Showing papers in "Texas Law Review in 2004"

Social Welfare Rights and the Forms of Judicial Review

Abstract: I. Introduction The conventional wisdom among scholars of U.S. constitutional law is that the Constitution-and indeed constitutions more generally-should not recognize, or be interpreted to recognize, so-called second generation social welfare rights, such as a right to shelter or a right to a minimum subsistence.1 The argument against the recognition of social welfare rights2 begins with the proposition that constitutional rights must be enforceable in the courts.3 Sometimes that proposition is taken as something like an entailment of the idea of rights itself.4 Sometimes that proposition rests on the observation that first- and second-generation rights-the standard civil liberties and civil rights (including equality rights)-are taken seriously because they are judicially enforceable. From this observation comes the additional claim that constitutional rights cannot be taken seriously by a nation's population unless they are judicially enforceable.5 The next step in the argument is that social welfare rights cannot be enforced in the courts because their enforcement requires the courts to make decisions that have large-scale consequences for government budgets.6 Of course, sometimes the enforcement of first- and second-generation rights has some implications for government budgets. This is obvious with a right like representation in criminal proceedings when it is interpreted to require the public provision of lawyers for the indigent. It is less obvious, but still present, in other situations. For example, if free speech law rejects the "heckler's veto,"7 government can respond to the threat of disruption caused by adverse reactions to a speaker not by the cheap means of removing the speaker from the area, but only by the more expensive method of deploying additional police forces to protect the speaker.8 Stephen Holmes and Cass Sunstein have argued that providing courts to enforce, not public law rights, but ordinary rights, under contract, tort, and property law is expensive.9 The examples of rights-protections with budget consequences could be prolifer-ated almost endlessly. So, it is not that recognizing constitutional social welfare rights would have budget consequences, while recognizing other constitutional rights does not. Rather, the claim is that the size of the budget consequences matters. Protecting private law rights and first- and second-generation constitutional rights is cheap, though not free. Protecting social welfare rights is expensive. Constitutional rights with large fiscal consequences require someone to raise the funds, either through taxation or through the redirection of existing taxes, to ensure that the constitutional rights are effectively realized. But courts lack the power to raise money through taxes. Only legislatures can do that.10 Suppose, then, that a constitution recognizes judicially enforceable social welfare rights. When the courts enforce such rights, they have to get legislatures to raise or divert taxes. Yet, the very fact that the courts have found a constitutional violation means that the legislature's own priorities placed attainment of the social welfare right below other social policies-national defense, building new roads, and the like. So, in enforcing social welfare rights, courts displace legislative judgments about how social policies should be ranked-and because social welfare rights are expensive, the displacement is large. The conventional wisdom concludes that constitutions with judicially enforceable social welfare rights are even more strongly counter-democratic than those with traditional civil liberties and civil rights. That, finally, is an argument against recognizing such rights. The key part of the argument, I believe, is the claim that judicially enforceable social welfare rights require the courts to displace legislative judgments on a large scale. In the remainder of this Article, I examine that claim.11 First, I identify the following three ways in which constitutions might recognize social welfare rights: by enumerating them but making them nonjusticiable, by making them justiciable but allowing the courts to find a constitutional violation only if the legislature has quite dramatically departed from what the constitution requires, and by making them enforceable to the same degree that traditional civil liberties and civil rights are. …

Constitutional Adjudication: Lessons from Europe

Abstract: One of the most remarkable political developments of the twentieth century has been the development of constitutional democracy in Europe after World War II The defeated powers in the western part of the continent adopted new constitutions that embraced notions of individual rights and limited government It is difficult to overstate how fundamental these changes have been in transforming preexisting legal systems and cultures and indeed, in transcending historical political divisions The most important transformation in these new constitutions was the introduction of constitutional courts with power to review and strike down legislation, and also to adjudicate conflicts among governmental departments1 These new courts have grown in activity and importance since their introduction And, they have spread to other countries throughout Europe with each wave of democratization-to Spain and Portugal in the 1970s and to Eastern Europe with the establishment of postcommunist constitutional regimes after 1989 Each new constitution has introduced new constitutional courts and new constitutional adjudication2 From an American perspective, it is easy to see these constitutional innovations as somehow a successful American export The United States has enjoyed a system of constitutional adjudication-which we call judicial review-for two centuries, and the Germans and Italians were led to adopt these institutions under American "tutelage," or even pressure But this view is mistaken for two reasons It is true of course that the Americans wanted the Italians and Germans to establish constitutions with bills of rights and restraints on national government3 But, the struggle over the creation of the new constitutions was dominated by indigenous leaders, not by the Americans4 The compromises settled upon reflected historical conflicts within the countries Indeed, it would have been both unattractive and impossible to import American-style judicial review to Europe, and, in the end, nothing like it was put in place As we shall see, when we look for intellectual ancestors of constitutional adjudication in Europe, we need to look at Austria after the First World War rather than to the US Constitution And we need to recognize Hans Kelsen, the first Chief Justice and designer of the Austrian Court, and not James Madison, as its spiritual godfather We think it is also important to avoid the opposite mistake: to think that one can import, directly from Europe, institutions and practices created there over the past half century The European constitutional courts have in many respects been remarkably successful in implanting constitutional restraints on governments in systems long inhospitable to such restraints5 Moreover, they have done so while avoiding the kind of "politicization" of judging that is characteristic of American courts6 The decisions of European courts are not marked by the publication of separate and conflicting opinions7 Perhaps for that reason European judges are not able to develop ideologically distinct public personalities8 And, even though European legislatures do struggle over appointments to the constitutional courts, political leaders do not campaign for election by claiming they will appoint certain kinds of judges to these courts But, for all their attractions, we do not think it would be easy-and possibly not even desirable-to try to import European practices into the American setting Reforms of any legal system need to fit with the internal requirements of that system and not be imposed Still, we are hopeful that at least some lessons might be learned from the European experiment and those experiences might suggest some possible paths of constitutional or subconstitutional reform in the United States The idea that we shall pursue here is that the US Supreme Court may have gone too far in encouraging members of the Court to engage in public conflict, and that some simple reforms may have the effect of reducing the expression of political differences in published opinions …

The Law and Economics of Contract Interpretation

Abstract: Contract interpretation is an understudied topic in the economic analysis of contract law. This Article combines simple formal analysis of the tradeoffs involved in interpretation with applications to the principal doctrines of contract interpretation, including the "four corners " rule, mutual mistake, contra proferentum, and what I call the (informal but very important) rule of "extrinsic nonevidence." Gap filling is distinguished, and the relativity of interpretive doctrines to the interpretive medium-jurors, arbitrators, and judges in different kinds of judicial systems-is emphasized. I. Introduction There is now a large economic literature on contracts and contract law, but the interpretation of contracts, as distinct from issues involving formation, defenses, validity, and remedies, has been rather neglected. Not entirely so;1 but the economic literature on contract interpretation has an abstract cast, evincing only limited interest in the relevant legal doctrines.2 Interpretation might seem an activity remote from economics-a subject for cognitive psychologists, epistemologists, students of linguistics, legal doctrinalists, perhaps even literary critics, rather than for economically minded lawyers-but I shall try to show that economics can be of considerable help in understanding the problems involved in interpreting contracts. Contract interpretation is the undertaking by a judge or jury (or an arbitrator-more on arbitration later) to figure out what the terms of a contract are, or should be understood to be.3 It should be distinguished from simple enforcement. The most important function of contract law is to provide a legal remedy for breach in order to enhance the utility of contracting as a method of organizing economic activity,4 and that function is independent of whether there is any uncertainty about the meaning of terms. The defendant may challenge the plaintiff's interpretation of the contract rather than acknowledge the breach, but unless there is a real uncertainty about meaning, the challenge will present no interesting question of interpretation. Still, significant interpretive questions often arise in contract litigation. The obvious but not the only reason, besides clumsiness in the use of words, against which the legal linguists warn us,5 is that contractual performance generally occurs over time rather than being complete at the instant the contract is signed. This is a central rather than an accidental feature of the institution of contract. Were exchange simultaneous and limited to goods the quality of which was obvious on inspection, so that there was no danger of unwanted surprises, there would be little need either for contracts or for legal remedies for breach of contract. The main purpose of contracts is to enable performance to unfold over time without either party being at the mercy of the other, as would be the case if, for example, a buyer could refuse to pay for a custom-built house for which there were no alternative buyers at or above the agreed price. So contracts regulate the future, and interpretive problems are bound to arise simply because the future is unpredictable.6 Stated otherwise, perfect foresight is infinitely costly, so that, as the economic literature on contract interpretation emphasizes, the costs of foreseeing and providing for every possible contingency that may affect the costs of performance to either party over the life of the contract are prohibitive.7 Even in a setting of perfect foresight, an interpretive problem may arise. Parties may rationally decide not to provide for a contingency, preferring to economize on negotiation costs by delegating completion of the contract to the courts should the contingency materialize. This is especially likely if they think there is only a slight probability that the contingency will materialize. But even if they think the probability significant, they may prefer not to provide for the contingency. …

Supercommons: Toward a Unified Theory of Wireless Communication

Abstract: The federal government has long controlled the allocation and assignment of electromagnetic spectrum, considered the lifeblood of wireless communication. Critics of government spectrum licensing advance two alternatives: exclusive property rights and unlicensed sharing through "spectrum commons." Yet both sides fail to come to grips with an essential point: there is no such thing as spectrum. It is an intellectual construct whose utility is rapidly decreasing as technology develops. Because spectrum is not a concrete thing, oft-used analogies to land or to natural resources break down. There is a vast new communications space emerging, whose full extent is unknown. Regulatory proposals based on spectrum as a physical asset denominated by frequencies artificially constrain mechanisms that exploit this "supercommons, "producing inefficient outcomes. A better approach is to draw analogies to legal domains that do not presuppose ownership, such as tort. A universal communication privilege, allowing anyone to transmit anywhere, at any time, and in any way, should be the baseline rule for wireless communication. Liability backstops and safe harbor mechanisms can effectively prevent ruinous interference, while efficiently resolving boundary disputes. The supercommons approach properly refocuses wireless regulation away from spectrum and toward the devices used for communication. It can operate alongside the property and commons regimes, which are just different configurations of usage rights associated with wireless equipment. Bandwidth need not be infinite to justify a fundamental reconceptualization of the spectrum debate. Even with real-world scarcity and transaction-cost constraints, a default rule allowing unfettered wireless communication would most effectively balance interests to maximize capacity. I. Introduction A specter is haunting spectrum policy-the specter of commons.1 Spectrum policy is fundamental to traditional mass communications and to the emerging digital information infrastructure. All wireless communications devices, from analog television transmitters to Internet-enabled smart mobile handsets, transmit radio waves through the air. The federal government tightly constrains how those devices function based on its control of electromagnetic spectrum. Yet the assumptions underlying that control are under siege. Seventy years after the birth of governmental spectrum management,2 and forty years after Ronald Coase and his colleagues began a campaign to kill it,3 the end of history for spectrum regulation seemed close at hand. By the mid-1990s, advocating extensive propertization of electromagnetic spectrum had become, in Eli Noam's words, the "new orthodoxy."4 Even the Federal Communications Commission (FCC), which would lose much of its power if spectrum were privately owned, seemed to agree. The FCC enthusiastically adopted auctions as its preferred method for assigning spectrum licenses, proposed secondary markets for licensees to lease spectrum they controlled, and issued statements endorsing further expansion of "market-based" spectrum reform. In recent years, however, a new perspective on spectrum policy has emerged. The "commons" position holds that private property rights in spectrum are as unnecessary as government-issued licenses. Commons advocates claim that, thanks to advances in technology, collections of wireless devices can share spectrum effectively without exclusive rights. They therefore support expansion of "unlicensed" frequency bands and oppose calls to turn spectrum rapidly and exhaustively into private property. Commons advocates offer two lines of support for their claims: the theoretical benefits of unlicensed operation, and the empirical success of unlicensed spread-spectrum devices. Despite its novelty, the commons position has quickly become a significant force. The FCC's latest comprehensive spectrum reform report endorsed greater use of commons mechanisms, along with expansion of property rights. …

