Showing papers in "Texas Law Review in 2006"

From the Asylum to the Prison: Rethinking the Incarceration Revolution

Abstract: The incarceration revolution of the late twentieth century fueled ongoing research on the relationship between rates of incarceration and crime, unemployment, education, and other social indicators. In this research, the variable intended to capture the level of confinement in society was conceptualized and measured as the rate of incarceration in state and federal prisons and county jails. This, however, fails to take account of other equally important forms of confinement, especially commitment to mental hospitals and asylums. When the data on mental hospitalization rates are combined with the data on imprisonment rates for the period 1928 through 2000, the incarceration revolution of the late twentieth century barely reaches the level of aggregated institutionalization that the United States experienced at mid-century. The highest rate of aggregated institutionalization during the entire period occurred in 1955 when almost 640 persons per 100,000 adults over age 15 were institutionalized in asylums, mental hospitals, and state and federal prisons. Equally surprising, the trend for aggregated institutionalization reflects a mirror image of the national homicide rate during the period 1928 through 2000. Using a Prais-Winsten regression model that corrects for autocorrelation in time-series data, and holding constant three leading structural covariates of homicide, this Article finds a large, statistically significant, and robust relationship between aggregated institutionalization and homicide rates. These findings underscore, more than anything, how much institutionalization there was at mid-century. The implications are both practical and theoretical. As a practical matter, empirical research that uses confinement as a value of interest should use an aggregated institutionalization rate that incorporates mental hospitalization rates. At a theoretical level, these findings suggest that it may be the continuity of confinement-and not just the incarceration explosion-that needs to be explored and explained. I. Introduction The classic texts of social theory from the 1960s tell a consistent story not only about the rise and (in some cases) fall of discrete carceral institutions, but also of the remarkable continuity of confinement and social exclusion. This pattern is reflected in the writings of Erving Goffman on Asylums,1 Gerald Grob on The State and the Mentally Ill,2 David Rothman on The Discovery of the Asylum,3 and Michel Foucault.4 In Madness and Civilization, for instance, Foucault traces the continuity of confinement through different stages of Western European history, from the lazar houses for lepers on the outskirts of Medieval cities, to the Ships of Fools navigating down rivers of Renaissance Europe, to the establishment in the seventeenth century of the Hopital General in Paris-that enormous house of confinement for the poor, the unemployed, the homeless, the vagabond, the criminal, and the insane.5 Surprisingly, this literature never made its way into the empirical social science research on the incarceration revolution of the late twentieth century. With the marked exception of a few longitudinal studies on the interdependence of mental hospital and prison populations,6 as well as a small subset of the empirical research on the causes of the late-twentieth century prison explosion,7 no published empirical research conceptualizes the level of confinement in society through the lens of institutionalization writ large. Uniformly, the research limits the prism to rates of imprisonment only. None of the research that uses confinement as an independent variable-in other words, that studies the effect of confinement (and possibly other social indicators) on crime, unemployment, education, or other dependent variables-includes mental hospitalization in its measure of confinement.8 Moreover, none of the binary studies of confinement-in other words, research that explores the specific relationship between confinement and unemployment, or confinement and crime, or confinement and any other non-mental-health-related indicator-uses a measure of coercive social control that includes rates of mental hospitalization. …

Frontiers of Justice: The Capabilities Approach vs. Contractarianism

Abstract: Frontiers of Justice: The Capabilities Approach vs. Contractarianism FRONTIERS OF JUSTICE: DISABILITIES, NATIONALITY, SPECIES MEMBERSHIP. By Martha C. Nussbaum.[dagger] Cambridge, MA: Harvard University Press, 2006. Pp. 487. $35.00. Martha Nussbaum's Frontiers of Justice1 is a major critical assessment of John Rawls's contractarian theory of justice and a highly original treatment of three "unsolved problems of justice": our duties to the impaired and disabled; to members of other nationalities; and to other animal species. Nussbaum develops and applies the "capabilities approach" to justice, which she set forth in Women and Human Development.2 In that book, Nussbaum presents the capabilities approach in connection with issues of women's rights and sex equality in developing countries. In Frontiers of Justice, she exhibits the versatility of the capabilities approach by further developing her theory in addressing three different problems. The intuitive idea behind the capabilities approach is that there are certain basic human needs and capacities that must be realized to a minimum degree if human beings are to live a decent life consonant with human dignity and flourishing. Some of these "capabilities for human functioning" are straightforward and noncontroversial: a normal life span; health and nutrition; bodily integrity; and adequate development of one's senses, imagination, and thinking capacities. Others are more controversial (e.g., opportunities for political participation; nondiscrimination on the basis of sex, sexual orientation, religion, race, ethnicity, etc.). Working from ideas of human dignity and "truly human functioning" said to be implicit in Aristotle and Marx, Nussbaum presents an account of the central human capabilities that society must satisfy-by the provision of necessary rights, entitlements, and background social conditions-if it is to render minimal justice to all its members. In developing and applying her capabilities approach to rights of the disabled, other nationalities, and animals, Nussbaum engages in a thorough criticism of social contract doctrine. She focuses on John Rawls, providing a lengthy discussion and assessment of his position. Her main contention is that, for all its strengths in dealing with issues of social, political, and economic justice among "normal" cooperating members of a democratic society, contractarianism proves inadequate when extended to disabilities, other nationalities, and other species. For this and other reasons, she finds Rawls's account of justice "seriously flawed." In my discussion, I proceed differently than Nussbaum's exposition. Whereas she discusses contractarianism's shortcomings first and then argues that her position better deals with the issues, I first set forth in Part I the broad outlines of Nussbaum's capabilities approach to justice, and briefly discuss how it applies to disabilities and other nationalities. This enables a better appreciation of the originality and strengths of her capabilities approach. In Part II, I review Nussbaum's general criticisms of Rawlsian contractarianism. I then present in Part III a different interpretation of Rawls's contractarianism than Nussbaum's. Parts IV and VI respond to Nussbaum's specific criticisms of Rawls's treatment of disabilities and international justice respectively, while Part V explains why primary goods are the appropriate measure of the "currency" of justice. I conclude in Part VII with a brief exposition of her account of our duties to other animal species. This is a lengthy and complex book. I do not pretend to have addressed all of Nussbaum's criticisms of contractarianism, or to have fully done her book justice. For all the disagreements I have with Nussbaum's criticisms of Rawls, her book is a major development of an alternative approach to justice and human rights than provided by contractarianism and other contemporary positions. Her capabilities approach provides significant advances in our understanding of three difficult areas in moral and political philosophy and in pointing the way towards addressing these problems. …

The Politics of Judicial Review

Abstract: I. Introduction In the legal academy, scholarship about judicial review is predominantly normative. It is largely about how judges should decide cases1 and what posture they ought to take toward the work of other institutions.2 This normative focus on the behavior of judges is common irrespective of whether the intended audience is other academics, political officials, or judges themselves. Outside the legal academy, the interest in how judges behave is more "positive." That is to say, the focus in other disciplines is not so much on how judges should behave, as on how they do and why.3 Positive theorists ask what motivates judges to decide cases as they do and what forces are likely to influence judges' decisions. The normative and positive projects have traveled on largely separate tracks, in part because the forces positive theorists identify as influencing judges commonly are political ones. "Politics" is used here in a fairly capacious sense, referring to any influences on a judge's resolution of a case other than an independent judgment of the law as applied to the facts before the court.4 But the political forces identified by positive scholars are often quite base: Many positive theorists suggest that judicial ideology plays a significant role in how judges decide cases5 and that judges respond to pressures from other political actors.6 Positive scholars believe these forces play a large hand in shaping the content of the law, especially constitutional law. Normative theorists resist the positive project, in large part because political influence of this sort is anathema to prevailing conceptions regarding judicial review.7 Throughout history, and particularly in the last century, the dominant strain of thought in the legal academy has insisted upon theories of judicial review that maintain the separation of constitutional law from politics.8 It is difficult to overstate the force of this ideal, which animates some of our most cherished conceptions-such as judicial independence-and gives rise to some of our most enduring puzzles-such as reconciling the role of a constitutional judge with the practice of democracy.9 Constitutional theory is all about cabining law from politics, both to ensure that judges are constrained by law (and thus do not simply vote their own values) and to prevent politics from influencing law.10 Despite signs that the project of positive scholars is finally finding a warmer reception in the legal academy, the integration of constitutional law and politics remains quite tentative.11 To be sure, some early, important work in the application of positive political theory to legal institutions actually had root in the legal academy,12 and there is a growing niche of legal academics producing quite interesting scholarship at the juncture of constitutional law and positive theory.13 Yet much, if not most, normative constitutional theory-and certainly theory about judicial review-still fails to come to grips with the lessons of positive scholarship.14 Old habits die hard. The thesis of this Article is that normative constitutional theory about judicial review will remain impoverished until it fully embraces the positive project. In pursuing the ideal, normative theorists typically sideline the sort of political influences discussed here.15 For example, in writing about what might be normative theory's most famous constitutional judge, Hercules, Ronald Dworkin recognizes the very practical problems the real-world judge faces, such as the need to obtain the agreement of other colleagues on the Supreme Court or to ensure the implementation of judicial decrees by other governmental actors.16 Yet, Dworkin expressly puts these problems to one side so that Hercules will be "free to concentrate on the issues of principle."17 Granting considerations of principle all the due they properly are owed, it nonetheless is the case that many of the institutional constraints Hercules faces are fixed aspects of our constitutional system that Hercules himself has no choice but to heed. …

Outside director liability across countries

Abstract: Settlements reached in 2005 in securities litigation involving Enron and WorldCom highlighted the financial risks faced by outside directors of public companies We argue elsewhere that Enron and WorldCom, as instances where directors made damages payments out of their own pockets, are and likely will remain exceptional in the United States1 In this paper, we show that the risk of out-of-pocket payment is likewise very low on a cross-border basis, in both common law and civil law countries The largest source of risk is efforts by government agencies to make an example of particular directors, even when the cost of doing so likely exceeds the financial recovery We study Britain and Germany in depth and offer summaries of the position in Australia, Canada, France, and Japan We find that while specific laws quite often differ, there is substantial functional convergence In each country we analyze, due to a combination of substantive law, procedural rules, and market forces, the out-of-pocket liability risk faced by outside directors of public companies is similar-present but very small We draw upon our cross-border analysis to assess the legal risks outside directors can expect to face going forward, both in the United States and elsewhere We also briefly consider whether the current approach reflects sensible public policy I Introduction Around the world, vigilant outside directors are a key component of most prescriptions for good corporate governance But what makes outside directors work hard and pay attention? One potential source of incentives is legal liability This possibility is highly topical "The press went into overdrive"2 as it covered a trial in which the Delaware Chancery Court held in a 2005 ruling that the directors of Walt Disney Company had not breached their fiduciary duties to the company when hiring and dismissing a senior executive3 Similarly, in 2005, when highly publicized out-of-court settlements were announced under which former outside directors of WorldCom and Enron agreed to pay a total of nearly $40 million out of their own pockets to settle class action securities lawsuits, the media heralded these settlements as signaling an era of both greater director risk and increased boardroom vigilance4 Theoretically, legal liability can help to motivate those serving in the boardroom to be attentive since they will fear adverse financial consequences if they fail to perform up to legal standards In fact, across countries, laws governing outside directors of public companies often lack financial "bite" Outside the United States, most would assume that America is an exception to this pattern A standard refrain is that directors in the United States operate in a hostile legal climate and that directors of foreign companies whose shares trade on US stock markets face grave liability risks5 This received wisdom is erroneous Outside directors of US public companies indeed face a much higher risk of being sued than their counterparts in other countries These suits, however, pose little risk of an out-of-pocket payment, particularly if a company buys directors and officers' liability (D&O) insurance sufficient to cover legal expenses and a decent damages payment As we document in a paper analyzing outside director liability in the US, the payments in Enron and WorldCom were a major departure from the norm6 But what about elsewhere? What legal risks do outside directors of non-US public companies face? Do they have less to fear than their US counterparts? Or more? This Article addresses these questions and related issues In so doing, we also offer a unique perspective on outside director liability in the US by using non-US experience to identify circumstances under which American directors might in the future face a significant risk of making personal payments Our cross-border study covers six countries We examine outside director liability in the United Kingdom (U …

