Showing papers in "Vanderbilt Law Review in 2010"

Constitutionality of Cyberbullying Laws: Keeping the Online Playground Safe for Both Teens and Free Speech

Abstract: I INTRODUCTION The Internet is a blessing and a curse1 Along with the manifold benefits the Internet provides - electronic research, instantaneous news, social networking, online shopping, to name a few - comes a host of dangers: online harassment and cyberbullying, hacking, voyeurism, identity theft, phishing, and perhaps still more perils that have yet to appear2 The Internet creates a virtual world that can result in very real consequences for people's lives This creates a challenge for parents, schools, and policymakers attempting to keep pace with rapidly developing technologies and to provide adequate protections for children The even greater challenge, however, is to balance these vital protections with the equally compelling freedoms of speech, expression, and thought3 The heart-wrenching suicide of Missouri teenager Megan Meir in 2006 directed national attention to the devastating effects of online harassment and cyberbullying4 Megan was a thirteen-year-old middle-school student who engaged in an online relationship with a purported fellow teen, Josh Evans, through the popular socialnetworking website MySpace5 What began as a friendly and flirtatious exchange of messages escalated into a barrage of cruel and insulting attacks that drove Megan, who suffered from clinical depression, to take her own life6 Megan's mother found her hanging in her closet by her neck from a belt the day of Josh's final posting: "The world would be a better place without you" In a tragic twist of events following Megan's death, her parents discovered that Josh Evans never existed7 Instead they found that Lori Drew, an adult neighbor and mother of one of Megan's female friends, created the profile in order to learn Megan's opinion of her daughter8 Sadly, the hoax escalated far beyond that initial intent Megan's story is not unusual; sadly, cyberbullying occurs in many forms and contexts throughout the country9 The problem primarily impacts youth, arguably the subset of our population most deserving of legislative protection10 According to the National Crime Prevention Counsel, 43 percent of teens have been victims of cyberbullying, but many are too ashamed or embarrassed to report the incidents to their parents or other authorities11 The breadth and severity of cyberbullying demands a response from communities, parents, schools, and legislatures However, regulation of online speech treads on delicate constitutional territory In our efforts to make the Internet safer, we must be cautious not to erode the freedom of speech guaranteed by the First Amendment While the problem of cyberbullying urgently requires a solution, policymakers should avoid the temptation to enact knee-jerk legislation that may be overly broad or create unintended consequences that restrict the freedom of expression This Note examines cyberbullying, focusing primarily on its impact on youth, and explores a legislative response to the problem Part II demonstrates the need for legislation by highlighting the inadequacy of current tort and criminal laws to address cyberbullying Part III surveys existing and proposed cyberbullying legislation and identifies trends in those laws, most of which address cyberbullying within the public-school context Part IV identifies potential First Amendment challenges to existing and proposed cyberbullying laws in light of student speech jurisprudence It then critiques the effectiveness of cyberbullying laws to curtail the problem without trampling First Amendment rights Part V offers several constitutional solutions to alleviate cyberbullying, including suggestions for how cyberbullying laws can be crafted to address the problem of online bullying while not eroding First Amendment freedoms This Part also suggests revision of the Communications Decency Act to create qualified liability for Internetservice providers through which cyberbullies torment their victims in order to encourage these companies to take rational steps to limit the use of their services to perpetuate cyberbullying …

Preempting Discrimination: Lessons from the Genetic Information Nondiscrimination Act

Abstract: The Genetic Information Nondiscrimination Act (“GINA”), enacted in May 2008, protects individuals against discrimination by insurance companies and employers on the basis of genetic information. GINA is not only the first civil rights law of the new millennium, but it is also the first preemptive antidiscrimination statute in American history. Traditionally, Congress has passed retrospective antidiscrimination legislation, reacting to existing discriminatory regimes. However, little evidence indicates that genetic-information discrimination is currently taking place on a significant scale. Thus, unlike the laws of the twentieth century, GINA attempts to eliminate a new brand of discrimination before it takes hold. This Article provides a detailed look at this unprecedented new statute, beginning with its initial introduction in 1995. Next, the Article examines the justifications for passing preemptive genetic-information discrimination legislation, concluding that Congress had twin objectives: a research justification and an antidiscrimination justification. Lastly, the Article explores the implications of passing antidiscrimination legislation absent a history of discrimination. It concludes that GINA’s preemptive nature may be both its greatest attribute and its deepest flaw.

Breach Is For Suckers

Abstract: This Article presents results from three experiments offering evidence that parties see breach of contract as a form of exploitation that makes disappointed promisees into "suckers." In psychology, being a sucker turns on a three-part definition: betrayal, inequity, and intention. We used web-based questionnaires to test the effect of each of the three factors separately. Our results support the hypothesis that when breach of contract cues an exploitation schema, people become angry, offended, and inclined to retaliate even when retaliation is costly. This theory offers a useful advance because it explains why victims of breach demand more than similarly situated tort victims and why breaches to engorge gain are perceived to be more immoral than breaches to avoid loss. In general, the sucker theory provides an explanatory framework for recent experimental work showing that individuals view breach as a moral harm. We describe the implications of this theory for doctrinal problems like liquidated damages, willful breach, and promissory estoppel. We then suggest an agenda for further research. I. INTRODUCTION Contract law lacks a realistic theory of the injury caused by breach. Most judges follow Holmes and instruct that "the duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it, - and nothing else."1 But ordinary people think that breach is morally wrong and believe that contract damages should reflect the ethical culpability of the breaching party.2 They prefer specific performance to monetary damages, deny that expectation interest remedies the moral harm caused by breach, and resist breaching their own contracts even when it is wealthmaximizing to do so.3 In short, individuals act as if breach is as not as morally inert as doctrine says it ought to be. To decide if this gap between lay intuition and legal rules presents a problem that the law needs to fix, we need to know more about why individuals feel they way they do. Data points from empirical and theoretical scholarship describe various commonsense moral distinctions between different kinds of breaches, such as willful breaches, breaches of the duty of good faith, and efficient breaches.4 But we lack a framework that would explain the broader pattern of findings. We propose that people often consider breach of contract to be a form of exploitation and a violation of the norm of reciprocity.5 Psychological research has shown that people are highly sensitive to the suspicion that they are being exploited,6 and this Article demonstrates that breach of contract is particularly offensive when it makes promisees into regretful, embarrassed "suckers." (For the purposes of our discussion, we will use the terms "exploited," "suckered," "duped," and "taken advantage of interchangeably, though we recognize that there are cases in common usage in which one term might apply but others would not.) To illustrate the relationship between breach of contract and exploitation aversion, this Article reports on the results of an experimental series asking participants to react to circumstances involving breaches of several kinds of simple contracts. The contracts were designed to create certain "exploitation schemas" to determine what, if any, particular aspects of breach would cause an individual to feel like a sucker. To be a sucker - as the term is used in this Article - a person must consent to participate in some problematic or failed transaction, believe the breacher is profiting from the non-breacher's loss, and believe that the breacher has acted intentionally. In the experiment described in this Article, these three factors predict moral outrage in response to breach of contract. As we show, the sucker framework illuminates several puzzling results from current research on the psychology of contract damages as well as aspects of contract doctrine, ranging from the law of willful breach to promissory estoppel. …

Punishment as Suffering

Abstract: When it comes to punishment, should we be subjectivists or objectivists? That is, should we define, measure, and justify punishment based on the subjective experiences of those who are punished or should we instead remain objective, focusing our attention on acts, culpability, and desert? In a recent series of high-profile articles, a group of contemporary scholars has taken up the mantle of subjectivism. In their view, criminal punishment is a grand machine for the production of negative subjective experiences-suffering. The machine requires calibration, of course. According to these scholars, the main standard we use for ours is comparative proportionality. We generally punish more serious crimes more severely and aim to inflict the same punishment on similarly situated offenders who commit similar crimes. In the views of these authors, this focus on comparative proportionality makes ours a rather crude machine. In particular, it ignores the fact that (1) different offenders suffer differently or to a different degree when subjected to the same punishment; (2) different offenders have different happiness baselines, which leads to disparities in the degree of suffering among offenders sentenced to the same punishment as measured by comparing their prepunishment baselines to their hedonic states during punishment; and (3) offenders' self-reported states of happiness and suffering vary over the course of a sentence, revealing inaccuracies in our objective assessments of severity. These scholars contend that a more sophisticated and rational approach would be to calibrate punishment according to the amount of suffering produced, trading objective measures of punishment-years in prison, etc.-for subjective measures. Looking forward to a day when advances in neuroscience and psychology will provide us with reliable qualitative and quantitative metrics of suffering, these scholars are setting the stage now, arguing that no matter our theory of criminal law and punishment-be we retributivists or utilitarians-we are obliged to dial the machine according to who is in its thrall and to titer both the form and extent of punishment so as to achieve just the right kind and amount of suffering. This view of the criminal law may strike some readers as troubling. It should. The problem can be traced to three contestable propositions. The first is that "subjective disutility" is a necessary feature and primary goal of punishment. The second is that comparative proportionality serves as an independent measure of justice in punishment. The third is that punishment theory must justify all of the suffering caused by the punitive practices it endorses. This Article rejects each of these claims. It defends retributivist and utilitarian theories of punishment on objectivist grounds by explaining why arguments based on the proposition that punishment is suffering have no bite on these theories. These arguments urge punishment theorists to reject outright the claim that punishment should be calibrated according to the subjective suffering it inflicts. So too do the uncomfortable outcomes subjectivist critics deploy against objective theories of punishment as purported reductio ad absurdum. While admittedly absurd, those results obtain only if punishment is defined, measured, and justified subjectively. I. Introduction According to a critique of retributivism and some forms of utilitarianism advanced by several contemporary scholars, criminal punishment is a grand machine for the generation and administration of "subjective disutility,"1 principally in the form of suffering.2 The machine requires calibration, of course. These critics claim that the main standard we use for our machine is comparative proportionality.3 We punish more serious crimes more severely and aim to inflict the same punishment on similarly situated offenders who commit similar crimes.4 In these critics' views, this focus on comparative proportionality, when filtered through a subjectivist analysis of punishment, reveals that ours is a rather crude machine. …