The Control of Wealth in Bankruptcy

Abstract: The fixed charge for priority; the floating charge for control. -A saying of British bankers Nearly every country in the world has a legal regime devoted to the process of recovery and distribution of value following a general default by a debtor in business. In the United States, we have both a public and a private regime that may govern the recovery process. The public regime is bankruptcy and the private regime is secured credit. Any regime governing the recovery process must include two components: (1) control of the process that maximizes value and allocates that value to chosen beneficiaries; and (2) rules of priority that specify the beneficiaries and their shares of the value. The greater sophistication of the modern recovery process means that control of that process crucially influences outcomes, but the theoretical literature discussing bankruptcy and secured credit has been devoted to questions of priority rather than control. Control is the central subject of this Article. New models of secured credit and bankruptcy are proposed, incorporating the concept of control as fundamental to both regimes. The struggle for control is the essential linkage between them. A number of consequences follow from these new models. Development of these consequences is the author's larger project, but only one of them is fully explored in this Article. "Contractualism" is a term describing a variety of proposals for privatizing the recovery process through contracts between a debtor and its creditors. This Article argues that these proposals cannot be legitimate or efficient unless linked to a dominant security interest encumbering substantially all of the debtor's assets, even though none of the scholars proposing contractual regimes has acknowledged that the contractual schemes require security to be plausible. Because secured-credit law in the United States is in place and highly functional, it represents the only method for resolving the otherwise intractable difficulties presented by these privatization proposals. That conclusion is confirmed by the United Kingdom 's experience with a contractualist system based upon a dominant security interest, a system that has served as the core structure of commercial finance in that country for over a century. Recognition that secured credit is the sina qua non for contractualism presents some serious difficulties for its proponents, including underdeveloped claims of efficiency and substantial conflicts of interest in secured-party management of the recovery process. The abolition of the British system in 2003 demonstrates empirically the serious weaknesses of secured contractualism. This Article concludes that the case for secured contractualism cannot be made. The control models give rise to a number of consequences mentioned here but left for subsequent development, including: (1) the need to introduce valuation of control rights, pre- and post-default, to the long-standing debate about the efficiency of secured credit-a point closely tied to the specific debate about securitization of assets; and (2) the relationship between the control models offered by other recent articles and the models presented here. I. Introduction This Article is about the control of many billions of dollars of wealth that are seized in bankruptcy like the spoils of a fallen fortress. It introduces a model that unifies at a theoretical level the twin pillars of financial default: secured-credit and bankruptcy. That model also provides a unifying perspective on the academic literature of default. The model is based in substantial part on the insights available from the study of secured-credit and bankruptcy systems around the world. In the years 2000-2002, more than $730 billion of assets held by large public companies came under bankruptcy administration in the United States; private companies took billions more into bankruptcy.1 Those amounts represent great wealth even in our immensely wealthy country. …

Trust, Distrust, and Antitrust

Abstract: Introduction Trust is the glue that binds couples, communities, and countries. Societies without a sufficient wealth of trust cannot function efficiently, sometimes cannot function at all. However, trusting relationships are often difficult to form and maintain. This is particularly true when the short-term interests of the individual are in conflict with the long-term interests of the group. Economists use game theory to model such relationships through the Prisoner's Dilemma. This Article analyzes the Prisoner's Dilemma as a game of trust and then applies the lessons of the game to cartels and antitrust law. Cartels are a focus of concern for many reasons. Cartels cause allocative inefficiency by reducing production in order to raise market price.1 This forces consumers to pay significantly more money for products, from luxuries like high-end art to necessities like vitamins and pharmaceuticals.2 While many-and probably most-cartels fail, a sizeable fraction of studied cartels reveal firms successfully raising prices significantly above costs.3 Cartels may also create productive inefficiencies when they protect inefficient manufacturers,4 thus increasing the average production costs in an industry.5 Historically, cartels have exhibited greater influence over the international economy. Cartels were so powerful and ubiquitous during the interwar period that economists estimate international cartels controlled almost forty percent of world trade between 1929 and 1937.6 With the legal condemnation of most cartels in the modern era,7 it is virtually impossible to gauge the full economic impact of cartels on today's economy and consumers. Fortunately, cartels are inherently unstable. Many of the problems of cartel stability are related to trust. For a cartel to be formed, each participant must trust its cartel partners not to do two things: cheat on the agreement by charging less than the fixed price,8 or tell antitrust authorities about the cartel. Cheating and confessing represent two different types of defection from the cartel.9 Cartel relationships entail two different Prisoner's Dilemmas: whether to abide by the cartel-established price agreements, and whether to inform the antitrust authorities about the cartel's existence, activities, and membership. Without trust among the cartel members, many cartels will collapse under the weight of distrust, anticipated defections, and actual defections. All criminal and regulatory law attempts to deter undesirable conduct by imposing penalties; antitrust law-in both its criminal and civil capacities-serves a similar function. However, unlike other statutory schemes, antitrust law also sows the seeds of distrust. In the context of cartels, distrust adds another layer of deterrence. Part One lays out the basics of the Prisoner's Dilemma in which two players must find a way to cooperate when both have a strong incentive to defect. Cartels are a form of a Prisoner's Dilemma. Thus, cartels may look to the game-theoretical solutions to the Prisoner's Dilemma in search of a mechanism to ensure mutual cooperation among competing firms. Antitrust authorities may also study solutions to the Prisoner's Dilemma in an effort to prevent competitors from successfully colluding. Part One concludes that mutual trust is an effective solution to the Prisoner's Dilemma. Part Two explains how trust stabilizes cartels and how, historically, cartels have employed trust-building measures in order to create and maintain successful cartels. What have commonly been referred to in scholarship and caselaw as cartel-facilitating devices can often be characterized as trust-facilitating devices. Part Two analyzes the following as trust-facilitating factors: the number of firms, personal relationships, the use of goodwill gestures among cartel members, price transparency, communication, cross-ownership and financial interdependence, interlocking directorates, group identity and social norms, cartel experience, reputation, and social status. …

New Constitutional Ideas: Can New Parliamentary Models Resist Judicial Dominance When Interpreting Rights?

Abstract: A handful of parliamentary systems have overcome their historic reluctance to adopt a bill of rights. Yet in changing governing principles to ensure that individual rights become more explicit norms in legislative decision making, they have contributed to the emergence of a new paradigm for rights protection, which I depict as a parliamentary rights model. The significance of this model is that it tries to resist two central precepts of the American regime: that only courts determine the merits of legislation where rights are implicated, and that constitutional principles are compromised if a legislature acts in a manner that challenges or alters the judicial definition of a constitutional right. This Article examines how this emerging paradigm conceives of institutional roles and responsibilities for judgments about rights, with a specific focus on the Canadian Charter of Rights and Freedoms (Charter)1 and the United Kingdom's Human Rights Act (HRA).2 The first Part of this Article argues that the new paradigm does not rely only on judicial review as a safeguard for protecting rights, as it also creates incentives and processes to facilitate political rights review. As a consequence, this new model has the potential to encourage critical reflection on the merits of legislation from a broader spectrum of institutional actors than is normally associated with a bill of rights. The second Part argues that despite the significantly different assumptions that inform the new paradigm, American ideas of constitutionalism remain sufficiently persuasive that many actors reject the legitimacy of political judgments about rights where they differ from judicial perspectives. I. The Emerging Parliamentary Model of Rights Protection A. Introduction Parliamentary systems based on the Westminster model and those political systems with American-style judicial review have generally been treated as rival political paradigms. Unlike the latter, where courts view their mandate as allowing judges to invalidate legislation when it is inconsistent with judicial interpretations of constitutional rights, in the former, the most important right is that of collective self-government. The constitutional principle of parliamentary sovereignty is generally understood as preventing courts from declaring legislation invalid from a rights perspective when legislation is duly enacted and consistent with the rule of law. This does not mean that individual rights are not protected through interpretations of the common law. Indeed, some argue that the principle of parliamentary sovereignty itself protects rights,3 while others suggest that this principle need not, or should not, constrain judicial interpretation of rights.4 Still, the core principle that no judicial body can set aside the duly-enacted legislation of parliament stands in fundamental contrast to the emergence of judicial supremacy in the United States. Thus, the idea of codifying rights and empowering courts to interpret them creates serious tensions for parliamentary systems that emphasize the sovereignty of parliamentary judgment. Despite this historic rivalry between competing constitutional systems, after the Second World War, Westminster-based parliamentary systems incurred growing international and domestic pressures to articulate rights for the purposes of constraining state action. Faced with a fundamental conflict between competing constitutional principles, parliamentary systems explored the idea of how to give more prominence to rights without fully abandoning reliance on parliament's judgment. Inherent doubts about the compatibility (or desirability) of the American model encouraged experimenting, borrowing, and modifying new statutory and constitutional instruments that were being introduced in countries where similar constitutional traditions prevailed. The evolution and adaptation of these parliamentary practices represents an important contribution to constitutional thought. …

Constitutionalizing Democracy in Fractured Societies

Abstract: I. The Constitutional Foundations of Democracy Constitutionalism exists in inherent tension with the democratic commitment to majoritarian rule. At some level, any conception of democracy invariably encompasses a commitment to rule by majoritarian preferences, whether expressed directly or through representative bodies. At the same time, any conception of constitutionalism must accept preexisting restraints on the range of choices available to governing majorities. As well expressed by Laurence Tribe in addressing the paradox of American constitutional democracy, "the question . . . is why a nation that. . . associates legality with representative government would choose . . . to constitute its political life in terms of commitments to an originating agreement-made to be treated by the people as binding on their children, and deliberately structured to be difficult to change."1 In this Article, I address the role of constitutionalism in stabilizing democratic governance in what I term fractured societies. The argument is that constitutionalism emerges as a central defining power in these societies precisely because of the limitations it imposes on democratic choice. For purposes of this discussion, I do not wish to explore the full dimensions of what is meant by democracy. Instead, I accept a rather spare definition of democracy as a system through which the majority, either directly or through representative bodies, exercises decisionmaking political power.2 Similarly, I want to avoid a theoretical inquiry into the full range of what is meant by constitutionalism. I use the term only to refer to the creation of a basic law that restricts the capacity of the majority to exercise its political will.3 For these purposes, it does not matter whether the restraint is an absolute, as with the nonamendable provisions of the German constitution,4 or simply the "obduracy" of Article V of the American constitution,5 or the temporal constraints requiring successive parliamentary action for constitutional reform, as in some European countries.6 Under any such system, the constitution serves as a limitation on what democratic majorities may do.7 When the question is posed, as by Professor Tribe, of why there should be any restriction on majority rule, two rather traditional answers are typically given. The first concerns a species of rights guaranteed to individuals or minorities that must be secured against majoritarian will. As expressed by Ronald Dworkin, "The Constitution, and particularly the Bill of Rights, is designed to protect individual citizens and groups against certain decisions that a majority of citizens might want to make, even when that majority acts in what it takes to be the general or common interest."8 The second concerns the structures of power, the limitations on the scope of office, and the forms of governmental change and accountability.9 Any system that entrusts power to the majority must ensure that majorities can change, that the rules of the game remain fair, and that those elected remain accountable to the electorate. This second category of restrictions may be thought of as the rules of democratic governance that guarantee that government truly represents the will of the majority of the people, while the first addresses the limitations on government conduct toward the citizenry, regardless of majoritarian preferences. There is considerable debate about how rigid these rules must be, about the need for limitations on parliamentary prerogatives, and the question of constitution-reinforcing judicial review. Indeed, there are those who challenge aggressively whether constitutional restriction is necessary for democratic legitimacy.10 I do not wish to engage these well-established, though ongoing, debates. I note simply that all the newly emerging democracies of the late twentieth century have opted for some form of written constitution and adopted some form of constitutionally based judicial review. …

