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Showing papers in "Stanford Law Review in 2012"


Journal Article
TL;DR: This paper conducted an experiment to assess the impact of cultural cognition on perceptions of facts relevant to distinguishing constitutionally protected "speech" from unprotected "conduct" and found that subjects of opposing cultural outlooks who were assigned to the same experimental condition (and thus had the same belief about the nature of the protest) disagreed sharply on key "facts" including whether the protestors obstructed and threatened pedestrians.
Abstract: Cultural cognition refers to the unconscious influence of individuals’ group commitments on their perceptions of legally consequential facts. We conducted an experiment to assess the impact of cultural cognition on perceptions of facts relevant to distinguishing constitutionally protected “speech” from unprotected “conduct.” Study subjects viewed a video of a political demonstration. Half the subjects believed that the demonstrators were protesting abortion outside of an abortion clinic, and the other half that the demonstrators were protesting the military’s “don’t ask, don’t tell” policy outside a campus recruitment facility. Subjects of opposing cultural outlooks who were assigned to the same experimental condition (and thus had the same belief about the nature of the protest) disagreed sharply on key “facts”—including whether the protestors obstructed and threatened pedestrians. Subjects also disagreed sharply with those who shared their cultural outlooks but who were assigned to the opposing experimental condition (and hence had a different belief about the nature of the protest). These results supported the study hypotheses about how cultural cognition would affect perceptions pertinent to the “speech”-“conduct” distinction. We discuss the significance of the results for constitutional law and liberal principles of selfgovernance generally.

48 citations


Journal Article
TL;DR: In this article, the authors argue that the state's anti-rent-seeking interest must be balanced against the First Amendment costs of lobbying regulation in infringing on the right to speak and petition the government.
Abstract: Politicians across the political spectrum, from Barack Obama to Sarah Palin and Rand Paul, routinely castigate lobbyists for engaging in supposedly corrupt activities or having unequal access to elected officials. Since attaining office President Obama has imposed unprecedented new lobbying regulations, and he is not alone: both Congress and state and local legislative bodies have done so in recent years. At the same time, federal courts, relying upon the Supreme Court’s new campaign finance decision in Citizens United v. FEC, have begun striking down lobbying regulations, including important regulations limiting campaign finance activities of lobbyists and imposing a waiting period before legislators or legislative staffers may work as lobbyists. Two courts have held such laws could not be sustained on anticorruption grounds, and they are unlikely to be sustained on political equality grounds either. This Article advances an alternative rationale which could support some, though not all, of the recent wave of new lobbying regulations: the state’s interest in preventing the socially inefficient activity of rent-seeking. Less technically, the government’s interest is in promoting national economic welfare. Rent-seeking occurs when resources are dedicated to capturing a government benefit, rather than being put to a productive use, and lobbyists are often the key actors securing such benefits. The rent-seeking analysis focuses attention on the systemic societal costs of lobbying, rather than engaging in unjustified vilification of the vast majority of lobbyists.Part I of this Article provides an overview of the current state of lobbying regulation and lobbying jurisprudence. Part II proposes a new anti-rent-seeking rationale for lobbying regulation. It begins by describing the political science literature on how lobbying works, as well as current statistics on the extent of lobbying on the federal level and the costs of lobbyist-driven rent-seeking on the national economy. Some of the new and proposed lobbying regulations, such as anti-bundling provisions and anti-revolving door provisions, could decrease the total amount of interest group rent-seeking. The state’s anti-rent-seeking interest must be balanced against the First Amendment costs of lobbying regulation in infringing on the right to speak and petition the government. I defend the reduction of rent-seeking as an important (even potentially compelling) state interest that justifies at least some new lobbying regulations against constitutional challenge. Part III turns to objections and extensions of the argument. I respond to objections on both ends and means. On ends, I consider the circumstances in which the promotion of national economic efficiency can trump First Amendment rights. On means, I consider whether there is sufficient proof that lobbying regulations are sufficiently tailored to a reduction in rent-seeking and whether, because the “hydraulic” nature of money in politics, attempts to regulate lobbying so as to decrease rent-seeking will be easy to evade. Under extensions, I consider whether the anti-rent seeking rationale could be used to justify the reenactment, as suggested by Justice Stevens, of the ban on the spending of corporate treasury funds in candidate elections, as well as the recent SEC “pay-to-play” rule for investment advisers.By permission of the Board of Trustees of the Leland Stanford Junior University, from the Stanford Law Review.