The Untouchables: Private Military Contractors' Criminal Accountability under the UCMJ

Abstract: I INTRODUCTION September 16, 2007 has been called Baghdad's "Bloody Sunday"1 On that scorching afternoon in Baghdad, Iraq, a team of Blackwater Worldwide2 private military contractors slew seventeen Iraqi civilians3 and wounded twenty-seven others4 A Blackwater spokesperson claimed that the civilian contractors reacted in response to an attack by enemy combatants and "heroically defended American lives"5 Despite such claims, US soldiers who arrived at the scene within twenty-five minutes found no evidence of enemy activity and characterized the event as criminal6 Despite such evidence and notwithstanding four potential sources of criminal law - international law, host-nation law, US civilian law, and US military law - these Blackwater guards escaped criminal accountability for their actions on Bloody Sunday7 Such private citizens employed by the US military in undeclared wars had fallen into a legal loophole, practically beyond the reach of criminal law They had become "the Untouchables"8 Prior to Bloody Sunday, Congress had recognized that something must be done to bridge this gap and amended US military law in 2007 to bring the Untouchables within the grasp of criminal law9 This Note examines the legal loophole into which modern private military contractors had fallen and concludes that US military law can, and should, be used to hold them criminally accountable Private military contractors ("PMCs" or "contractors"), like the Blackwater employees, have assumed a pivotal role in US foreign relations and combat worldwide Following a reduction in the general size of US armed forces, the government has turned increasingly to PMCs to perform many functions previously carried out by military personnel10 Although these contractors had initially provided mere auxiliary support to the military by supplying instruction, mail delivery, and food services,11 an overextended US military soon utilized PMCs globally in a wide variety of vital roles,12 such as "interrogators, complex systems operators, [and] security for high profile politicians and military commanders"13 PW Singer, a senior fellow and director of the 21st Century Defense Initiative at the Brookings Institution,14 has recently identified three classifications of firms, based on the services they provide, that supply PMCs to the US military: (1) military support firms that deliver "supplementary military services including logistics, intelligence, technical support, supply, and transportation"; (2) military consulting firms that supply "advisory and training services integral to the operation and restructuring of a client's armed forces"; and (3) military provider firms that focus on the tactical environment by running active combat operations15 PMCs who come from military provider firms operate "at the forefront of the battlespace, by engaging in actual fighting and/or direct command and control of field units"16 Such contractors, like those involved in Bloody Sunday, essentially act in a quasi-military capacity These quasi-military PMCs dress like soldiers, bear arms like soldiers, and fill quintessential soldier roles17 The US military's use of PMCs in modern times - since the early 1990s - has reached an unprecedented level18 As of late 2007, PMCs in Iraq outnumbered military personnel 180,000 to 165,000, with between 20,000 and 30,000 contractors in quasi- military roles19 As one of the main suppliers of PMCs to the US military, Blackwater provided security to US officials who visited Iraq20 In performing their roles as bodyguards, Blackwater employees frequently escorted US officials through Baghdad in armed convoys21 For Iraqi police officers, it became "a standard part of their workday in occupied Iraq to stop traffic to make room for US VIPs, protected by heavily armed private soldiers, to blaze through"22 On Bloody Sunday, what began as a routine traffic stop by Blackwater contractors escorting U …

Street Shootings: Covert Photography and Public Privacy

Abstract: I. INTRODUCTION Street photographers, like snipers, pride themselves on stealth.1 Camouflaged in nondescript clothing, they wander the streets undetectable, armed, and on the hunt. When they find their mark, they act quickly. As the famous twentieth-century street photographer Henri Cartier-Bresson described: "The creative act lasts but a brief moment, a lightning instant of give-and-take, just long enough for you to level the camera and to trap the fleeting prey in your little box."2 While methods of "trapping prey" vary from shooter to shooter, the mission remains the same - staying as covert as possible and catching an unknowing subject in a candid pose.3 In the formative years of street photography, Cartier-Bresson concealed himself by wrapping a large handkerchief around his camera and pretending to blow his nose while discretely taking a picture.4 He also covered his camera in black tape to conceal any shiny parts that might give him away to his subjects.5 Today's street photographers are armed with a new generation of weapons that hardly need concealment. The rise of miniaturized and digital technologies has taken street shooting to a whole new level. In a world where companies compete to make the smallest, most inexpensive cameras, surreptitious photography runs rampant. For example, cell-phone cameras and "dime-sized spy cameras" make it possible for photographers to shoot their subjects from virtually any angle without detection.6 However, as technology advances, so does the potential scope and harm from photographic invasions of a subject's privacy. One of the most disturbing products of these developments is the birth of "upskirt photography."7 As its name suggests, upskirt photography involves taking pictures of women up their skirts. There are currently over one hundred websites featuring upskirt images, indicating just how in-demand the product is.8 This form of unauthorized photography can have devastating effects on subjects.9 An upskirt photograph draws attention to a private aspect of a person's life that would not have been seen by the naked eye and that the subject likely would not have consented to put on public display.10 In this regard, upskirt photographs infringe on basic precepts of human dignity.11 They also often cause outrage, mental suffering, shame, or humiliation for their subjects.12 Despite these severe injuries, an individual photographed in public has nearly no recourse under current civil law.13 Street photography thrives because an individual has no right to privacy in public places.14 Instead, the law protects the photographer, not the victim. Civil law must keep pace with technology and break away from its current conception of privacy in public places.15 Upskirt photography will persist until the law provides a remedy that serves as a sufficient deterrent against the behavior.16 Deterrence, though, cannot be achieved when courts cling to conventional thinking that invasions of privacy cannot occur in the public sphere.17 New and problematic forms of street photography necessitate a reexamination of photographic invasions of privacy.18 Part II of this Note provides a brief history of the right to privacy, highlights specific characteristics unique to photography that intensify its threat to privacy, and introduces the conventional rationales for denying individuals a right to privacy in public. Part III surveys photographic invasion-of-privacy cases and examines the classic rationales for upholding photographers' rights to shoot subjects covertly in public. Drawing upon the concepts discussed in Part III, Part IV then proposes that the tort of battery should be expanded to encompass photographic street shootings. The tort of battery protects an individual's dignity from intentional invasions.19 Accordingly, the interests at stake in street shootings fit squarely within the interests battery seeks to preserve. Part IV further argues that the "contact" requirement of battery can be satisfied either by actual contact between the photographer and the victim (or the victim's clothing) or by a nontraditional theory of contact via light particles. …

Optimizing Private Antitrust Enforcement

Abstract: Private litigation is the predominant means of antitrust enforcement in the United States. Other jurisdictions around the world are increasingly implementing private enforcement models. Private enforcement is usually justified on either compensation or deterrence grounds. While the choice between these two goals matters, private litigation is not very effective at advancing either one. Compensation fails because the true economic victims of most antitrust violations are usually downstream consumers who are too numerous and remote to locate and compensate. Deterrence is ineffective because the time lag between the planning of the violation and the legal judgment day is usually so long that the corporate managers responsible for the planning have left their corporate employer before the employer internalizes the cost of the violation. Private litigation needs to be reconceptualized entirely and redirected toward a forward-looking, problem-solving approach to market power issues. INTRODUCTION The United States is unique in the world insofar as private enforcement of the antitrust laws vastly outstrips public enforcement. There are roughly ten private federal cases for every case brought by the Department of Justice or Federal Trade Commission.1 Almost all of these private cases are oriented exclusively toward damages. While the plaintiff usually asks for an injunction against further misconduct, everyone understands that the case is all about the treble damages or, more likely, the settlements that the defendants inevitably pay if the case survives summary judgment.2 Although most other countries follow a model that relies primarily on governmental antitrust enforcement, in many jurisdictions there is a surge of interest in expanding private rights of action for damages.3 Most prominently, the European Commission released a White Paper in 2008 - essentially a blueprint for further action by the Commission - calling for expanded private antitrust enforcement within the European Union.4 Notably, while proclaiming the need for expanded private enforcement, the White Paper seems to recoil in horror at the possibility of following a U.S. blueprint. On virtually every major aspect of private litigation - including standing, discovery, claim aggregation, and damages - the White Paper argues for an approach that essentially rejects the U.S. position.5 In many other jurisdictions, private enforcement is either well under way or under active discussion.6 As with the European Union, however, most movements toward private enforcement reflect deep ambivalence about the U.S. model. In this Article, I argue that efforts to correct the perceived infirmities of the U.S. private enforcement system by tweaking the mechanics of enforcement - standing rules, discovery principles, claim aggregation mechanisms, damages rules, and the like - are futile. The shortcomings of private enforcement are existential, not technical. They go to foundational assumptions about the goals and purposes of antitrust law and competition policy. Private antitrust in the United States has rarely advanced the two assumed goals of private enforcement: deterrence and compensation. As other jurisdictions around the world consider adopting a private enforcement model, they should begin by reevaluating the goals of private enforcement. Only once the goals are properly specified does it make any sense to discuss the more technical implementation details. To critique the U.S. system of private litigation is not to call for a governmental monopoly of antitrust enforcement, the de facto rule in most countries. Those who distrust private economic monopolies should also distrust public governmental monopolies. A system of private enforcement allows for decentralized decisionmaking and individualized bargaining. It supplies a set of "on the street" enforcers closer to the relevant problems, along with enhanced enforcement resources and continued enforcement during downturns in public enforcement. …

The Quasi-Class Action Method of Managing Multi-District Litigations: Problems and a Proposal

