Showing papers in "Vanderbilt Law Review in 2014"

Designing Administrative Law for Adaptive Management

Abstract: Administrative law needs to adapt to adaptive management. Adaptive management is a structured decisionmaking method, the core of which is a multistep, iterative process for adjusting management measures to changing circumstances or new information about the effectiveness of prior measures or the system being managed. It has been identified as a necessary or best- practices component of regulation in a broad range of fields, including drug and medical-device warnings, financial system regulation, social welfare programs, and natural resources management. Nevertheless, many of the agency decisions advancing these policies remain subject to the requirements of either the federal Administrative Procedure Act or the states' parallel statutes. Adaptive management theorists have identified several features of such administrative law requirements-especially public participation, judicial review, and finality-as posing barriers to true adaptive management, but they have put forward no proposals for reform.This Article represents the first effort in adaptive management theory to go beyond complaining about the handcuffs administrative law puts on adaptive management and to suggest a solution. The Article begins by explaining the theory and limits of adaptive management to emphasize that it is not appropriate for all, or even most, agency decisionmaking. For appropriate applications, however, we argue that conventional administrative law has unnecessarily shackled effective use of adaptive management. We show that through a specialized "adaptive management track" of administrative procedures, the core values of administrative law can be implemented in ways that much better allow for adaptive management. Going further, we propose and explain draft model legislation that would create such a track for the specific types of agency decisionmaking that could benefit from adaptive management.The administrative style that has characterized American public law from the New Deal to the 1980s has been out of favor in recent years.-Charles Sabel and William Simon1I. INTRODUCTIONIn the never-ending project to build a better regulatory state mousetrap, two of the most seductive reinvention models to emerge over the past few decades have been market-based regulation2 and adaptive management.3 Representative of two broad and opposing thrusts of regulatory reform, one advocating "minimalism"4 and the other "experimentalism,"5 market-based regulation and adaptive management originate from the same premise but move in starkly different directions. This Article examines the path that adaptive management has taken and proposes how to steer it out of a dead end by changing the inner workings of administrative law.The starting point for both regulatory reform models is the depiction of administrative agencies as having become boxed into a decisionmaking process that depends heavily on a culture of comprehensive rational planning and prescriptive regulation.6 The dominant decisionmaking method used to implement this regime relies heavily on two related attributes: (1) the use of "front-end" analytical tools comprehensively conducted and concluded prior to finalizing the decision, and (2) the assumption of a robust capacity to predict and assess the market and nonmarket impacts of any proposed action.7 However, this approach constrains agency flexibility by demanding hyperdetailed predecisional impact assessments, intense public participation during the decisionmaking process, and postdecision hard look judicial review.8 The combined effect of this procedural gauntlet, codified in large part through the federal Administrative Procedure Act ("APA")9 and its state counterparts, has been to channel self-preserving agencies into cramming all that could possibly be thought or dreamed about actions they carry out, fund, or authorize into single-shot, all-encompassing decision extravaganzas. Especially in rulemaking, this impetus toward up-front comprehensiveness strongly encourages agencies to steamroll their decisions through public-comment scrutiny and judicial review litigation and then never look back. …