24 citations


Journal Article
TL;DR: In this paper, the authors present a case study in how complexity arising from the evolu- tion and proliferation of a financial innovation can increase systemic risk, and suggest that regulators should target these new sources of systemic risk directly by seeking to reduce the length and complexity of the chain connecting investor and investment.
Abstract: This Article presents a case study in how complexity arising from the evolu- tion and proliferation of a financial innovation can increase systemic risk. The subject of the case study is the securitization of home loans, an innovation which played a critical and still not fully understood-role in the 2007-2009 financial crisis. The Article introduces the term ― fragmentation node‖ for these transaction structures, and it shows how specific sources of complexity inherent in fragmentation nodes limited transparency and flexibility in ways that undermined the stability of the financial system. In addition to shedding new light on the processes through which financial innovations become so complex and how that complexity contributes to new sources of systemic risk, the Article considers the tools regulators will need to tackle these sources of systemic risk. The policy analysis shows that disclosure, a tool commonly used in financial regulation, will not suffice. At times, regulators should target these new sources of systemic risk directly by seeking to reduce the length and complexity of the chain connecting investor and investment. The Article suggests some modest steps regulators could have taken prior to the 2007-2009 financial crisis, such as a transaction tax targeting serial fragmentation nodes, to illustrate how such reforms might work in practice. It also explains why the dynamics revealed in this case study are almost certain to arise again, even if in slightly different form.

18 citations


Journal Article
TL;DR: The authors describes the emergence of American counter-radicalization and its roots in the British example, highlights the tension between this area of official endeavor and the Establishment Clause, and reveals the tight connection between the legal and strategic challenges with which American counter radicalization must contend.
Abstract: In the name of national security, federal and local governments have begun to intervene domestically in the religious lives of Muslims and into Islam itself. Taken together, these interventions form part of the emerging strategy of counter-radicalization, by which officials aim to diminish the pull of radical Islamic ideology in part by promoting more “mainstream” theological alternatives. Both the official opposition to radical Islam (as opposed to the violence that it is thought to generate) and the support for more palatable (to the state, that is) religious alternatives generate friction with the Establishment Clause and the values that it enshrines. But the prospect of establishing “Official Islam” is not the only worry surrounding counter-radicalization. Counter-radicalization also suffers from a number of strategic flaws that have become apparent in the context of British counter-radicalization efforts undertaken over the last five years. Most fundamentally, Western governments, including our own, are unlikely to succeed in tackling the risk of future terrorism by attempting to shape religious ideology. In fact, this strategy is likely to backfire by stoking animosities and fear. This Article describes the emergence of American counter-radicalization and its roots in the British example, highlights the tension between this area of official endeavor and the Establishment Clause, and reveals the tight connection between the legal and strategic challenges with which American counter-radicalization must contend.

15 citations


Journal Article
TL;DR: In this paper, the authors use the non-intuitive hypothetical of a dispute in California between a Japanese father and daughter over a transfer of shares, and demonstrate the contribution that conflicts can make.
Abstract: The German chancellor, the French president and the British prime minister have each grabbed world headlines with pronouncements that their state’s policy of multiculturalism has failed. As so often, domestic debates about multiculturalism, as well as foreign policy debates about human rights in non-Western countries, revolve around the treatment of women. Yet there is also a widely noted brain drain from feminism. Feminists are no longer even certain how to frame, let alone resolve, the issues raised by veiling, polygamy and other cultural practices oppressive to women by Western standards. Feminism has become perplexed by the very concept of “culture.” This impasse is detrimental both to women’s equality and to concerns for cultural autonomy. We propose shifting gears. Our approach draws on what, at first glance, would seem to be an unpromising legal paradigm for feminism - the highly technical field of conflict of laws. Using the non-intuitive hypothetical of a dispute in California between a Japanese father and daughter over a transfer of shares, we demonstrate the contribution that conflicts can make. Whereas Western feminists are often criticized for dwelling on “exotic” cultural practices to the neglect of other important issues affecting the lives of women in those communities or states, our choice of hypothetical not only joins the correctives, but also shows how economic issues, in fact, take us back to the same impasse. Even mundane issues of corporate law prove to be dazzlingly indeterminate and complex in their feminist and cultural dimensions. What makes conflict of laws a better way to recognize and do justice to the different dimensions of our hypothetical, surprisingly, is viewing conflicts as technique. More generally, conflicts can offer a new approach to the feminism/culture debate - if we treat its technicalities not as mere means to an end but as an intellectual style. Trading the big picture typical of public law for the specificity and constraints of technical form provides a promising style of capturing, revealing and ultimately taking a stand on the complexities confronting feminists as multiculturalism is challenged here and abroad.