Speech and Spatial Tactics

Abstract: As the Supreme Court has observed on many occasions, "First Amendment freedoms need breathing space to survive."1 This is so in the quite literal sense that the exercise of expressive rights requires adequate physical space. Given its primacy, it is remarkable how little attention has been given to the concept of "place" in First Amendment doctrine and theory. Place has always occupied the background rather than the foreground in free speech jurisprudence. It has been treated as a locale for events, a marker for expressive rules and procedures, an inert container of speakers and speech, a thing, a res. Free speech jurisprudence treats place categorically, defining expressive rights in terms of the character of the property or forum involved. It is far more concerned with questions of "what" speech is being regulated and "why" than with questions of "where" speech occurs or how speech and spatiality are connected. It is a serious mistake to view place as merely an inert container or a backdrop for expressive scenes. Place can be a powerful weapon of social and political control. Today speech, including core political speech, is being disciplined, controlled, and even suppressed through a variety of spatial techniques. Consider the following recent examples: * the free speech cage, an architecture of mesh fabric, coiled razor wire, chain-link fences, and jersey barriers, constructed to contain protesters at the 2004 Democratic National Convention;2 * the "steel cocoon" that emerged within the District of Columbia prior to the 2005 presidential inauguration,3 and the confinement of protesters to spaces behind bleachers and fenced-in areas more than 100 feet from the inauguration parade route;4 * the 25 block "restricted zone" that prohibited all protests near the 1999 World Trade Organization meetings in Seattle;5 * the 1/2 block "frozen zone" or "bubble" used to shield New York City Mayor Michael Bloomberg from union members protesting at the 2004 Republican National Convention;6 * the use of metal barricades, or "pens," to confine and control those protesting the Iraq War;7 * statutory and injunctive "free speech" and "speech-free" zones erected around abortion clinics and various other public accommodations;8 * campus "free speech zones" that confine First Amendment activity to narrowly circumscribed places;9 and * recent laws in several states establishing protest zones for antiwar speech near funerals.10 Under current First Amendment doctrine, restrictions on the place where expression may occur are routinely upheld.11 The First Amendment nominally requires that these sorts of restrictions, like content-neutral restrictions on the time and manner of expression, satisfy an "intermediate" level of scrutiny.12 But in truth this standard is little more than a weak strain of rationality review.13 Courts generally tend to view spatial restrictions as unrelated to expressive content. They are treated as inarguably rational means of serving governmental interests such as maintaining order and security.14 And, indeed, some such regulations are necessary to preserve a minimal degree of order. Parade routes, for instance, must sometimes be altered to account for such realities as traffic and pedestrian flow. The First Amendment is not a license to speak wherever one pleases. But this basic principle does not afford the state plenary authority to suppress speech on matters of political and social import by significantly displacing or confining it. Purportedly neutral restrictions on place can and do cancel expressive and associative rights. One need look no further than the aforementioned Boston speech cage for affirmation of this.15 This Article does not dispute that the state must sometimes control the place of expression. Space, after all, is a limited resource. My right to speak in a certain place often will impact others' enjoyment of that place. …

Specific Performance versus Damages for Breach of Contract: An Economic Analysis

Abstract: When would parties entering into a contract want performance to be specifically required, and when would they prefer payment of money damages to be the remedy for breach? This fundamental question is studied here and a novel answer is provided, based on a simple distinction between contracts to produce goods and contracts to convey property. Setting aside qualifications, the conclusion for breach of contracts to produce goods is that parties would tend to prefer the remedy of damages, essentially because of the problems that would be created under specific performance if production costs were high. In contrast, parties would often favor the remedy of specific performance for breach of contracts to convey property, in part because there can be no problems with production cost when property already exists. The conclusions reached shed light on the choices made between damages and specific performance under Anglo-American and civil law systems, and they also suggest the desirability of certain changes in our legal doctrine. I. Introduction When would parties entering into a contract want performance to be specifically required, and when would they prefer payment of money damages to be the remedy for breach? I study this fundamental question here and come to a conclusion based on a simple distinction between two types of contracts: contracts to produce new goods or to provide services;1 and contracts to convey existing goods or other property.2 Setting aside qualifications, the conclusion that I reach is that parties would tend to prefer the remedy of damages for breach of contracts to produce things, whereas they would often favor the remedy of specific performance for breach of contracts to convey property.3 This conclusion will help us to understand the choices made between damages and specific performance under Anglo-American4 and civil law systems5 and suggests the desirability of certain changes in our legal doctrine. The conclusion and the analysis underlying it differ significantly from those in previous writing, as I will indicate after describing the organization and content of the Article. I begin in Part II with a theoretical, economically oriented examination of damages and specific performance.6 The question that I address there is what the parties to a contract would want the remedy for breach to be. The point of departure for the analysis of this question is that contracting parties should in principle agree ex ante to choose the remedy that would maximize the joint value of the contract to them-where the joint value is the value gained by the parties less any expenses, costs of bargaining, and risk-associated disutility. The parties should want to maximize joint value essentially because if a proposed remedy does not lead to the highest joint value, both parties can be made better off by agreeing to another remedy, generally after making a suitable price adjustment. If, for instance, they were contemplating specific performance but that remedy would lead to lower joint value than a damage measure, both the seller and the buyer can be made better off by changing from specific performance to the damage measure, after lowering the price to compensate the buyer if the buyer is made worse off because the seller no longer guarantees performance. I initially consider the choice of remedy in the context of contracts to produce (say, a contract to excavate a construction site). Here I explain that specific performance involves four disadvantages that would often lower joint contractual value.7 First, sellers might have to perform even though performance is very expensive (suppose that an excavator unexpectedly encounters hard rock) and outweighs its value to the buyer. Of course, in such circumstances, sellers might also negotiate for their release, but that would involve bargaining costs and might not result in an agreement. Second, the prospect of these problems associated with high production expense might lead sellers to take wasteful avoidance steps (such as purchasing rock-crushing machines even though the expenditure is intrinsically uneconomic). …

Seeing beyond the Limits of International Law

Abstract: Seeing Beyond the Limits of International Law THE LIMITS OF INTERNATIONAL LAW, Jack L. Goldsmith[dagger] & Eric A. Posner.[double dagger] Oxford: Oxford University Press, 2005. Pp. 226. $29.95. If the 1990s were for many a time of optimism about the efficacy of international law and legal institutions,1 the first decade of the twenty-first century has brought a backlash, at least in the United States. The Bush administration's hostility to international law is well documented,2 Republicans in Congress are decrying the mere citation of foreign or international sources in U.S. Supreme Court opinions,3 and a cadre of international law scholars, seemingly motivated by concerns that international legal norms might pose undue limitations on state prerogatives or democratic processes, are arguing against the implementation of such norms domestically.4 Even those who are inclined to be more sympathetic to international human rights law have purported to show, through quantitative analysis, that human rights treaties may not affect actual state behavior.5 Many of these attacks, however, misconceive the ways in which international law is most likely to operate. Because international law generally is not backed by coercive force, it of course does not literally bind state actors. Thus, if international law affects behavior at all, it does so far more subtly. For example, it may slowly change attitudes in large populations, effecting shifts in ideas of appropriate state behavior. In addition, international legal norms may well empower constituencies within a domestic polity and provide them with a language for influencing state policy, thereby affording them leverage that they would not otherwise have had at their disposal. Such subtle processes may not, at least on the surface, seem to play a role in constraining state behavior. And they cannot necessarily be measured in immediately quantifiable ways. But, over time, we may see changes that are more profound than those brought about by an ephemeral coercive statute enacted by a legislature. Thus, if we want to study whether international law has real effects, we need to analyze these processes rather than limit our gaze to the question of whether international law binds states coercively. It is for this reason that the latest addition to the international law backlash genre, The Limits of International Law, by Jack Goldsmith and Eric Posner,6 is so disappointing. Tendentious and unpersuasive, the book deploys the simplifying assumptions of rational choice theory in an attempt to demonstrate that international law has no independent valence whatsoever. Rather, according to the authors, each state single-mindedly pursues its rational state interest and therefore obeys international legal norms only to the extent that such norms serve those pre-existing interests. Thus, they argue, international law is sometimes important, but only as a mechanism by which nation-states negotiate power, not as an independent limitation on the prerogatives of state governments. Yet, while there is certainly much work still to be done to fully study the variety of ways in which international legal pronouncements might or might not affect the behavior of state and non-state actors, The Limits of International Law advances the discussion hardly at all. This is because, as with much rational choice analysis,7 Goldsmith and Posner must start with a series of assumptions that effectively clear away almost all of the ways in which international law and legal institutions are most likely to be effective. First, they assume that state interests exist independently of the social context within which the interests are formed. But a policymaker's idea of what is in the state's interest is always and necessarily affected by ideas of appropriate action, and these ideas are likely to be shaped-even if unconsciously-by legal norms, including the norms of international law. …

Stealth marketing and editorial integrity

Abstract: Stealth Marketing and Editorial Integrity is the first article in the legal literature to address the normative implications of covert marketing in mass media. For business, technological, and cultural reasons, advertisers and propagandists are increasingly using editors to pass off promotional messages as editorial content. This integration of sponsorship allows marketers to cut through communications clutter and audience resistance to marketing. In this way, the practices of payola, product placement, and sponsored journalism are proliferating and spreading into newer media forms like blogs and video games. A federal sponsorship disclosure law has proscribed these practices in broadcasting for nearly a century. Despite high-profile recent controversies about the practices, the legal literature is devoid of any systematic analysis of the problem that stealth marketing presents or the values that sponsorship disclosure might serve, whether in broadcasting or other media. This Article fills that void by providing a normative theory of sponsorship disclosure law informed by the First Amendment, bribery law, and information theory more generally. Drawing on the economic theory of Ronald Coase and the social theory of Jurgen Habermas, I identify the harm of undisclosed sponsorship in media as a degradation of the robust public discourse that is necessary to a democracy and is possible even in a highly commercialized media sphere. The Article concludes with a proposal for revamping and extending sponsorship disclosure law beyond broadcasting in a manner that is technology-neutral and sensitive to the evolution of digital technologies. I. Introduction Advertisers use the media to encourage consumption, propagandists to urge belief.1 When they press products and positions on audiences while masking their identities and promotional intent, they market by stealth.2 American mass media law has long been hostile to stealth marketing, at least when broadcast by radio and television. It is illegal, for example, for a record company to make secret payments to radio stations to play music-the practice of payola3-or for an advertiser or organization to pay broadcasters to feature products or story lines without identifying the sponsor. Sponsorship disclosure law requires broadcasters to identify those who pay for program material4 and imposes criminal sanctions on both broadcast employees and sponsors for concealing sponsorship.5 Although this law is well established, no one has yet offered a satisfying account of why it exists or how it should operate in a digital world. At the same time, recent controversies over stealth marketing practices reveal continued popular and political support for the law and for more vigorous enforcement. These controversies have involved local television stations' covert use of government propaganda in their news6 and government payments to media pundits to endorse positions on social issues like education and marriage.7 We have seen a resurgence in enforcement actions against old-fashioned radio payola, like the state of New York's recent settlement with Sony BMG and the Warner Music Group for secretly paying radio stations to spin records.8 Complaints about the integration of product promotions into entertainment programming now sit before federal regulators.9 And in Hollywood, these marketing practices have become a source of labor unrest as screenwriters are asked to write promotional copy into scripts.10 Concerns over stealth marketing are resonant enough to move Congress to action11 and prompt reluctant regulators at the Federal Communications Commission to threaten more energetic enforcement of the sponsorship disclosure rules.12 Against this background, the legal literature on stealth marketing is remarkably thin. Among all stealth marketing techniques, payola is the only one to have received significant analysis, most notably in a little-cited article by Ronald Coase defending the practice. …