Video Surveillance and the Constitution of Public Space: Fitting the Fourth Amendment to a World That Tracks Image and Identity

Abstract: Introduction In Lewis Padgett's1 short story, Private Eye, it is discovered that the whole of the physical environment doubles as a pervasive recording system: On every wall, every tree, every patch of ground people walk upon, their every action and conversation leaves "'fingerprints' of light and sound waves."2 Scientists have learned to "descramble" these naturally created records of people's activities and compile them into video archives containing every individual's entire past.3 Government investigations proceed very differently from those in our own world. Police detectives spend most of their time in a screening room, rewinding and fast-forwarding through each suspect's life.4 When they want a closer look, they can slow or pause their film to examine "every expression of his face, every muscular flection, every breath he [draws]."5 When curious about the experiences that have shaped him, they can instantly transport themselves back into his childhood.6 Even those not currently under such a government microscope know that each moment of their lives is preserved for "[a]n invisible audience from the future."7 The inescapable surveillance that Padgett describes in his obscure 1949 story resembles that described in another more famous science fiction tale published the same year: George Orwell's 1984. Like George Orwell's vision of a technologically transformed future,8 the world imagined by Padgett is one where individual privacy is brought by science to the brink of extinction. But unlike the inhabitants of Orwell's imagined world, who have resigned themselves to living without their privacy, the inhabitants of the world described by Padgett have made an impressive and arguably effective effort to save it. They have countered the threat posed by exotic "past-tracing" technology with a not-so-exotic legal device: a rule that past-tracing evidence can be accessed only for purposes of investigating a "serious crime" and introduced at trial "only if it [has] a direct connection with the crime."9 Although natural barriers no longer stand in the way of paternalistic or distrustful officials, the law continues to do so: Government investigators are allowed to explore people's pasts only when doing so is indispensable to the task of protecting people or of apprehending those who have harmed them.10 The courts and legal thinkers of Padgett's time did not carefully examine the effectiveness of such protections, and there was little reason to worry about this question in 1949, when nothing remotely like "past-tracing" technology played a significant part in their day-to-day lives. But the challenge outlined in this story is a more pressing concern now. While the physics of Padgett's imagined world have remained firmly in the realm of fiction (there are no hidden video recordings encoded in wood, stone, or soil), its privacy-eroding technology is not all that far from becoming reality. Walls, lampposts, and trees do not function as natural video cameras, but new technologies allow public authorities to line them with artificial ones. A growing number of communities throughout the world are doing so on a massive scale. The United Kingdom has led the way. Cameras now encircle the center of London in a "ring of steel," photographing the license plate and driver of every vehicle that enters.11 A massive video surveillance system also watches the interior of the city.12 Other British cities-according to one count, at least 440 in all13-have also covered whole neighborhoods and business districts with cameras. American cities are rapidly following suit. Although most residents and visitors of New York remain oblivious to them, thousands of video cameras,14 many "indistinguishable from lampposts," sit above parks and streets throughout the city and on the campuses of schools and universities.15 The City of Baltimore has installed cameras at "all 106 downtown intersections" and in its Inner Harbor area.16 The Washington, D. …

The Rehnquist Court’s Two Federalisms

Abstract: The Supreme Court's "Federalist Revival" is now a decade old.1 We have seen neither the revolution that partisans of states rights might have wished nor the deluge that many nationalists feared.2 What we have witnessed is the incremental expansion, across a variety of fronts, of juducially enforced limitations on national authority. While it remains far too early to attempt a definitive assessment, we have enough decisions now to evaluate the Court's project as a developing stream of doctrine rather than as isolated data points. We can fruitfully ask whether the Court's federalism doctrine successfully protects what is important about federalism or, more fundamentally, what "success" would look like. This Article makes both a descriptive and a normative claim about the Court's federalism jurisprudence. The descriptive claim is that the Court's decisions sketch out two distinct visions of what is important about federalism and how it should be enforced. There is, of course, the obvious pattern: Five Justices are generally for imposing constitutional limits on federal authority in a number of different contexts, while four have consistently opposed such limits.3 Less obvious is the particular nature of the constraints imposed. Those constraints embody a rather narrow version of state "sovereignty," defined here as the notion that state governments should be unaccountable for violations of federal norms. The many decisions upholding state sovereign immunity in federal lawsuits are simply the most obvious manifestation of this trend.4 Not all of the Court's efforts have focused on the value of sovereignty, but it is fair to say that it has received considerably greater emphasis than other aspects of federalism. The Court's dissenters, by contrast, have opposed these decisions with unusual vehemence5 and, on several occasions, urged virtually complete judicial abdication of federalism enforcement.6 The broader pattern, however, is more complicated. By expanding the universe of what counts as a "federalism case"-in particular, by taking in cases about federal statutory preemption of state law-one discovers that the supposedly antifederalism Justices have their own theory of state autonomy, instead of simply favoring national power at every turn. The dissenters in cases like Lopez or Seminole Tribe have often-in other cases-emphasized state "autonomy," defined somewhat narrowly here as the ability of states to govern.7 The dissenters, for example, vote to uphold state regulatory measures against claims of federal preemption considerably more frequently than their colleagues.8 These cases likewise reflect a different approach to judicial review of federalism issues, relying on "softer" checks on Congress such as "clear statement" rules of statutory construction. Comparing the two competing visions of federalism on the Rehnquist Court can, in itself, tell us a great deal about the choices involved in making federalism doctrine. My normative claim, however, is that both these visions are incomplete. The majority's view neglects concerns for state regulatory autonomy and overlooks the potential of "process" limits on federal authority. The dissenting vision, on the other hand, improperly discounts the need for some substantive constraint on federal power while missing the support in "process federalism" for more aggressive judicial doctrines. Instead, I argue for a "strong autonomy" model of federalism doctrine that combines many of the features of the other two. The case for this model rests on two sets of arguments. The first has to do with the preference for "autonomy" over "sovereignty." I contend that virtually all the values that federalism is supposed to promote-such as regulatory diversity, political participation, and restraints on tyranny-turn on the capacity of the states to exercise self-government, not on their institutional immunity from federal norms. This capacity for selfgovernment is also critical to states' ability to maintain their own place in the federal balance without relying primarily on judicial protection. …

A Realpolitik Defense of Social Rights

Abstract: Social rights are controversial in general-and they are even more controversial when courts are given power to enforce them Even among those who believe in rights to a minimum income, to education, to health care, and to housing (to take only the most obvious of the social rights), practical issues abound about how to determine when a social right has been violated and what can be done in any immediate way to correct the violation The theoretical objections to the existence of any such rights in the first place are offered at many levels: philosophers doubt that social rights are rights properly so called;1 constitutional theorists object because social rights are not the subject of universal agreement or precise definition;2 democratic theorists argue that judicial enforcement of social rights ties a government's hands with expensive commitments and prevents it from balancing the needs and demands of a democratic citizenry with equal regard3 There are some valiant attempts to defend social rights in moral philosophy as well as in constitutional and democratic theory4 Most attempts to defend social rights at conferences on comparative constitutionalism, however, are met with the sort of polite dismissal that is reserved for particularly excited children who are not mature enough to understand the full practical consequences of the evidently charming things they say Defenders of social rights typically do not have it easy Nonetheless, despite ongoing controversy at both the theoretical and practical levels, social rights are becoming increasingly entrenched around the world Adoption of the International Covenant on Economic, Social and Cultural Rights5 and of regional agreements like the European Social Charter6 by an increasing number of countries indicates that lack of theoretical support for social rights is not necessarily fatal to practical recognition of them Although these conventions are not directly enforceable, they do require periodic progress reports from countries that adopt them These required reports often show substantial efforts on the part of signatory states to live up to the duties imposed on them under these conventions7 In addition, the inclusion of detailed lists of social rights in nearly all of the new constitutions written in the last several decades8 and the associated attempts by a growing number of courts to give meaning to the social rights embedded in these texts testify to the fact that social rights are too powerful to ignore-even in the absence of widely shared philosophical, legal, or political justification Looking at the gaps between academic disdain for the subject of social rights and the practical acceptance of it, one may summarize the current situation with a single question: "It will never work in theory, but what about in practice?" In this Article, I offer a defense of social rights, not in the theoretical realm, but in the pragmatic one I work at the pragmatic level not because I believe a theoretical defense of social rights is impossible In fact, some extraordinary attempts have been made-ones that I believe are on the whole successful9 In particular, I find Cecile Fabre's 2000 book Social Rights Under the Constitution: Government and the Decent Life10 to be careful, well argued, and persuasive in all three theoretical realms-moral philosophy, constitutional theory, and democratic theory But my task here is quite different from hers, although it shares the same spirit of commitment 1 provide a defense of court-articulated social rights in a precise political context in which democracies-particularly fragile democracies with fragile economies-find themselves I propose, in short, a realpolitik defense of social rights under situations of budget collapse In taking up a constitutional defense of social rights, I want to call attention to the constitutional crises that a number of new (and some established) constitutional democracies are facing as their citizens' aspirations to live under recognized rights and in dignity are arrested by sheer lack of money …

Constitutional Courts vs. Religious Fundamentalism: Three Middle Eastern Tales

Abstract: Over the past few decades, principles of theocratic governance have gained enormous public support in developing polities worldwide The countries experiencing this resurgence of religious fundamentalism are diverse, spanning the globe from Central and Southeast Asia, to North and Sub-Saharan Africa and the Middle East While populist Western academic and media accounts tend to portray the spread of religious fundamentalism as a monolithic and ever-accelerating phenomenon, in practice most countries that have recently experienced a fundamentalist revival have long been caught between secular and religious identities, worldviews, and commitments The growing popular support for principles of theocratic governance poses a major threat to the cultural propensities and policy preferences of secular and relatively cosmopolitan elites in these countries An increasingly common strategy undertaken by political powerholders representing these secular voices has been the transfer of fundamental collective identity, or "religion and state" quandaries, from the political sphere to the constitutional courts Drawing upon their disproportionate access to and influence over the legal arena, social forces in polities facing deep division along secularreligious lines aim to ensure that their secular Western views and policy preferences are less effectively contested The results have been an unprecedented judicialization of foundational collective identity, particularly in the realm of religion and state questions, and the consequent emergence of constitutional courts as important guardians of secular interests in these countries In this Article, I explore the scope and nature of this phenomenon This Article is divided into four Parts In the first three Parts, I explore the crucial secularizing role of constitutional jurisprudence in three countries facing a secular-religious divide-Egypt, Israel, and Turkey These three countries have witnessed a considerable increase in the popular support for, and influence of, theocratic political movements At the same time, these three countries differ in their formal recognition of, and commitment to, religious values For example, Article 2 of the Egyptian Constitution, as amended in 1980, states that principles of Muslim jurisprudence (the Shari'a) are the primary source of legislation in Egypt,1 while Israel defines itself as a "Jewish and Democratic" state;2 modern Turkey, conversely, characterizes itself as secular, adhering to the Western model of strict separation of state and religion3 Accordingly, there are considerable differences in the interpretive approaches and practical solutions adopted by the three countries' respective high courts in dealing with core religion and state questions Egypt's Supreme Constitutional Court has developed its own moderate "interpretation from within" of religious rules and norms4 The Israeli Supreme Court has tackled the tension between these conflicting values by curtailing the jurisprudential autonomy of religious courts and tribunals and by subjecting their jurisprudence to general principles of administrative and constitutional law5 The Turkish Supreme Court, on the other hand, has opted for the outright exclusion of religious values and policy preferences from legitimate political discourse6 Despite these dissimilarities, there are striking parallels in the way constitutional courts in these and other similarly situated countries have positioned themselves as important secularizing forces within their respective societies I conclude by suggesting that the ever-accelerating reliance on national high courts in constitutional theocracies for dealing with core religion and state questions provides important insights for understanding the political origins of judicial power and the conditions under which political deference to the judiciary is likely to occur I Egypt Under the guidance of the Muslim Brotherhood, the largest multinational Islamic movement which was founded in Egypt in the early twentieth century, Islamism has enjoyed an astounding growth in that country over the last three decades …