15 citations


Journal Article
TL;DR: In particular, Dari-Mattiacci and De Geest as discussed by the authors argued that the relative priceefficacy of sticks is a reason to prefer them to carrots, and that their is the first GALLE 64 STAN.
Abstract: =1470129. The most recent evolution of that project is Giuseppe Dari-Mattiacci & Gerrit De Geest, Carrots, Sticks, and the Multiplication Effect, 26 J.L. ECON. & ORG. 365 (2009) [hereinafter Dari-Mattiacci & De Geest, Multiplication Effect], which argues that the relative price-efficacy of sticks is a reason to prefer them to carrots, and that theirs is the first GALLE 64 STAN. L. REV. 797 (DO NOT DELETE) 4/14/2012 12:02 PM 800 STANFORD LAW REVIEW [Vol. 64:797 As many readers know, there is a vigorous debate in the environmental literature on the first set of choices I just mentioned: whether pollutants can best be controlled by regulating their quantity, or instead by affecting their price.8 Within the subset of price options, the choice of carbon-tax design might call to mind prominent recent debates over the use of so-called “tax expenditures,” which consist mostly of arguments over whether the tax system should be used to implement spending programs.9 These questions are interesting and important, but so far they have mostly obscured the fact that there is a third key set of decisions to be made about regulatory goals that, like global climate change policy, attempt to grapple with the costs one group of society imposes on another. Such costs (as, again, most readers likely know) are commonly called “externalities,” and at least since A.C. Pigou economists have known that when a consumer does not pay the full cost of consuming a unit of a good, she is likely to purchase more than society optimally would want.10 One mechanism for correcting that inefficiency is to change the price the consumer pays for that next unit of a good—its “marginal” price—to reflect the total cost society bears from its consumption.11 As it turns out, there are two ways of accomplishing that task: tax the good, or pay the consumer not to consume it.12 In other words, we can make the externality producer worse off than under the status quo: a stick. Or we can make the producer better off: a carrot. Choices between carrots and sticks are hardly unique to environmental regulation. Indeed, they pop up anywhere we might use a price mechanism for overcoming externalities. Since externalities are one of a handful of fundamental justifications for government regulation, the carrot/stick problem, I will arsustained attempt to distinguish normatively between the two instruments. Id. at 367-68. I agree on both fronts, but there are a number of other relevant factors in the debate, some of which may point in the opposite direction. 8. Compare Robert N. Stavins, A Meaningful U.S. Cap-and-Trade System to Address Climate Change, 32 HARV. ENVTL. L. REV. 293, 348-53 (2008) (quantity), with William D. Nordhaus, To Tax or Not to Tax: Alternative Approaches to Slowing Global Warming, 1 REV. ENVTL. ECON. & POL’Y 26 (2007) (price), Marc J. Roberts & Michael Spence, Effluent Charges and Licenses Under Uncertainty, 5 J. PUB. ECON. 193 (1976) (price), and Martin L. Weitzman, Prices vs. Quantities, 41 REV. ECON. STUD. 477 (1974) (price). 9. Compare Daniel N. Shaviro, Rethinking Tax Expenditures and Fiscal Language, 57 TAX L. REV. 187, 192-99, 206-21 (2004) (suggesting some merits to use of the tax system for policy implementation), and Edward A. Zelinsky, James Madison and Public Choice at Gucci Gulch: A Procedural Defense of Tax Expenditures and Tax Institutions, 102 YALE L.J. 1165, 1175-84 (1993) (same), with J. Clifton Fleming, Jr. & Robert D. Peroni, Can Tax Expenditure Analysis Be Divorced from a Normative Tax Base?: A Critique of the “New Paradigm” and Its Denouement, 30 VA. TAX REV. 135, 172-79 (2010) (criticizing use of tax system for non-tax policy goals), and Edward D. Kleinbard, The Congress Within the Congress: How Tax Expenditures Distort Our Budget and Our Political Process, 36 OHIO N. UNIV. L. REV. 1, 4-30 (2010) (same). 10. See A.C. PIGOU, THE ECONOMICS OF WELFARE 172-203 (4th ed. 1932). 11. JONATHAN GRUBER, PUBLIC FINANCE AND PUBLIC POLICY 134 (2d ed. 2007).

