clause of the Constitution which declares that the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States. --Supplemental Resolution proposed by Ohio's Joshua Giddings and unanimously adopted by the Republican National Convention of 1860. (1) Congress shall provide by law for securing to the citizens of each State the privileges and immunities of citizens in the several States. (2) INTRODUCTION The Fourteenth Amendment to our Constitution provides, in part, that "[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." (3) This "Privileges or Immunities Clause" has been called "the darling of the professoriate." (4) Indeed, in the last decade alone, law professors have published dozens of articles treating the provision. (5) This Article proceeds from the same professorial ardor. Still, relative to many other treatments, this Article is both more modest and more ambitious. On the one hand, I do not propose to offer a full account of the original meaning of the Clause. On the other, I do aim to help build a genuine scholarly consensus by presenting compelling evidence that has been, for the most part, largely overlooked by contemporary scholars. (6) The focus of this particular study is the interpretation of the "privileges and immunities of citizens" offered by American political actors, including not only judges, but also elected officials and private citizens, before the Fourteenth Amendment, and primarily, on the eve of the Civil War. This study proceeds in four parts. First, the Article defends the relevance of this inquiry. I am to refute the conclusion of Justice Miller and (more recently) of Justice Thomas that the "privileges and immunities of citizens in the several states" secured by Article IV were generally understood to be sharply distinct from the "privileges or immunities of citizens of the United States" secured by the Fourteenth Amendment. Rather, the authors of the Clause largely believed that it would provide greater security to the privileges guaranteed in Article IV. Second, the Article provides a brief account of the understanding of the Privileges and Immunities Clause before 1857, concluding that the provision's original understanding was ambiguous and generated only sporadic (though important) national controversy and commentary. As a result, up to 1857, the Privilege and Immunities Clause's meaning remained largely obscure, even among jurists. Third, the Article explains that from 1857 to 1861, in the course of national debates, at least three contrasting interpretations rose to substantial public prominence: (1) a pro-slavery, absolute-rights reading; (2) an absolute-rights reading endorsed by Republicans, which sometimes incorporated claims of black citizenship; and (3) a strictly interstate-equality understanding. The prominence of the first two readings represented radical developments relative to the third reading, a reading that had prevailed in the past and would prevail again in courts in the future. …

The First Amendment Walks into a Bar: Trademark Registration and Free Speech

Abstract: INTRODUCTION Section 2 of the Lanham Act, the federal law governing trademarks, lists a number of bars that preclude registration of a trademark on the federal register. (1) These reasons include: the claimed matter is functional, meaning it affects the cost or quality of the underlying product or service; the claimed matter is merely descriptive, meaning that consumers don't understand that it indicates source and instead think that it just describes some characteristic of the product; the claimed matter is deceptively misdescriptive, which is like descriptiveness except not true; the claimed matter is deceptive, meaning that the untruth would be material to consumers; the claimed matter is confusingly similar to an existing registered mark or mark in use in the United States; the claimed matter is the name, photo, or signature of a living person and there's no written consent from that person to register the mark; the claimed matter is the flag or insignia of a nation or state or other U.S. political subdivision; the claimed matter creates a false association with people or institutions; the claimed matter is a geographic indication for wine or spirits but identifies a place other than the origin of the goods; and, last but not least, the claimed matter is scandalous, immoral, or disparaging. The constitutionality of section 2 is now in doubt. Washington's football team had its disparaging marks cancelled, a decision upheld by a district court in mid-2015 and now on appeal to the Fourth Circuit. (2) But in December 2015, the Federal Circuit, en banc, held that section 2(a)'s disparagement bar was unconstitutional in the case of Simon Tam, an Asian-American seeking to register an anti-Asian slur in order to reclaim its negative meaning.* (3) The government apparently agrees that this holding also invalidates section 2 (a) 's scandalousness bar, (4) and the Supreme Court granted certiorari to review the decision in September 2016. The Federal Circuit's In re Tam decision drew on significant developments in First Amendment doctrine. For example, earlier in 2015, in Reed v. Town of Gilbert, (5) the Supreme Court struck down a city's sign regulations on the theory that they were content-based and didn't survive strict scrutiny. The rule suggested by Reed is that all state regulations of speech that depend on an evaluation of the content of the speech to determine whether the regulation has been violated are content-based and must survive strict scrutiny. Section 2 is almost nothing but content-based. This Article analyzes the First Amendment arguments against section 2(a)'s disparagement bar with reference to the consequences of any invalidation on the rest of the trademark statute. My fundamental conclusions are that In re Tam is wrongly reasoned even given the Supreme Court's increased scrutiny of commercial speech regulations, and that to hold otherwise and preserve the rest of trademark law would require unprincipled distinctions within trademark law. More generally, the Supreme Court's First Amendment jurisprudence has become so expansive as to threaten basic aspects of the regulatory state; the result of subjecting economic regulations such as trademark registration to strict First Amendment scrutiny shows the damage that can be done thereby. I will first discuss the difficulty of applying the First Amendment to trademark law, which grants one private entity the right to suppress others' commercial speech, but also facilitates commercial transactions. Then, assuming that the First Amendment will apply in some ways, I discuss trademark registration as a kind of government endorsement, as well as other arguments that have evolved to justify the disparagement bar. I conclude that section 2 is generally constitutional as a government determination about what speech it is willing to enforce as a trademark. (6) I then specifically turn to the unconstitutional conditions doctrine as a useful lens through which to view the problem. …