Immaturity, Normative Competence, and Juvenile Transfer: How (Not) to Punish Minors for Major Crimes

Abstract: I. Introduction In response to perceived increases in violent youth crime, the last two decades have witnessed a national trend toward getting tough on youth crime and holding youthful offenders more accountable. A central element in this national trend is the transfer of juveniles to adult criminal court, where the consequences of conviction are in various ways much more severe than they are in juvenile court. Prosecutors have long had discretion to prosecute older, mature juveniles who are repeat offenders as adults, and judges in juvenile court have long had the power to issue waivers or transfers that reassign these kinds of juveniles to adult court after a hearing in juvenile court. But in the attempt to get tough on violent juvenile crime, both the judicial waiver and prosecutorial discretion have expanded with the result that more juveniles are being transferred to adult court at younger ages for a broader variety of crimes.1 Many states have gone so far as enacting legislation requiring mandatory transfer of juveniles to adult criminal court based on age, offense, or both. For example, California (the state in which I reside) recently enacted Proposition 21, which requires the transfer to adult criminal court of all juveniles over the age of 14 charged with certain serious criminal offenses, including murder and various sexual offenses.2 Emblematic of the transfer trend is the notorious case of Lionel Tate.3 In Florida in 1999, when he was twelve years old, Lionel Tate brutally killed six-year-old family friend Tiffany Eunick in his home. Lionel alleged that they were wrestling and that he was imitating body slams and other tactics employed by professional wrestlers that he watched on television. Tiffany suffered a fractured skull, a lacerated liver, and many other injuries from being kicked, punched, and thrown about the room-injuries that proved fatal. The prosecutor decided to try Lionel as an adult, apparently in response to the sensational nature of his crime. Lionel was offered a chance to plead to second-degree murder and a reduced sentence, but his mother refused the plea bargain on the ground that Lionel had not intended to kill Tiffany.4 Lionel was convicted of first-degree murder, which in Florida carries a mandatory sentence of life in prison without the possibility of parole.5 In response to public outcry over Lionel's sentence, he was recently granted a retrial and subsequently accepted substantially the same plea bargain that he had earlier refused.6 Lionel's brutal crime was shocking and tragic. But even more shocking was his prosecution and sentencing as an adult. Twelve-year-olds are immature cognitively and emotionally in ways that render them not fully responsible, and to sentence someone to life imprisonment without the possibility of parole at that age is to give up on someone as incorrigible before his character has even been formed.7 Permanent injustice was averted in Lionel's case by virtue of his retrial and subsequent plea agreement. This might be reassuring if Lionel's first trial was aberrational. Sadly, it is not. The national trend to try juveniles accused of serious crimes as adults is unmistakable.8 The transfer trend is deeply flawed. Juvenile crime deserves punishment, and serious juvenile crime deserves serious punishment. Moreover, some juveniles-especially older, more mature juveniles who are repeat offenders-may deserve to be tried and punished in adult criminal court. But the trend to try ever younger juveniles as adults based solely on the gravity of their crimes is mistaken and unjust. One reason the trend is mistaken depends on a retributive conception of punishment, according to which the guilty deserve punishment and should be punished in proportion to the magnitude of their guilt, where guilt is a function not only of the wrong one commits or the harm one causes but also of the culpability or responsibility one bears for the wrong or harm. …

The permeability of constitutional borders

Abstract: [T]he science of jurisprudence, the pride of the human intellect, which with all its defects, redundancies, and errors is the collected reason of ages, combining the principles of original justice with the infinite variety of human concerns . . . . I. Introduction: Transnational Jurisprudence and the Challenge to Comparative Constitutional Theory "[I]rrelevant are the practices of the 'world community,' whose notions of justice are (thankfully) not always those of our people."2 These words of Justice Antonin Scalia are hardly reassuring to those of us who study and write about some of these practices, believing perhaps that the justice and his colleagues might benefit in some small way from what we have learned from our travels and reflection. To be sure, the fact that Justice Scalia's sentiment was voiced in the course of questioning the appropriateness of another Justice's invocation of foreign experience suggests that there may actually be some judicial receptivity to comparative insights and findings. But that only begs the question of why there should be. The question came up again on the last day of the 2002 Supreme Court term when, in his opinion for the Court striking down a Texas homosexual sodomy statute, Justice Anthony Kennedy cited several decisions of the European Court of Human Rights in support of the majority's holding in the case.3 "The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries."4 In response, Justice Scalia dismissed "[t]he Court's discussion of these foreign views" as "meaningless," but "[d]angerous dicta,"5 repeating the now familiar refrain that "this Court. . . should not impose foreign moods, fads, or fashions on Americans."6 Given the momentousness of the legal change wrought by the decision, this exchange received only a passing glance in the extensive commentary immediately following its announcement. It has since received more attention; Robert Bork, for example, has cited the references to foreign sources in Lawrence v. Texas (along with Grutter v. Bollinger)7 as episodes in an "absurd turn in our jurisprudence" that reflects the arrogance of power of the modern judiciary.8 "[E]ven Scalia at his gloomiest probably did not foresee [how a new Constitution] might be designed bit by bit from European, Asian, and African models."9 In a recent book, he connects this jurisprudential turn with one of his longstanding concerns, "the transnational culture war."10 Along similar lines, Ken Kersch discovered in the "seemingly benign references" to foreign sources "a vast and ongoing intellectual project," part of a "sophisticated effort to transform American constitutional law and its interpretation."" As a result, "[e]ventually, and possibly sooner than we think, the nature and path of American constitutional development will be radically altered."12 These reactions may very well exaggerate the influence of external sources in the outcomes of these cases, and arguably they overstate the broader jurisprudential significance of the infusion from abroad. They do, however, address an important issue concerning the role of constitutional theory in comparative law. The specific problem that concerns me is suggested in Justice Scalia's objection to the judicial deployment of comparative examples by the Court in overturning the controversial ruling in Bowers v. Hardwick.13 That case withheld the status of the fundamental right to consensual sexual relations between homosexuals (as well as others who perform acts of sodomy in their intimate associations) on the ground that the behavior in question was not "deeply rooted in this Nation's history and tradition."14 This provoked Justice Scalia to underscore the words "this Nation's" and to observe that the Bowers majority opinion, contrary to the implication in Justice Kennedy's opinion, had not relied on "values we share with a wider civilization."15 His own implication was that, in contrast with Lawrence, the strength of Bowers was evident in the local ingredients that went into its making. …

The consequences of centralizing constitutional review in a special court. some thoughts on judicial activism.

Abstract: I. Introduction If one examines the legal landscape of contemporary Europe, one will be struck by the institutional salience of constitutional courts. In a long evolution that started after the First World War and reached its climax after the fall of communism, most European countries have established these special courts in order to protect their national constitutions against offensive legislation.1 Europe is now clearly associated with a "centralized model" of constitutional review, where only one court has authority to strike down a law as unconstitutional, while the United States exemplifies the "decentralized model," where all courts are empowered to set aside legislation if it violates the Constitution.2 Historically, the European option in favor of a centralized model is linked to the value of legal certainty. Disagreements arise among courts if they are given the power to review the constitutional validity of legislation. These disagreements make the law more uncertain for both citizens and governmental authorities. In contrast, if only a constitutional court has the power to check legislation, no risk of disagreement among courts exists. Centralization is thought to be an efficient solution to the problem of judicial divergence.3 But quite apart from this foundational rationale of the centralized model, the decision to centralize constitutional review in a special court may have other effects (whether intended or not). In this Article, I will offer some thoughts about the consequences of this choice in connection with two questions. First, to what degree can constitutional courts avoid constitutional issues? And second, to what extent can they engage in a deferential type of review when they check legislation? My main thesis is that, other things being equal, constitutional courts are less likely to engage in these two forms of passivism than are courts in a decentralized model. Some features of constitutional courts press them in the direction of activism. I want to be clear at the outset, however, that many other factors may alter the degree of passivism or activism of courts in a given country. So, for example, in order to have a complete picture, one would need to examine the political process that a country has, the dominant cultural assumptions about the role of courts, the possible connections between the domestic courts and supranational institutions and practices, and other similar factors. These factors may reinforce or, on the contrary, work against the potential consequences of establishing a special constitutional court. My point is simply that if a country sets up a constitutional court, it introduces a vector of activism. That is, other things being equal, the country with a constitutional court will tend to have more activist judicial review. II. A "Dualist Structure" Before arguing my case, it is important to isolate some features of the centralized model that are relevant to this discussion. I propose that we say the centralized model is based on a dualist structure, for it divides the judiciary, as understood in a broad sense, into two parts: "ordinary courts" and the "constitutional court." The model assigns different tasks to each of them. To simplify, it assigns ordinary courts the "ordinary judicial function," which consists of applying legislation to decide concrete cases, while it entrusts the constitutional court with the "constitutional function," which consists of reviewing the validity of legislation under the constitution. In contrast, the decentralized American model is based on a monist structure: there is a single judicial branch which exercises the two functions at the same time. One of the potential advantages of the dualist structure is that it is possible, although not necessary, to design the constitutional court differently than ordinary courts. Thus, a more "political" procedure may be chosen to select the members of the constitutional court, while a more "bureaucratic" or strictly "professional" procedure may be followed to appoint ordinary judges. …