10 citations


Journal Article
TL;DR: The authors analyzes the effectiveness of derivatives clearinghouses in decreasing systemic risk upon a counterparty default and proposes two recommendations to ensure that derivatives clearing houses effectively reduce systemic risk: (1) regulators should minimize the risk of clearinghouse insolvency through strict collateral, capital, and default management requirements, and (2) create an ex ante guarantee fund to serve as a government backstop and provide liquidity to an insolvent derivatives clearinghouse, thereby avoiding enhanced systemic risk.
Abstract: This Note analyzes the effectiveness of derivatives clearinghouses in decreasing systemic risk upon a counterparty default. The analysis first explains how a derivatives clearinghouse can successfully reduce systemic risk by analyzing LCH. Clearnet’s management of the Lehman default in 2008. Next, the analysis demonstrates that if a clearinghouse could not manage a default and became insolvent, systemic risk would greatly increase. Rather than containing the impact of a counterparty default, an insolvent clearinghouse would enhance systemic risk because the two existing resolution regimes, including the Bankruptcy Code and Dodd-Frank Orderly Liquidation Authority, could not successfully unwind the institution. The primary contribution of the Note is identifying that an insolvent derivatives clearinghouse creates an unsolvable problem with respect to resolution: untangling the derivatives trades will inevitably take more than a day, but if sorting out the portfolios takes even a few days, clearing members will start a run on the clearinghouse. The resulting enhanced systemic risk would necessitate government intervention. A major derivatives clearinghouse would be too big to fail. Accordingly, this Note proposes two recommendations to ensure that derivatives clearinghouses effectively reduce systemic risk: (1) regulators should minimize the risk of clearinghouse insolvency through strict collateral, capital, and default management requirements, and (2) create an ex ante guarantee fund to serve as a government backstop and provide liquidity to an insolvent derivatives clearinghouse, thereby avoiding enhanced systemic risk.

9 citations


Journal Article
TL;DR: In this article, the head of New York City’s Rent Guidelines Board declined to answer Harmon's petition for certiorari in the United States Supreme Court, which is now scheduled to be filed by March 5, 2012.
Abstract: At this moment, it looks as though the law of eminent domain takings is in a quiet phase, as the Supreme Court has not recently taken any major case that examines the foundations of the field. One apparently settled area of takings jurisprudence deals with rent control, where the Court provides only scant protection to landlords who claim that their property has been taken when states and local governments pass local laws that restrict their right to evict tenants at the expiration of their leases. For example, a recent challenge to New York’s rent control law received a polite dust-off in the Second Circuit in Harmon v. Kimmel.1 The head of New York City’s Rent Guidelines Board declined to answer Harmon’s petition for certiorari in the United States Supreme Court. Much to everyone’s surprise, the Supreme Court requested an answer from the New York City defendants, which is now scheduled to be filed by March 5, 2012.2 Perhaps this surprising development is attributable in part to the extensive and sympathetic coverage that Harmon’s plight has received in the press.3

9 citations


Journal Article
TL;DR: The case for anonymous hiring is based on two lines of psychology research as discussed by the authors, which suggests that interviews are poor tools for predicting job performance and suggests that anonymous hiring should both decrease discrimination and help firms hire more productive workers.
Abstract: The Supreme Court’s recent decision in Wal-Mart Stores, Inc. v. Dukes made clear that Title VII can do little to address the problem of unintentional bias in employment decisions. This Note proposes a new legal solution to that problem: Congress should encourage firms to hire anonymously. The case for anonymous hiring — stripping resumes of all information related to race or sex, and eliminating selection interviews — rests on two lines of psychology research. First, experiments show that unconscious bias infects resume review and selection interviews, causing even well-intentioned employers to discriminate. Second, dozens of psychology studies suggest that interviews are poor tools for predicting job performance. Together, these studies suggest that anonymous hiring should both decrease discrimination and help firms hire more productive workers. This conclusion is counter intuitive, however, and firms need an incentive to hire anonymously. A new statutory defense to Title VII disparate treatment claims would provide that incentive, reducing liability insurance premiums for anonymous hirers. A fraud exception to this defense, together with continued disparate impact liability, would prevent firms from using anonymous hiring as a shelter for discrimination. Furthermore, anonymous hiring could incorporate affirmative action to break ties among similarly qualified applicants. The policy would also reduce hiring discrimination based on weight, size, or attractiveness — without changing federal law to protect those characteristics directly.