Abstract: This Article uses three recent multi-district litigations ("MDLs") that produced massive settlements-Guidant ($240 million), Vioxx ($4.85 billion), and Zyprexa ($700 million)-to study the emerging quasi-class action approach to MDL management. This approach has four components: (1) judicial selection of lead attorneys, (2) judicial control of lead attorneys' compensation, (3) forced fee transfers from non-lead lawyers to cover lead attorneys' fees, and (4) judicial reduction of non-lead lawyers' fees to save claimants money. These procedures have serious downsides. They make lawyers financially dependent on judges and, therefore, loyal to judges rather than clients. They compromise judges' independence by involving them heavily on the plaintiffs' side and making them responsible for plaintiffs' success. They allocate moneys in ways that likely overcompensate some attorneys and undercompensate others, with predictable impacts on service levels. The procedures used in Guidant, Vioxx, and Zyprexa also lack needed grounding in substantive law because the common fund doctrine, which supports fee awards in class actions, does not apply in MDLs. Academics have not previously noted these shortcomings; this is the first scholarly assessment of the quasi-class action approach. This Article proposes an alternative method of MDL management. It recommends implementation of a default rule that would vest control of an MDL in a plaintiffs' management committee ("PMC") composed of the attorney or attorney-group with the most valuable client inventory, as determined objectively by the trial judge. The PMC, which would have a large interest in the success of an MDL, would then select and retain other lawyers to perform common benefit work ("CBW") for all claimants. The PMC would also monitor the other lawyers' performance. The new approach would thus use micro-incentives, rather than judicial control and oversight, as the means for organizing the production of CBW in MDLs. This proposal would be a default rule that would govern in the absence of an alternative agreement by or among the PMC and other lawyers with cases in an MDL. In other words, lawyers would be free to create a governance structure for an MDL knowing that the default rule would apply if they were unable to come to terms. This would permit lawyers to design governance structures superior to that created by the default rule. The court would stand back from the process, exercising only a limited backup authority to prevent abuses. The proposal would restore judicial independence; preserve lawyers' loyalties; provide the requisite legal foundation for fee awards; and encourage fairer, more efficient, and more appropriate representation of claimants in MDLs. I. INTRODUCTION The preferred way of handling mass tort lawsuits in the federal courts has long been for the Judicial Panel on Multi-District Litigation ("JPML") to transfer and consolidate the cases in a single federal district court.1 Federal judges have handled over one thousand multidistrict litigations ("MDLs"), the biggest of which have involved tens of thousands of plaintiffs with billions of dollars in liability claims.2 Given this wealth of experience, one would expect MDL procedures to be highly developed, carefully considered, and transparent. In some respects, they are.3 But procedures that are central to the operation of MDLs on the plaintiffs' side are rudimentary and opaque. These procedures also raise serious policy concerns that have not previously been identified or addressed. Consider four examples. Appointment of Lead Attorneys. Judges appoint the lawyers who run MDLs on the plaintiffs' side. Their choices can be puzzling. For example, judges sometimes give lead positions to lawyers with few or no clients in an MDL, passing over other lawyers whose clients number in the hundreds or thousands. Judges also wield the appointment power with unfettered discretion. They need not explain why they choose some lawyers rather than others, and rarely do. …

Slipping Away from Justice: The Effect of Attorney Skill on Trial Outcomes

Abstract: I. INTRODUCTION "It's disgusting what he did, it's disgusting . . . his 'Dream Team' - 'Scheme Team' maybe is more accurate."1 Fred Goldman blamed the defense attorneys when a Los Angeles jury found O.J. Simpson not guilty of murdering his son, Ron Goldman, and Nicole Brown Simpson on October 3, 1995. Yet Goldman was not the only one who blamed the defense attorneys for the acquittal; much of the media agreed that Simpson was guilty and had escaped his rightful punishment. As one New York Times reporter lamented, "To watch Mr. Simpson slip away from justice . . . was an infuriating sight."2 People who believed in Simpson's guilt cited Johnnie Cochran's decision to "play the race card"3 and his clever catch phrases like "if it doesn't fit, you must acquit."4 Others blamed the prosecuting attorneys. On the day after the verdict, author Scott Turow described the prosecutors as "doomed from the start" for their use of "ugly tactics that . . . aroused suspicions about the criminal justice system among members of racial minorities in Los Angeles and elsewhere."5 Yet O.J. Simpson is not the only defendant who - according to popular opinion - has slipped away from justice because of his attorneys' skill. A jury acquitted the late Michael Jackson of his child molestation charges in 2005.6 That same year, actor Robert Blake escaped charges of murdering his wife, Bonny Lee Bakley.7 And just two years earlier, a jury acquitted New York millionaire Robert Durst of murdering his neighbor, Morris Black.8 All three men had very expensive, well-known defense attorneys, and all three men faced similar accusations of slipping away from justice in the press after their acquittals. More recently, Mary Winkler, a preacher's wife from Selmer, Tennessee who killed her husband and fled with her children to the Alabama coast, endured the same scrutiny from the popular press during her trial. Despite being accused of first-degree murder, her "Dream Team" of defense attorneys made "murder no longer an issue."9 Instead, the jury convicted Winkler of voluntary manslaughter, and the judge sentenced her to only sixty-seven days in prison. As one journalist sarcastically noted after the verdict, "Mary Winkler's defense lawyers did just what they had to do to convince a jury not to convict her of murder, even though she shot her sleeping preacher husband in the back with a shotgun."10 Even Winkler's own defense attorney said after trial that "the verdict was most probably just."11 Clearly, much of the media believes that an attorney can decide a case. Get a good enough attorney, the story goes, and you can get off on anything. Yet the belief in the power of a good attorney extends far beyond popular opinion - and all the way to the Supreme Court. In many opinions, Justices have expressed concern about the consequences of weak representation.12 But just how important is a good attorney? Can a skillful attorney actually change the verdict? More importantly, in criminal trials, can a good defense attorney let guilty people go free, or can a good prosecutor send innocent people to jail? Every day, as more highprofile defendants find themselves in court, the anecdotal evidence of this attorney skill effect continues to mount. Yet no one has decisively answered these questions - not only for high-profile defendants, but for the everyday defendant as well. This Note will argue that a skillful defense attorney is not as powerful as popular opinion would lead us to believe. Here, I define skill as the qualities that an attorney brings to the courtroom independent of his case's strength, such as rhetorical abilities, tactical strategies, and knowledge of the law. Regardless of their skill, criminal defense attorneys do not have a statistically significant effect on the verdict or sentencing outcomes. Prosecuting attorneys, on the other hand, can influence trial outcomes. A jury is more likely to convict a defendant when the prosecutor has a high level of skill. …

Gaming the Past: The Theory and Practice of Historic Baselines in the Administrative State

Abstract: Goals based on absolute targets, risk, technology, or cost are found throughout the administrative state. "Historic baselines," points in the past used to ground a policy goal, are just as commonplace, yet remain unexamined. Whether in budgeting or tax, criminal sentencing or environmental protection, historic baselines direct a wide range of agency activities. Their ubiquity raises some important questions. What makes baselines more attractive than other approaches for implementing regulatory goals? Conversely, when are other standard-setting methods such as absolute targets or risk-based, technology-based, or cost-based standards more useful to policymakers than historic baselines? Unless one believes that policymakers choose between the alternative approaches randomly, or that it simply does not matter which they choose, each approach requires a clear theoretical understanding in order to make better choices and predict the comparative potential for success and failure. This Article is the first to examine historic baselines. Using examples from environmental and land use regulation, this Article examines the attributes, design issues, and strategic uses and abuses of historic baselines. Part I unpacks the structure and design of historic baselines, identifying four core attributes and examining the design issues particular to each to demonstrate the different forms historic baselines can take. Part II explores the attractiveness of historic baselines to policymakers and the conditions under which they may be preferable to using absolute standards or risk-based, technology-based, or cost-based standards. Part III explores the opportunities for rent-seeking in more detail, delving into the gaming possibilities created by historic baselines. Part IV then provides a practical context by examining the role of historic baselines in climate change policy. The demand for action will require policymakers to consider a wide array of regulatory goals for controlling greenhouse gas emissions, sequestering carbon from the atmosphere, and adapting to climate change impacts that cannot be avoided. The analysis in Parts I, II, and III speaks directly to this issue, explaining why historic baselines will prove effective in certain applications but decidedly problematic in others. Introduction In 1988, candidate George H. W. Bush was in a tight race for the presidency, behind in the polls to the Democratic challenger, Michael Dukakis. Stung by the D+ grade given by the League of Conservation Voters, Bush was searching for a way to claw back some of the environmental vote.1 He saw an opening in wetlands. Perceived as worthless swamps and wasted development opportunities for most of our nation's history,2 conversion of wetlands for agricultural and urban land uses has resulted in a staggering loss of resources.3 Beginning in the 1970s, however, views started to change, with growing recognition of the valuable services wetlands provide to human populations - from flood protection and groundwater recharge to wildlife habitat.4 As a result, wetlands loss has increasingly been denounced as the result of paving "paradise [to] put up a parking lot."5 Well aware of this widespread concern, Bush announced in a major policy statement a national goal of "no net loss" of our nation's wetlands.6 This proved effective on the campaign trail, and, as President a year later, he adopted the goal as official government policy.7 The Clinton Administration adopted this goal as well, going one step further by announcing a policy to achieve net increases in wetlands of 100,000 acres per year by 2005.8 In 2004, President George W. Bush set an even more challenging goal of a net increase of more than three million acres in five years.9 The "no net loss" policy, with its various "net gain" additions, lived on in roughly the same form through four very different administrations, and remains intact in the Obama Administration.10 This story provides a nice case study of clever campaigning, but it raises an interesting question as well: Why has every president since 1988 framed the wetlands policy goal this way? …