Regulating Internet Payment Intermediaries

Abstract: I. Introduction The Internet has produced significant changes in many aspects of commercial interaction. The rise of Internet retailers is one of the most obvious changes, but oddly enough the overwhelming majority of commercial transactions facilitated by the Internet use a conventional payment system. Thus, even in 2002, shoppers made at least eighty percent of Internet purchases with credit cards.1 To many observers, this figure has come as a surprise. The early days of the Internet heralded a variety of proposals for entirely new payment systems-generically described as electronic money-that would use wholly electronic tokens that consumers could issue, transfer, and redeem. But years later, no electronic-money system has gained a significant role in commerce.2 The continuing maturation of the Internet, however, has brought significant changes to the methods by which individuals make payments. Person-to-person (P2P) systems like PayPal now make hundreds of millions of payments a year between individuals.3 The most common purpose is to facilitate the purchase of items at Internet auctions, but increasingly P2P transfers are used to transfer funds overseas. Less far along, but gaining transactions rapidly, are a variety of systems for electronic bill presentment and payment (EBPP).4 Interestingly, both of these developments follow a less ambitious path than the still-hypothetical electronic-money systems: they involve the use of intermediaries to "piggyback" on existing systems to provide payment. Thus, in essence, they use the technology of the Web site to facilitate the use of conventional payment networks.5 However disparate these developments might seem at first glance, they present a common challenge to the regulatory system.6 Unlike banks, which control the execution of payment transactions in conventional payment systems, the intermediaries that populate these new sectors generally are not inevitably subject to regulatory supervision. At most, they are subject to regulation as money transmitters (akin to the regulation of Western Union).7 That circumstance presents a serious gap in the regulatory scheme. The pervasive regulatory supervision of banks helps to ensure that they honor their obligations under a variety of consumer-protection and data-privacy regulations that govern their activities.8 A shift of a significant share of volume to the new and unregulated entities raises a corresponding risk of loss from the irresponsibility of those entities.9 Thus, although the risk of fraud and privacy violations is doubtless higher in these new forms of transactions than it is in conventional transactions, the regulatory framework governing them is much weaker.10 Although the advent of the new transactions has been widely noted,11 the literature contains no sustained legal or policy analysis of the problems that they pose. This Article responds to that challenge. The analysis proceeds in three steps. Part II provides a summary description of the mechanics of the systems, focusing on how they interact with existing payment systems and conventional actors in those systems. Part III explains the problems with the existing laws (principally the Electronic Funds Transfer Act12 (the EFTA) and regulations that the Federal Reserve has promulgated to implement that statute). Generally, the problem is that the outdated provisions of the EFTA and the applicable regulations leave consumers exposed to losses from fraud and error in the new transactions, even though federal law would protect them from this loss if the transactions had been completed directly with conventional payment systems. Finally, Part IV examines broader questions of how to ensure that the new Internet intermediaries are adequately motivated to comply with the obligations the EFTA and privacy laws impose. Any regulatory intervention must accommodate both the benefits of increased competition from those new entities and the risks that their lack of responsibility will harm the consumers whose accounts are involved in the transactions. …

What Law Schools Can Learn from Billy Beane and the Oakland Athletics

Abstract: What Law Schools Can Learn from Billy Beane and the Oakland Athletics* MONEYBALL: THE ART OF WINNING AN UNFAIR GAME. By Michael Lewis. New York: W.W. Norton & Company, 2003. Pp. xv, 288. $24.95. I. Introduction In Moneyball, Michael Lewis writes about a story with which he fell in love, a story about professional baseball and the people that play it.1 A surprising number of books and articles have been written by law professors who have had long love affairs with baseball.2 These books and articles are a two-way street, with baseball and law each informing and enriching the other. For example, law professors versed in antitrust,3 labor,4 property,5 tax,6 and tort7 law have brought their legal training to bear on particular aspects of baseball.8 Law professors also have mined their passion for baseball in extracting from the diamond lessons for the law in areas as diverse as The Common Law Origins of the Infield Fly Rule9 (and the almost cult-like following it spawned,)10 statutory construction,11 legal theory,12 comparisons of Supreme Court Justices to famous baseball players,13 and, our favorite, The Jurisprudence of Yogi Berra.14 Indeed, one commentator has called baseball and law "America's Two National Pastimes."15 Yet missing in this cacophony of law professor voices on baseball and law is any discussion of what could be called our sandlot: legal education.16 In their review of Moneyball, Richard Thaler and Cass Sunstein argue that the book has "large and profound implications" for professions other than baseball.17 In this Review Essay, we explore Moneyball's "large and profound implications" for law schools. In particular, we focus on the lessons law professors can draw from Lewis's tale of Major League Baseball players18 and the organizations for which they play.19 We begin in Part II by telling the story of baseball and how one man, Billy Beane, a baseball player who "failed" despite marvelous physical talents, became general manager of the Oakland Athletics and challenged what until then had been considered the eternal themes of baseball. Beane ruthlessly exploited inefficiencies in the baseball market caused by the inability to properly measure individual player contributions to the success of a baseball team. By chucking traditional subjective measurements of players in favor of new objective methods of player evaluation developed by baseball outsiders and abetted by advances in computer technology and the Internet, Beane and the Oakland A's have enjoyed amazing success in recent years competing against larger-market teams. In Part III, we tell the parallel story of legal education. We explain that, in many ways, legal education is teeming with more inefficiencies than those Billy Beane uncovered in baseball. We treat the history of legal education as a tale of two eras. In the early era, after initial efforts at competition among law schools, the emergence of the Association of American Law Schools ("AALS") led to a long period of somnolence. Changes in the economic conditions of higher education and the legal profession, combined with increasing demands for accountability and transparency in the computer-Internet age, created the market demand for measuring organizational success which U.S. News & World Report met with its annual law school rankings. Although reviled by most law school insiders, U.S. News & World Report has had the salutary effect of spurring the development of alternative methods of measuring law school success as well as individual contributions to that success. In Part IV, we explore the implications of Moneyball for legal education in three areas. First, we argue that law school rankings manifest American society's increasing demand for more and better information. Rankings are here to stay, so the professorate should continue the work that has begun to more accurately measure law school success. We offer our views on the current state of law school rankings along with suggestions for future development. …

Deworming the Internet

Abstract: I. Introduction In 1988, graduate student Robert T. Morris released the first "worm"1 to have a major impact on the internet.2 The self-replicating program directly and indirectly disabled thousands of time-shared, multi-user computers3 by exploiting a range of security vulnerabilities, including poor system configuration, easily guessed passwords, and software defects.4 Fifteen years later, the underlying software and hardware have changed several times over, but the same problems provide opportunities for worms to wreak havoc,5 and wave after wave of worms continue to sweep through the internet.6 One thing is different: The stability of the internet has become increasingly important as a matter of collective economic security. While predictions of an "electronic Pearl Harbor" are likely overblown,7 internet worm attacks carry substantial economic costs.8 Unless something changes, these attacks are likely to continue. Much as Larry Lessig has famously asked "what things regulate" Cyberspace,9 in this Note I ask a more narrow question: What things can regulate, or should regulate, worms in Cyberspace? Worms are written by people and are transmitted over the internet, where they take advantage of latent defects in software installed on other internet-connected computers.10 Once infected, these computers are used as jumping-off points for the worms to infect other computers.11 My focus in this paper is on worm authors,12 vulnerable software, and the people who buy this software. Part II of this Note evaluates two approaches to regulating worm authors. These authors have long been the most popular focus for U.S. regulatory attention,13 and this attention has generally proceeded according to a broad principle of deterrence that is achieved by punishment and by setting the moral high ground.14 Because this strategy has accomplished little or nothing, Cyberspace pundits, including Lessig, are now calling for bounties and changes to internet architecture that would make it easier to catch worm authors, punish them, and deter future authors. Part II argues that these approaches are both unlikely to work and potentially destructive to the internet. Part III discusses the role of the market in regulating the worm problem. In technical circles, the role of vulnerable software in creating worm crises is well understood. However, to the extent that this concern appears on the agenda of policymakers, they apparently assume that markets will eventually provide the right incentive for software publishers to produce better software. This has not happened. Part III develops a theory to explain both why the market has not yet produced substantially more secure software in its current configuration and why it is not likely to do so in the future absent changes in incentives or market structure. Part IV addresses the issue of government intervention in the worm crisis. Market failure alone does not justify government intervention; it must be possible for intervention to make the situation better. Part IV first argues that software publishers have long had the ability to prevent the types of worms that are currently afflicting the internet and that the damages suffered from worms are large, if hard to pin down with any precision. Part IV goes on to argue that these preventable damages make a prima facie case for government intervention, despite the belief in some circles that the internet should be protected from regulation. Part V looks at regulation of the worm problem through litigation. Virtually no lawsuits have been filed for worm-related damage. Current law does not provide a useful vehicle for those damaged by worms, whether they are the software purchasers themselves, or non-purchasers who are nevertheless affected when the internet either slows down or grinds to a complete halt. Part V examines why current law fails in this regard and argues that even if tort causes of action could be extended to cover worm-related damage, this would not necessarily be a good thing. …

Distributive Values in Copyright

Abstract: I. Introduction Tarnation was a surprise hit at the 2004 Cannes and Sundance film festivals.1 Film critic Roger Ebert declared the film "powerful and heartbreaking." Other critics called it "a masterpiece" and "a whirlwind journey."2 Jonathan Caouette, an unemployed New York actor and doorman,3 made Tarnation on a borrowed Apple Macintosh computer by editing and combining his own home movies with other video clips and music.4 Caouette estimates that he spent $218 making the film and observes that "[m]aking a movie is not as difficult as it is made out to be" and "[h]opefully this will be a catalyst for people who didn't have a voice before to go out and make a movie."5 The Mashin' of the Christ is a short video made by a group of artists called Negativland. The video combines scenes from the blockbuster film The Passion of the Christ with depictions of Jesus from other films, including Ben-Hur, The Greatest Story Ever Told, and A Clockwork Orange.6 Negativland describes the film as the group's "own vision of the last moments of Christ's life."7 The Mashin' of the Christ has not made it to Cannes, but it is available for free on the internet using video file-sharing software.8 Thanks to digital copying and editing technology, and the dissemination power of the internet, making and sharing a video collage like Tarnation or The Mashin' of the Christ can be easy and relatively inexpensive. Documentary producer Jim Gilliam predicts that "[i]t won't be long before people will be shooting and editing short documentaries that they'll stream from their blogs."9 Perhaps. But when some entry barriers are lifted, others can loom larger in comparison. Jonathan Caouette estimates that the total cost for making Tarnation will rise to $400,000 once rights to use copyrighted music and video clips have been cleared.10 Meanwhile, the Digital Millennium Copyright Act (DMCA) has been interpreted to prohibit distribution of software that makes it cheap and easy to copy video clips from DVDs the way Negativland did.11 And the Supreme Court may decide in the pending Grokster case that the type of software Negativland used to distribute the video is illegal too.12 These examples illustrate the complicated relationship between copyright, creative expression, and money. Copyright is designed to facilitate the funding of creativity. But copyright can also make one input into the creative process-other artists' copyrighted works-expensive. The expense of building on the works of others is justified in copyright theory by the hope that the burden copyright imposes on creativity is outweighed by its benefits.13 Copyright law generally addresses the relationship between creative expression and money in terms of maximizing total creativity. But of course a regime that couples creativity and money also affects the distribution of creative opportunities. Some creators want the monetary incentive that copyright provides; others do not. Some creators can bear the expenses that copyright imposes; others cannot.14 I am particularly interested in the ways in which creators who do not have much money are benefited and burdened by copyright.15 Should we understand the copyright regime as a subsidy that makes their creativity possible? Or as a tax that makes it unaffordable? How should we think about these possibilities in light of enduring values about the distribution of expressive opportunities? I start my exploration of these questions in Part II by examining aspects of copyright policy that seem to broaden the distribution of expressive opportunities. For example, by protecting a copyright holder's market and thus enhancing the prospect of financial rewards to creativity, copyright helps some otherwise poorly financed creators attract investment; it thus indirectly subsidizes their creativity and the distribution of their works to the public. On the other side of the copyright balance, the burdens that copyright imposes on poorly financed creators have been limited by exceptions in the Copyright Act, including the fair use doctrine, and by the economics of copyright enforcement: people without independent wealth or financial backing traditionally have had little capacity to implicate the Copyright Act in ways that would justify enforcement actions against them. …

The LSAT, Law School Exams and Meritocracy: The Surprising and Undertheorized Role of Test-Taking Speed