9 citations


Journal Article
TL;DR: The authors analyzes the efforts of plaintiffs' lawyers and state attorneys general to regulate the administration of the Gulf Coast Claims Facility through the court system and proposes a methodology by which courts should resolve requests for regulation that present standing and adequacy issues.
Abstract: This comment analyzes the efforts of plaintiffs’ lawyers and state attorneys general to regulate the administration of the Gulf Coast Claims Facility through the court system. Victims of the Deepwater Horizon oil spill have the option of seeking compensation from the Gulf Coast Claims Facility, a compensation scheme funded by BP, or joining one of the class action lawsuits against BP that have been consolidated in a multidistrict litigation in New Orleans, Louisiana. The Plaintiffs’ Steering Committee and several Gulf States’ Attorneys General have requested that the judge overseeing the litigation intervene in the administration of the claims facility, namely by invalidating or modifying releases of liability, monitoring communications between the facility and potential claimants, and even taking control of the compensation process itself. These efforts have met resistance not only from defendants but also from other plaintiffs’ lawyers, raising the question as to what jurisdiction courts have to intervene in a private compensation scheme at the request of litigants seeking compensation through the courts. The primary contribution of this comment is demonstrating how inadequate causes of action, Article III standing requirements, and Federal Rule of Civil Procedure 23(a)’s adequacy requirement for class certification will in some cases deprive the court of jurisdiction to consider the requests. The comment proposes a methodology by which courts should resolve requests for regulation that present standing and adequacy issues: dismiss any requests for regulation that create substantial disagreement among class members on the grounds that an adequate representative of the class could not have standing with respect to that issue, because the dismissal will preserve the ability of the class to gain certification and bring other claims.

9 citations


Journal Article
TL;DR: In this article, the Second Amendment should be read to encompass both the right to keep or bear arms for self-defense and the inverse right to protect oneself by avoiding arms, and what practical implications, if any, the latter right would have.
Abstract: Sometimes a constitutional right to do a particular thing is accompanied by a right not to do that thing. The First Amendment, for example, guarantees both the right to speak and the right not to speak This Article asks whether the Second Amendment should likewise be read to encompass both the right to keep or bear arms for self-defense and the inverse right to protect oneself by avoiding arms, and what practical implications, if any, the latter right would have. The Article concludes albeit with some important qualifications that a right not to keep or bear arms is implied by what the Supreme Court has called the "core" and "central component" of the Second Amendment: self-defense, especially in the home. Recognizing such a right might call into question the constitutionality of the growing number of "anti-gun control" laws that make it difficult or illegal for private individuals to avoid having guns in their actual or constructive possession. Language: en

Journal Article
TL;DR: In this paper, the authors propose an approach to solve the problem of bailouts by retaining governmental ability to make the right kinds of bailout possible by forcing the bailed out firms to internalize the costs of such bailouts, on a pro-rata basis.
Abstract: Government bailouts undermine the core principles of capitalism. They are also expensive, unjust, unpopular, and usually represent dramatic deviations from the rule of law. However, they are also, in some cases, necessary. The “problem of bailouts,” then, is that they are almost always inimical to the interests of society, except when they are not. This complexity is ignored under the recent Dodd-Frank Act, which improbably guarantees an end of taxpayer bailouts. Indeed, much of the Act makes bailouts more likely, not less, making the wrong kind of bailouts available far too often.This Article proposes to solve the problem of bailouts by retaining governmental ability to make the right kinds of bailouts possible by forcing the bailed out firms to internalize the costs of such bailouts. The proposal - called elective shareholder liability - allows bank shareholders, according to their own internal risk analyses, the option of either changing their capital structure to include dramatically less debt, consistent with a consensus recommendation of leading economists; or, alternatively, adding a bailout exception to the banks’ limited shareholder liability status to require shareholders - not taxpayers - to cover the ultimate costs of their failure. This liability would be structured as a governmental collection, similar to a tax assessment, for the recoupment of all bailout costs against the shareholders, on a pro-rata basis. It would also include an up-front stay on collections to ensure that there are, in fact, taxpayer losses to be recouped, and to mitigate government incentives for over-bailout, political manipulation, and crisis exacerbation. The proposed structure would also give the government the authority to declare the shareholders’ use of the corporate form to evade liability null and void, and require that shareholders who litigate against collection and subsequently lose to pay the government’s litigation expenses. Among the many benefits of elective shareholder liability, the proposal anticipates the development of a derivatives market that would insure shareholders against liability, the price of which will contain more relevant market information than any other asset price presently available. After explaining the structure and other benefits of elective shareholder liability, the Article addresses several potential objections. Close inspection of these objections, however, reveals that the overall case for elective shareholder liability is strong as a matter of history, law, and economics, though, perhaps, not politics.