Analytical Jurisprudence Versus Descriptive Sociology Revisited

Abstract: Discusses the claims made by H.L.A. Hart that his book "The Concept of Law" might be regarded as a contribution not only to analytical jurisprudence but also to descriptive sociology. Interpretation and limit of Hart's claims; Relationship between Hart's idea on the connection of legal theory with both analytical jurisprudence and descriptive sociology; Analysis of several case studies within special jurisprudence.

What’s Really Wrong with Shaming Sanctions

Abstract: The time has come for me to recant. A decade ago I wrote an article, What Do Alternative Sanctions Mean?,1 that defended shaming penalties as an alternative sanction. I recommended shaming penalties-ritualistic publicity sanctions of various sorts-as embodying a sort of magic cocktail of instrumental utility and social meaning.2 Like fines and community service, shaming penalties would be less costly for society and less debilitating for offenders.3 But unlike these conventional alternative sanctions, shaming sanctions would satisfy a popular expectation that punishment express moral condemnation in unambiguous and dramatic terms.4 The rough expressive equivalence of shame to imprisonment, I maintained, would overcome the political resistance that had historically defeated efforts to wean American jurisdictions off of short terms of incarceration for nonviolent offenders.5 I've now had an extended period to reflect on this argument. And I've concluded that I was wrong. I have to admit, though, that I don't think I was wrong for any of the reasons suggested by the many thoughtful commentators who criticized my position. I don't think shaming penalties should be rejected either because offenders are "shameless," and thus unlikely to be deterred by the threat of humiliation,6 or because shaming penalties are horrifically stigmatizing, and thus inconsistent with individual dignity.7 I'm not persuaded by the claim that the spectacle of shaming will excite either an uncontrollable appetite to degrade or a spiraling attitude of indifference toward offenses revealed to be more common than previously thought.8 In truth, I'm pretty much happy to stand by the arguments I offered in anticipation of these claims, all of which, in my view, fail to evaluate carefully the potential costs and benefits of shaming penalties relative to the known deficiencies of imprisonment-the mode of punishment to which society defaults when shame is removed from the table. Yet, it was the very persistence of the shame opponents' refusal to accept this comparative framing of the issue-what's worse, shame or imprisonment?-that eventually made me realize what I'd missed in my earlier argument. I too hadn't paid sufficient attention to the relative strengths and weaknesses of these two forms of punishment. If I had, I would have seen that shame, far from being the expressive equivalent of imprisonment, is afflicted with a social meaning handicap that, as a practical political matter, makes it an unacceptable alternative sanction for a significant and influential segment of our society. Essentially, my account of the expressive dimension of punishment was too flat. I emphasized that punishments, to be politically acceptable, must express authoritative moral condemnation.9 That's true, but incomplete. Members of society also expect punishments-and essentially all laws for that matter-to affirm the core values that animate their preferred ways of life. Modes of punishments that are equivalent in their power to convey moral disapproval might still convey radically conflicting messages about the nature of the ideal society. What's really wrong with shaming penalties, I believe, is that they are deeply partisan: when society picks them, it picks sides, aligning itself with those who subscribe to norms that give pride of place to community and social differentiation rather than to individuality and equality. Ironically, what's right about imprisonment, at least from an expressive political economy point of view, is that it is robustly pluralistic. Imprisonment is endowed with a sufficiently rich and diverse array of meanings that persons of diverse worldviews-solidaristic and individualistic, hierarchic and egalitarian-can all find affirmation of their values in it simultaneously.10 Institutions, laws, and policies that exhibit this form of expressive overdetermination are uniquely suited to negotiate the obstacles to political agreement posed by persistent cultural status competition within our society. …

Understanding Consumer Information Privacy in the Realm of Internet Commerce: Personhood and Pragmatism, Pop-Tarts and Six-Packs*

Abstract: "I'm not a lawyer. That's why I can see what the law is like. It's like a single-bed blanket on a double bed and three folks in the bed and a cold night. There ain't ever enough blanket to cover the case, no matter how much pulling and hauling, and somebody is always going to nigh catch pneumonia."1 As e-commerce has expanded and evolved over the past decade,2 so have methods of collecting, organizing, and analyzing the data that unwitting consumers make available to interested commercial entities as they venture through cyberspace. Commentators, courts, consumer advocates, policymakers, regulators, and e-businesses have struggled to imagine systems that could safeguard consumer privacy while maximizing commercial interests in capitalizing on the back and forth stream of information that constitutes the Internet.3 An assumption that commercial entities violate consumer privacy by collecting data from Internet transactions pervades the information privacy discourse,4 but in this Note I seek to interrogate that assumption by focusing on the actual processes through which consumer data are collected as well as the broader dynamics of the interactions between consumers and interested commercial parties. While the wholesale aggregation and disposition of consumer data may well pose a viable threat to consumer interests in certain contexts,5 I have found that the extant schema of legal and extralegal checks on the manner in which commercial entities may employ Internet-derived consumer information is broader and more protective of consumers than is generally recognized. However, although these protections are broad, an examination of their imperfect and improvisational nature reveals that business interests still generally prevail over consumer interests under the current regime. Nevertheless, I seek to demonstrate how certain privacy scholars exaggerate both the probability and the actual extent of harm suffered by individuals as a result of commercial data aggregation. It is my position that many privacy scholars make their case by overemphasizing the tenuous link between personal information and person/hood.6 By taking a measured look at both the context in which most Internet information privacy concerns arise and the existing system regulating the collection of such information, I attempt to expose some of the shortcomings of certain academic abstractions characterizing what is at stake with respect to consumer information privacy on the Internet. After all, we are no more defined by the junk email in our inboxes or the ads flashing across our screens than we are defined by the junkmail in our mailboxes or the ads on television programs. Fundamentally, e-tailers are not too different from brick-and-mortar retailers-they just want to sell us stuff. Lots of stuff. More stuff than we need, if they can just figure out how to tell us what we need. Businesses collect consumer data so that they can more effectively market their products, not, as some would argue, to hijack our identities for any sort of dark, Orwellian purpose. While any such motives-if they existed and if a company were willing to follow through with them-would make for an engaging conspiracy narrative, once such motives made their way into public view, it would be very, very bad for business. In this Note, I portray the nature and extent of information exchanged between consumers and "commercial websites"7 and information exchanged between consumers and third party advertising companies that commercial websites hire to manage their Internet advertising practices. I do not examine spyware or adware utilized by a certain fringe sector of e-commerce participants8 but instead focus on information technologies employed by more reputable companies. Nor do I give extensive treatment to the issues raised by information crimes such as identity theft, other than to the limited extent that the threat of identity theft arises in the context of transactions between consumers and commercial websites. …

Rescue without law: An empirical perspective on the duty to rescue

Abstract: "I have always depended on the kindness of strangers."1 For almost two centuries, legal scholarship on the duty to rescue has proceeded on a sophisticated theoretical plane. Proponents of a duty to rescue have argued that it will increase the frequency of rescue without creating undue distortions or other difficulties. Opponents of a duty to rescue have argued that such statutes are ineffective, infringe on individual liberties, may actually discourage rescue, and are likely to be misused by politically ambitious prosecutors. No effort has been made to test any of these claims empirically, even though from a policy perspective the critical threshold question-how often do Americans fail to rescue one another in circumstances where only a generalized duty to rescue would require them to do so-is entirely factual. This Article provides the first empirical study of the no-duty rule in action. Using more than twenty independent data sources, the Article provides a "law and reality" perspective on rescue and non-rescue that complicates-and sometimes is flatly inconsistent with-the positions of both proponents and opponents of a duty to rescue. The results paint a rich and largely reassuring picture of the behavior of ordinary Americans faced with circumstances requiring rescue and indicate that both more and less is at stake in the debate over the no-duty rule than has been commonly appreciated. Law professors and judges have been fascinated with the no-duty rule for theoretical reasons, but the ongoing debate should not obscure the reality that in the real world, rescue is the rule-even if it is not the law. I. Introduction The common law approach to rescue is straightforward. Absent a limited number of specific exceptions, there is no duty to rescue, regardless of the ease of rescue and the consequences of non-rescue.2 Indeed, by restricting the ability of rescuers to recover in tort for injuries they might suffer, the common law actually creates affirmative disincentives to rescue. Generations of law students have learned of the no-duty rule by reading hypothetical cases of babies who drowned in bathtubs and actual cases of people who drowned in ditches and lakes while bystanders did nothing. The no-duty rule may prevail in forty-seven of the fifty states,3 but it is distinctly unpopular. When a case of non-rescue becomes public, newspaper editorials and television commentators will denounce the indifference of bystanders. If the non-rescuers can be identified, they will be held up to public scorn. The responsible district attorney will reluctantly acknowledge that the criminal law is powerless in such cases while condemning the non-rescuers on moral grounds. If a tort case is actually brought against a non-rescuer, the judge will throw it out but note that the non-rescuer must answer to God for failing to act. Politicians will introduce legislation reversing the common law rule. Comparisons will be drawn to other infamous cases of non-rescue, such as Kitty Genovese.4 In short order, academic conferences and symposia will be held at which speakers will criticize the no-duty rule and the indifference of bystanders. Communitarians will suggest that Americans are insufficiently civic-minded. Social meaning scholars will suggest that the no-duty rule is sending the wrong "expressive" message. Feminists will decry the "male" orientation of tort law, with its emphasis on individual autonomy and rule-based decisionmaking. Psychologists and evolutionary biologists will report the insights derived from research on altruism and collective inaction. Corrective justice scholars will argue that the law should enforce common moral intuitions. Comparative law scholars will suggest the United States should follow the rest of the civilized world in adopting a duty to rescue. Law and economics scholars will debate whether the no-duty rule is efficient. Doctrinal scholars will debate the relative merits of criminal and tort sanctions in dealing with future non-rescues. …

A Tale of Two Nations: Implementation of the Death Penalty in "Executing" versus "Symbolic" States in the United States