Uncovering the Silent Victims of the American Medical Liability System

Abstract: A frequently overlooked problem with the current medical liability system is the vast number of medical errors that go uncompensated. Although studies indicate that 1% of hospital patients are victims of medical negligence, fewer than 2% of these injured patients file claims. In this Article, I explain that many victims of medical malpractice do not file claims because they are unable to find attorneys willing to take their cases.I conducted the first national survey of attorneys to explore medical malpractice victims' access to the civil justice system. The results from the survey indicate that the economic reality of litigation forces many contingent fee attorneys to reject legitimate cases. In fact, over 75% of the attorneys in my survey indicate that they reject more than 90% of the cases that they screen. The attorneys explain that insufficient damages and high litigation expenses are their primary reasons for rejecting cases and that several tort reforms have reduced their willingness to accept cases. Moreover, the majority of the attorneys report that they have threshold damage values below which they will not even consider accepting a case. Indeed, over half of the attorneys responded that they will not accept a case unless expected damages are at least $250,000-even for a case they are almost certain to win on the merits. For a case in which winning is less certain, most attorneys require minimum expected damages of $500,000 to accept the case. Because of the high cost of medical malpractice litigation, contingent fee attorneys simply cannot economically justify taking cases with damages below these thresholds.To understand the extent of this access-to-justice problem, I use private-industry claims data to show that 95% of medical malpractice victims will find it extremely difficult to find legal representation unless their damages are significantly larger than the typical damages for their types of injuries. Thus, the medical liability system silences many legitimate victims of medical malpractice.I. INTRODUCTIONThe public narrative of the American medical liability system suggests a system in crisis: frivolous lawsuits deter doctors from performing valuable procedures, the threat of liability deters doctors from practicing in certain regions, and pervasive defensive medicine amplifies the overall cost of the healthcare system.1 However, a routinely ignored detail is the large number of silent victims in the system-victims of medical negligence who never receive compensation for their injuries. According to the National Academy of Science's Institute of Medicine, medical errors are the leading cause of accidental death in the United States, taking the lives of "[a]t least 44,000 people, and perhaps as many as 98,000 people" each year.2 Studies on the number of injuries from medical negligence indicate that 1% of all hospital patients suffer adverse events due to medical error.3 Yet despite this high rate of medical negligence, fewer than 2% of the injured patients file claims.4In this Article, I explain that many legitimate victims of medical malpractice do not file claims because they are unable to find attorneys willing to take their cases. Exorbitant litigation expenses and recovery-limiting reforms have made contingent fee lawyers increasingly unwilling, and unable, to accept many legitimate medical malpractice claims.5 These attorneys simply cannot economically justify taking the cases because their expected recoveries will not offset the likely costs of litigating the claims. As a result, many legitimate victims of medical malpractice-victims who suffer real harm as a result of true medical negligence-are leftwith no legal representation and no way to seek redress in the civil justice system.I conducted the first national survey of medical malpractice attorneys that explores the problem of silent victims in the medical liability system. The results from the survey indicate that the economic reality of litigation forces many attorneys to reject legitimate cases. …

The Language of Mens Rea

Abstract: This Article empirically tests two key questions. First: How sensitive are jurors to variations in the language that delineates the criminal mental state * 8 categories? Second: To what extent do jurors assign culpability in the manner assumed by the Model Penal Code (MPC)?In prior work, we challenged numerous assumptions underlying the MPC mental state architecture, which divides guilty minds into four kinds: purposeful, knowing, reckless, and negligent. Our experiments showed that subjects had profound difficulty categorizing some of the mental states, particularly recklessness, in the context of scenarios in which hypothetical actors caused harmful results. And, when asked to punish hypothetical actors, subjects punished knowing behavior and reckless behavior indistinguishably.Here, we extend our prior work in two main ways. First, we show that a person's ability to apply the MPC mental states is susceptible to subtle variations in the language that defines and communicates them. For instance, we demonstrate that using slightly different wording can significantly improve participants' ability to accurately identify the mental state of recklessness (notwithstanding that reckless and knowing mental states remain by far the hardest to classify). Second, we show that even when people can see the mental state distinctions that the MPC draws, they don't necessarily rank order the mental states-by culpability level-in the order the MPC assumes.These findings raise questions about the normative basis for the knowing/reckless distinction in the MPC's mental state hierarchy in the context of result elements. Further, because even small changes in phrasing can produce significant differences in juror evaluation, the findings raise genuine concerns about the adequacy of MPC-based culpability instructions in criminal cases. Our results suggest the need for a critical reexamination of the substantial divide between the expectations and assumptions of drafters of criminal codes, on one hand, and empirical reality, on the other.I. INTRODUCTIONTo be guilty of a crime, generally one must commit a bad act while in a culpable state of mind. But the language used to define, partition, and communicate the variety of culpable mental states (in Latin, mens rea) is crucially important. For depending on the mental state that juries attribute to him, a defendant can be convicted-for the very same act and the very same consequence-of different crimes, each with different sentences.The influential Model Penal Code ("MPC") of 1962 divided culpable mental states into four now-familiar kinds: purposeful, knowing, reckless, and negligent.1 Both before the MPC and since, scholars in criminal law and philosophy have actively debated how best to define and apply the mens rea categories.2 Yet few empirical studies have explored the actual relationships between specific mens rea formulations and legally relevant outcomes.A 2011 article coauthored by several of us, Sorting Guilty Minds, presented experiments that tested the MPC's twin assumptions that: (1) ordinary people naturally do-or at least can, when instructed- distinguish these four categories of mental states with reasonable reliability; and (2) holding the act and harm constant, the average person would punish acts reflecting these four mental states in the manner corresponding to the MPC hierarchy-that is, they would punish purposeful conduct the most severely and negligent conduct the least.3Those experiments found that these assumptions held, for the most part. But an interesting and important exception emerged at the boundary between knowing and reckless conduct: in sorting the mental states and in assigning punishment, subjects were much less able to differentiate between knowing and reckless conduct.On the basis of those findings, the article outlined several possible reforms-assuming the results were validated in future studies.4 To validate and extend those results, we have conducted a series of additional experiments, reported here, with more than 1,600 additional subjects. …