A Cause of Action, Anyone? Federal Equity and the Preemption of State Law

Abstract: I was not fortunate enough to have known Dan Meltzer well. I met Danny only a few times. We had only the thinnest of correspondence. Of his sterling reputation as a human being, I am of course fully aware. And I do know his work--all of it--thoroughly. On that point, a mountain of encomiums would iterate only a simple thought: Dan was the gold standard in federal courts scholarship. (1) It is, therefore, a special honor to participate in a symposium to honor his memory. In this very brief Essay, I focus on aspects of a topic on which both Danny and I have written and on which our reasoning differed: federal court authority, "sitting in equity," to enjoin enforcement of state law on federal preemption grounds. In a coercive action brought by the state to enforce the state law, the federal act could of course be set up as a defense. Suppose, however, that alleging "arising under" subject-matter jurisdiction, (2) the plaintiff sues the appropriate state officials to restrain enforcement of the state statute. Many such challenges are readily entertained on the merits, often because these challenges have a firm statutory basis such as 42 U.S.C. [section] 1983. (3) But not all do. The Court has, however, asserted a more general, freestanding equitable injunctive authority: "[A]s we have long recognized, if an individual claims federal law immunizes him from state regulation, the court may issue an injunction upon finding the state regulatory actions pre empted." (4) Yet, not all such non-statutorily based challenges succeed. In Armstrong v. Exceptional Child Center, Inc., (5) for example, the source of the preceding quotation, a divided Court just last term refused to entertain such a challenge by participants in a federal funding program (healthcare providers) seeking more favorable state-set Medicaid rates for their services. That result may or may not be sound, but to my mind what is most interesting is the intriguing nature of the various opinions, particularly given the Court's unanimous opinion one term earlier in Lexmark International, Inc. v. Static Control Components, Inc. (6) Lexmark's mode of analysis, if it takes firm root, should significantly reshape long-embedded modes of thinking about standing, at least at the statutory level. These two decisions and their intersection are the focus of this brief Essay. I. OLD BASICS For many decades law students have been taught that before a district court may address the merits of a private litigant's substantive claims, Article III requires that the plaintiff satisfy a three-part, trans-substantive set of "constitutional standing" requirements--injury-in-fact, causation, and redressability (7)--as well as three additional "prudential" justiciability barriers. (8) The source of judicial authority to fashion this discretionary overlay has never been made clear, (9) but its content generally included a ban on the assertion of both generalized grievances and third-party claims, (10) as well as a demand that the plaintiff s injury fall "within the zone of interests protected by the law invoked." (11) Allen v. Wright (12) is the casebook poster child for this body of doctrine. It is a leading case in virtually every casebook that has a section on standing. (13) But Association of Data Processing Service Organizations v. Camp, (14) decided in 1970, not Allen v. Wright, arguably is the doctrinal high-water mark. That decision, however, appears much later in the casebook standing sections. (15) And there is a puzzle about what it illustrates: statutory limits on article standing; prudential standing; the invention of the zone-of-interest standing limitations; the APA? Long familiarity with the decision has obscured its intellectual importance. In Data Processing, the Court said that standing is a matter distinct from and anterior to the plaintiff s merits claim: The "legal interest" test goes to the merits. The question of standing is different. …