Journal Article
TL;DR: In this article, the authors address the fundamental question of whether, as a matter of good policy, it is ever appropriate that a foreign issuer be subject to the U.S. fraud-on-the-market private damages class action liability regime, and, if so, by what kinds of claimants and under what circumstances.
Abstract: This Article addresses the fundamental question of whether, as a matter of good policy, it is ever appropriate that a foreign issuer be subject to the U.S. fraud-on-the-market private damages class action liability regime, and, if so, by what kinds of claimants and under what circumstances. The bulk of payouts under the U.S. securities laws arise out of fraud-on-the-market class actions— actions against issuers on behalf of secondary market purchasers of their shares for trading losses suffered as a result of issuer misstatements in violation of Rule 10b-5. In the first decade of this century, foreign issuers became frequent targets of such actions, with some of these suits yielding among the very largest payouts in securities law history. The law determining the reach of the U.S. fraud-on-the-market liability regime against foreign issuers has since been thrown into flux. The Supreme Court’s recent decision in the Morrison case adopted an entirely new approach for determining the reach of Rule 10b-5 in situations with transnational features. This new approach focused on whether the purchase was of a security listed on a U.S. exchange or occurred in the United States, in contrast to the previous focus on whether either conduct or effects of sufficient importance occurred in the



Journal Article
TL;DR: In this article, the authors argue for a federalism frame that emphasizes vertical intergovernmental arrangements for promoting and mediating a dense array of policy values over the long term, and reveal the important policy benefits of our shared federal-local national security system, and suggest ways to better capture these benefits.
Abstract: National security law scholarship tends to focus on the balancing of security and liberty, and the overwhelming bulk of that scholarship is about such balancing on the horizontal axis among branches at the federal level. This Article challenges that standard focus by supplementing it with an account of the vertical axis and the emergent, post-9/11 role of state and local government in American national security law and policy. It argues for a federalism frame that emphasizes vertical intergovernmental arrangements for promoting and mediating a dense array of policy values over the long term. This federalism frame helps in understanding the cooperation and tension between the federal and local governments with respect to counterterrorism and national security intelligence, and also yields insights to guide reform of those relationships. The Article emphasizes two important values that have been neglected in the sparse scholarship on local government and national security functions: (1) accountability and the ways vertical intergovernmental arrangements enhance or degrade it, and (2) efficiency and the ways those arrangements promote public policy effectiveness. This Article reveals the important policy benefits of our shared federal-local national security system, and it suggests ways to better capture these benefits, especially if terrorism threats evolve to include a greater domestic component.

Journal Article
TL;DR: This Article demonstrates that, as a matter of constitutional design and history, as well as under relevant precedents, Virginia clearly had and has standing to bring its challenge to the Patient Protection and Affordable Care Act.
Abstract: Critics of Virginia's challenge to the constitutionality of the Patient Protection and Affordable Care Act have asserted that Virginia lacked standing to even raise the issue. Such criticism is inconsistent with foundational understandings of the role of states in providing a check on federal power and with the modern standing jurisprudence of the Supreme Court, especially as reflected in the Court's decisions regarding a state's sovereign interest in defending its code of laws. This Article demonstrates that, as a matter of constitutional design and history, as well as under relevant precedents, Virginia clearly had and has standing to bring its challenge.