Enforcement Discretion and Executive Duty

Abstract: Recent Presidents have claimed wide-­ranging authority to decline enforcement of federal laws. The Obama Administration, for example, has announced policies of abstaining from investigation and prosecution of certain federal marijuana crimes, postponing enforcement of key provisions of the Affordable Care Act, and suspending enforcement of removal statutes against certain undocumented immigrants. While these examples highlight how exercises of executive enforcement discretion the authority to turn a blind eye to legal violations may effectively reshape federal policy, prior scholarship has offered no satisfactory account of the proper scope of, and constitutional basis for, this putative executive authority. This Article fills that gap. Through close examination of the text, structure, and normative underpinnings, as well as relevant historical practice, this Article demonstrates that constitutional authority for enforcement discretion exists but it is both limited and defeasible. Presidents may properly decline to enforce civil and criminal prohibitions in particular cases, notwithstanding

Enjoining Abuse: The Case for Indefinite Domestic Violence Protection Orders

Abstract: While countless studies demonstrate the complex and dangerous nature of intimate partner abuse, most jurisdictions permit only the entry of yearlong domestic violence protection orders. Judges may assume that danger ceases once the order takes effect, but evidence of the recurrent nature of violence demonstrates the importance of providing judicial protection over time. The brevity of domestic violence protection orders stands in stark contrast to the long duration of orders in other areas of the law, such as intellectual property, corporations, real property, and tax, where courts routinely enter permanent injunctions to protect individuals and businesses against "irreparable harm." What explains this differential treatment? Why would the law deny courts the ability to protect those who experience physical and psychological harm at the hands of an intimate partner?This Article is the first scholarship to identify and attempt to explain the dichotomy between injunctive relief for domestic violence and other areas of the law and to explore the potential for indefinite domestic violence injunctions in normative depth. To establish the generally temporary nature of domestic violence protection orders, the Article reports the results of a fifty-state survey on protection order lengths and extension standards, a survey undertaken for this piece. To explain the differential treatment of domestic violence injunctions, the Article situates its analysis in the historic backdrop of the state condoning domestic violence through the husband's right of chastisement and the family privacy theory, ideologies now considered untenable. Recent decades have seen the ensuing struggle to develop the civil protection order remedy in a continuing climate of family law exceptionalism.In conducting a comparative analysis among areas of the law in which permanent injunctions are commonplace, the Article applies to domestic violence cases the equitable principles for permanent injunctions that the Supreme Court recently announced as a four-factor test in eBay Inc. v. MercExchange, L.L.C. The Article addresses potential due process concerns and draws heavily on social science to demonstrate the harm of domestic violence, physical and psychological dangers of returning to court, risk of reengaging with an abusive partner year after year, efficacy of protection orders, and inadequacy of other forms of relief. Abuse survivors come to court seeking protection, but current statutory durations often prove inadequate, and violence survivors merit the same protections readily available to property and business interests. To harmonize domestic violence law with other areas of the law, the Article proposes the nationwide availability of indefinite domestic violence protection orders and a presumption that orders be at least two years in duration.I. INTRODUCTIONSusan's husband strangled her and beat her so severely that he called 9-1-1 and said, "I think I've killed my wife."1 Anna's boyfriend held a gun to her and threatened her life. The father of Regina's children liked to practice wrestling moves on her. He held Regina upside down and dropped her onto the concrete floor in a "pile drive" move, her head hitting the floor with the force of gravity and weight of her body. Annette's ex-boyfriend came to her home, beat her, raped her, and started a house fire. All of these women2 soon sought and received domestic violence civil protection orders3 that were in effect for one year. Every year, each woman returns to court for another adversarial proceeding to seek another year of protection. Courts have already found the intimate partners described to be dangerous. This year, however, when Annette requested that the court extend her protection order beyond the initial year, the judge did so reluctantly and warned her that she would not be able to return each year for further renewals unless additional violence occurred.The state's response to domestic violence is relatively recent. …