Prosecutorial Accountability 2.0

Abstract: "There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it." (1) INTRODUCTION Given prosecutors' extraordinary power, (2) it is important that they be effectively regulated and held accountable for misconduct. Although prosecutors perceive that they are in fact well-regulated, (3) if not over-regulated, (4) public complaints about prosecutorial misconduct and demands to reform the regulation of prosecutors have grown louder and carried further in the information age. The clamor over prosecutorial misconduct derives from many quarters and consists of critiques that build upon each other. National and local publications, websites, and blogs regularly chronicle prosecutorial misconduct. (5) In a 2015 article on criminal justice reform, Judge Kozinski of the Ninth Circuit Court of Appeals called for holding prosecutorial misconduct "up to the light of public scrutiny." (6) The New York Times editorial page has criticized discovery abuse by the New Orleans prosecutor's office. (7) Significantly, conservative publications have roundly condemned prosecutorial misconduct and urged elevating the problem to the national political agenda. (8) The discourse about prosecutorial misconduct has expanded and evolved in the past two decades. For a long time, the media and judiciaries focused primarily on intentional violations of law, not abuses of discretion or negligent law-breaking. They assumed intentional prosecutorial law-breaking was aberrational, the fault of rogue prosecutors--"a few bad apples." (9) The public and judicial response was limited to calls to punish individual wrongdoers, whose misconduct did not seriously erode public and judicial confidence in the prosecution's basic fairness and integrity. But over time, there has been increased acceptance of the argument that prosecutorial misconduct is widespread and systemic, as reflected in the popularization of Judge Kozinski's 2013 declaration that there is a national "epidemic" of prosecutorial misconduct. (10) A regulatory shift has accompanied this rhetorical shift. Slowly and sporadically, courts and other regulators have become more receptive to allegations of prosecutorial misconduct, more inclined to initiate inquiries into these allegations, and somewhat more willing to afford remedies and impose punishment. Perhaps most importantly, the public and regulators have become increasingly supportive of systemic measures aimed at deterring or preventing prosecutorial wrongdoing. These evolutionary changes are significant because they point toward greater legal and political accountability for prosecutors, both individually and institutionally, for errant behavior. This regulatory shift is a transition toward what this Article terms "Prosecutorial Accountability 2.0." This Article describes the rhetorical and regulatory changes that characterize the new prosecutorial accountability, identities the conditions that have enabled them to occur, and considers their implications. While identifying various necessary conditions, the Article argues that information technology has been the essential catalyst; the evolution could not be sustained without the aggregation, accessibility, and communication of data and commentary about prosecutorial misconduct that new information technology makes readily available to the public. Given the permanence of information technology in modern society, the Article concludes by cautiously predicting that the contemporary regulatory movement will be sustained; the pendulum will not swing back to the period when courts and the media presumed the integrity of prosecutors and counted on them to ameliorate the excesses and injustices of the police. Rather, the current pressure to hold prosecutors accountable will be ongoing. This Article proceeds in four Parts. Part I describes the traditional rhetoric of, and regulatory approaches to, prosecutorial misconduct. …

If Religious Liberty Does Not Mean Exemptions, What Might It Mean? The Founders’ Constitutionalism of the Inalienable Rights of Religious Liberty