Journal Article
TL;DR: The subject-based view of the private law exception, which prevents cities from passing ordinances affecting subjects like contracts, property, and torts, is largely unenforced today as mentioned in this paper.
Abstract: Cities in most states enjoy broad “home rule” authority – that is, the presumptive power to pass ordinances regulating a wide range of subjects. In many of these states, however, home rule comes with a catch: cities are prevented from passing ordinances that regulate or interfere with “private law.” This article argues that the “private law exception,” as this doctrine is known, is an anachronistic relic of early twentieth century legal thought that ought to be retired outright. This article explains how a subject-based view of the “private law exception,” which prevents cities from passing ordinances affecting subjects like contracts, property, and torts, is largely unenforced today. The more relevant and potent form of the “private law exception,” by contrast, prohibits cities from enacting ordinances that create private causes of action, thereby requiring local ordinances to be enforced by public means only. As this article will show, the potential justifications for the contemporary “private law exception” – preserving uniformity and protecting the interests of the state courts – are not sufficiently compelling to outweigh the costs to local policy experimentation that the exception imposes. *By permission of the Board of Trustees of the Leland Stanford Junior University, from the Stanford Law Review at 64 STAN. L. REV. 1109 (2012).

Journal Article
TL;DR: The U.S. Court of Appeals for the D.C. Circuit recently provided an answer to that question in Al-Maqaleh v. Gates: the federal courts lack jurisdiction to hear the habeas petitions of detainees held at Bagram Air Base, Afghanistan.
Abstract: Since 2001, the U.S. has captured and detained hundreds of foreign nationals at overseas facilities, raising the question of whether the Constitution applies extraterritorially to these detainees. Detainee legal challenges over the past decade culminated in the Supreme Court decision Boumediene v. Bush, whereby foreign nationals held at Guantanamo Bay, Cuba, were provided the right to petition for a writ of habeas corpus in federal court. Although this landmark decision provided detainees at Guantanamo the means to challenge their detention, it begged the question whether detainees at other overseas facilities would also be allowed to seek habeas relief. The U.S. Court of Appeals for the D.C. Circuit recently provided an answer to that question in Al-Maqaleh v. Gates: the federal courts lack jurisdiction to hear the habeas petitions of detainees held at Bagram Air Base, Afghanistan. This paper is principally a response to that decision. I argue that the District Court in Al-Maqaleh faithfully applied the Boumediene multi-factor test for extending habeas extraterritorially, in light of the Supreme Court’s functional, pragmatic analysis in that case. By contrast, the D.C. Circuit employed a wooden, formalistic analysis of the relevant factors and marginalized the centrally important separation of powers concern that animated Boumediene. In light of Boumediene, as well as the demands of the modern international system, the D.C. Circuit’s decision missed the mark, damaging extraterritoriality doctrine with regard to the “sacred writ.” While some have commented on Al-Maqaleh, there is currently a dearth of legal scholarship situating the case (and its predecessor habeas jurisdiction cases) into extraterritoriality jurisprudence generally. This paper seeks to fill that void by going beyond habeas, to examine extraterritoriality in the context of substantive rights (most importantly, the Due Process Clause of the Fifth Amendment). I argue that because the Supreme Court’s current position on substantive rights - most recently articulated in United States v. Verdugo-Urquidez - formalistically limits such rights to the U.S. national community, it is outdated and in conflict with Boumediene. Because the lower courts have distinguished Boumediene and continue to follow Verdugo, they continue to deny foreign nationals even basic substantive rights, despite the Supreme Court’s move towards a more expansive application of Constitutional protections. The Supreme Court has therefore left the two halves of extraterritoriality jurisprudence in unfortunate limbo: In light of the doctrinal shift toward functional tests and pragmatism (and away from bright-line rules that invite Executive manipulation), the Court should formulate a clear multi-factor test for substantive rights (as it has already done, in Boumediene, for habeas protection). This would eliminate the current inconsistency and provide detainees the modicum of legal review necessary to legitimize U.S. detention policies. While the paper discusses precedents at some length, this discussion is necessary to understand not only the flawed analysis in Al-Maqaleh but also the current inconsistency in the doctrine. These precedents suggest that Al-Maqaleh and analogous lower court decisions limiting the extension of substantive rights are not only inconsistent with the spirit of Boumediene, they are also in conflict with gradual expansion of Constitutional rights beyond U.S. borders. This paper primarily builds on the work of Professor Chimene Keitner and Professor Gerald Neuman. Professor Keitner has formulated an interesting framework for understanding extraterritoriality doctrine, and Professor Neuman has written extensively on Boumediene’s impact on future extraterritoriality analysis. Professors Marc Falkoff and Robert Knowles also provide an alternative, “limited government” interpretation of Boumediene.