The Pragmatic Incrementalism of Common Law Intellectual Property

Abstract: "Common law intellectual property" refers to a set of judge-made legal regimes that create exclusionary entitlements in different kinds of intangibles. Principally the creation of courts, many of these regimes are older than their statutory counterparts and continue to coexist with them. Surprisingly, intellectual property scholarship has paid scant attention to the nuanced lawmaking mechanisms and techniques that these regimes employ to navigate through several of intellectual property law's substantive and structural problems. Common law intellectual property regimes employ a process of rule development that this Article calls "pragmatic incrementalism." It involves the use of pragmatic and minimalist techniques that emphasize: (1) caution in the face of uncertainty; (2) the use of neutral legal standards; (3) customary practices to tailor the regime to different contexts; and (4) balancing the ex ante and ex post effects of adjudication. In working these ideas, courts develop rules that are flexible, context-dependent, and capable of affirming multiple values without looking for a single overarching theory. In the process, the regimes very effectively avoid the problems of uniformity, overbreadth, and ossification. The patent and copyright systems are today in a state of crisis, with scholars and policymakers recognizing the need for a fundamental overhaul. Yet, few have turned to the common law method for solutions. Common law intellectual property, I argue, may provide us with a way forward, by drawing attention to the simple strengths of the common law method and its likely benefits for intellectual property law. INTRODUCTION Intellectual property is today thought to be principally of statutory origin. Discussions of the subject invariably revolve around a close scrutiny of the federal statutes involved. Indeed, the frequency with which Congress amends the patent and copyright statutes seems to leave little doubt that it alone determines intellectual property's precise content and coverage.1 Nevertheless, there exists a rather robust body of state law that is almost entirely the creation of state courts and is directed at creating entitlements in information, ideas, expression, goodwill, one's image, and other related intangibles. These rights regimes are in turn collectively referred to as "common law intellectual property."2 Examples include the right of publicity, unfair competition, common law copyright, trade secrets, misappropriation, common law idea protection, and passing off. While each of these regimes covers a distinct intangible, they all share the same structural characteristics.3 Each originates in a cause of action that is grounded in tort, contract, or unjust enrichment and is tailored to the circumstances under which protection is deemed necessary. Unlike the one-size-fits-all federal copyright and patent statutes, these regimes allow courts to adopt a far more nuanced approach to intellectual property protection. Instead of relying on a single overarching theory to justify protection, courts look to the practical needs of a particular area, recognize multiple values as relevant for consideration there, and then adopt a highly contextual approach to protection, one best described as "antifoundational." Additionally, the common law method that they employ develops the law incrementally, recognizing the need for caution in a rapidly changing social and technological environment, and allowing future courts to extend, limit, or at times altogether deny protection when circumstance and context change. I call this method of adjudication and rule development "pragmatic incrementalism," in that it exhibits the characteristics of both legal pragmatism and common law incrementalism. Several of these common law regimes are almost as old as their statutory counterparts, if not older.4 Yet, for decades now, many have voiced their skepticism about the usefulness of these rights, especially in light of congressional activity in the area. …

The Future of Agency Independence

Abstract: Independent agencies have long been viewed as different from executive-branch agencies because the President lacks authority to fire their leaders for political reasons, such as failure to follow administration policy. In this Article, we identify mechanisms that make independent agencies increasingly responsive to presidential preferences. We find these mechanisms in a context where independent agencies traditionally have dominated: financial policy. In legislative proposals for securing market stability, we point to statutorily mandated collaboration on policy between the Federal Reserve Board and the Secretary of the Treasury. In administration practices for improving securities regulation, we focus on White House coordination of, and Treasury Department involvement in, the policy of the Securities and Exchange Commission. We argue that these mechanisms undermine the conventional distinction between independent agencies and executive-branch agencies. Additionally, we argue that these mechanisms, though producing presidential involvement short of plenary control, are consistent with the strategic political interests of the President. We further contend that they promote political accountability, particularly because greater presidential control is unnecessary to align agency preferences with presidential preferences; indeed, such control might be counterproductive. In making this argument, we present a nuanced vision of accountability and update the standard justifications for independence. We also consider the constitutional implications of the new independence-accountability hybrids that we see, as well as possible applications in areas where executive-branch agencies traditionally have dominated. Our claim is not that these hybrids are part of law in any of these contexts; rather, we seek to highlight institutional relationships that outstrip conventional categories but fit with the development of the administrative state. In the future, agency independence will occur not at odds with political accountability but engaged with it along a spectrum of institutional structures. INTRODUCTION Independent agencies occupy a different legal and political space than executive-branch agencies based largely on their relationship to the President. Independent agencies, including New Deal stalwarts such as the Federal Communications Commission ("FCC"), the National Labor Relations Board ("NLRB"), and the Securities and Exchange Commission ("SEC"), are run by collegial bodies whose members serve fixed, staggered terms.1 The President cannot fire the members of these agencies for political reasons, including failure to follow administration policy, but only for "good cause," such as neglect of duty or malfeasance in office.2 This removal restriction, more than any other feature, has served to differentiate independent agencies from executive-branch agencies. By design, independent agencies are insulated from the plenary control of the President. In this Article, we identify mechanisms that make independent agencies increasingly responsive to presidential preferences. We argue that these mechanisms undermine the traditional binary division between independent and executive-branch agencies. Others have noted that the President possesses certain means to influence independent agencies, such as appointment of members, designation of chairpersons, and assistance with budget negotiations.3 The mechanisms that we identify are more surprising and potentially more significant: they facilitate the sort of direct and formal involvement in substantive policy that the President has sought for executive-branch agencies. We do not claim that these mechanisms are identical to those that the President possesses for executive-branch agencies, but they do suggest more complex institutional relationships than the traditional on-off switch between independence and accountability. Even if an independent agency is not under the thumb of the President, it might still feel the hand of the President. …

"Workers of God": The Holy See's Liability for Clerical Sexual Abuse

Abstract: I. INTRODUCTION 1507 II. BACKGROUND 1510 A. Sovereignty of the Holy See and Its Control Over Catholic Affairs 1510 B. The Holy See's Knowledge of Clerical Sexual Abuse 1515 C. The FSIA and the Recent Cases Attacking the Holy See's Immunity 1517 III. IS RESPONDEAT SUPERIOR ACTUALLY SUPERIOR? 1519 A. "Do Not Be Called Master' ": Priests And Bishops as Employees of the Holy See 1520 B. "Render Unto Caesar What Is Caesar's, and to God What Is God's": The Ecclesial Abstention Doctrine in American Courts 1527 C. "Do Not Consider Who a Person Is; Give Ear to the Lowly and to the Great Alike": Unfair and Unpredictable Application of the FSIA 1532 IV. COMMAND RESPONSIBILITY AND LIABILITY 1536 A. Command Responsibility in U.S. Courts 1536 B. Applying Command Responsibility to the Catholic Church 1537 V. CONCLUSION 1540 I. INTRODUCTION In the 1970s, no Boston priest was more electrifying than Paul Richard Shanley. Ordained in 1960, he sought and received from his bishop, Boston cardinal Humberto Medeiros, a mission to minister to "sexual minorities" in 1970 and became a well-known Boston "street priest."1 Wearing jeans and smoking Kool cigarettes, he gathered about him runaway gay teenagers and advocated fiercely for gay rights.2 Yet one of the boys drawn to him was the same one Shanley would be convicted of sexually abusing in 2005. 3 In a civil suit seeking damages from the Archdiocese of Boston for its role in hiding Shanley's abuse, the plaintiffs submitted at least twenty affidavits from Shanley's victims detailing abuse from 1961 to 1988, including accounts of child sexual abuse and oral and anal rape.4 One victim's affidavit states that during the abuse, "Father Shanley would explain to me that he was a 'worker of God' and that the acts of abuse were sanctioned by God."5 God is not amenable to suit in the United States for the acts of His agents, but many victims have sued American bishops and dioceses in the Catholic Church.6 These suits have resulted in over $2 billion in settlements.7 Yet some victims are seeking the even deeper pockets of the Holy See, the ecclesial administrative body of the Catholic Church governed by the pope.8 The Holy See, an internationally recognized sovereign that maintains formal relations with 176 sovereign states and has permanent observer status at the UN General Assembly,9 would normally receive immunity from suit through the Foreign Sovereign Immunities Act ("FSIA").10 However, in two recent cases, O'Bryan v. Holy See11 and Doe v. Holy See,12 the Sixth and Ninth Circuit Courts of Appeals have held that suits against the Holy See may proceed through the tortious act exception of the FSIA.13 The plaintiffs alleged that the Holy See was liable through respondeat superior, a common law theory of vicarious liability holding employers liable for their employees' tortious acts within the scope of their employment.14 Although respondeat superior is an attractive theory of liability to overcome the Holy See's sovereign immunity, it also presents a host of thorny theoretical and practical problems. First, the Holy See's unique status and the unique religious organization it administers present difficult issues when applying traditional agency law. Priests, who are citizens of the nations in which they work and maintain few material ties to the Holy See, seem a far cry from the usual sovereign agents who find themselves in court, such as diplomatic attaches and state-owned banks. …

Evaluating Norms: An Empirical Analysis of the Relationship between Norm-Content, Operator, and Charitable Behavior

Abstract: There are several kinds of norms, and this variety can lead to spirited debate about the best norm to employ for the regulation of a particular activity. Should the norm be mandatory or aspirational? A rule or a standard? One important area in which norm-choice has come to the fore is the American Bar Association's oversight of pro bono work. Currently, the organization utilizes an aspirational norm recommending that lawyers perform at least fifty pro bono hours annually, but there is pressure to adopt some sort of mandatory rubric. Inspired by this debate, we have designed and implemented an experiment that provides some insight into the effective design of norms for charitable giving. Our results challenge the conventional wisdom that the implementation of a mandatory framework will result in an overall increase in giving. These findings may be applicable not only to the pro bono debate but also to general legislative strategy with respect to inducement of charitable behavior. Prior empirical studies that have analyzed the effect of norm characteristics on behavior have typically pitted rules against standards. We placed these two norm-content classes in combination with two kinds of operators: aspirational and mandatory. Thus, we tested four norm combinations, each one representative of norms in important rubrics such as legal systems and codes of ethics. Through this more complex model, our results contribute to the literature on two psychological phenomena, motivation crowding and anchoring, that affect the way people respond to norms. We found that, in the context of inducing charitable behavior, it is more effective to use an aspirational rather than a mandatory operator when the operator is conjoined with moral norm-content. Additionally, we found that the effectiveness of norms that utilize mandatory operators is contingent upon the kind of norm-content that they employ, whether moral or bright-line, and that this is not true with norms utilizing aspirational operators. Lastly, the deficit in effectiveness that arises from using mandatory operators in conjunction with moral norm-content can be overcome by switching to bright-line norm-content, but only if the minimums are set very high. Our results support the view that norms can induce crowding out, leading to less charitable conduct than would have occurred under an aspirational system. They also illustrate a context in which aspirational norms are resistant to anchoring effects. Imagine that you are trying to prevent a child from stealing cookies. Should you tell the child, "It's wrong to steal - good children don't do that!"? Or, "One more cookie and there's no TV for a month!"? Which of these directives or, more broadly, norms, will be best at keeping the kid's fingers out of the jar? It is not an easy question to answer, but the implications of that answer are important. The design of effective norms is a critical task for all legislators, whether the concern is cookie conservation or nuclear proliferation. A legislator must try to determine which norm will bring about the best results. Here, we are most concerned with the question of how to maximize total charitable giving. Our inspiration was the energetic debate concerning the best way to increase pro bono work by American lawyers.1 Those engaging the question largely agree that norms can serve as an effective tool for increasing pro bono work, but there remains disagreement about which type of norm is best. Consequently, we explored the design of effective norms from several complementary angles: historical analysis, conceptual analysis, the analysis of relevant psychological research, and our own empirical testing. By integrating empirical research we hope not only to contribute to the broader literature on designing effective norms, but also to present a case study that will be valuable to those who seek to increase charitable behavior among lawyers. We also hope that our study will serve as a useful basic model for further experimentation by legal scholars. …