Abstract: Is religion special, and does it, accordingly, deserve unique constitutional protections? A number of leading scholars say it is not, and it doesn't. In his recent thought-provoking article, What if Religion Is Not Special?, Micah Schwartzman contends that "religion cannot be distinguished from many other beliefs and practices as warranting special constitutional treatment." (1) Christopher Eisgruber's and Lawrence Sager's conception of "Equal Liberty" similarly "denies that religion is ... a category of human experience that demands special benefits and/or necessitates special restrictions." (2) Jocelyn Maclure and Charles Taylor espouse what is probably the prevailing position among contemporary political and legal theorists: "Within the context of contemporary societies marked by moral and religious diversity, it is not religious convictions in themselves that must enjoy a special status but, rather, all core beliefs that allow individuals to structure their moral identity." (3) Other scholars have responded with various arguments to defend religion's special status and the practice of exemptions that they contend follows from it. (4) This latter group would seem to have at least one distinct advantage on its side: the First Amendment's text, whatever the Establishment Clause might mean, clearly gives special status to the "free exercise" of religion. (5) This obvious point leads Schwartzman to conclude that "if the Religion Clauses are interpreted according to their original meaning, then they should be criticized as morally defective." (6) Schwartzman's verdict, like the entire debate in which he participates, presumes that religion's special status means religious individuals and institutions deserve special consideration for exemptions from burdensome laws. But what if religious liberty does not mean exemptions? Would we still find the Constitution morally defective? And if religious liberty does not mean exemptions, what protection would the First Amendment offer? Can religion retain its special Free Exercise status while not dictating constitutional exemptionism? This Article addresses those questions by taking a different approach to religion's specialness, one that does not presume the Free Exercise Clause means exemptions. It attempts to set forth an alternative paradigm for the constitutional protection of religious liberty by explaining why the Founders thought religion is special and by articulating their attendant constitutionalism of religious freedom. In doing so, it continues a line of inquiry, begun elsewhere, (7) that attempts to distinguish the Founders' natural rights constitutionalism from what I call modern moral autonomy exemptionism. The Article is divided into three Parts. Part I documents the Founders' shared understanding that religious liberty is a natural right possessed by all individuals. Part II explains what the Founders meant when they labeled aspects of religious liberty an "unalienable" natural right. The inalienable character of the core of religious liberty reveals what the Founders found special about religion. It also accounts for religion's special constitutional status, which for the Founders primarily meant specific jurisdictional limits on state sovereignty rather than exemptions. Part III further clarifies the Founders' constitutionalism of religious freedom by explaining how the Founders understood natural rights to have natural limits. The Founders' theory of religious liberty included within itself reasonable limits on religious exercise. A more thorough understanding of the Founders may or may not help us resolve our current debate over the proper scope of religious exemptions. But should we seek to recognize the special character of religious liberty without committing ourselves to First Amendment exemptionism, the Founders offer an alternative approach, one that, at least arguably, animated the Founding's original natural rights constitutionalism. …

Swept Away: Should Courts Retain a Recklessness Standard in Assessing Rescuer Injury Claims Under the Maritime Rescue Doctrine?

Abstract: INTRODUCTION The Roman poet Ovid once remarked that "the shipwrecked man shrinks even from calm waters." (1) Indeed, humanity has long respected and feared the expansive reaches and tremendous power of Earth's waters. Ovid's poignant remark alludes to the sea's myriad dangers and its ability to cause injury or death to those who venture out upon it. While powerful hurricanes, extratropical cyclones, and high surf constitute obvious maritime hazards, (2) secondary hazards such as mechanical failure (3) and social hazards such as piracy (4) pose significant danger to life and property. Despite the sea's array of dangers, persons of every level of maritime experience venture out on its waters to work, conduct research, and partake in recreational activity. Naturally, with such a diverse group of individuals engaged in maritime activity, accidents are bound to occur along with a subsequent threat to life and limb. Such imperiled individuals often find themselves in need of rescue to avoid serious injury or even death. While American tort law has refrained from judicially imposing a universal duty to rescue upon third parties, (5) maritime rescues commonly take place on a variety of scales in a wide range of circumstances. Large, governmental agencies such as the United States Coast Guard often have statutorily mandated missions, which impel them to engage in numerous, sometimes highly technical rescue operations on a frequent basis. (6) In 2014 alone, the Coast Guard responded to 17,508 cases, saving 3443 lives. (7) While the Coast Guard provides its rescuers with highly specialized training in addition to significant resources, (8) many maritime rescue operations are unofficially and voluntarily initiated by third-party bystanders with little in the way of formal education or training. A simple example of such an unofficial rescue operation might be a nearby individual who renders aid to a family, friend, or stranger in distress. (9) However, just because a rescuer lacks a mandate to engage in rescue operations does not mean he or she will be involved exclusively in small-scale, local rescue operations. For example, in 2013, thirty-one-year-old American entrepreneur and millionaire Christopher Catrambone launched a three-week rescue operation aimed at aiding migrants attempting to flee collapsing dictatorial regimes in Africa and the Middle East. (10) Given the rescuers' varying degrees of education, experience, and skill, it is inevitable that some rescuers will fail to perform their rescues correctly or suffer their own injuries in the process of rescuing those in peril. Given that a rescuer may suffer a potentially serious or even fatal injury in carrying out a rescue mission, it is necessary to ask what if any recourse is available to provide an injured rescuer or a deceased rescuer's estate with adequate redress. Hoping to incentivize rescue operations by third-party bystanders (11) amidst a backdrop lacking a universal duty to rescue, courts introduced the rescue doctrine to provide a safety net to would-be rescuers. With roots extending back to the nineteenth century, the rescue doctrine provides access to redress for injured rescuers by refusing to "impute negligence to an effort to preserve [human life], unless made under such circumstances as to constitute rashness." (12) Under the rescue doctrine, a "causal nexus" is established between "the tortfeasor's negligent conduct [and] the rescuer's injuries." (13) Thus, unless a rescuer was rash, as evidenced by "wanton or reckless" (14) conduct, he or she would not be barred from obtaining recovery for his or her injuries from the original tortfeasor owing to a lack of causation. (15) Note, though, the rescue doctrine applies only in cases where peril is created by another's negligent act, and not in cases involving an accident or act of nature. (16) Additionally, the rescue doctrine only applies when there is "a risk of imminent peril to one other than the rescuer. …