Abstract: Within the field of psychometrics, it is widely acknowledged that test-taking speed and reasoning ability are separate abilities with little or no correlation to each other. The LSAT is a univariate test designed to measure reasoning ability. Test-taking speed is assumed to be an ancillary variable with a negligible effect on candidate scores. This Article explores the possibility that test-taking speed is a variable common to both the LSAT and actual law school exams. This commonality is important because it may serve to increase the predictive validity of the LSAT. The author obtained data from a national and a regional law school and followed the methodology of a typical LSAT validity study, with one important exception: student performance was disaggregated into three distinct testing methods with varying degrees of time pressure: (1) in-class exams, (2) take-home exams, and (3) papers. Consistent with the hypothesis, the data showed that the LSAT was a relatively robust predictor of in-class exams and a relatively weak predictor of take-home exams and papers. In contrast, undergraduate GPA (UGPA) was a relatively stable predictor of all three testing methods. The major implication of this study is that the current emphasis on time-pressured law school exams increases the relative importance of the LSAT as an admission criterion. Further, because the performance gap between white and minority students tends to be larger on the LSAT than UGPA (the other important numerical admissions criteria), heavy reliance on time-pressured law school exams is likely to have the indirect effect of making it more difficult for minority students to be admitted through the regular admissions process. The findings of this study also suggest that when speed is used as a variable on law school exams, the type of testing method, independent of knowledge and preparation, can change the ordering (i.e., relative grades) of individual test-takers. The current emphasis on time-pressured law school exams, therefore, may skew measures of merit in ways that have little theoretical connection to the actual practice of law. Finally, this study found some preliminary evidence that the performance gap between white and minority students may be smaller on less time-pressured testing methods, including blind-graded, take-home exams. Definitive evidence on this issue will require a larger sample size. I. Introduction The Law School Admission Test (LSAT) is a cultural lightning rod. While some prominent scholars attack the test as a poor predictor of law school success that is biased in favor of the privileged,1 others praise it as a valuable tool for social mobility.2 With each admissions season, the LSAT also creates a raft of winners and losers, as acceptance letters3 and scholarship money4 often turn on relatively small differences in test scores. Integrally related to this process is the ranking of law schools by U.S. News & World Report.5 Despite a methodology that attempts to consider a variety of substantive factors, including faculty reputation, library resources, faculty-student ratios, and bar passage, these rankings move in virtual lockstep with a school's median LSAT score.6 Because students, legal employers, and alumni are often swayed by these rankings, competition between law schools has become an LSAT "arms race."7 Although many within the legal academy lament the "overreliance on the LSAT,"8 law faculties have generally been unwilling to bear the consequences of taking a different path, at least by themselves.9 As one law school dean aptly noted, the situation has become a "classic 'prisoners dilemma.'"10 The LSAT also presents a special set of problems for minority students, who have historically posted significantly lower scores than their white counterparts.11 If the Supreme Court's recent decision in Grutter v. Bollinger12 had struck down the use of racial preferences in law school admissions, it is at least plausible that the legal academy would have finally mustered the collective will to confront its own admissions practices. …

Grossly Excessive Penalties in the Battle against Illegal File-Sharing: The Troubling Effects of Aggregating Minimum Statutory Damages for Copyright Infringement*

Abstract: I. Introduction Imagine that you are a file-sharer. You download copyrighted songs to your computer for your personal use. You think of it like recording songs from the radio. Now imagine that a plaintiff sues you for downloading the one song to which she holds a registered copyright. Suppose the plaintiff knows that her monetary loss caused by your conduct is exactly one dollar.1 At trial, this plaintiff can elect to recover statutory damages for copyright infringement and thereby receive a guaranteed $750 in damages,2 all but one dollar of which would be noncompensatory in nature. The noncompensatory damages, those which exceed the loss that you caused, serve as a punishment,3 and there are several valid reasons for their imposition: they admonish you for your misconduct, they deter future infringement by increasing its cost, and they add an incentive for the copyright owner to sue. Now suppose that you have been a file-sharer for the past few years, accumulating some four thousand songs on your computer, all copyrighted and registered by the plaintiff. When the minimum statutory damage award of $750 is aggregated across every copyright that you have infringed, you are now liable for at least three million dollars in statutory damages to a plaintiff who has suffered four thousand dollars in monetary harm.4 At this point, a "suspicious judicial eyebrow" might be raised.5 This is the scenario examined by this Note, and its concerns are not merely hypothetical. Recent copyright infringement lawsuits brought by major record companies against individual file-sharers target persons who have downloaded and shared on average more than one thousand copyrighted songs,6 and these lawsuits ask for the same statutory damages used in the introductory example.7 It is not surprising that most defendants have chosen to settle these cases rather than face the tremendous statutory damages prescribed by copyright law.8 These lawsuits illustrate that the punitive effect of even the minimum statutory damage award, when aggregated across a large number of similar acts, can grow so enormous that it becomes an unconstitutionally excessive punishment. The Second Circuit recently suggested as much when considering a different statutory damage scheme.9 This Note argues that Congress should modify the Copyright Act's minimum statutory damage provision10 because, when massively aggregated in the file-sharing scenario, it imposes an unconstitutional grossly excessive penalty. Underlying this Note's criticism is the idea that a statutory damage award can be divided into compensatory and punitive components.11 While distinguishing between the two may seem antithetical to one traditional justification for statutory damages-to provide compensation when the harm caused is hard to determine-for file-sharing at least, a rough dichotomy can still be drawn.12 As discussed below, the punitive component of even the minimum statutory damage award turns out to be quite large.13 This large punitive component is not troublesome when statutory damages are awarded for one or a few instances of illegal file-sharing. The punitive component serves as an incentive to sue, and punishment for breaking the law is quite normal. However, when a given punishment is massively aggregated across many similar instances of misconduct, the resulting penalty can become so large that it becomes grossly excessive in relation to any legitimate interest in punishment and deterrence. As with the large punitive damage awards that the Court has held unconstitutional in the past decade,14 such a tremendous punishment violates substantive due process guarantees. Critics, however, have frowned on the Court's enforcement of an economic substantive due process right and urged the Court to refrain from action.15 Scholars have noted that courts do not enforce all constitutional norms to their full conceptual limits and that economic substantive due process is a typical subject of such underenforcement. …

The Civil Rights Identity of Bayard Rustin

Abstract: Introduction Boyard Rustin was the consummate civil rights strategist and humanitarian.1 Indeed, he shaped the course of social protest for some thirty years.2 First as political adviser to Martin Luther King, Jr. and later as leader of the 1963 March on Washington, Rustin influenced the black protest agenda in ways that few activists had before him or would even after his death.3 For example, Rustin helped to integrate nonviolent direct action into the civil rights movement, and if he were remembered for nothing more than this, his reputation would be enshrined in African-American protest and legal history.4 But he was also well-placed among the powerbrokers of organized labor,5 the American Democratic Party,6 and world affairs.7 Few African Americans engaged in as broad a protest agenda as did Rustin; even fewer enjoyed his breadth of influence in virtually every political sector of American life. Nevertheless, Rustin remained the quintessential outsider in black civil rights circles for much of his life.8 For, unlike nearly all of his peers, Rustin was gay.9 This created a seemingly unprecedented conundrum for African-American leaders, who balanced the value of Rustin's tactical expertise and political sophistication against his "deviant" sexual identity.10 Sometimes his expertise and sophistication tipped the scale, providing him with political autonomy to determine the trajectory of black civil rights.11 Other times, however, Rustin's gay identity outweighed his political savoir faire. In these instances, black civil rights leaders pointedly dismissed him, demanded his resignation from service, or denied him the institutional space to even articulate a civil rights vision.12 Perhaps no other figure contributed so much to the cause of African-American equality and remains so invisible in history.13 Indeed, to the extent that civil rights historians attend to Rustin at all, they present him as a "sideline activist" whose principle purpose was to support King.14 In truth, this image of Rustin is not completely inconsistent with Rustin's self-representation. Rustin's own writings reflect an outward-looking authorial point of view, as if seeking to deflect attention away from himself and from his contributions to civil rights reform.15 This might lead one to conclude that Rustin preferred, and actively sought out, a background political identity. In fact, however, Rustin's obfuscation of his role in shaping the black civil rights agenda was an important part of an identity-management strategy.16 The purpose of this strategy was to control the potential negative impact Rustin's sexual orientation could have on the civil rights movement. Informing the strategy was Rustin's awareness that the more visible and prominent his leadership roles in the black community, the more vulnerable the black civil rights establishment was to the charge that black reform efforts were being conceived of and orchestrated by a "sexual deviant."17 Consequently, Rustin performed his most significant and controversial civil rights work from the backrooms rather than from the forefront of the movement. How he did so is largely untold in American civil rights and legal history.18 While there are numerous law review articles on the civil rights movement generally and on Martin Luther King, Jr. specifically,19 there is not a single article that focuses squarely on Rustin;20 this is the first. The lack of attention to Rustin's life and civil rights contributions not only limits and distorts our understanding of the civil rights movement, but it legitimizes the (heterosexual) terms upon which Rustin was forced to perform civil rights. This Article exposes those terms and illustrates how Rustin negotiated them in order to articulate a remarkably broad and inclusive vision of equality. This Article takes the form of a civil rights biography. Our aim is not only to broaden our understanding of Rustin, of pivotal civil rights events (such as the March on Washington), and of central icons of the American civil rights movement (such as Martin Luther King, Jr. …

The Cross-Border Trucking Dispute: Finding a Way out of the Conflict between NAFTA and U.S. Environmental Law*

Abstract: I. Introduction Since 1982, the United States has maintained a moratorium on the issuance of most new permits to Mexican trucking companies seeking to operate within the U.S.1 To this day, despite the intervening adoption of the North American Free Trade Agreement (NAFTA), Mexico-domiciled trucks are prohibited, under most circumstances, from operating in most of the U.S. In recent years, the controversy has come to a head, resulting in two rulings-one by an arbitral panel, one by a United States Court of Appeals-that are seemingly at odds with each other. The dispute is a symptom of a broader conflict that has been brewing for years: the tension between NAFTA and the U.S. system of domestic environmental protection law. The trucking moratorium has been the subject of controversy from the beginning. When the ban was instituted, President Reagan justified it on the ground that Mexico had failed to open its trucking market to U.S. interests.2 Later, interest groups raised concerns over whether ending the moratorium might threaten American highway safety.3 Most recently, the debate has centered on the environmental impact of opening the borders. The present controversy poses a direct conflict between U.S. domestic environmental law and the lifting of the trucking moratorium.4 The United States, Mexico, and Canada signed NAFTA in 1992.5 NAFTA requires, among other things, that each member state refrain from discrimination and unequal treatment with respect to citizens of the other member states.6 In furtherance of these principles, the United States agreed in Annex I of NAFTA to phase out the trucking moratorium by December 18, 1995.7 When the phase-out deadline passed without any sign of U.S. action, Mexico filed an arbitration action pursuant to Chapter 20 of NAFTA.8 The arbitral panel issued its opinion in the case, In re Cross-Border Trucking Services, on February 6, 2001.9 The panel agreed with Mexico, finding that the United States was in breach of its NAFTA obligations.10 Following the panel's report, the U.S. Department of Transportation (DOT) promulgated regulations that would allow it to resume issuing permits to Mexican trucking companies.11 At that point, a new roadblock arose: A coalition of U.S.-based environmental, consumer, and trucking organizations filed suit in U.S. federal court.12 The plaintiffs sought to enjoin the implementation of the new regulations on the ground that the DOT had failed to comply with two federal environmental statutes: the National Environmental Policy Act of 1969(13) (NEPA) and the Clean Air Act.14 That case, Public Citizen v. Department of Transportation, came before the United States Court of Appeals for the Ninth Circuit, which, in an opinion dated January 16, 2003, sided with the plaintiffs and remanded the case to the DOT to conduct further environmental study.15 Although the Supreme Court has agreed to review the Ninth Circuit's decision, the administration's plans to lift the ban on Mexican trucks have once again ground to a halt for the time being. Taken together, the decisions of the Cross-Border Trucking panel and the Ninth Circuit in Public Citizen bring the tension between NAFTA and U.S. environmental law-an issue that has received increasing attention in recent years-into sharp relief.16 According to the Ninth Circuit, U.S. law requires the government to conduct an extensive environmental impact study before opening the country's borders to Mexican trucks. Yet, Cross-Border Trucking suggests that compliance with Public Citizen will lead to a further breach of the United States' NAFTA obligations, which in turn could open the door to trade sanctions and other negative consequences. The Supreme Court may well overturn the Ninth Circuit's specific holding in Public Citizen, but the existence of other recent NAFTA-related cases suggests that far from being an isolated event, the trucking dispute may be a harbinger of future, potentially more intractable conflicts. …