Abstract: I. Introduction In his recent history of capital punishment in America, Stuart Banner describes a little-remembered feature of colonial justice.1 The death penalty, of course, was a ubiquitous practice. Indeed, execution was, as Banner observes, the "base point" of punishment as virtually all serious crimes were punishable-and in many cases punished-by death.2 Yet in some cases throughout the seventeenth and eighteenth centuries, offenders were not sentenced to actual death but to the ceremony of execution. Banner describes a woman who had killed her child in 1677 and who was subsequently sentenced to a simulated hanging-to "stand a full ½ houre on the gallowes with a halter about her neck."3 Other offenders, Banner reports, were not informed that they would be spared death until the last moment, giving the simulation greater drama and terror.4 Banner speculates that simulated executions and last-minute reprieves permitted officials to "reap much of the benefit of the death penalty without actually having to kill."5 Perhaps by rehearsing the steps of a real execution and by simultaneously demonstrating the state's power and restraint, officials could deter crime and yet ameliorate the harsh effects of a criminal justice system that did not have incarceration as a realistic alternative to death. As Banner notes, pardons also played a significant role in the United States prior to the modern (post-1972) era in reducing the deadly toll of capital verdicts.6 In England, too, the vast reach of the death penalty in the eighteenth century (applicable to over 200 offenses) was cabined by discretionary grants of mercy at all stages of the process. Douglas Hay, observing the gap between those eligible for the death penalty and those spared, argued that England's frequent exercises of mercy helped promote an "ideology of justice" that reduced class tensions and tended to stabilize the social order overall.7 Today, in the United States, we no longer have simulated executions, and we rarely have pardons or commutations. But a vast percentage of those sentenced to death have not been executed and appear to face no realistic risk of execution in the near future. Pronouncements of death sentences far exceed real executions. Unlike the case of the woman sentenced to a simulated hanging, though, the death penalty today operates as a symbol not as a result of deliberate, transparent decisions, but by a confluence of complicated, poorly understood forces that produce long-term delay and in some cases defeat of the imposition of the death penalty. The international community views the United States as monolithic and anomalous in its retention of the death penalty.8 Whereas virtually all democracies-and certainly all Western industrialized ones-have repudiated the death penalty as unnecessary or even a violation of basic human rights, the United States continues to sentence offenders to death to punish ordinary (non-treasonous) crimes.9 Indeed, over the past forty years, as the international community has increasingly repudiated capital punishment, the size of the death-row population in this country has increased dramatically.10 The contrast, however, between the United States and the rest of the Western democratic world obscures the extent to which the United States is not monolithic in its death penalty practices. The United States now houses three sorts of jurisdictions: states without the death penalty by law ("abolitionist states"), states with the death penalty but insignificant numbers of executions ("symbolic states"),11 and states with both the death penalty in law and in practice-states actively carrying out executions ("executing states"). These jurisdictions roughly correspond to geographic regions, with the abolitionist states distributed primarily in the Northeast and Midwest, and the executing states confined almost exclusively to the South and its borders. Most of the scholarly and popular attention to the "execution gap" between the South and the rest of the country tends to focus on the question of Southern exceptionalism: What aspects of Southern politics and culture account for the region's continued robust use of the death penalty? …

The Myth of the Rational Borrower: Behaviorism, Rationality and the Misguided Reform of Bankruptcy Law

Abstract: Legislative debates over bankruptcy and consumer credit are dominated by the myth of the rational borrower. Congress recently enacted legislation1 motivated by the perception that rational consumers act strategically when they borrow money and file for bankruptcy.2 The proponents of this so-called reform complain that the nonbusiness bankruptcy filing rate has skyrocketed over the last twenty years, even (indeed especially) during the flush economic times of the mid-1990s (see Figure 1).3 These reform advocates argue that a decline in the stigma associated with bankruptcy has increased the amount of strategic behavior among borrowers.4 This purported crisis of "bankruptcy abuse" is the justification for radically limiting access to (and increasing the cost of obtaining) a bankruptcy discharge.5 Opponents of the recently enacted legislation see an entirely different crisis-in the consumer credit markets, rather than in the bankruptcy filing rate per se.6 Under this view, there was no need to change the bankruptcy laws; a more profitable avenue for reform would have been to regulate the exploding market for consumer credit.7 In this Article, we seek to show that the fault line between these two camps rests on competing views about the information available to lenders and, more importantly, on competing views about consumer rationality and consumer opportunism. We argue that the division lies in two competing empirical claims about the paradigmatic borrower and the paradigmatic lender and on competing causal stories about the effects of related legal changes over the last twenty-five years. Neither data story is conclusive, but one, we believe, is considerably more plausible than the other. On one side, law professors and economists9 rely on macrodata to theorize about consumer bankruptcy law and policy "from the top down."10 They view individual debtors as either honest, but unfortunate, or as opportunistic.11 The honest-but-unfortunate debtor is a rational, law-abiding person who borrows after informed deliberation but defaults due to an unforeseen and unforeseeable shock to her income. The opportunistic debtor borrows with an eye on the Bankruptcy Code and files for bankruptcy when she has maximized her debt and, consequently, the beneficial effect of the bankruptcy discharge.12 The economists' Olympian perspective is exemplified by Richard Posner and Gary Becker.13 In a world of rational (and strategic) borrowers any measure that reduces the cost of the discharge increases the incentive for borrower opportunism. Lenders, by contrast, face highly competitive markets14 that undermine efforts to pass on the costs of default and bankruptcy to high-risk borrowers through price discrimination15-they lack the ability to determine in advance which borrowers are honest and which opportunistic. As a result, lenders either pass the burden of opportunism on to the marketplace as a whole or ration credit in an effort to maintain underwriting standards.16 Under this view, the bankruptcy discharge is the cause of the skyrocketing filing rate, which imposes a bankruptcy tax on the consumers of credit. The goal of bankruptcy reform is, thus, a form of tax reduction. As Judge Posner recently said: I conclude that the new Act, by increasing the rights of creditors in bankruptcy (for remember that chapter 13 enables a creditor to obtain repayment out of the debtor's post-bankruptcy income, not just out of what may be his very limited nonexempt assets at the time of bankruptcy, as under chapter 7), should reduce interest rates and thus make borrowers better off. The most reckless borrowers-those most prone to file repeated chapter 7 bankruptcies-will be made worse off. But there will be fewer of these, precisely because they will be worse off than under the existing system. If bankruptcy is more costly, there will be less of it.17 On the other side, law professors and sociologists have worked together to study the workings of consumer bankruptcy law "on the ground. …

Don't blame determinacy: U.S. incarceration growth has been driven by other forces

Abstract: Statistics of the explosion in American incarceration over the past several decades are by now familiar to anyone versed in the literature: The nation held an estimated total of 357,292 inmates in its prisons and jails in 1970;1 this ballooned to a total of 2,267,787 in 2004.2 Corrected for population growth, this represented a near quintupling of the incarceration rate from 1970 to 2004.3 By the late twentieth century, the U.S. incarceration rate was higher than known in any other nation worldwide.4 I. Historical Statistics on Incarceration: New Vantage Points The beginning of the Article will not rehearse what is generally and well understood. Instead, it focuses on two sets of historical statistics that are not widely reported in the literature. Although these observations only serve to bolster the consensus that incarceration growth in the United States has been breathtaking, without historical precedent, and beyond normal powers of human comprehension, they provide a somewhat different window into long-term trends than the standard accounts. Indeed, the two charts below supply new vantage points from which to assess the enormity of what the nation has done while providing incontrovertible evidence that the subject of confinement populations is of greater importance in the 2000s than ever before in our history. A. Figure 1. Person-Years of Incarceration, 1960s through 2000s (Projected Through 2004 Data) Prison and jail statistics are almost always recited in terms of snapshot, one-day counts that represent the numbers of inmates present on a single day. This conventional way of thinking misses the reality that the essential attribute of confinement as a criminal sanction is its duration-its reliance upon the fourth dimension of time as a means to achieve punitive or consequential effect. In Walden, Thoreau wrote that "the cost of a thing is the amount of . . . life which is required to be exchanged for it."5 It is fair to insist that the statistical reportage of incarceration address the amount of time that is subtracted from offenders' lives-or from the collective life of the free society-as one metric of the human cost of the sanction. Pursuing this insight, Figure 1 estimates the number of "person-years" of confinement meted out by decade in U.S. prison and jails since the 1960s. The figure ends with a conservative projection of the number of person-years that will be served across 2000-2009, premised on the unlikely assumption that nationwide incarceration growth ended with the calendar year 2004. The person-year is a powerful tool for grasping the cumulative impacts of incarceration policy and helps us see how traditional snapshot statistics understate the human costs. For example, U.S. prison and jail populations grew from 1,148,702 in 1990 to 1,893,115 in 1999.7 Comparing these two snapshots of prison populations, there appears to have been a marginal increase of 744,413 inmates over the full decade. That is a large number, to be sure, but it grossly understates the cumulative durational effects of incarceration expansion over the period. Let us take a second look at the 1990s through the lens of the person-year. If incarceration populations had stabilized at 1990 levels, with no growth for the remainder of the decade, then American inmates would have experienced a total of 11.5 million person-years of confinement from 1990 through 1999. Because the prisons and jails grew continuously across the decade, however, the nation's criminal justice systems actually dispensed 15.3 million person-years of incarceration. The human impact of changing confinement policy during the 1990s, thus calculated, measures in several millions of years over and above the incarceration terms that would have been served if there had been zero incarceration growth after 1990. This is a much larger increment of change than suggested in the differential of 744,413 inmates, comparing snapshots from two single days ten years apart. …

The Death Penalty's Future: Charting the Crosscurrents of Declining Death Sentences and the McVeigh Factor

Abstract: Whether examined in the context of what is happening in the nation's courtrooms or in the arena of public opinion and legislative action, many indicators suggest that the death penalty in America is on the ropes. In the courtroom, death sentences have been in a steady nationwide decline for the past ten years even though the capital murder rate has remained relatively constant.1 Indeed, the years 2004 and 2005 saw the lowest number of annual death sentences imposed since 1973.2 The 125 new death sentences handed down in each of those years constitute a 61% drop from a post-Furman high of 317 death sentences imposed in 1996.3 On a more general level, opinion polls show some erosion in support for the death penalty among the public, from a high of 80% in a September 1994 Gallup poll to 64% in Gallup's October 2005 poll.4 Moreover, qualms are appearing within the institutions of state governments, with the New Jersey legislature recently enacting a moratorium5 and the New York legislature declining to re-enact the death penalty after the existing statute was ruled unconstitutional by the New York Court of Appeals.6 The Massachusetts House of Representatives voted 100-53 against a bill to bring back the death penalty under a statute that proponents had argued would be the "gold standard" for capital punishment by reducing the risk of wrongful executions.7 Yet while those favoring abolition of the death penalty understandably take heart from this trend, there are reasons to be cautious in extrapolating too far and too fast from these figures. At various other moments in our history the United States has appeared to be at a crossroads over the use of capital punishment, only to continue down the death penalty path in the end.8 As recently as the 1960s and early '70s, for instance, public support had fallen below 50%-indeed for a brief moment more Americans opposed capital punishment than favored it9-and the number of annual death sentences had dwindled even more dramatically than this past decade's decline.10 But by the mid-1970s public support for the death penalty had risen back above 60%,11 and the number of annual death sentences rose steadily from 1977 to 1996,12 evidencing an upward trend that statistically appeared as unstoppable as the downward trend of the past ten years appears now.13 Sounding this word of caution is not to argue that the death penalty is a permanent fixture on America's punishment landscape. Indeed, this Article will conclude that forces are at work that ultimately may spell the end for the death penalty in the United States. The road to abolition, however, is likely to be more complicated and rocky at both the courtroom and public opinion levels than a simple linear extrapolation of recent trends might suggest. At the courtroom level, for example, while there has been a steady drop in the number of death sentences over the past decade, it is uncertain how much further the decline will go without significant developments, such as forensic proof that an innocent person has been executed. Similarly, while it is true that public support for the death penalty has waned slightly since the mid1990s, approximately two out of every three Americans continue to voice approval of capital punishment,14 making it unlikely that public opposition will lead to widespread legislative repeals of the death penalty without further catalysts coming into play. This Article argues, therefore, that what has occurred over the past decade with the death penalty requires a more nuanced understanding than simply assuming that the decline in annual death sentences reflects a gradual and inexorable erosion in support for the death penalty that eventually will lead to its abolition. Plausible scenarios exist that would make the abolition of the death penalty possible,15 but it seems unlikely that the death penalty will end simply because an unstoppable downward momentum toward fewer death sentences has developed. …