The Puzzle of Brandeis, Privacy, and Speech

Abstract: Most courts and scholarship assume that privacy and free speech are always in conflict, even though each of these traditions can be traced back to writings by Louis D. Brandeis-his 1890 Harvard Law Review article The Right to Privacy and his 1927 concurrence in Whitney v. California. How can modern notions of privacy and speech be so fundamentally opposed if Brandeis played a major role in crafting both? And how, if at all, did Brandeis recognize or address these tensions? These questions have been neglected by scholars of First Amendment law, privacy, and Brandeis. In this Article, I argue that the puzzle of Brandeis's views on privacy and speech can be resolved in a surprising and useful way. My basic claim is that Brandeis's mature views on privacy and its relationships to free speech were more complex and interesting than the simplistic tort theory of privacy he expounded in The Right to Privacy. As a young lawyer, Brandeis envisioned privacy as a tort action remedying emotional injury caused by the revelation of embarrassing private facts by the press. But Brandeis's ideas evolved over his life. He soon came to believe strongly in a contrary idea he called "the duty of publicity." This is the notion that disclosure of most kinds of fraud and wrongdoing are in the public interest; that as he famously put it, "sunlight is the best disinfectant." When Brandeis came to think through First Amendment issues after the First World War, tort privacy could no longer consistently fit into his influential theories of civil liberty. But while Brandeis changed his mind about tort privacy, what he replaced it with is even more interesting. In his Olmstead dissent and free speech writings, Brandeis identified a second conception of privacy that I call "intellectual privacy." Brandeis reminds us that the generation of new ideas requires a certain measure of privacy to succeed, and that in this way intellectual privacy and free speech are mutually supportive. I conclude by suggesting some modern implications of Brandeis's ambivalence about tort privacy and his linkage of intellectual privacy with free speech. INTRODUCTION 1295 I. TORT PRIVACY AND PUBLICITY 1300 A. The Right to Privacy and Free Speech 1300 1. Nature of the Injury 1302 2. Nature of the Remedy 1305 B. The Duty of Publicity 1310 II. FREE SPEECH 1317 A. Free Speech Before 1919 1317 B. Brandeis's First Amendment: Self-Governance and Civic Courage 1322 C. Speech and Tort Privacy 1329 III. PRIVACY BEYOND TORT 1335 IV. THE BRANDEIS LEGACY: TORT AND INTELLECTUAL PRIVACY 1343 A. The Limits of Tort Privacy 1343 B. The Promise of Intellectual Privacy 1347 CONCLUSION 1351 INTRODUCTION Two short texts by Louis D. Brandeis are the foundation of American privacy law - his coauthored Harvard Law Review article The Right to Privacy1 and his dissent in Olmstead v. United States.2 In The Right to Privacy, Brandeis and Samuel Warren argued that intrusion into and public disclosure of private affairs by the press was deeply hurtful, and that the common law should be read to recognize a tort remedy for such violations. Their short article is considered by scholars to have established not just the privacy torts but the field of privacy law itself. …

The Consequences of Congress’s Choice of Delegate: Judicial and Agency Interpretations of Title VII

Abstract: INTRODUCTION 364 I. DELEGATIONS FROM CONGRESS 368 A. Why Congress Delegates 368 B. Delegations to Courts 370 II. CURRENT PERSPECTIVES ON THE CHOICE OF DELEGATE 372 A. The Ally Principle 373 B. Blame Shifting 376 C. Expertise 377 D. Stability 378 III. DELEGATION IN ACTION: TITLE VII 380 A. Title VII in Congress 382 B. Title VII in the Supreme Court and the EEOC—Overall Trends 387 IV. WHAT TITLE VII TELLS US ABOUT THE CHOICE OF DELEGATE 392 A. Role Orientation and Interpretive Methodology ...... 393 B. External Influences 404 1. The President 404 2. The Current Congress 418 3. Interest Groups 423 C. The Quality of Administrative and Judicial Decisions: Uniformity and Stability 427 CONCLUSION 433

Common Agency and the Public Corporation

Abstract: Under the standard agency theory applied to corporate governance, active monitoring of manager-agents by empowered shareholder-principals will reduce agency costs created by management shirking and expropriation of private benefits. But while shareholder power may result in reduced managerial expropriation, an analysis of how that power is often exercised in public corporation governance reveals that it can also produce significant costs: influential shareholders may extract private benefits from the corporation, incur and impose lobbying expenses, and pressure corporations to adopt inapt corporate governance structures. These costs strain the simple principal-agent model on which shareholder empowerment is based. This Article offers an alternative model-a common agency theory for public corporations. A common agency is created when multiple principals influence a single agent; in the case of a corporation, common agency describes a shareholder / management relationship in which multiple shareholders with competing preferences exert influence on corporate management. The common agency theory set out in this Article provides several important contributions to the literature on corporate governance and shareholder empowerment. First, the theory provides a more complete explanation of the motivations for and outcomes of shareholder activism, including the activities of governmental owners, large institutional investors, and "social" investors. Second, the theory helps to delineate more clearly the costs and benefits of increasing shareholder power. Finally, building on these findings, the theory suggests possible regulatory changes to ensure that the benefits of shareholder activism outweigh its costs. INTRODUCTION 1356 I. COMMON AGENCY THEORY AND ITS APPLICATION TO PUBLIC CORPORATIONS 1361 A. Evidence of Common Agency in Public Corporations 1365 1. Shareholder Influence in Public Corporations 1365 2. Heterogeneity of Interests Among Public Company Shareholders 1370 a. Heterogeneity in Social Preferences 1372 b. Heterogeneity in Corporate Governance Preferences 1375 c. Heterogeneity in Investor Expectations 1377 II. GOVERNANCE IMPLICATIONS OF COMMON AGENCY 1380 A. Shareholder Activism and Corporate Performance: A Review of the Literature 1381 B. Private Benefits from Shareholder Activism ......... 1385 C. Other Common Agency Costs 1388 1. Lobbying Costs 1388 2. Efficiency Costs 1389 3. Cross-Shareholder Monitoring and Shareholder Bonding Costs 1393 III. REGULATORY IMPLICATIONS OF COMMON AGENCY: PRELIMINARY CONSIDERATIONS 1394 A. Regulating Agency Costs Through Fiduciary Duties 1396 1. Fiduciary Duties Owed by Fund Managers to Investors 1397 2. Shareholder Fiduciary Duties to the Corporation and Other Shareholders ........ 1401 3. Duties Owed by Managers to Shareholders 1405 B. Regulation by Disclosure 1406 CONCLUSION 1415 Introduction Despite some durable economic1 and regulatory2 limitations on shareholder activism, two general trends have supported increased shareholder power and influence within public companies in recent years. …

Transforming the Allocation of Deal Risk Through Reverse Termination Fees

Abstract: INTRODUCTION 1163 I. THE STRUCTURES OF ACQUISITION TRANSACTIONS 1168 A. Strategic Buyers vs. Private Equity Buyers 1169 B. The Traditional Structure of Acquisition Agreements 1170 1. Representations, Covenants, and Closing Conditions 1170 a. Representations and Warranties ..... 1171 b. Covenants 1171 c. Closing Conditions 1172 d. Termination Rights 1173

Statewide Capital Punishment: The Case for Eliminating Counties' Role in the Death Penalty

Abstract: INTRODUCTION 308 I. THE PROBLEMS WITH COUNTY-CONTROLLED CAPITAL CASES 312 A. Differentiating State Arbitrariness from County Arbitrariness 312 B. Wide Disparities in Application of the Death Penalty Within States 314 C. Explaining the Discrepancies between Counties ..... 318 D. A County-Based System Allows the Problem of Inadequate Lawyers and Under-Funded Indigent Defense to Fester 323 E. Poor Judges Fail to Stop Misconduct and Allow Reversible Error to Occur 326 II. DESIGNING A STATEWIDE DEATH PENALTY SYSTEM 328 A. An Anecdotal Example of a Fair Fight: Bringing in Top-Notch Lawyers from Outside the County Line 329 B. Transitioning to a Statewide Capital Punishment System Staffed by Elite Prosecutors, Defense Lawyers, and Judges 331 1. Selecting the Best Prosecutors by Relying on Quantitative and Qualitative Information 331 2. Selecting the Best Defense Attorneys 335 3. Selecting a Pool of Exceptional Judges ........ 337 4. Adopting a Committee Approach to Capital Charging 338

Big Tobacco, Medicaid-Covered Smokers, and the Substance of the Master Settlement Agreement