On Viewing the Courts as Junior Partners of Congress in Statutory Interpretation Cases: An Essay Celebrating the Scholarship of Daniel J. Meltzer

Abstract: Dan Meltzer liked to tell the story of an economist who, upon being reminded that many non-profit institutions thrive as the result of the labors of volunteers and employees who work at below-market rates, scoffed: "Yes, I know it works in practice, but does it work in theory?" Dan liked the story because it expressed his bemusement at academics who invert what he regarded as the proper relationship between theory and practice. Dan looked askance at purportedly positive academic theories that fail to attend sufficiently to how people actually behave. He also believed with quiet passion that the ultimate test of normative legal theories should lie in whether, if implemented, they would produce better results than current regimes--not under imagined ideal conditions, but in actual practice. Although Dan's practical orientation made him wary of abstract methodological argumentation, he took up the cudgels of theoretical debate to defend his views about statutory interpretation. Characteristically, Dan expressed his views in articles of carefully limited scope. Some of his broader pronouncements came in a piece that he and I co-authored entitled Federal Habeas Corpus Jurisdiction, Substantive Rights, and the War on Terror. (1) In it, we argued that the Supreme Court has appropriately adapted its interpretation of longstanding jurisdictional statutes in light of evolving understandings of the scope, and especially the geographic reach, of substantive constitutional rights. (2) Using the habeas corpus statutes as an illustration, our article defended a "common law model" in which courts play the role of "junior partners" (3) of Congress in interpreting statutory language to operate sensibly and justly in circumstances that its authors and legislative supporters likely did not foresee. (4) With history largely on our side, (5) Dan joined me in wanting courts to continue an approach that we thought had long worked well, albeit of course not perfectly, in practice. (6) Our arguments concerning interpretive methodology in Federal Habeas Corpus Jurisdiction, Substantive Rights, and the War on Terror substantially echoed Dan's considered views as expressed elsewhere. Five years earlier, in The Supreme Court's Judicial Passivity, (7) Dan had criticized a set of cases in which the Court "sound[ed] the theme that ... Congress has primary, if not exclusive, responsibility for fleshing out the operation of schemes of federal regulation." (8) If followed consistently, he argued, the approach of those cases "would deprive the polity of an immeasurably important source of lawmaking authority [that courts have traditionally exercised], would impose unrealistic demands on the federal legislative process, and would give rise to needless injustices in routine disputes." (9) In Dan's last published article, Preemption and Textualism, (10) he examined the specific challenges that courts confront in preemption cases, in which one party argues that a federal regulatory statute, although without saying so expressly, has impliedly preempted or nullified otherwise applicable state regulatory requirements. In this piece, Dan defended "purposive" statutory interpretation, in which courts ask whether the continued enforcement of state regulations would substantially impede the realization of federal statutes' purposes. (11) He regarded purpose-based interpretation as necessary to "the task of fashioning a workable legal system," especially but not exclusively in preemption disputes. (12) Dan's opponents in debates about statutory interpretations were "textualists," formalists, and proponents of an "agency model" who maintain--often for theoretical reasons--that courts should understand their role in interpreting statutes as that of the legislature's "faithful agents" in a narrow sense of that term. On this view, courts typically should adhere closely to the language that Congress has chosen, and they should hesitate to ascribe purposes to the legislature beyond those minimally necessary to render its choice of language intelligible. …

Honoring Dan Meltzer - Congressional Standing and the Institutional Framework of Article III: A Comparative Perspective