The Ninth Amendment: It Means What It Says

Abstract: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. -U.S. CONST., amend. IX Although the Ninth Amendment appears on its face to protect unenumerated individual rights of the same sort as those that were enumerated in the Bill of Rights, courts and scholars have long deprived it of any relevance to constitutional adjudication. With the growing interest in originalist methods of interpretation since the 1980s, however, this situation has changed. In the past twenty years, five originalist models of the Ninth Amendment have been propounded by scholars: the state law rights model, the residual rights model, the individual natural rights model, the collective rights model, and the federalism model. This Article examines thirteen crucial pieces of historical evidence that either directly contradict the state law and residual rights models, undercut the collective rights model, or strongly support the individual natural rights and federalism models. Evaluating the five models in light of this evidence establishes that the Ninth Amendment actually meant at the time of its enactment what it appears now to say: the unenumerated (natural) rights that people possessed prior to the formation of government, and which they retain afterwards, should be treated in the same manner as those (natural) rights that were enumerated in the Bill of Rights. In short, the Amendment is what it appears to be: a meaningful check on federal power and a significant guarantee of individual liberty. I. Introduction The first time one reads the Ninth Amendment, its text is a revelation. Here is a sentence that seems explicitly to affirm that persons have other constitutional rights beyond those enumerated in the first eight Amendments. Given the fierce debates over the legitimacy of enforcing unenumerated constitutional rights, one immediately wonders why one has not heard of the Ninth before. If this first encounter is as a law student in a course on constitutional law, however, one soon learns why: the Supreme Court has long dismissed the Ninth Amendment as a constitutional irrelevance. As Justice Reed wrote in 1947: The powers granted by the Constitution to the Federal Government are subtracted from the totality of sovereignty originally in the states and the people. Therefore, when objection is made that the exercise of a federal power infringes upon rights reserved by the Ninth and Tenth Amendments, the inquiry must be directed toward the granted power under which the action of the Union was taken. If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail.1 Not only does Justice Reed's construction render the Ninth Amendment functionless in constitutional adjudication, it rather carelessly runs it together with the Tenth Amendment.2 But this passage is not only cavalier about the text, it is also historically incorrect. The evidence of original meaning that has been uncovered in the past twenty years confirms the first impression of untutored readers of the Ninth Amendment and undercuts the purportedly more sophisticated reading that renders it meaningless. The purpose of the Ninth Amendment was to ensure that all individual natural rights had the same stature and force after some of them were enumerated as they had before; and its existence argued against a latitudinarian interpretation of federal powers. The growth in our understanding of the Ninth Amendment has resulted from the interest in the original meaning of the Constitution that began in the 1980s.3 As originalism grew in popularity, some originalists became understandably curious about the history and original meaning of the Ninth Amendment.4 And critics of originalism used the original meaning of the Ninth Amendment to challenge those early originalists who were then advocating a narrow view of constitutional rights. …

Why Copyright Law Excludes Systems and Processes from the Scope of Its Protection

Abstract: Section 102 is one of the few elegant and concise provisions of the Copyright Act of 1976 (1976 Act).1 Section 102(a) sets forth the subject matter eligible for copyright protection. "Copyright protection subsists," it says, "in original works of authorship fixed in any tangible medium of expression . . . ."2 Nicely complementing this provision is its statutory cousin, § 102(b), which provides: "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work."3 Once a work qualifies for copyright protection under § 102(a), § 102(b) informs its author and the rest of the world about certain aspects of the work that are not within the scope of copyright protection. Surprisingly few cases and very little commentary have probed the meaning of § 102(b), and in particular, of the eight words of exclusion it contains.4 Most often, courts and commentators have characterized § 102(b) as a codification of the so-called idea/expression dichotomy, that is, the longstanding copyright principle that this law protects authors against illicit appropriations of expressive aspects of their works, although not of the ideas the works contain.5 This Article will call this the "idea/expression distinction."6 Others have described § 102(b) as a codification of the Supreme Court's 1880 decision in Baker v. Seiden} which held that systems or methods of bookkeeping were beyond the scope of copyright protection in a book describing or explaining the system, and of Baker's progeny. Treatise author Paul Goldstein has suggested that both "idea" and "expression" should be understood as metaphors for aspects of protected works that either are, or are not, within the scope of copyright protection.8 That is, idea is a metaphor for that which is unprotectable by copyright law, including but not limited to abstract ideas, and expression is a metaphor for that which is within the scope of copyright protection, even when the exact words of a text, notes of a musical score, or lines of a drawing have not been appropriated.9 While this metaphorical approach has some appeal, it has two disadvantages: first, the metaphor of idea may be too powerful, causing it to be construed too narrowly, as Professor Melville Nimmer, the now-deceased author of a widely cited treatise on copyright law, has done;10 and second, it distracts readers from paying attention to the other seven words of exclusion in § 102(b) and to policy reasons that support excluding more than just abstract ideas from copyright protection. This Article argues that all eight words of exclusion were put in the statute for a sound reason and that those who read the other seven words out of the statute are mistaken. To be more consistent with § 102(b), courts would be well advised to speak of the "protectable/unprotectable distinction" in copyright law.11 Part I begins by demonstrating that the Supreme Court's decision in Baker did not, as has often been asserted, originate the distinction between ideas and their expressions. Baker's principal holding was that complex intellectual creations in the useful arts, such as bookkeeping systems and methods of operation, are beyond the scope of copyright protection in any work describing or otherwise depicting them. Baker's progeny understood, applied, and extended this holding, as well as offered rationales for limiting the scope of copyright in this way. Baker and its progeny constitute the principal case law foundations for the system, method, and process exclusions embedded in § 102(b). Part II explores the legislative history that led to the inclusion of § 102(b) in the copyright revision bills and ultimately in the 1976 Act. Several witnesses spoke strongly of the need for a statutory delimitation on the scope of copyright if Congress adopted the broad new subject matter provision, now codified as § 102(a), especially insofar as it would extend copyright protection to computer programs. …

Dismantling the Carceral State: The Future of Penal Policy Reform

Abstract: The way prisons are run and their inmates are treated gives a faithful picture of a society, especially of the ideas and methods of those who dominate that society. Prisons indicate the distance to which government and social conscience have come in their concern and respect for the human being.1 Over the past three decades, the United States has built a carceral state that is unprecedented among Western countries and in U.S. history. Three features distinguish the U.S. carceral state: the sheer size of its prison and jail population; its reliance on harsh, degrading sanctions; and the persistence and centrality of the death penalty. Nearly one in fifty people in the United States, excluding children and the elderly, is behind bars today.2 In a period dominated by calls to roll back the state in all areas of social and economic policy, we have witnessed a massive expansion of the state in the realm of penal policy. The U.S. incarceration rate has accelerated dramatically, increasing more than five-fold between 1971 and 2000.3 Today a higher proportion of the adult population in the United States is behind bars than anywhere else in the world.4 The United States, with five percent of the world's population, has nearly one quarter of its prisoners.5 America's incarceration rate of 714 prisoners per 100,000 people is five to twelve times the rate of other industrialized nations.6 The reach of the U.S. penal state extends far beyond the 2.2 million men and women who are now serving time in prison or jail in the United States. On any given day, nearly 7 million people are under the supervision of the correctional system, including jail, prison, parole, probation, and other community supervision sanctions.7 This constitutes 3.2% of the U.S. adult population, or one in every thirty-two adults, a rate of state supervision that is unprecedented in U.S. history.8 If one adds up the total number of prisoners, parolees, probationers, employees of correctional institutions, close relatives of prisoners and correctional employees, and residents in communities where jails and prisons are major employers, tens of millions of people are directly affected each day by the carceral state.9 These overall figures on incarceration belie the enormous and disproportionate impact that this bold and unprecedented social experiment has had on certain groups in U.S. society, especially young African Americans, Hispanics, and the growing number of incarcerated women who are parents of young children.10 Blacks, who make up less than thirteen percent of the U.S. population, now comprise nearly half of all people in prison,11 up from a quarter in the late 1930s.12 The number of black men in prison or jail has grown so rapidly over the past quarter century that today more black men are behind bars than enrolled in colleges and universities.13 Unlike other major state-building exercises like the New Deal and the Great Society, the construction of the carceral state was not presented as a package of policies for public debate. The carceral state was built up rapidly over the past thirty years, largely outside of the public eye, and not necessarily according to a common plan. Its construction has been an almost invisible feature of American political development, not a contested site of American politics. While the explosion in the size of the prison population and the retributive turn in U.S. penal policy are well documented,14 the underlying political causes of this massive expansion and what might reverse it are not well understood. This Article focuses on the political prospects for dismantling the carceral state, in particular the potential building blocks for a successful reform coalition.15 As a preface to any discussion of public policy reform, we should not just assume that "reform" means progressive movement toward some social, economic, or political outcome that is widely recognized as necessary and desirable. American history is riddled with examples of much heralded "reforms" in social policy that have had negative, unanticipated consequences. …

The Constitutional Right to Make Medical Treatment Decisions: A Tale of Two Doctrines