Journal Article
TL;DR: For example, the case of Virginia v. Sebelius as discussed by the authors is a federal lawsuit in which Virginia has challenged President Obama's signature legislative initiative of health care reform, and the very features of the case that have contributed to its political salience also require its dismissal for lack of statutory subject matter jurisdiction.
Abstract: Virginia v. Sebelius is a federal lawsuit in which Virginia has challenged President Obama's signature legislative initiative of health care reform. Virginia has sought declaratory and injunctive relief to vindicate a state statute declaring that no Virginia resident shall be required to buy health insurance. To defend this state law from the preemptive effect of federal law, Virginia has contended that the federal legislation's individual mandate to buy health insurance is unconstitutional. Virginia's lawsuit has been one of the most closely followed and politically salient federal cases in recent times. Yet the very features of the case that have contributed to its political salience also require its dismissal for lack of statutory subject matter jurisdiction. The Supreme Court has placed limits on statutory subject matter jurisdiction over declaratory judgment actions in which a state seeks a declaration that a state statute is not preempted by federal law--precisely the relief sought in Virginia v. Sebelius. These statutory limits are a sea wall; they keep out, on statutory grounds, some suits that should otherwise be kept out on Article III grounds. The statutory and constitutional limits on federal jurisdiction over suits like Virginia v. Sebelius insulate federal courts from the strong political forces surrounding lawsuits that follow from state statutes designed to create federal jurisdiction over constitutional challenges by states to federal law. This Article identifies previously neglected jurisdictional limits, shows why they demand dismissal of Virginia v. Sebelius, and explains why it is appropriate for federal courts to be closed to suits of this type.

Journal Article
TL;DR: The authors explored the implications of non-citizens' exclusion from juries from demographic, functional, and doctrinal perspectives, and argued that there is room under the current doctrine for claims based on rights of the party before the jury under equal protection or the fair cross-section requirement of the Sixth Amendment.
Abstract: Though noncitizens can be, and frequently are, judged by juries, they are categorically excluded from serving on them. In this Note, I explore the implications of this exclusion from demographic, functional, and doctrinal perspectives. The demographic portrait of noncitizens and minorities in the United States shows that the citizenship requirement for jury service results in the exclusion of significant numbers of residents in certain regions, and that this exclusion is highly skewed by race and ethnicity. The exclusion and resulting decrease in jury diversity has potentially negative effects on the jury’s decisionmaking and its institutional legitimacy, and it excludes many residents who may be integrated into the community for many other purposes. Doctrinally, the exclusion of noncitizens from the jury might be challenged as unconstitutional on several grounds. Although some of the constitutional arguments are unlikely to be persuasive to the courts, I argue that there is room under the current doctrine for claims based on rights of the party before the jury — either under equal protection or the fair cross-section requirement of the Sixth Amendment — to succeed if properly framed.

Journal Article
TL;DR: The Defense of Marriage Act has been abandoned by the executive and held unconstitutional by courts, so it is time to think about what will be left in its place as discussed by the authors, arguing that DOMA's demise will lead to chaos.
Abstract: The Defense of Marriage Act has been abandoned by the executive and held unconstitutional by courts, so it is time to think about what will be left in its place. Federal law frequently asks whether a couple is married. But marriage is primarily a creature of state law, and states differ as to who may marry. The federal government has no system for deciding what state’s law governs a marriage, though more than a thousand legal provisions look to marital status, more than a hundred thousand same-sex couples report being married, and many of those marriages ultimately cross state lines. Unless a federal choice of law system is designed, DOMA’s demise will lead to chaos.This paper argues that such a system can and should be designed: Because the underlying choice-of-law problem is ultimately a problem of statutory interpretation, Congress can and should replace it with a clear choice-of-law rule. Failing that, federal courts can and should develop a common law rule of their own - they are not (and should not be) bound by the Supreme Court’s decision in Klaxon v. Stentor Electric. The paper further argues that different institutions should solve the problem differently: If Congress acts, it should recognize all marriages that were valid in the state where they took place. If, instead, the courts create a common-law rule, they should recognize all marriages that are valid in the couple’s domicile.The implications of this argument run far beyond the demise of DOMA. In all areas of what is here called “interstitial law,” federal interpretive institutions can and should devise a set of choice-of-law rules for federal law that draws upon state law, and what set of rules is proper may well depend on who adopts them.