Abstract: Dan Meltzer was a superb federal courts scholar, an enormously generous colleague, a truly inspiring teacher, and a dear friend. His untimely death was a huge loss, in all of these respects. His first published paper, on jus tertii standing, in the Harvard Law Review of 1974, argued for the widening of standing in some cases. (1) This was a theme to which he returned, for example, in his 1988 Columbia Law Review piece on civil rights plaintiffs as private Attorneys General in seeking deterrent remedies. (2) One of Dan's last published papers considered executive branch responsibilities to execute and defend Acts of Congress, especially those whose constitutionality the Administration deemed reasonably open to doubt. (3) In that paper he noted, in a typically careful long footnote, the issue of standing of the House of Representatives in the then-pending Windsor litigation; (4) Dan addressed more generally the issue of congressional standing, pointing out in his inimitably careful, fair, and clear fashion how much was unresolved, or in doubt, about the possibility. (5) And I recently learned from Irv Nathan that Dan had been helpful to him as an academic when Irv, as Counsel to the U.S. House of Representatives, was involved in litigation to compel Harriet Miers, as White House Counsel, to provide information to the House--issues on which, Irv told me, Dan then recused himself when he became White House principal deputy counsel. (6) What Dan would have written on, had he not been deprived of the opportunity by the fates, is unknown. I would not presume even to speculate. But the topic of government standing is one that, based on his past work, I believe would have engaged his interest. And as we shall see, analysis can be well informed by Dan's work on the role of courts and constitutional remedies. Apart from Dan's interests, my second set of reasons for addressing issues relating to congressional standing in this Essay is that government standing, writ large, is, for our times, something like what "public interest" standing was in the 1970s for my generation in law school--a set of cutting edge issues about who could invoke the judicial power of the United States. (7) Consider the number of significant cases in just the last decade that have turned on some aspect of government standing. In addition to Windsor, that same Term the Court decided Hollingsworth v. Perry, (8) finding that proponents of a proposition to amend the state constitution of California lacked standing to defend the constitutionality of the amendment that they had sought when the attorney general of the state refused to defend the law or to appeal from a lower court ruling finding the provision unconstitutional. Distinguishing permanent government officeholders from private citizens who played a temporary role in initiating the process of amending the state constitution by initiative, the Court found that the latter lacked any particular stake in the controversy different from that of other citizens (9)--and did so notwithstanding that the California Supreme Court found that the proposition initiators were proper parties to defend the constitutionality of the amendment that resulted even when the state attorney general declined to do so. (10) In Massachusetts v. EPA, (11) the Court upheld the standing of the State of Massachusetts to challenge the Environmental Protection Agency's (EPA) failure to consider issuing regulations relating to the reduction of greenhouse gases from new motor vehicles to combat global warming and climate change. The Court upheld standing notwithstanding scientific and empirical uncertainty about the likelihood of global warming and about the degree of causation and traceability--typical elements of standing analysis--that the plaintiff could show on the facts. Even though in arguably analogous cases involving private plaintiffs the Court had rejected standing, (12) the Court emphasized that the state's character as a state had special significance for the standing inquiry, warranting "special solicitude" for its "stake in protecting quasi-sovereign interests. …

One Federalism and the Judicial Role: Enforcing the Limits of Article I

Abstract: INTRODUCTION Federalism has been at the heart of our political system since the time of the Founding. Reinvigorated by Herbert Wechsler's 1954 article on the political safeguards of federalism, (1) and by the rise of "New Federalism" in the late twentieth century, the federalism debate has ceaselessly perplexed the legal community. Scholars disagree about the safeguards of federalism, the purpose of federalism, and the continuing legitimacy of the federal structure. Focusing on the history, text, and structure of the Constitution, this Note seeks to advance that debate by engaging two points made by a prominent scholar in the field regarding the safeguards of federalism. First, Heather Gerken's recent suggestion that scholars on both sides of the political safeguards of federalism versus judicial review debate should give up the fight (2) threatens clarity going forward and lacks historical, constitutional foundation. Professor Gerken's sensitivity to the realities of our complex federal structure sharpens debate regarding the proper approach to federalism today. (3) It is certainly true that the relationship between the federal government and the states has changed since 1789, and modern theories of federalism must be able to engage the world we inhabit. But the complexity of our system does not negate the need "to adopt one theory to rule them all." (4) While she is right to point out the "both/and" nature of federalism protection (5)--that is, both procedural safeguards and judicial review have a role in maintaining our constitutionally conceived dual system of government--it does not follow that there are "many federalisms" (6) or that a unifying theory for maintaining and protecting the proper balance of our federal structure is somehow unnecessary. The constitutionally designed federalism structure still provides the roles and mechanisms for maintaining that delicate balance of power--even if the balance, rightfully, looks different today than it did in the past. Debates about the proper safeguards of federalism may be "tired," (7) but their persistence is a testament to their importance. A unified theory of federalism, offered by the framers and entrenched in the text of the Constitution, must prevail over an "analysis] [of] which flavor of federalism best fits a given context." (8) Second, because she does not ground her theory of federalism primarily in the text of the Constitution, Professor Gerken's later work distorts the analysis required from the Court on federalism questions. Evaluating the two main approaches the Court has taken, Professor Gerken notes: "Some of the Court's decisions define federal power in relation to the states, and others define it in isolation." (9) She finds the former, relational approach better (though not ideal) because it is more manageable and durable, and because it comes closer to recognizing the reality that "states and the federal government regulate shoulder-to-shoulder in the same, tight policymaking space." (10) Professor Gerken's insightful analysis illuminates a need for a cogent, principled approach to federalism questions that forces judges to conform to "a mediating theory for translating abstract principles into concrete doctrine" (11) instead of getting caught up in the "tangled underbrush of lawyers' tricks and logicians' games." (12) Her concerns force more precise thinking about the Court's role in this area. Nevertheless, she ultimately inverts the analysis by suggesting it is better for the Court to frame the limits imposed on the federal government in terms of state sovereignty rather than constitutional limits on federal power. (13) This stands in tension with the Constitution's text: the Court's role in safeguarding federalism is to enforce the constitutional limits of federal power. The Constitution gives the Court no power to leverage state sovereignty as such, but it offers a clear directive for the judiciary to check congressional overreach. …