Abstract: The Supreme Court has taken very different approaches to the question whether individuals have a right to make autonomous medical treatment choices, depending on the context. For example, in cases concerning the right to choose "partial-birth " abortion and the right to use medical marijuana, the Supreme Court reached radically different results based on radically different reasoning. More recent developments, including last Term's decision in Gonzales v. Carhart, have only highlighted the doctrinal confusion and the need for a resolution. In light of this pressing need, the goal of this Article is to view all of the constitutional cases touching on medical treatment decisions as one body of doctrine, as no other scholar has done. This new perspective reveals that there are in fact two distinct lines of constitutional doctrine touching on the right to make medical treatment decisions: the "public-health" line of cases, which emphasizes the police power of the state over individual rights, and the "autonomy " line of cases, which emphasizes individual bodily integrity and dignity interests. These lines of cases have grown up in parallel, appearing to represent airtight doctrinal categories while in fact addressing the same fundamental question. In addition, courts have applied varying degrees of deference to legislative determinations of medical fact without any logical consistency, perhaps based on largely superficial determinations about what type of case is before them. This Article concludes that a constitutional right to protect one's health should be consistently recognized; that the recognition of this right should not be artificially limited by excessive deference to legislative findings of medical fact; and that this right will have to be carefully balanced against the state's real and legitimate interest in regulating the practice of medicine to protect the public. I. Introduction In 1958, in a mostly forgotten case, the Fifth Circuit sweepingly pronounced that under the Fourteenth Amendment, "the State cannot deny to any individual the right to exercise a reasonable choice in me method of treatment of his ills."1 The court's unqualified language may have been overly optimistic, however: nearly fifty years later, it is hardly certain whether, and to what extent, the government can interfere with individuals' medical treatment choices. For example, in two cases decided just one year apart-one concerning the right to choose "partial-birth" abortion2 and one concerning the right to use medical marijuana-the Supreme Court reached radically different results based on radically different reasoning. In the first case, the Supreme Court broadly recognized an almost absolute right of a woman to choose a particular abortion procedure when her physician believes, in the physician's reasonable medical judgment, that the procedure is safer for the woman man any omer available abortion procedures.3 Moreover, the Court refused to defer to the state's finding that the outlawed procedure was never medically necessary, accepting instead the plaintiff's expert testimony demonstrating medical need.4 In me second case, the Court took a dim view of the claim that patients have a right to access marijuana as a last-resort medical treatment and deferred to Congress's finding that marijuana had no medically acceptable use, despite defendants' evidence to the contrary.5 Courts continue to waver between two very different approaches when dealing with claims of a right to protect one's health by making medical treatment decisions without government interference. In Abigail Alliance for Better Access to Developmental Drugs v. von Eschenbach6 me D.C. Circuit initially recognized a constitutional right to access experimental drugs on the theory that a terminally ill patient has the right "to make an informed decision" regarding medical treatment that she and her doctor believe may prolong her life7-men reversed itself in an en banc decision. …

What's Wrong with Involuntary Manslaughter?

Abstract: Efforts to explain when and why the state can legitimately impose retributive punishment on an actor who inadvertently creates an unjustified risk of causing death (and death results) typically rely on one of two theories. The prior-choice theory claims that retributive punishment for inadvertent lethal risk creation is justified if and only if the actor's inadvertence or ignorance was a but-for and proximate result of a prior culpable choice. The hypothetical-choice theory claims that retributive punishment for inadvertent lethal risk creation is justified if and only if the actor would have chosen to take the risk if he had been aware of it, even though he was not in fact aware of it. I argue that neither of these theories satisfactorily identifies when and why retributive punishment is warranted for inadvertent lethal risk creation. Instead, I propose that an actor who creates a risk of causing death, but who was unaware of that risk, can fairly be subject to retributive punishment if he was either nonwillfully ignorant or self-deceived with respect to the existence of the risk, and if such ignorance or self-deception was due to the causal influence of a desire he could and should have controlled. The culpability of such an actor consists, not in any prior actual choice to do wrong, nor in any imagined hypothetical choice to do wrong, but in the culpable failure to exercise doxastic self-control: control over one's beliefs. Walter and Bernice Williams were loving parents. They were also convicted of letting their fourteen-month-old son die of pneumonia.1 The Williamses said they never realized their son's life was in danger, and indeed, the state of Washington never claimed otherwise. It wanted to punish them anyway. But if the Williamses never realized their son's life was in danger, how can they fairly be punished for endangering it? If we punish them nonetheless, why do we punish them? What do we punish them for? Walter Williams was described as a "24-year-old full-blooded Sheshont Indian with a sixth-grade education."2 Bernice was described as a "20-year-old part Indian with an 11th grade education."3 In the fall of 1968, their infant son became ill.4 Walter and Bernice realized he was ill but thought he had a simple toothache.5 They gave him aspirin, believing that was all they needed to do.6 The boy was in truth suffering from "an abscessed tooth," which "develop[ed] into an infection of the mouth and cheeks, eventually becoming gangrenous."7 The infection emitted the odor characteristic of gangrene,8 and the boy's cheek "turned 'a bluish color like.'"9 Unable to eat, the child became malnourished and eventually died of pneumonia.10 Medical testimony established that he would have survived had he received adequate medical care at least one week prior to his death.11 But he never received such care.12 His parents failed to secure it for him. The Williamses were physically and financially able to take the boy to a doctor.13 In fact, Walter had taken him to a doctor for medical attention earlier in the year.14 Yet on this occasion they did not seek help.15 Believing the child was suffering from nothing but a toothache, Walter testified that given "the way the cheek looked,... and that stuff on his hair, [the welfare authorities] would think we were neglecting him and take him away from us and not give him back."16 Bernice echoed her husband's fear,17 and indeed, they had good reason to be afraid. Welfare authorities were at the time quick to remove Native American children from their families and place them with non-Native American families.18 Charged with what is usually described as involuntary manslaughter19 or negligent homicide,20 the trial court expressly found that the Williamses "did not realize how sick the baby was."21 Moreover, the court found that the Williamses "loved the baby."22 Nonetheless, their failure to realize their son's life was in danger when a "man of reasonable prudence under the same or similar conditions"23 would have realized the risk, coupled with their failure to take the baby to a doctor when they were obligated to do so, added up to involuntary manslaughter. …

The Deep Structure of Law and Morality

Abstract: Even the casual observer will note that law and morality resemble one another in numerous and striking ways. Both practices typically consist of rules with general applicability, which we perceive to have special importance in our lives and to provide us with personal mandates that can operate irrespective of at least some consequence. Both purport to provide us with reasons to act that can override other compelling ones that arise from personal interest. Both also contain a special normative vocabulary-including terms like "ought," "duty," "obligation," "excuse," "right," and the like1-the terms of which are essentially contestable2 and irreducible in meaning to any descriptive statements of natural fact.3 Yet we tend to believe that there can be no warranted difference in legal or moral judgment without some difference in the natural facts.4 And our moral and legal practices are pervaded, in similar ways, by standards that not only purport to provide us with reasons to act but also to criticize deviations in ways that imply the permissibility of certain forms of sanction or coercion5-as well as by a portfolio of standard excuses that operate to defeat such criticisms in strikingly similar ways.6 This Article argues that these resemblances are more than superficial. They arise from the fact that law and morality share a deep and pervasive structure-an analogue in the moral and legal domain of what Noam Chomsky has called the "deep structure" or "universal grammar" of language.7 This structure arises from the fact that morality and law engage psychological adaptations with the same natural function: to allow us to resolve various classes of social contract problems8 flexibly. Drawing on and extending a number of contemporary insights from evolutionary psychology and evolutionary game theory, this Article develops the claim that we resolve these problems by employing a particular class of psychological attitudes, which are neither simply belief-like states nor simply desire-like states, though they bear affinities to both. The attitudes will be called "obligata," as later explained.9 As they appear in us, they are a peculiar blend of prepositional attitudes,10 deontological motivations to follow rules, and reciprocally conditioned expectations of and attitudes toward other persons. Obligata are also judgment-sensitive attitudes-in the sense that reasons can be sensibly asked or offered for the judgments we express with them"-and they are bound up with a number of motives and familiar moral emotions, like shame and guilt.12 They are the attitudes we express when we engage in moral and legal discussion. Obligata constitute our sense of obligation and thereby breathe life into our moral and legal practices. Their structure is the deep structure of law and morality. An understanding of obligata will, moreover, have important consequences not only for legal theory but also for how we should approach normative proposals in law. There is a well-developed and long-standing strain of scholarly literature-predominantly arising in the law and economics movement-that either explicitly or implicitly presupposes a very different psychological picture of us as acting primarily on the basis of separable beliefs about the world and self-interested desires (or preferences) for various states of affairs.13 On this common view, our practical reasoning is purely instrumental and self-interested, and proponents of this view sometimes claim that we only have individual reasons to pursue things like our considered preferences. More recently, a number of researchers have begun to document numerous ways that we deviate from this so-called Homo economicus model and have made efforts to accommodate the fact that we sometimes exhibit desires that are altruistic or other-regarding.14 Behavioral economists have similarly begun to recognize the degree to which we employ a number of so-called "heuristics" and "biases" in our practical reasoning, and therefore approximate ideal instrumental reasoning only imperfectly. …

H.L.A. Hart and the Methodology of Jurisprudence

Abstract: H.L.A. Hart and the Methodology of Jurisprudence A LIFE OF H.L.A. HART: THE NIGHTMARE AND THE NOBLE DREAM. By Nicola Lacey. Oxford University Press, 2004. Pp. xiii, 393. $35.00. I. Introduction Nicola Lacey's biography, A Life of H.L.A. Hart: The Nightmare and the Noble Dream,1 is a triumph of the highest order. Lacey takes to the role of biographer with aplomb, weaving thoughtful philosophical assessment into an intimate, richly detailed tapestry of Hart's life and character. Her sympathetic portrait of a man whose unparalleled external success in legal philosophy contrasted sharply with his life-long internal struggle with self-doubt is rewarding reading on several levels, and not just for aficionados of jurisprudence. Hart's life story is compelling in its own right, and Lacey's treatment of it holds the additional promise that biographical detail will lead to theoretical insight. The book has something valuable to offer to the legal theory novice and expert alike. Lacey's goal is to produce an "intellectual biography,"2 and the book contains substantial descriptions of Hart's theoretical work. Lacey is a formidable legal theorist in her own right, and she presents Hart's theories in a clear, straightforward, and accessible manner reminiscent of Hart himself. She achieves this (in the main) without sacrificing subtlety and accuracy, fleshing out her description with well-placed criticisms. For the jurisprudential novice, then, the biography provides a palatable entree into contemporary legal theory. Nor are those already familiar with Hart's work left wanting. Criticism of the philosophical method employed by legal positivists in general, and Hart in particular, has been at the center of jurisprudence in recent years, and Lacey makes several bold assertions about Hart's life and his philosophical methodology with which leading philosophers are already engaging. In this Review Essay, I address both the biographical and theoretical aspects of Lacey's book. In relation to the latter, which will make up the bulk of the Essay, I shall consider Hart's use of conceptual analysis in his seminal work, The Concept of Law? Several of the critiques of Hart's methodology have focused on the role of conceptual analysis in Hart's theorizing and on the appeals to intuitions about law and associated concepts that accompany that analysis.4 I shall argue that Lacey's biography of Hart contributes to this debate and adds weight to the view that Hart overstates his claim to have provided a general theory of the concept of law. The body of this Essay has three parts. Following this introduction, I begin Part II with a sketch of Hart's life to give the reader a flavor of both the fullness of Hart's experiences and Lacey's mode of presenting them, which centers around the contrast between Hart's public and private personas. Lacey's inclusion of intimate details of Hart's personal life in her biography has been the subject of criticism,5 and I respond to these criticisms at the end of Part II. Part III of the Essay addresses two issues that demonstrate the theoretical relevance of the biography. Firstly, I shall argue that Hart's significant work in normative legal theory and law reform, which Lacey comprehensively recounts, helps to rebut the confused criticism that legal positivism excludes moral and political considerations from the philosophy of law. Secondly, I will consider Lacey's discussion of the philosophers who most influenced Hart's philosophy and outline the debate that has been sparked by Lacey's claim that Hart's work would have been more "empirical" (in the social science sense) had he been influenced more by Ludwig Wittgenstein and less by J.L. Austin.6 Part IV is the most substantial part of the Essay, in both length and argumentation. Whereas Part III outlines the "philosophical influences" debate that A Life of H.L.A. Hart has generated among other scholars, in Part IV I argue that those influences are relevant to understanding (and critiquing) Hart's method of conceptual analysis, a fundamental aspect of his work. …