Abstract: [W]e will not sacrifice substance to form. - William BIackstone' I. INTRODUCTION In 1994, executives from "Big Tobacco" - industry leaders Philip Morris, R.J. Reynolds, Brown and Williamson Tobacco, and Lorillard2 - appeared before Congress and denied that nicotine is addictive despite internal documents disclosing a long history of industry-wide awareness about the addictive nature of the drug.3 One executive even denied that smoking causes death despite the wellestablished scientific consensus to the contrary.4 Worse still, tobacco companies had consciously targeted children as young as fourteen-years-old in their advertising schemes. In an internal R.J. Reynolds memorandum to Vice President of Marketing CA. Tucker, J. F. Hind wrote: "To ensure increased and longer-term growth for CAMEL FILTER, the brand must increase its share penetration among the 14-24 age group which have a new set of more liberal values and which represent tomorrow's cigarette business."5 The popular cartoon character "Joe Camel" was born soon thereafter. Philip Morris shared the same marketing strategy; in an internal research report, a research executive for Philip Morris wrote that "[t]oday's teenager is tomorrow's potential regular customer."6 The misdeeds of Big Tobacco have been reported extensively by the media in an understandably negative light.7 The label "merchants of death" has been etched into popular culture as a particularly appropriate appellation for not only Big Tobacco executives, but also lobbyists who assist the industry.8 This characterization contrasts starkly with descriptions of those who challenge the tobacco industry, who are often presented as heroes, lionized by both the media and legal scholars as David-types battling the great Goliath.9 The most important legal challenge to Big Tobacco came from Michael Moore, a lawyer who decided to "make a difference."10 As attorney general of Mississippi, Moore was selected as the "Lawyer of the Year" and graced the cover of the National Law Journal in 1997. n Underneath a caricature of Moore, the caption on the cover read, "Mississippi Attorney General Michael C. Moore took on Big Tobacco and came out smokin.' "12 Moore, described as "[a]mbitious and charismatic," was praised by the National Law Journal for his political and personal courage; "Moore Did Good Like an Attorney General Should," read the secondary headline.13 What did Moore do to deserve such lavish praise? In 1994, Mississippi, with Moore at the helm, was the first state to bring a Medicaid-recoupment suit against Big Tobacco.14 Established in 1965 as Title XIX of the Social Security Act ("the Act"), Medicaid is a joint federal-state program that provides medical assistance to needy families.15 Today, all fifty states and the District of Columbia have Medicaid programs.16 Mississippi's suit sought reimbursement from Big Tobacco for the costs of treating tobaccorelated disease through its Medicaid program. "It is only fair," Moore said, "for the industry that primarily caused the damage to pay for it."17 And Big Tobacco paid mightily: the industry settled the Mississippi suit for $3.6 billion.18 Other states, using the Mississippi complaint as a model, soon filed their own lawsuits. Big Tobacco settled individually with three other states, and in 1998 the companies and the remaining forty-six states, the District of Columbia, and five U.S. territories executed the Master Settlement Agreement ("MSA"), settling the rest of their claims.19 The reported value of the settlement for the first twenty-five years is $206 billion, although the tobacco companies must continue to make annual payments of $9 billion a year into perpetuity even after the initial $206 billion.20 Moore's work thus led to a truly "landmark outcome": an industry that had been virtually untouched throughout almost fifty years of litigation agreed to pay amounts that make even the largest tort-liability judgments seem trivial. …

Admitting Guild by Professing Innocence: When Sentence Enhancements Bases on "Alford" Pleas Are Unconstitutional

Abstract: I. INTRODUCTION A few days before Christmas in 1994, in Vineland, New Jersey, Charles Apprendi, Jr. was drunk.1 At 2:04 a.m., he fired several shots from a .22 caliber gun into the home of an African-American family in his neighborhood.2 By 3:05 a.m., he had been arrested and had admitted that he was the shooter.3 Apprendi was interrogated for several hours after these events.4 At 6:04 a.m., he apparently stated that he committed the crime because the victims were black, but he later retracted this statement.5 Apprendi was indicted on twenty-three counts in connection with the shooting, and eventually pleaded guilty to three of them: two counts of second-degree possession of a firearm for an unlawful purpose, and one count of third-degree unlawful possession of an antipersonnel bomb.6 None of the twenty-three counts included any reference to New Jersey's hate crime statute, which allowed between ten and twenty years to be added onto any sentence for a crime that was racially motivated. Nor did any of the twenty-three counts even allege that Apprendi acted with a "racially biased purpose."7 The maximum possible sentence for a single second-degree firearm possession conviction was ten years. Apprendi, however, was sentenced to twelve years on a single second-degree count.8 The judge found it more likely than not that Apprendi had committed the shooting because of racial bias against the victims, and imposed a two-year enhancement under New Jersey's hate crime statute.9 The Supreme Court held that Apprendi's hate crime enhancement was unconstitutional because it was based on a finding made by a judge on a preponderance of the evidence instead of by a jury beyond a reasonable doubt. Noting that the judge's application of the sentence enhancement was "significant because it increased - indeed it doubled - the maximum range within which the judge could exercise his discretion," the Court focused on the process by which the enhancement was applied.10 It ruled that "[m]erely using the label 'sentence enhancement' to describe [the hate crime statute] surely does not provide a principled basis" for treating it any differently from the possession statute under which Apprendi was convicted.11 In other words, regardless of whether a defendant is sentenced to jail time because of a sentence enhancement statute or a criminal statute, the process is the same: both require a finding of fact beyond a reasonable doubt. Because the hate crime statute at issue authorized an enhanced sentence if a judge found on a mere preponderance of the evidence that a crime was "racially motivated," it effectively authorized judges to bypass this constitutionally mandated process. The Supreme Court, therefore, vacated Apprendi's sentence and declared the particular hate crime enhancement at issue invalid. Although Apprendi was convicted by entering a regular guilty plea, defendants in most states and in the federal system have the option of entering an Alford plea, which is a means of pleading guilty without admitting factual guilt.12 Alford pleas allow equivocating defendants to take a deal without having to admit guilt. They also allow defendants for whom a guilty plea is simply the best deal to take it, with no further questions asked. When it comes to sentencing, however, Alford pleas can create constitutional tension. In Apprendi v. New Jersey and Blakely v. Washington, the Supreme Court held that the Sixth Amendment requires that any fact that increases a defendant's maximum sentence, other than a prior conviction, must be proven to a jury beyond a reasonable doubt.13 As Justice Scalia wrote in Blakely, the Sixth Amendment's jury trial right "is no mere procedural formality, but a fundamental reservation of power in our constitutional structure."14 Although the jury typically has the duty of making the "beyond a reasonable doubt" determination, defendants can also establish this level of proof by admitting the crime. …

Merging in the Shadow of the Law: The Case for Consistent Judicial Efficiency Analysis

Abstract: This Article examines current judicial interpretation of Section 7 of the Clayton Act through the lens of negotiation theory. The research exposes a gap between how courts state they are analyzing efficiency claims in Section 7 Clayton Act enforcement actions and what they are actually doing. During periods of lax antitrust enforcement, this pattern is not readily visible, since almost all proposed merger and acquisition ("MA the vast majority of proposed deals proceed without intervention. With the changing economic3 and political4 climate, however, antitrust policy is likely to shift towards more aggressive enforcement, including increased scrutiny of mergers and acquisitions.5 This impending enforcement shift, combined with the failure of courts to appropriately balance efficiencies in Section 7 cases, threatens to worsen the competitiveness of U.S. corporations and markets. Inconsistent judicial treatment of efficiencies either blocks or discourages M&A deals that could have contributed to increased competitiveness. This Article argues that if courts do not consistently balance pro-competitive efficiencies against the other anticompetitive effects of proposed M&A deals, corporations facing stricter antitrust regimes will abandon important deals that could have contributed to the competitiveness of the U.S. economy. Part I reviews how courts currently treat efficiency claims. It highlights some key differences between how courts say they are weighing efficiency claims and what an analysis of the case law reveals they are actually doing. …

How to Kill the Scapegoat: Addressing Offshore Tax Evasion with a Special View to Switzerland

Abstract: I. INTRODUCTION It began with headlines of nearly $20 billion in hidden assets, 52,000 secret bank accounts, confidential informants, court proceedings, and a $780 million fine.1 The Union Bank of Switzerland ("UBS") controversy, with all its dramatic appeal, attracted international attention and brought taxation issues to the forefront of public debate. As the scope of tax evasion activities involving UBS began to unfold, U.S. authorities on numerous fronts mobilized against international tax haven abuse - a problem much broader in scope than the scandal at hand. In order to attract foreign capital to their respective markets, many countries have enacted favorable tax laws with regard to foreign investors.2 AU too happy to receive lower tax rates, or organically higher returns, taxpayers increasingly turn to markets outside their home countries.3 At the same time, home countries often lack the tools and resources to keep up with their residents' offshore activities, thereby opening the door to tax evasion.4 In the end, international competition for foreign investments, coupled with capital mobility, enables convenient tax-free investment5 and leaves home countries in the dark and unable to collect their taxes.6 Not surprisingly, wealthy Americans have exploited loopholes to take advantage of this phenomenon. While U.S. authorities struggle to enforce domestic tax laws beyond their borders,7 U.S. taxpayers stand to benefit, albeit illegally: they invest offshore, omit the income produced from their tax returns, and employ a web of differing national legal regimes to avoid detection.8 An estimated $100 billion of tax revenue evade the reach of U.S. authorities every year through the use of offshore tax havens.9 In response, the Obama Administration has pledged to address the foreign tax shelter problem, which continues to burn holes in the U.S. Treasury.10 In order to plug these holes, U.S. officials must focus their energies on creating a bilateral tax withholding system - the only feasible solution that promises relief in the near future. This Note addresses the issues of, and solutions to, offshore tax evasion with a focus on Switzerland. As Part ILA illustrates, Switzerland is uniquely positioned among tax haven countries, making it an ideal paradigm for discussion. Swiss laws and tradition regarding banking secrecy make it an appealing tool for U.S. tax evaders. Part ILB outlines recent conflicts between U.S. authorities and one of Switzerland's largest banks that have brought offshore tax evasion to front pages of newspapers and the floor of Congress.11 Upon exposure of a massive evasion scheme, U.S. authorities brought charges against Swiss and U.S. bankers and attorneys, as well as a Swiss bank. Out of these indictments grew several settlements and a tax amnesty program unprecedented in scale. But while much progress has been made, the problem of offshore tax evasion persists. As discussed in Part II. C, a more systemic approach is needed to effectively enforce U.S. tax laws abroad. Part III analyzes the current legal structure governing tax issues between Switzerland and the United States. Part ILLA examines two tax treaties between the countries, the 1996 Convention and the 2003 Agreement, and discusses the tools they provide to U.S. tax authorities. Part III. B points out what is implicit in Part II - that current treaties are inadequate to protect the Treasury against Americans hiding money in Swiss bank accounts. It exposes the remaining holes in the current treaty structure through which tax dollars are drained from the Treasury. Part IV explores the merits of various responses to the offshore evasion problem. Part IVA explains why comprehensive multilateral tax treaties, the nirvana for tax authorities, are unrealistic, unattainable, and a waste of time and resources. Part IV. B examines a 2009 Treaty Protocol, not yet ratified as of this Note's publication, that may bring more uncertainty than relief to the offshore tax evasion dilemma. …