Virtue, Freedom, and the First Amendment

Abstract: "Despotism may govern without faith, but liberty cannot." (1) ABSTRACT The modern First Amendment embodies the idea of freedom as a fundamental good of contemporary American society. The First Amendment protects and promotes everybody's freedom of thought, belief, speech, and religious exercise as basic goods--as given ends of American political and moral life. It does not protect these freedoms for the sake of promoting any particular vision of the virtuous society. It is neutral on that score, setting limits only in those rare cases when the exercise of a First Amendment freedom exacts an intolerable social cost. Something like this collection of views constitutes the conventional account of the First Amendment. This Article offers it two challenges. First, the development of the First Amendment over the past century suggests that freedom is not an American sociopolitical end. It is a means--a gateway out of one kind of political and legal culture and into another with its own distinctive virtues and vices. Freedom is not a social solution but instead gives rise to a social problem--the problem of how to allocate a resource in civically responsible ways, so as to limit freedom's hurtful potential and to make citizens worthy of the freedoms they are granted. Only a somewhat virtuous society can sustain a regime of political liberty without collapsing, as a society, altogether. Thus the First Amendment of the conventional account has not maximized freedom for all people and groups. It has promoted a distinctive set of views about the virtuous legal and political society. Second, the new legal culture promoted and entrenched by the conventional account is increasingly finding that account uncongenial. In fact, the conventional account is positively harmful to its continued flourishing. That is because the new legal culture's core values are not the First Amendment freedoms themselves, but the particular conceptions of political and social equality and individual dignity that the conventional account has facilitated and promoted. Proponents of the new legal culture in consequence now argue for aggressive limits on First Amendment freedoms. One prominent group has invented a new legal category: "enumerated rights Lochnerism." These scholars denigrate any First Amendment resistance to multiplying forms of expansive government regulation in the service of egalitarian aims as retrogressively libertarian. Another group argues for novel limits on the First Amendment in the form of balancing tests that would restrict speech that injures the dignity of listeners and religious exercise that results in vaguely defined and vaguely delimited harms to third parties. What unites these critics is the desire to swell features of the Court's post-New Deal Fourteenth Amendment jurisprudence, and particularly the law concerning sex as a civil right, by protecting progressively expansive conceptions of equality and individual dignity. The critics see the conventional account of the First Amendment as an obstacle in the path of progress. Part I of this Article presents the conventional account of the First Amendment in three theses. It then critiques the conventional account in Part II by offering three revised theses, developed through the somewhat unusual route of exploring the First Amendment thought of the late political theorist and constitutional scholar, Walter Berns. Freedom, for Berns, gave rise to a problem--the problem of making men sufficiently virtuous to merit their freedom. It was a problem that he thought had been ignored or even forgotten by defenders of the conventional account of the First Amendment. But the problem of virtue and freedom has been remembered. Part III argues that contemporary defenders of the new legal culture have remembered the problem just as their own cultural and legal mores are ascendant. The new civic virtues--exemplified in multiplying anti-discrimination regulations for the protection of thickening conceptions of equality and individual dignity, particularly as those concepts relate to sexual autonomy--are those that were fostered by the conventional account of the First Amendment in tandem with significant components of the Supreme Court's post-New Deal Fourteenth Amendment jurisprudence. …