Locating Latinos in the Field of Civil Rights: Assessing the Neoliberal Case for Radical Exclusion Book Review Essay

Abstract: Locating Latinos in the Field of Civil Rights: Assessing the Neoliberal Case for Radical Exclusion WHO IS WHITE?: LATINOS, ASIANS, AND THE NEW BLACK/NONBLACK DIVIDE. By George Yancey.[dagger] Boulder: Lynne Rienner Publishers, 2003. Pp. x, 230. $49.95. I. Introduction: A New Kind of Racism Poor Latinos! Nobody loves them. Think-tank conservatives like Peter Brimelow, joined by a few liberals and a host of white supremacist websites, have been warning against the Latino threat: Because our dark-haired friends from south of the border insist on preserving their peculiar language and ways, they endanger the integrity of our Anglocentric culture. In order to guard against Balkanization and associated disorders, we should limit immigration from Latin America and police the southern border even more vigilantly than we do now.1 Recently this group of scholars has been joined by a second group. Composed for the most part of moderate liberals, these writers argue that Latinos pose a different kind of threat. Classified as minorities by many university and public administrators, members of this group nevertheless consume social services and affirmative action slots intended for the country's historic minorities-blacks and Native Americans. Precisely because Latinos assimilate, according to these commentators, they have little claim on our civil rights sympathies.2 Latinos, then, come under fire from the right for not assimilating and from the left for doing the exact opposite. The right uses unassimilability as a rationale for keeping Latinos out; the left, their success in fitting in as a reason for denying public benefits and places in colleges and universities to ones who are already here. Individualistic, no-nonsense Americans have a limited stock of empathy, this group writes. Why risk compassion fatigue by extending our civil rights sympathies to groups who do not really need them?3 The former group includes Brimelow, Patrick Buchanan, Samuel Huntington, liberal Arthur Schlesinger, the anti-immigrant organization FAIR, and a legion of white supremacist websites that inveigh against the evils of "mud people."4 The second, somewhat softer-edged school includes scholars such as Paul Brest, John Skrentny, Orlando Patterson, Mari Matsuda, and columnist Charles Krauthammer, who warn of the danger of dilution when well-meaning activists and administrators extend civil rights programs to groups beyond their original beneficiaries.5 A recent book by George Yancey typifies this new movement. Published in 2003 by Lynne Rienner Publishers, Who Is White?: Latinos, Asians, and the New Black/Nonblack Divide offers an extended argument, complete with footnotes, charts, graphs, and survey material, for limiting civil rights remedies to blacks alone.6 This Review Essay first surveys the recurring admonitions of nativist writers that Latinos are incompatible with America. It then turns to the recent school of liberal critics who reason that Latinos assimilate-intermarry, move into white neighborhoods, learn English-so successfully that they can safely be ignored. The first group's arguments are weak normatively-their vision of America as a sanitized, Anglicized nation with little diversity of thought, culture, or ethnicity is simply out of keeping with contemporary ideals. The second group's are not. Normatively strong, they rise or fall on the strength of their factual predicate and what follows from it. Are Latinos, in fact, assimilating, and if so, in what ways? Are they following the same path as that of earlier European groups, such as Irish, Italians, and Jews, who were first considered nonwhite, culturally inferior, and incapable of higher intellectual functioning, but soon secured social acceptance and admission to the white race?7 And, if Latinos are coming to terms with America in some respects, what does that mean for social justice? Should we quietly but firmly write them out of the civil rights equation in favor of those more needy? …

Thinking outside the Sovereignty Box: Transnational Law and the U.S. Constitution

Abstract: Recent opinions of the Supreme Court,1 as well as statements by several of the Justices in extra-judicial speeches,2 suggest a willingness to look at foreign sources of law as aids in constitutional interpretation Constitutional scholarship has also taken a comparative turn; numerous scholars now examine non-US constitutional structures and practices to see what insight they may provide for US constitutional interpretation and constitutionalism There is nothing terribly new in all of this Early opinions of the Court and leading treatises of the nineteenth century took international and comparative law far more seriously than courts and scholars in the twentieth century James Madison studied the constitutions of the world in preparing to write the American document Early US jurists were schooled on the leading international treatises, the lex mercatoria, the law of prizes, Roman citizenship law, and British constitutionalism The insularity of this nation's middle years needs more explanation, perhaps, than the turn (back) toward law and legal systems beyond our borders This outward-looking approach to US constitutionalism will surely continue, its sources ranging from the mundane (attendance by US judges at foreign conferences) to the useful (growing US interest in human rights jurisprudence in the European Union (EU)) For scholars, the comparative turn represents the most recent attempt to gain a new perspective, to examine assumptions, and to challenge the prevailing wisdom-opportunities provided in days past by various critical legal studies, the various "law and" movements, and historical turns It is difficult to write these opening paragraphs without mentioning globalization somewhere So let me add it in terms of legal pedagogy Quite simply, to be responsive and responsible, law schools need to teach students how to be comfortable in more than one legal system-because so much of modern legal practice crosses borders Comparative constitutional study has, appropriately, become part of a good liberal arts legal education Exactly what influence the comparative turn has had on constitutional doctrine remains to be seen At present, the nods to foreign sources seem little more than make-weights in opinions that have reached conclusions on other grounds But theorizing has begun on how external constitutional norms can become authoritative elements in US constitutional adjudication3 And this is but one piece of a broader internationalist agenda that seeks greater influence for transnational norms The normative case stresses both national interests and moral advancement Once transnational norms become more than points of comparison-once the claim is made that law made elsewhere has weight, force, or bindingness in the US legal system-significant issues of constitutionalism come into play These issues are frequently stated in doctrinal terms: Does delegation to international organizations violate structural constitutional norms? Does Article III require that international adjudications with domestic effect be subject to judicial review by US courts?4 As international regulation grows apace, these will become real constitutional issues for US courts5 The likely result is far from clear US participation in the rising tide of transnational lawmaking shows that significant national interests are at stake Congress and the executive branch see value in entering into the kinds of arrangements that will raise new constitutional questions But, of course, it is precisely this new kind of law that may well give the Justices pause It might be thought that in the field of foreign affairs the Court will be loathe to exercise muscle, but I think a parallel can be drawn here to the Court's recent willingness to limit congressional power deemed to intrude on the states Keith Whittington has noted that the new federalism cases have invalidated relatively minor legislation that was not supported strongly by either political party nor a powerful political constituency …

Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia

Abstract: Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia? THE MILITIA AND THE RIGHT TO ARMS, OR, How THE SECOND AMENDMENT FELL SILENT. By H. Richard Uviller[dagger] and William G. Merkel.[dagger][dagger] Durham: Duke University Press, 2002. Pp. xii, 340. $19.95. Those who deny that the original meaning of the Second Amendment protected an individual right to keep and bear arms on a par with the rights of freedom of speech, press, and assembly no longer claim that the amendment refers only to a "collective right" of states to maintain their militias. Instead, they now claim that the right, although belonging to individuals, was conditioned on service in an organized militia. With the demise of organized militias, they contend, the right lost any relevance to constitutional adjudication. In this Essay, I evaluate the case made for this historical claim by Richard Ovuler and William Merke! in their book, The Militia and the Right to Arms, or, How the Second Amendment Fell Silent. I also evaluate their denial that the original meaning of the Fourteenth Amendment protected an individual right to arms unconditioned on militia service. I find both claims inconsistent with the available evidence of original meaning and also, perhaps surprisingly, with existing federal law. Who says that even heated conflicts over constitutional meaning can never progress? Over the past ten years, the intellectual clash between those who claimed that, at the time of the founding, the "right to keep and bear arms" protected by the Second Amendment was a "collective right" of the states to preserve their militia and those who maintain instead that it originally referred to an individual right akin to the others protected in the Bill of Rights has been resolved. That the individual right view prevailed definitively is evidenced by the fact that no Second Amendment scholar, no matter how inimical to gun rights, makes the "collective right" claim any more. All now agree that the Second Amendment originally referred to the right of the individual.1 Indeed, the fact that the collective right theory was once so confidently advanced by gun control enthusiasts2 is on its way down the collective memory hole as though it had never been asserted. With its demise, the intellectual debate over the original meaning of the second Amendment has turned in a different direction. Although now conceding that the right to keep and bear arms indeed belongs to individuals rather than to states, almost without missing a beat, gun control enthusiasts now claim with equal assurance that the individual right to bear arms was somehow "conditioned" in its exercise on participation in an organized militia. The "militia-conditioned individual right" theory represents an advance for the anti-gun-rights position. It obviates (a) the copious evidence, both direct and circumstantial, that "the right to keep and bear arms" belonged to individuals3 and (b) the lack of any direct evidence that the Second Amendment protected some sort of a never-very-well-specified power of states, while (c) allowing opponents of gun rights to maintain, as they did with the "collective right" theory, that the second Amendment is irrelevant to the constitutionality of modern gun laws. But is the theory supported by the available evidence? The latest to make this historical claim are Richard Uviller and William Merkel. In their book, The Militia and the Right to Arma, or, How the Second Amendment Fell Silent, Uviller and Merkel reject the collective right theory and characterize the Second Amendment "right to keep and bear arms" as an individual right.4 However, they further claim that, because the right to arms may be exercised only while participating as part of an organized militia,5 its existence as a constitutional right is conditioned on the continued existence of a well-regulated militia. With the demise of the organized militia, so too has vanished the right to keep and bear arms. …

Drawing Lines between Chevron and Pennhurst: A Functional Analysis of the Spending Power, Federalism, and the Administrative State