Assisted Suicide, Morality, and Law: Why Prohibiting Assisted Suicide Violates the Establishment Clause

Abstract: This Article argues that general prohibitions against assisted suicide violate the Establishment Clause because they support a particular and religiously based moral position. Many laws overlap with religious proscriptions, of course. The conclusion that laws against assisted suicide are unconstitutional because of their religious origin is based on the specific historical context of these laws within our existing culture. Over the course of Western civilization, attitudes about suicide have oscillated from positive approbation in many Greek and Roman sources, to outright and unalterable opposition by Christian writers, to acceptance and limited approval by contemporary secular thinkers and health practitioners. At present, traditional, Christian-based morality and an emerging secular morality centered on the value of self-fulfillment are in conflict within our society, a conflict that probably reflects a slow historical transition from the first to the second. The intense debate about the morality of assisted suicide is one aspect of this conflict. Blanket prohibitions of assisted suicide support one side of this debate, a side that happens to be allied with the Christian religion. Consequently, these laws violate the Establishment Clause. For the past several decades, American policymakers and judges have been grappling with the closely related issues of assisted suicide and euthanasia. These issues gain drama from the permanence of death and terror that accompanies it. They gain poignancy from the fact that unlike capital punishment - another purposeful termination of life - the laws governing assisted suicide and euthanasia potentially affect us all as we head toward the decrepitude that frequently accompanies our final years. Emotion runs high on these subjects, making them unusually difficult to resolve, and the complex imbrications of ethical, metaphysical, and jurisprudential theories that address them seem to add complexity without providing clarity. The injection of these subjects into the congressional debate over the seemingly separate topic of health care reform is only the latest indication of the controversy and confusion that accompanies them.1 This Article is directed to the question of assisted suicide, and specifically to the constitutionality of laws prohibiting that practice. The Supreme Court has addressed the issue several times over the past few decades. In Cruzan v. Director, Missouri Department of Health,2 the Court held that the Due Process Clause provides people with a constitutional right to refuse life-saving medical treatment. But soon thereafter, in Washington v. Glucksberg and Vacco v. Quill, the Court held that neither the Due Process Clause nor the Equal Protection Clause prohibits states from making it a crime to assist a person in committing suicide.3 Most recently, in Gonzales v. Oregon, the Court invalidated a Bush Administration effort to preempt the state of Oregon's Death with Dignity Act, which authorizes physicians to provide lethal drugs to an adult suffering from an incurable disease.4 The Gonzales decision, quite properly, does not address the constitutional issues, since the question that was raised involved the statutory authority of the Attorney General to preempt state law.5 But the majority opinion and the two dissents are clearly written with the awareness that these issues lie just below the legal surface of the case. Thus Gonzales, when viewed in conjunction with the controversy surrounding Terri Schiavo's death,6 the prosecution of Dr. Jack Kevorkian,7 a second state's legalization of assisted suicide by voter initiative,8 and the current health care debate, indicates that the question of assisted suicide is likely to occupy a central place in public discourse for some time.9 The most commonly stated legal rationale for arguing that the Constitution protects people's ability to obtain assistance in ending their lives is the so-called right to die, which is grounded on either substantive due process or the right of privacy, that is, the penumbra of the first eight amendments. …

Taking Great Cases: Lessons from the Rosenberg Case

Abstract: The most watched case of the 1952 Supreme Court Term was not Brown v. Board of Education, but the case of convicted atomic spies Julius and Ethel Rosenberg. Brown and Rosenberg demonstrate the Court's different approaches toward taking "great cases." The Brown Court is often criticized for having done too much; the Rosenberg Court is criticized for not having done enough. Rosenberg divided the country and divided the Court, which repeatedly refused to take the case. Instead, Justice Douglas granted a last-minute stay of execution about whether the Rosenbergs had been tried under the wrong federal statute. The Court quickly vacated the stay, and the Rosenbergs were executed the next day. Rosenberg was a Bush v. Gore moment that alienated people who held the Court in high institutional regard. Based on newly discovered documents and interviews with key participants, this Article explains why the Court refused to grant certiorari in one of the most famous spy cases in American history. It reorients legal scholarship about the case away from Douglas's stay and toward contemporaneous allegations of prosecutorial misconduct and perjury. And it argues that just because some great cases might make bad law does not mean the Court should refuse to take them. It explains the theory of taking great cases, applies it to Rosenberg and Bush v. Gore, and contends that, especially in cases about separation of powers and minority rights, the Court should err on the side of granting certiorari in cases of great public interest. I. INTRODUCTION The most watched case of the 1952 Supreme Court Term was not Brown v. Board of Education, but the case of convicted atomic spies Julius and Ethel Rosenberg. Sentenced to death in April 1951 for passing atomic secrets to the Soviets, the Rosenbergs dominated the news and divided the country. Their case came at the height of Cold War America's obsession with Communism. Senator Joe McCarthy and the House Un-American Activities Committee were exposing alleged Communists in the federal government and Hollywood, and the U.S. military was fighting the Korean War to try to stop the spread of Communism abroad. The thought that domestic spies had helped the Soviets manufacture an atomic bomb tapped into people's worst fears. More than 70 percent of Americans wanted the Rosenbergs to pay for their crimes with their lives,1 but a vocal minority had serious questions about their guilt or innocence, the fairness of their trial, and/or the harshness of their death sentences.2 The case was so controversial that outgoing President Harry Truman passed off the couple's clemency petition to his successor, Dwight Eisenhower. The Rosenbergs' executions sparked contentious rallies in major U.S. cities and violent protests abroad.3 Brown and Rosenberg demonstrate the Court's different approaches toward taking "great cases," of which Holmes declared, "like hard cases, make bad law."4 The Brown Court is often criticized for having done too much; the Rosenberg Court is criticized for not having done enough. In Brown, the Court heard multiple terms of oral argument and achieved one of its greatest institutional triumphs - declaring that Plessy v. Ferguson's racially "separate-but-equal" doctrine "has no place" in public education.5 To some, Brown exposed the Court's limitations as an engine for social change by trying and failing to desegregate the nation's public schools.6 To others, the Brown Court did not go far enough by not explicitly overruling Plessy, not articulating a clear constitutional principle, undermining any chance of enforcement with Brown IFs "all deliberate speed"7 language, and avoiding related hot-button racial issues.8 Either way, Brown made an important contribution to the constitutional canon.9 In Rosenberg, the Court's repeated certiorari denials and lastminute oral argument resulted in one of its biggest institutional failures. Because of the climate of anti-Communism, weak leadership, and interpersonal conflict, the Court refused to hear the Rosenbergs' claims that they had not received a fair trial. …

Shotgun Weddings: Director and Officer Fiduciary Duties in Government-Controlled and Partially-Nationalized Corporations

Abstract: I. THE SHOTGUN WEDDING OF BANK OF AMERICA AND MERRILL LYNCH 1422 A. Courtship or Arranged Marriage? 1422 B. Cold Feet 1425 C. I Do . . . I Guess 1429 II. THE ORDER OF SERVICE 1431 III. SETTING THE STAGE: THE FEDERAL GOVERNMENT BECOMES AN INVESTOR 1434 A. So What Does $45 Billion Buy You These Days? The Troubled Asset Relief Program and the Government's Equity Investments 1434 B. Director Fiduciary Duties: The Lynchpin of Corporate Law 1440 IV. WHEN DOES INFLUENCE BECOME CONTROL? 1445 A. What Makes a Controlling Shareholder a Controlling Shareholder? 1445 B. The Government as Shareholder 1447 C. Picking Up Where Verret Left Off 1448 1. Is the Government the Controlling Shareholder of BOA? 1449 2. The Importance of the Source of the Treasury's Control Over BOA 1453 D. Covering Familiar Territory: The Duties of Bank of America's Directors Under Existing Law 1454 1. Duty of Care 1455 2. Duty of Loyalty 1456 V. SOLUTION: SHAKING HANDS WITH THE ELEPHANT IN THE ROOM 1459 A. Fiduciary Duties 2.0 1460 1. Inquiry 1: The Continuum of Corporate Control 1460 2. Inquiry 2: Fiduciaries Operating in the Context of Inquiry 1 1462 3. Applying the Proposed Analysis to the Actions of the BOA Board 1462 B. Addressing Criticisms 1464 VI. CONCLUSION 1466 Shotgun Wedding: An agreement or compromise made through necessity, as in "Since neither side won a majority, the coalition government was obviously a shotgun wedding." The expression alludes to a marriage precipitated by a woman's pregnancy, causing her father to point a literal or figurative gun at the responsible man's head. - THE AMERICAN HERITAGE DICTIONARY OF IDIOMS1 Corporate law considers the affairs of a corporation to be private activity.2 The prevailing concept of the firm is a nexus of private contract rights among participants in an economic enterprise.3 But for many U.S. auto and financial services corporations, the events of the fall of 2008 and the winter of 2009 turned this presumption on its head. The U.S. government's $700 billion bailout injected an alien actor - the United States Treasury - into this once-private enterprise. The bailout enabled the Treasury to take a direct equity stake in many of the nation's struggling auto and financial services corporations.4 In the fall of 2008, for example, the Treasury purchased $300 billion of stock in over 600 banks.5 A few months later, it invested $100 billion in American automakers.6 Everyone from GM and Citigroup to your local First State Bank is now owned, at least in part, by the federal government.7 For many of these companies, the government is a powerful shareholder due to the size of its equity stake. But the government also has a power that no other shareholder has: it regulates the companies it owns.8 After the bailout, corporate scholars immediately began to debate the impact the presence of this regulator- shareholder would have on corporate law. …