"Come Now Let Us Reason Together": Restoring Religious Freedom in America and Abroad

Abstract: This Article challenges the criticisms of religious freedom that have emerged among recent academics and politicians, and the growing subordination of religious freedom to sexual freedom claims. In particular, we analyze recent critical scholarship that claims that religious liberty was not important to the American founders and that calls for the removal of special religious exemptions and accommodations because they are said to threaten other fundamental rights and to privilege religion unfairly. These critical arguments we find historically false, philosophically misguided, sociologically one-sided, and increasingly dangerous given the perilous state of religious freedom around the world today. We call for a return to the founders’ insights that religion deserves special constitutional protection and that religious freedom must be open to all forms of religion and belief. We also call for a proper balancing of the enduring principles of freedom of conscience, free exercise of religion, religious pluralism, religious equality, separation of church and state, and disestablishment of religion, which together have helped forge the unique protection of religious freedom that America holds out to all its citizens, and to the world.

The Bill of Rights as a Term of Art

Abstract: It certainly must be immaterial what mode is observed as to the order of declaring the rights of the citizens, if they are to be found in any part of the instrument which establishes the government. And hence it must be apparent that much of what has been said on this subject rests merely on verbal and nominal distinctions, which are entirely foreign from the substance of the thing. (1) INTRODUCTION The Bill of Rights is a sacred part of our Constitution, but why do we use that term to describe the first set of amendments? (2) A legal claim is not stronger if the guarantee falls within the Bill of Rights as opposed to, say, the Equal Protection Clause or a part of Article I. Moreover, the Supreme Court has repeatedly declined to hold that a right in the Bill of Rights is ipso facto a fundamental right, (3) and hardly anyone now thinks that Amendment III or Amendment VII carries the same weight as Amendment I. (4) What, then, is the point of saying that all of these provisions are part of a bill of rights when the text ratified in 1791 does not use that phrase? (5) This Article argues that the use of the "Bill of Rights" to describe the first set of constitutional amendments emerged long after the Founding as a justification for expanding federal power at home and abroad. In making that claim, I challenge two common misconceptions about the Bill of Rights. One is that the first set of amendments was known by that name from the start. (6) This is not true. James Madison never said that what was ratified in 1791 was a bill of rights, (7) and that label was not widely used for those provisions until after 1900. (8) The second fallacy is that the Bill of Rights was a term of art designed to limit government through judicial review. (9) While this is the modern understanding of the Bill of Rights, that idea did not become part of constitutional grammar until World War II. (10) During the ratification debates on the Constitution, some Anti-Federalists protested that adding a bill of rights to the proposal was tantamount to throwing "a tub to the whale," by which they meant that such a text would be just a decoy that would legitimate federal power. (11) In practice, this was what calling the 1791 amendments the Bill of Rights mostly did when that label was used prior to 1945. The first move in this direction came during Reconstruction, when a few members of Congress, especially John A. Bingham, used that term of art because they wanted to overturn Barron v. Baltimore (12) and extend the first set of amendments to the states. (13) By calling that list the Bill of Rights, Bingham was trying to persuade his colleagues that this expansion of national power was a valid exception to states' rights. (14) While Bingham did not change either the name or the scope of those amendments during his era, both aspects began to assume their modern form after the Spanish-American War. Critics of imperialism such as William Jennings Bryan argued that our democracy could not endure if we withheld the "Bill of Rights" from the Philippines. (15) President William McKinley and Congress answered this challenge by extending part of the first set of amendments in what was later called the Philippine Bill of Rights. (16) This watered-down version of the original was vital in easing concerns about unprecedented federal control over territories that would never be admitted as states. The New Deal and World War II elevated the Bill of Rights to its present iconic status in an effort to increase national power still further. Liberals are fond of Franklin D. Roosevelt's "Second Bill of Rights" that sought to grant positive rights such as health care and education, (17) but FDR also brandished the first Bill of Rights to deflect charges that the growth of the welfare state threatened individual liberty. The attack was false, the President explained in one of his early Fireside Chats, because the gold standard of liberty was the Bill of Rights, and those freedoms were not being infringed. …