Positively Punitive: How the Inventor of Scientific Criminology Who Died at the Beginning of the Twentieth Century Continues to Haunt American Crime Control at the Beginning of the Twenty-First

Abstract: I. Introduction Seeking to explain America's dramatic punitive turn in the last quarter of the twentieth century, social theorists have frequently noted the concurrent rise of retributive and expressive themes in the logic of legislation and in the operation of the courts and police.1 The post-World War II period of expansive social policy, including the embrace of rehabilitation as the main objective of criminal law, did indeed see imprisonment rates at or near the average for the twentieth century, and in the 1960s and 1970s a steady decline led to the century's low in 1973.2 In the late 1970s, as rehabilitation came under mortal attack from both the left and the right, imprisonment rates began a relentless rise that has only begun to show signs of exhaustion in recent years and that has produced an imprisonment rate more than four times the rate in 1970.3 There are empirical reasons for doubting that penological change alone had much to do with the shift toward high incarceration rates;4 this Article offers a somewhat different historical interpretation linking penological ideas and carceral outcomes. Rhetoric consistent with retribution and other expressive themes in penality, combined with the dramatic repudiation of the rhetoric of rehabilitation by many of those who had long supported it,5 has covered over the enduring role of positivist criminology as a source domain for American penal law throughout the twentieth century and into the beginning of the twenty-first.6 Positivist criminology, broadly conceived, is the project of subjecting criminal behavior to scientific study and bringing the findings of this science to bear in the practice of criminal justice.7 In Italy, where positivism originally arose, proponents viewed themselves as in opposition to the dominance of legal officials and legal reasoning over the crime control activities of the state.8 Many jurists shared this perception and vigorously fought off the effort of the "criminal anthropologists," as these early criminologists described themselves, to claim a role in the state's power to punish.9 The broad penal code revision by Italy in 1898 specifically rejected the view of the positivist school.10 In the United States, however, lawyers were among those who most eagerly embraced positivism, and both criminologists and lawyers have assumed that rule of law is compatible with science-informed criminal policy.11 As the author of a glowing account of Lombroso's ideas published in a journal favored by the Legal Realists concluded, "where the man of science has led the way the man of law must follow."12 The first great wave of enthusiasm for positivist ideas in the Progressive Era was primarily focused on the incapacitation of dangerous criminal types, mostly through imprisonment, with the aim of preventing crime and eugenically limiting the spread of criminal traits in the population.13 In the post-World War II era, positivism reached its peak, now with a softer focus on individualized diagnoses, with therapy-widespread adoption of treatment and rehabilitation as the main purpose of penal custody-and with the emergence of the ALI's Model Penal Code (MPC) as the most influential law reform approach.14 In the 1970s, American crime control policies seemed to turn sharply away from positivism, rejecting the rehabilitative idea in favor of the economic logic of deterrence,15 the moral logic of retribution, and a populism that combined a shallow version of these earlier logics with an expressive focus on identifying a shared enemy.16 All of these seemed to repudiate positivism with its emphasis on individualized diagnosis, scientific expertise, and its mid-twentieth-century concern with treatment.17 The major landmarks of late twentieth-century penal law, including the Federal Sentencing Guidelines,18 the Anti-Drug Abuse Act of 1986,19 and California's "Three Strikes" law,20 seem roughly consistent with all three of these and certainly have contributed, along with many similar laws, to higher incarceration rates. …

The Court against the Courts: Hostility to Litigation as an Organizing Theme in the Rehnquist Court's Jurisprudence

Abstract: Previous commentators on the Rehnquist Court's history, seeking an overarching explanation for the Court's cases, have focused their attention primarily on a revitalized "federalism," an agenda-driven "conservatism," and a constitutionally fixated "judicial supremacy." While each of these themes is undoubtedly present in the Court's later jurisprudence, this Article argues that one cannot understand the Rehnquist Court's complicated intellectual matrix without taking account of its profound hostility toward the institution of litigation and its concomitant skepticism as to the ability of litigation to function as a mechanism for organizing social relations and collectively administering justice. The Article takes a pointillist approach, commenting on a large swath of the Court's caseload and allowing a broader picture to gradually emerge from observations about seemingly discrete areas of law. It first unpacks the contours of the Rehnquist Court's hostility toward litigation, focusing attention on a number of areas where the Court has acted aggressively and explicitly to limit the scope or availability of litigation, including remedies and rights of action, qualified immunity and attorney's fees, the enforceability of mandatory arbitration agreements, and limitations on the permissible scope of punitive damage awards. The Article then moves from the explicit to the implicit, examining well-rehearsed areas of the Court's jurisprudence (such as its federalism cases and the 2000 Presidential election controversy) in an effort to identify the subtler effects of the Court's reflexive hostility to litigation on its constitutional docket. Finally, the Article pulls back from the cases to interrogate the sources of the Court's hostility to litigation, exploring not only the reasons for that hostility but also its curious coexistence with the Court's concurrent commitment to an aggressive form of judicial supremacy, particularly in the constitutional arena. I. Introduction With the passing of Chief Justice William Rehnquist, the task of analyzing and assessing the historical importance of his tenure has acquired a new urgency and bracing sense of finality. Those who turn to that task in the months and years ahead, will, however, be joining a conversation well under way. Over the last half decade, a diverse set of academics, journalists, judges, and practicing attorneys have flooded the market with books, law review articles, and popular commentary taking stock of an era drawing to a close.1 While these works differ in tone, rigor, and intended audience, they have shared a common aspiration: to write the first draft of the Rehnquist Court's history.2 At least until recently, these Rehnquist Court proto-historians3 have operated under an all but uniform assumption that Chief Justice Rehnquist and his allies on the Court instigated a judicial "revolution" that has fundamentally altered both the substance of American law and the institutional arrangements through which we develop and enforce legal norms.4 Operating under this assumption, commentators have searched for a grand narrative to connect and explain the Rehnquist Court's jurisprudence. The favorite narrative of the earliest commentators (and the one that still dominates popular commentary) tells the story of a Court obsessed with issues of federalism and, more specifically, dedicated to recalibrating the balance between federal and state powers so as to limit federal authority and empower the states.5 A more recent counter-narrative suggests that the purported dedication of the Court to federalist principles reflects little more than a convenient strategy for achieving particular substantive political ends-ends that, in line with modern usage and for want of a better term, are often described as "conservative."6 Yet a third narrative-elegantly argued by a number of scholars enraged but unsurprised by the Court's decision in Bush v. Gore7-focuses our attention not so much on the results of the Rehnquist Court's decisions but on the presumptuous claims of judicial competence, authority, and supremacy that undergird these decisions. …

"Clear Eye for the State Guy": Clarifying Authority and Trusting Federalism to Increase Nonfederal Assistance with Immigration Enforcement*

Abstract: If the 9/11 terrorist attacks changed everything,1 they particularly changed the character of American law enforcement and the relationship of federal authorities to their state and local counterparts. Although less publicized than its condemnation of the infamous intelligence-sharing "wall,"2 the 9/11 Commission also insisted upon increased enforcement of the nation's immigration laws3 to prevent another terrorist attack and noted the "growing role for state and local law enforcement" in ongoing counterterrorism efforts.4 To that end, politicians, academics, journalists, and law enforcement officials have advocated removing the "other wall" in American law enforcement:5 the wall that currently discourages the country's 700,000 state and local police officers6 from enforcing federal immigration law.7 Although state and local police have undisputed legal authority to enforce the immigration code's criminal provisions,8 most do not assist in immigration enforcement since they perceive little federal support for their efforts.9 For example, when state and local police have encountered illegal immigrants10 in the course of their routine policing duties11 and have then contacted federal immigration authorities, the Interior and Customs Enforcement agency (ICE)12 has historically refused to take custody of those immigrants, citing a lack of resources and detention space.13 Moreover, motivated by political pressure and public safety concerns, some states and localities have even enacted "sanctuary" (or "noncooperation") policies, actively prohibiting their law enforcement personnel from assisting immigration authorities unless required to do so by law.14 To further complicate matters, over the past twenty years Congress, the federal courts, and the executive branch have sent confusing (and sometimes contradictory) signals concerning the scope of state and local legal authority to enforce immigration law.15 Prompted by rising state and local frustration with inadequate federal immigration enforcement and heightened awareness about the interconnectedness of illegal immigration and national security,16 Congress has recently considered enlisting state and local police as part of broader immigration reform efforts. Federal lawmakers have contemplated two distinct techniques for procuring state and local involvement in immigration enforcement, referred to by this Note as the coercive and permissive approaches.17 The coercive approach, most recently exemplified by the controversial Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005 (the Border Protection Act),18 not only clarifies that states and localities have the legal authority to investigate, arrest, and detain foreign nationals who have allegedly violated federal immigration law but takes an additional step to coerce sanctuary states and localities into abolishing their noncooperation policies as a condition for continued receipt of certain federal funds.19 The permissive approach, on the other hand, exemplified by the Comprehensive Enforcement and Immigration Reform Act of 2005 (the Comprehensive Enforcement Act),20 simply affirms state and local immigration enforcement authority. Part I of this Note outlines the ongoing debate about the public policy consequences of nonfederal immigration enforcement by discussing the problematic phenomenon of illegal immigration, the shifts in federal enforcement priorities, and the implications of increasing state and local immigration enforcement. Part II addresses the scope of legal authority for nonfederal immigration enforcement by examining opinions issued by the executive branch, federal courts, and legal scholars. Part III analyzes various legislative proposals that incorporate both coercive and permissive approaches to nonfederal immigration enforcement. Part IV argues that the coercive approach inappropriately jeopardizes the long-term interests of the federalist system. It then advocates that Congress should pursue the more federalist-friendly permissive approach, which leaves the decision whether (and to what extent) to enforce immigration law squarely in state and local hands. …

Unflagging Television Piracy: How Piracy of Japanese Television Programming in East Asia Portends Failure for a U.S. Broadcast Flag*