Arbitration Clauses in CEO Employment Contracts: An Empirical and Theoretical Analysis

Abstract: A bill currently pending in Congress would render unenforceable mandatory arbitration clauses in all employment contracts. Some perceive these provisions as employer efforts to deprive employees of important legal rights. Company CEOs are firm employees, and, unlike most other firm employees, they can actually negotiate their employment contracts, very often with attorney assistance. Moreover, many CEO employment contracts are publicly available, so they can be examined empirically. In this paper, we ask whether CEOs bargain to include binding arbitration provisions in their employment contracts. After exploring the theoretical arguments for and against including such provisions in these agreements, we use a large sample of CEO employment contracts to test the several different hypotheses for including such provisions. We find that only about one half of CEO employment contracts in our sample include such provisions. What factors might determine whether CEOs agree to arbitrate their employment disputes with their companies? We find that CEOs that receive a higher percentage of long-term incentive pay as a fraction of their total pay, that work in industry sectors that are undergoing greater amounts of change, and that have lower long-term profitability are statistically significantly more likely to have arbitration provisions in their employment contracts. The importance of contextual factors for arbitration clauses in CEO contracts indicates that regulation of arbitration clauses in employment contracts should be more nuanced than that found in pending legislation. INTRODUCTION Both executive compensation1 and the use of arbitration provisions in employment contracts2 are hot topics in legal scholarship today. The executive compensation debate revolves around the fight between shareholders and CEOs over how to divide up the firm's profits. Critics of the current regime argue that American CEOs are overpaid because they can dictate the terms of their employment to boards of directors,3 while defenders of the system see only a few bad apples in the barrel.4 In the employment setting, another argument rages over the relative power of employees versus employers to select the forum where they decide their disputes.5 This issue is currently one of the major concerns in the area of arbitration, where scholars have debated whether employment agreements are contracts of adhesion that include arbitration provisions in order to take away important substantive and procedural rights from employees.6 As employees, CEOs actively negotiate their employment contracts, often with the assistance of attorneys. The CEO of the corporation therefore is an important player in both of these disputes: on the one hand, she has an important interest as an employee in how she and the company resolve any potential arguments; on the other hand, wearing her hat as the CEO, she bargains with the board of directors of her firm to try to get what she wants in her own employment arrangements. CEO employment contract provisions thus shed light not only on disputes between employees and employers, but also on the relationship between boards of directors and corporate executives. In this Article, we seek to explore both relationships by focusing on the presence of arbitration provisions in employment contracts. Critics of such provisions claim that companies prefer arbitration and therefore use contracts of adhesion to force employees to give up their rights to litigate job-related disputes. The strong version of the contracts-of-adhesion theory predicts that arbitration provisions will appear in all employment contracts because arbitration is always a better forum for the company. A weaker claim is that while arbitration is preferable in some circumstances, and litigation in others, many employees lack the bargaining power to seek the right to litigate when it is the optimal choice. The arbitration provisions of CEO employment contracts enable us to look at cases in which employees with bargaining power negotiate meaningfully over where to resolve their disputes. …

Trimming the "Judicial Oak": Rule 10b5-2(b)(1), Confidentiality Agreements, and the Proper Scope of Insider Trading Liability

Abstract: I. INTRODUCTION 1470 II. THE MISAPPROPRIATION THEORY: ORIGINS AND DESTINATION 1472 A. Rule 10b-5 and Its Limitations 1472 B. The Development of the Classical Insider Trading Doctrine 1475 C. Expansion of Insider Trading: Acceptance of the Misappropriation Theory 1478 D. Rule 10b5-2(b)(l) and Confidentiality Agreements 1483 III. DIFFERING VIEWS OF A "SIMILAR RELATIONSHIP OF TRUST AND CONFIDENCE" AND THE VALIDITY OF RULE 10b5-2(b)(l) 1487 A. Where the Courts Stand on the Issue 1487 1. Cases Supporting a Broad View of the Duty Requirement 1487 2. Cases Supporting a Narrow View of the Duty Requirement 1490 B. Failings of the Broad View: Analysis of Confidentiality Agreements and Rule 10b5-2(b)(l) 1493 IV. FILLING THE VOID CREATED AFTER ABANDONING RULE 10b5-2(b)(l) 1499 A. Solution: Insider Trading Liability Should be Based on Fiduciary Duties and Agreements to Refrain from Self-Dealing 1499 B. Liability Should Not be Limited to Those with Fiduciary Duties 1504 V. CONCLUSION 1506 I. INTRODUCTION In recent years the Securities and Exchange Commission, commonly known as the SEC, has been involved in a number of highprofile suits that have attracted a good deal of media attention. Among those prosecuted by the Commission are hedge fund billionaire and Galleon Group founder Raj Rajaratnam,1 investment/Ponzi - scheme guru Bernie Madoff,2 television host and magazine publisher Martha Stewart,3 and colorful Dallas Mavericks owner Mark Cuban.4 Although such notable suits may simply be the SECs attempt to justify its own existence and role in the market it polices in light of the financial disasters of the past decade, these cases do raise some significant questions regarding the amount of power delegated to the Commission by Congress.5 Specifically, what exactly is the scope of the SECs authority, and is there any limit on its ability to prosecute some of the most powerful and prominent people in the country? While the SEC seems to be engaged in some muscle-flexing with regard to whom it chooses to prosecute, the Commission has also attempted to broaden the scope of its statutory power, especially with regard to the doctrine of insider trading.6 Rule 10b-5 - the provision utilized to prosecute inside traders - has experienced expansive growth since its creation, developing from a mere statutory catchall provision in the securities laws to one of the SECs chief weapons in combating insider trading and other fraudulent actions in the securities markets.7 In fact, the liberal expansion of Rule 10b-5 from its humble beginnings has been so vast that it led Chief Justice Rehnquist to remark that the Rule is "a judicial oak which has grown from little more than a legislative acorn."8 Despite the significant growth that Rule 10b- 5 has undergone since its enactment, the Supreme Court has always carefully limited the Rule to its statutory roots of prohibiting deceptive and manipulative conduct in the securities markets.9 Traditionally, to be liable for insider trading, the trader had to owe a fiduciary duty to the counterparty to the trade, or have a similar relationship of trust and confidence with him. …

Facilitating Wage Theft: How Courts Use Procedural Rules to Undermine Substantive Rights of Low-Wage Workers

Abstract: In race and sex discrimination class actions, if a defendant employer makes a Rule 68 offer of judgment to the named plaintiffs, courts routinely refuse to dismiss the class claims. In stark contrast, in collective actions for failure to pay lawful wages, if a defendant employer makes a Rule 68 offer of judgment, courts will often dismiss the entire collective action as having been mooted by the named plaintiffs' recovery. The outcome of such a dichotomy is that low-wage workers are increasingly unable to challenge unlawful wage violations successfully because the aggregation mechanism is too easily defeated. Without an ability to group wage and hour claims in an aggregate action, multitudes of wage violations will go unheard because individual wage claims do not attract the attention of plaintiffs' attorneys. This failure to protect an underprivileged group of low-wage workers-workers the laws explicitly try to protect-is striking, and it effectively subverts the statutory protections in place since the 1930s to combat wage theft by employers. By most accounts, the civil rights movement of the 1960s was successful in addressing discriminatory practices through not only substantive statutory rights, but also through procedural mechanisms by which those rights could be vindicated easily and appropriately via access to the courts. In contrast, the right of low-wage workers to receive what they lawfully earn has a longstanding statutory remedy but an antiquated procedural mechanism. That procedural mechanism diminishes their ability to fully vindicate their rights. Furthermore, it is also now being cited as the structural difference that allows another procedural rule, Rule 68, to deny standing in federal court at the outset. This Article examines this rising phenomenon by first outlining the pressing societal need for collective litigation to ensure that adequate and available legal remedies remain for underrepresented groups such as low-wage workers. It also compares the procedural mechanisms for bringing aggregate litigation-Rule 23 class actions and § 216(b) collective actions-and examines how Rule 68 has both intended and unintended consequences when used by defendants to battle collective actions. Lastly, the Article identifies how federal courts have treated Rule 68 offers of judgment inconsistently in the class action context compared to the § 216(b) collective action context. INTRODUCTION If the rising number of lawsuits against major corporate employers is any indication, the United States is suffering a crisis of wage theft against its workers. Claims by workers that they are not being paid lawfully have quadrupled over the last ten years - increasing by 73 percent from 2006 to 2007 alone1 - without any corresponding increase in protections in the wage and hour laws. What has changed? Perhaps employers with dwindling revenues are taking the bite out of the backs of their workers. Or perhaps plaintiffs' attorneys are becoming increasingly savvy at bringing these suits successfully. Either way, management attorneys are becoming correspondingly creative in finding ways to block them - including use of a tactic that this Article identifies as troubling. Federal Rule of Civil Procedure 68 ("Rule 68") offers of judgment are being used with increased frequency by employers attempting to avoid liability for wage theft in cases involving numerous plaintiffs. When defendants make offers of judgment that equal or exceed the named plaintiffs' maximum recovery in collective actions brought under the opt-in provision of 29 U.S.C. § 216(b) (for violations of the wage rights provisions of the Fair Labor Standards Act ("FLSA")),2 courts frequently rule the collective claims moot and dismiss the collective suit. By making early offers of judgment in collective actions,3 employers seek to "pick off' named plaintiffs and thereby avoid compensating all of the workers to whom they have failed to pay correct wages. …