Abstract: I Introduction A dominant theme of the Rehnquist Court has been the revival of serious federal-state balancing In the past ten years alone, the Court has imposed meaningful limits on the power of Congress to regulate interstate commerce,1 expanded Tenth Amendment limits on the means by which Congress can exercise its enumerated powers against states,2 reinvigorated state sovereign immunity under the Eleventh Amendment,3 and scaled back Congress's power to enforce the Reconstruction Amendments4 But throughout this revolution in federal-state relations, the Court has left untouched one of Congress's most potent powers: the Spending Clause Given the Court's dramatic efforts in other areas of federalism, this is surprising In the postwar period, vast policymaking areas have been brought within the control of the federal government through its ability to offer money to state and local governments in exchange for compliance with federal regulations5 Moreover, foreclosure of federal regulation of states through Congress's other enumerated powers has made the spending power a much more attractive source of federal authority6 Many now see the Spending Clause as a "loophole"7 and a "back door"8 that must be closed if courts are to enforce a sensible federal-state balance9 It is not at all obvious, however, how to bridle Congress's spending power One problem is that the governing test set forth in South Dakota v Dole10 does not provide much in the way of a doctrinal foothold11 Dole's relatedness requirement-that federal funding conditions relate to the purpose of the spending program-was the subject of a strenuous dissent by Justice O'Connor, but was liberally construed by the majority, and rendered a "contentless restriction"12 Moreover, Dole's requirement that spending programs serve the "general welfare" is, by the Court's own admission, nonjusticiable13 Finally, the "coercion" concept touched upon in Dole and earlier cases is notoriously slippery both as a matter of political theory and of legal doctrine Indeed, courts and commentators alike have puzzled over how one might know when the line between encouragement and coercion has been crossed14 Only Dole's, clear-statement prong, which requires that states have fair notice of spending conditions before assenting to spending programs,15 seems to hold any potential at all for narrowing the reach of the spending power16 Similar problems afflict broad covering theories that purport to capture the ways that conditional spending programs undermine core federalism values A good example is the concern that conditional spending programs leave voters confused about the governmental level at which regulatory initiatives originate, a concern advanced most famously by Justice O'Connor in the Tenth Amendment context in New York v United States17 As a number of commentators have noted, the political accountability rationale is both under-specified and over-inclusive as a means of constraining federal power18 Two other broad theories fare just as badly, and for the same reasons One is the "tax crowd-out" theory: the constitutionally superior taxation power of the federal government allows congressional use of the spending power to crowd out state-level taxation and thereby constrains the ability of states to engage in salutary competition with the federal government in policy innovation efforts19 The other is the "strategic-state effect": states that would engage in particular kinds of regulation anyway will invite federal-level regulation as a means of negating the competitive advantages (eg, in attracting mobile capital and labor) of states that would otherwise not adopt such regulations on their own20 Both of these theories provide a plausible description of the coercive potential of conditional spending programs But, as with the political accountability rationale advanced in New York, neither lends itself to clear line-drawing that balances federal and state interests …

Roll over Beethoven*: "A Critical Examination of Recent Writing about Race"

Abstract: I Introduction Richard Delgado, an influential civil rights scholar, has written foundational work on hate speech,1 storytelling in legal scholarship,2 and countless other areas of civil rights law3 One of the founders of Critical Race Theory,4 Delgado's award-winning series of narratives-the Rodrigo Chronicles-have been published in some of the most prestigious law reviews in the country5 and several well-received books6 To borrow from a now-dated advertising jingle, when Richard Delgado talks, people listen Delgado recently published a book review essay in the Texas Law Review criticizing the current direction of Critical Race Theory (CRT)7 Many scholars unquestionably will pay attention, especially because Delgado, one of the founders of CRT, questions its scholarly direction8 As the starting point for his criticism, Delgado reviews Crossroads, Directions, and a New Critical Race Theory, edited by Francisco Valdes, Jerome McCristal Gulp, and Angela P Harris9 The volume consists primarily of papers and speeches presented at the Critical Race Theory Conference at Yale Law School in 1997, an important event commemorating CRT's tenth anniversary Among the contributors to Crossroads are influential CRT scholars Derrick Bell, Kimberle Williams Crenshaw, Charles Lawrence III, Mari Matsuda, and many others Delgado laments CRT's current focus, which he characterizes as "idealist," and too much talk of discourse about inequality, as opposed to the "materialist," and analysis of the power disparities contributing to racial injustice10 Crossroads, to Delgado, devotes too much to the ideal and, put simply, is filled with discourse about discourse11 As is customary of his scholarship, Delgado's commentary is powerfully argued and clearly written Part of the essay, however, reminds me of the father who hates the music of his teenager; the "generation gap" as it is often called, is difficult to avoid We all experience change as unsettling Nonetheless, as CRT's new directions suggest, new approaches to old problems are part and parcel of intellectual growth Growing pains can be expected in a new and constantly evolving field like CRT II The Direction of Critical Race Theory Delgado makes important points concerning the distinct strands of CRT analysis He may be right that critical scholars should more fully engage the central social justice issues of modern times In my estimation, however, Delgado overstates the distinction between ideal and material forms of discourse12 In so doing, Delgado excessively criticizes CRT's direction and fails to acknowledge the emerging critical scholarship that analyzes current racial justice issues A The Balance of CRT Analysis Delgado's cogent analysis of CRT offers much food for thought He posits a bright-line distinction between the materialist and idealist approaches, with Crossroads constituting "a major, implicit statement in favor of discourse analysis and against the materialist/realist approaches of the movement's founding figures"13 Delgado further states that CRT, "after a promising beginning, began to focus almost exclusively on discourse at the expense of power, history, and similar material determinants of minority-group fortunes"14 Delgado ultimately must be concerned about the balance of CRT scholarship rather than rejecting outright the importance of discursive analysis The deep interrelationship between the ideal and material analysis of racial subordination requires the study of both, as well as how they are connected15 Idealist discourse helps us understand how society rationalizes racial subordination that power disparities create A simple example makes this point Poor education and employment opportunities for racial minorities result in economic inequality, with many whites materially benefiting Consequently, many whites have a vested interest in the economic status quo Sociological, psychological, and other explanations help us appreciate how economic inequality translates into domestic violence, substance abuse, and crime …

Can the Tariff Act Combat Endemic Child Labor Abuses? the Case of Cote d'Ivoire*

Abstract: I. Introduction On May 30, 2002, the International Labor Rights Fund (ILRF), a Washington D.C.-based nongovernmental organization (NGO), filed a petition with the United States Customs Service alleging and outlining evidence of trafficking in children and the "pervasive use of forced child labor in cocoa harvesting in Ivory Coast."1 Cote d'Ivoire is the world's largest producer of cocoa, accounting for an estimated 43% of total global production.2 There are over 450,000 cocoa plantations in the country, and approximately half of the population depends upon the industry for income.3 The ILRF called upon the Customs Service to initiate an investigation into the existence of such labor violations in Cote d'Ivoire and to enforce the relevant provisions of the Tariff Act of 1930.4 The Tariff Act,5 which was designed to protect against unfair competition created by labor abuses in foreign industries,6 provides for a ban against the importation of all goods into the United States that are produced with "convict labor or/and forced labor or/and indentured labor."7 The 1997 Sanders Law clarified the Act to include products made with "forced or indentured child labor."8 In June of 2003, the ILRF filed suit against the Customs Service for its failure to initiate any investigation or enforcement action.9 Yet despite the legal demands stated in the petition to the Customs Service and complaint filed in the U.S. District Court for the District of Columbia, the ILRF has publicly commented that its intention is not to achieve an outright ban of all cocoa produced in Cote d'Ivoire,10 as would be the ultimate result of a successful enforcement action under the Tariff Act.11 The ILRF seeks only to instigate an investigation by the Customs Service, which it believes will "provide a strong incentive to the Cote d'Ivoire government and to the cocoa exporters to solve the problem of forced child labor."12 The complex condition of child labor in West Africa, the legislative and political limits of the domestic customs mechanism at issue, and the economic realities of child labor suggest that while the Tariff Act can potentially serve as a useful tool in the promotion of labor rights abroad, the import ban that it contemplates is not a desirable outcome in this context. The problem of forced child labor in Cote d'Ivoire requires a regional and local approach that includes local governments, companies, and nongovernmental and international organizations and recognizes the need for a gradual solution in light of the entangled reasons for and consequences of child labor. This Note provides an illustrative case study of the problem of child labor and attempts to offer insight into the difficulties of using unilateral trade action as a means of enforcing international human rights. Part II provides a brief discussion of child labor, generally, and an overview of the economic, social, and political factors that contribute to its prevalence. Part II examines trafficking of children from neighboring countries into bonded child labor on cocoa farms in Cote d'Ivoire, and analyzes the measures that the governments of Cote d'Ivoire and other West African countries, as well as U.S. chocolate manufacturing companies, have taken to deal with the problem. Part III focuses on the process, issues, and obstacles involved in invoking the Tariff Act for the purpose of combating labor abuses. Part IV discusses the drawbacks that an import ban on cocoa from Cote d'Ivoire would present for the issue of child labor if a Tariff Act enforcement action were imposed, in light of the economic and political situation in the region. Part V concludes with a discussion of the potential effect of a Customs Service investigation, and argues that an investigation would create incentives for the development of appropriate measures for combating bonded child labor in Cote d'Ivoire. Such measures would need to address wages, social values and awareness, and cross-border collaboration. …

The lost original meaning of the ninth amendment

Abstract: This Article presents previously missed or unrecognized evidence regarding the original meaning of the Ninth Amendment. Obscured by the contemporary assumption that the Ninth Amendment is about rights while the Tenth Amendment is about powers, the historical roots of the Ninth Amendment can be found in the state ratification convention demands for a constitutional amendment prohibiting the constructive enlargement of federal power. James Madison's initial draft of the Ninth Amendment expressly adopted language suggested by the state conventions, and he insisted that the final draft expressed the same rule of construction desired by the states. The altered language of the final draft, however, prompted former Virginia Governor Edmund Randolph to halt his state's efforts to ratify the Bill of Rights due to his concern that the Ninth no longer reflected the demands of the state convention. Antifederalists used Randolph's concerns to delay Virginia's, and thus the country's, ratification of the Bill of Rights for two years. While ratification remained pending in Virginia, Madison delivered a major speech in the House of Representatives explaining that the origin and meaning of the Ninth Amendment in fact were rooted in the proposals of the state conventions and that the Ninth guarded against a "latitude of interpretation" to the injury of the states. Although the Ninth's rule of construction distinguishes it from the Tenth Amendment's declaration of principle, Madison and other legal writers at the time of the Founding viewed the Ninth and Tenth Amendments as twin guardians of our federalist structure of government. Over time, the Tenth Amendment also came to be understood as expressing a federalist rule of construction. The original federalist view of the Ninth Amendment, however, remained constant and was repeated by bench and bar for more than one hundred years. I. Introduction In the fall of 1789, former Virginia Governor Edmund Randolph brought to a halt the Virginia Assembly's efforts to ratify the Bill of Rights due to his concerns about the Ninth Amendment.1 State conventions considering the ratification of the Constitution, including the convention in Virginia, had insisted that an amendment be added to the document controlling the "constructive enlargement" of federal power.2 Madison's original draft of the Ninth Amendment expressly echoed these concerns.3 The final version of the Ninth, however, looked nothing like the version proposed by Virginia and the other state conventions,4 and concerns about the alteration led Randolph to oppose the ratification of both the Ninth and Tenth Amendments.5 Because these two amendments were critical to gaining support for the rest of the Bill, the entire Virginia ratification process ground to a halt. Letters flew to James Madison telling him about the trouble in Virginia, and Madison dutifully reported the events to President Washington.6 Madison was baffled: The final draft of the Ninth accomplished exactly what Virginia desired.7 Unconvinced, the Virginia Assembly remained stalled, and the Antifederalists managed to exploit Randolph's concerns about the Ninth and delay Virginia's (and thus the country's) ratification of the Bill of Rights for two years.8 During that time, Madison gave a major speech before the House of Representatives opposing the creation of the Bank of the United States.9 In that speech, Madison explained the meaning of the Ninth Amendment and its roots in the declarations and proposals of state ratifying conventions.10 A few months later, Virginia voted in favor of ratification, and the Bill of Rights was added to the Constitution." This account cannot be found in any history of the Ninth Amendment.12 The events themselves are easily verified by consulting the original sources. Those sources, however, are missing in major compilations of the documentary history of the Ninth Amendment.13 The precursors to the Ninth Amendment-the proposals submitted by the state ratification conventions upon which Madison based his draft-are either not discussed,14 missing,15 or mislabeled16 throughout contemporary scholarship. …