Abstract: It may be that "combating piracy" is not the only way to promote a flourishing entertainment world.1 While the battle against music and film piracy has played out sensationally in the media-punctuated by lawsuits against individual pirates and the shutdown of peer-to-peer (P2P) file-sharing networks such as Napster, Grokster, and BitTorrent, and buttressed by the bold antipiracy advertising campaigns of the Recording Industry Association of America (RIAA) and the Motion Picture Association of America (MPAA)-piracy of broadcast television has kept a much lower profile. But as nations make the transition to digital television, it is poised to take center stage in a way that will impact the average television consumer. Television executive Peter Chemin, President and COO of News Corporation, recently told a consumer forum that despite steps taken by the media industry to survive, it will all be for naught "if content is not protected from digital thievery."2 In response, a news magazine reporter queried: "Why is a TV executive so agitated about online pirates? Because he, like most media honchos, has seen the scary numbers indicating that the next big craze in illegal file sharing is not music, not movies, but television."3 Given the relative ease of access to programs broadcast on terrestrial channels, one could reasonably question whether the media industry will be plagued by any appreciable level of domestic television piracy, but that is not the MPAA's primary concern-what it really fears is international piracy.4 Rather than wait for the limited number of American television programs that belatedly make their way to syndication on international channels, worldwide consumers have instead resorted to purchasing pirated copies of such programming in DVD or VCD5 format or simply downloading the programs from the Internet.6 To date, the MPAA has attempted to curb piracy primarily by collaborating with other nations to identify and shut down pirates and confiscate pirated copies, but this approach has been relatively unsuccessful.7 The United States is not the only country facing a serious crisis of television content piracy. As the world's second largest television market,8 Japan has not escaped similar problems, although the scope of the piracy is primarily limited to East Asian countries.9 Throughout East Asia, Japanese pop culture may be likened to American pop culture elsewhere in its ubiquity and appeal.10 Its manifestations are not limited to manga (comic books), anime (animated movies or television shows), or video games-Japanese television programming is also in great demand. While some programs are actually licensed and broadcast in various East Asian countries, a great majority of them are not, and the East Asian public has resorted to purchasing readily available pirated copies." The Japanese government and the television industry have attempted to work with the governments of various East Asian nations to reduce piracy by encouraging stronger policing of copyright violations, but transnational collaborative approaches have been rather unsuccessful.12 Recently, however, Japan took a step toward curbing television broadcast piracy that is categorically different from its prior approaches. On April 5, 2004, Japan's public broadcasting station NHK and the National Association of Commercial Broadcasters (NACB) initiated implementation of a transmission signal in all terrestrial and satellite digital broadcasts that prevents users from copying television programming more than once.13 The stated purpose of the signal is to reduce piracy and thereby protect copyright holders who, it is assumed, would view ease of creating high-quality pirated copies from digital programming as a disincentive to creating content for the broadcasters.14 Japan's digital "one-time copy" signal foreshadows a potential similar move by the United States. In November of 2003, the FCC promulgated a plan for protecting digital broadcasting in the United States. …

Enhancing the Judicial Role in Criminal Plea and Sentence Bargaining

Abstract: Conventional wisdom in criminal procedure scholarship offered two competing models of the American criminal justice system, famously labeled by Professor Herbert Packer as the "Crime Control" and "Due Process" models.1 The Crime Control model posited "the efficient, expeditious, and reliable screening and dispositions of persons suspected of crime as the central value to be served by the criminal process."2 The Due Process model asserted that the truth-seeking function is "limited by and subordinate to the maintenance of the dignity and autonomy of the individual."3 Most criminal law casebooks began with a description of these models and asked the student to consider which direction the Court should head. These descriptions are now disappearing from the literature. The first reason is normative: we realize that neither model can be adopted without undesirable changes in constitutional precedent and executive functions, and neither would optimally serve the consensus goals of accuracy and equality. The second is practical: we realize that the American criminal justice system, like the civil system, would collapse if even a small percentage of suspects took advantage of these procedures and demanded trials. The Due Process model ascended during the civil rights movement with the Warren Court revolution, due in large measure to the shameful treatment of African Americans in the southern states.4 This model has been eroded by various judicial and societal trends. First, as Professor Carol Steiker has written, the Burger and Rehnquist Courts steadily chipped away at the contours and enforcement of constitutional criminal procedural guarantees, denying the promise of procedures that would protect liberty and equality while ensuring the safety of the community through the conviction of guilty and dangerous criminals.5 Second, the erroneous public perception, fueled by politicians and the media, that violent crime has increased since the 1970s,6 has led to such a broadening of the scope of substantive criminal law that procedural protections have little force.7 With thousands of federal offenses to choose from,8 a determined prosecutor can generally locate some charge that will stick.9 Finally, the drug war has transformed a large percentage of our population, especially young African American males, into criminals, even though these perpetrators are primarily non-violent offenders who can be captured only through the most invasive investigative processes or interpretations of Fourth Amendment doctrine.10 However, neither did the law enforcement model of criminal procedure triumph. Serious flaws with those criminal procedures that concern accuracy11-especially the doctrines surrounding eyewitness identification,12 adequacy of counsel, prosecutorial misconduct, provision of exculpatory information, and scientific and forensic testing13-have led to recently discovered wide-spread wrongful convictions of innocent persons.14 Erroneous convictions cannot be squared with the Crime Control model, as each wrongful conviction allows the guilty party to escape punishment and further endanger society. The coercive power of plea bargaining leaves us little data to determine what percentage of defendants pleading guilty actually are.15 Unequal treatment of criminal defendants based on wealth, race, ethnicity, geography, and gender plainly prevails,16 giving rise to social unrest (or at least misgivings), even among the middle class. Draconian mandatory minimum penalties, especially for drug offenses,17 challenge community notions of fairness, leading to a lack of respect for the system and arguably to a decrease in the deterrent and expressive force of the law.18 It is perhaps for these reasons that the current conservative Court has nonetheless recently expanded jury trial rights,19 strengthened the Sixth Amendment's Confrontation Clause,20 contracted the class of defendants eligible for the death penalty,21 and reigned in prosecutorial control over sentencing. …

Who Shall Interpret the Constitution

Abstract: "Who Shall Interpret the Constitution?" CONGRESS AND THE CONSTITUTION. Neal Devins[dagger] and Keith E. Whittington,[double dagger] eds. Durham: Duke University Press, 2005. Pp. vi, 320. $23.95. "Who Shall Interpret the Constitution" is a question the eminent constitutional law scholar Walter F. Murphy famously raised twenty years ago.1 His answer? Well, of course, the courts-but not only the courts.2 The President, Congress, and even the people can also lay claim to playing a role in constitutional interpretation. Indeed, to Professor Murphy, that there is no "ultimate constitutional interpreter" is simply "a fact of American political life."3 To say that scholars have rallied around Professor Murphy borders on the boring. Volumes devoted to the "Constitution outside the courts" by authors including Louis Fisher,4 Larry Kramer,5 Mark Tushnet,6 David P. Currie,7 and J. Mitchell Pickerill,8 to name only a few, now fill several of my bookshelves. And surely I'll need to make room for even more. What with George W. Bush's deployment of 108 signing statements to register 505 constitutional objections to various provisions in congressional legislation, no doubt a scholar or two will soon be writing about the President's role in construing the Constitution and statutes.9 Into this ever-maturing literature enters Congress and the Constitution,10 an edited volume housing thirteen essays by distinguished legal academics and political scientists alike. Do the authors have anything new to add? Given the already excellent volumes on extra-judicial constitutional deliberation, especially in Congress, that question took center stage as I read Congress and the Constitution. But at the end I was convinced: Perhaps more than any other recent work, the essayists make the best case yet that Congress has the means, motive, and opportunity to contribute to constitutional law. I. Means While Professor Murphy's views are now commonplace, they are certainly not now (nor were they ever) without their share of detractors. Among the more recurrent complaints is that Congress lacks the institutional capacity-the means, really-to engage in constitutional interpretation. It is thus no surprise that as many as half of the chapters in Congress and the Constitution touch on this critique, and taken collectively they offer a welcome corrective. In a thought-provoking essay that manages to frame many concerns at the core of Congress and the Constitution, Elizabeth Garrett and Adrian Vermeule detail a set of proposals to enhance Congress's ability to perform its constitutional responsibilities; that is, to ensure that members of Congress (MCs) have adequate information about constitutional issues raised in legislation, to afford MCs the opportunity to deliberate over these issues, to encourage the involvement of experts, and to create a balance between the need to deliberate and the need to enact legislation without delay.11 Notable among their package of reforms is a call for an Office on Constitutional Issues that would supply advice on legal and political considerations with regard to constitutional matters, as well as for "constitutional impact statements" that would accompany every bill reaching the floor.12 No doubt that on each of the dimensions Garrett and Vermeule identify Congress could stand some improvement; I can imagine few arguing that its performance is already optimal.13 On the other hand, because several of their co-essayists offer an abundance of evidence that Congress already possesses the necessary institutional capacity to engage in constitutional deliberations of a high quality, readers may wonder whether at least some of Garrett and Vermeule's proposals would work to induce only marginal improvements.14 Leading the charge, I think, would be Louis Fisher.15 Defending Congress's prowess in the constitutional context is hardly new terrain for Fisher,16 but he is in fine form here. …

Where Everything Old Is New Again-Enduring Episodic Discrimination against Homosexual Persons*

Abstract: "The best of prophets of the future is the past."-Lord Byron1 "It used to be worse."2 When it comes to the treatment of gay and lesbian Americans, this statement by Andrew Koppelman is undeniably correct. In a nation where one can catch Will & Grace and Queer Eye for the Straight Guy (or Girl) in the same night, where same-sex couples in Massachusetts can legally wed, where dozens of states and municipalities have adopted statutory protections for homosexuals, and where Bowers v. Hardwick3 has been banished from the legal lexicon, Koppelman's view is nothing if not accurate. But its accuracy does not forestall an equally indisputable description of the situation facing homosexuals in America: it could, and should, be better. While gay and lesbian characters may light up our television sets with their fabulous decorating tips, witty morning monologues, or caustic comic relief, the members of this vast and diverse minority remain for the most part cordoned in the shadows of the American legal landscape, as persistent targets of "endemic and taken-for-granted hostility,"4 even in the wake of Lawrence v. Texas.5 Current legal treatment of homosexuals is best understood as a new episode of discrimination, in which old paradigms combine and coalesce in novel ways. In order for the law to fulfill constitutional demands for equality, we must properly understand the origin of this lingering prejudice. Thus, this Note attempts to situate the state of gay and lesbian legal status within an illustrative historical construct. Part I examines the treatment of homosexual persons during the Progressive Era, surveying the approximately thirty years from 1886 to 1915. Part II then shifts to the dawn of the Cold War Era, and the roughly fifteen-year period from 1946 to 1961 when homosexuals faced unprecedented discrimination in the name of national security. Part III demonstrates how the arguments advanced against homosexuals during these two episodes have resurfaced and reinvigorated anti-gay rhetoric during this past decade's episode. Particular attention will be paid in Part III to two important opinions written since Lawrence v. Texas-a Kansas appellate court's decision in State v. Limon,6 and the Eleventh Circuit's decision in Lofton v. Secretary of the Department of Children & Family Services.7 The synergistic interplay among social responses in the wake of September 11th, legislative actions after Romer v. Evans,8 and judicial treatment of homosexuals in general will also be examined. This recent history reveals an all-too-familiar pattern of legal treatment of homosexuals-progress, followed by backlash-purportedly justified by the desire to preserve traditional family structures and by national security concerns. I. Progress in the Progressive Era? A Newly Constructed Minority Faces Systematic Discrimination, 1886-1915 While homosexual acts are arguably as old as humankind itself, homosexuality emerged as a categorical construct only in the late nineteenth century.9 From its inception, homosexual classification was about much more than merely sexual-object choice. Both the identification of homosexual persons and subsequent efforts to control or incarcerate such individuals were inextricably linked to perceived social disruptions. A. An Age of Anxiety At the dawn of the twentieth century, profound changes in American society would leave many scrambling to protect traditional social mores. It was both as a catalyst for and a consequence of this culture of fear that homosexuals were identified and vilified (along with a host of other groups, like prostitutes and those who frequented saloons).10 The Industrial Revolution created new jobs and new economic opportunities for men and women alike, but for most observers this meant that the traditional nineteenth century family structure-emphasizing the sphere of domesticity for women and the masculine world of work for men-was under attack. …