The Right to Vote Under State Constitutions

Abstract: This Article provides the first comprehensive look at state constitutional provisions explicitly granting the right to vote. We hear that the right to vote is "fundamental," the "essence of a democratic society," and "preservative of all rights." But courts and scholars are still searching for a solution to the puzzle of how best to protect voting rights, especially because the U.S. Supreme Court has underenforced the right to vote. The answer, however, is right in front of us: state constitutions. Virtually every state constitution includes direct, explicit language granting the right to vote, as contrasted with the U.S. Constitution, which mentions voting rights only implicitly. Yet those seeking to protect the right to vote have largely ignored the force of state constitutions, particularly because many state courts "lockstep" their state constitutional voting provisions with the narrow protection the U.S. Supreme Court has afforded under the Fourteenth Amendment's Equal Protection Clause. This mode of analysis curtails the broader explicit grant of voting rights in state constitutions.This Article explains why the lockstepping approach is wrong for the right to vote and advocates for courts to use a state-focused methodology when construing their state constitutions. It does so through the lens of recent voter ID litigation, showing how the outcome of state constitutional challenges to voter ID laws turns on whether the reviewing state court faithfully and independently applies the state constitutional provision conferring voting rights. The textual and substantive differences between U.S. and state constitutional voting-rights protections requires a state-focused methodology for state constitutional clauses that grant the right to vote. Article I, Section 2 of the U.S. Constitution points directly to state qualification rules to determine voter eligibility. State constitutions explicitly confer voting rights, while the U.S. Constitution merely implies the right to vote through negative language. In addition, the right to vote deserves the most robust protection possible, which is generally provided within state constitutions. The Article proposes a test for state courts to use when construing their constitutional voting rights clauses: a court should hold a law that adds an additional voter qualification beyond what the state constitution allows to be presumptively invalid; accordingly, courts should require a state to justify burdens on the right to vote with specific evidence tied to the legislature's authority under the state constitution. Finally, an Appendix presents a chart illustrating all fifty state constitutions and the language they employ for the right to vote.I. INTRODUCTIONWhat is the right to vote? This question has befuddled courts,1 law professors,2 historians,3 and policymakers4 for years. We hear that the right to vote is "fundamental,"5 the "essence of a democratic society,"6 and "preservative of all rights."7 We know that voting is sacred. Yet we are still searching for a solution to the puzzle of how best to protect voting rights.The answer, however, is right in front of us: state constitutions. Virtually every state constitution confers the right to vote to its citizens in explicit terms.8 Moreover, the U.S. Constitution directs the inquiry over voter eligibility to state sources.9 As Justice Scalia recently declared, the Elections Clause of the U.S. Constitution "empowers Congress to regulate how federal elections are held, but not who may vote in them."10 Voter eligibility rules are leftinstead to the states. But state courts, much like federal courts, have largely underenforced the right to vote because they have too closely followed federal court voting-rights jurisprudence. A renewed focus on the power of state constitutions provides the answer for how best to protect the fundamental right to vote.The year 2012 may go down as the year of voter ID. Courts considered various aspects of challenges to new requirements that voters show a photo identification to vote in Pennsylvania,11 Wisconsin,12 Tennessee,13 Texas,14 and South Carolina. …

In Defense of American Criminal Justice

Abstract: I. INTRODUCTIONThe American criminal justice system is on trial. A chorus of commentators-often but not exclusively in the legal academy-has leveled a sharp indictment of criminal process in our country. The indictment charges that large flaws infect nearly every stage of the adjudicatory process. And the prescriptions are equally far-reaching, with calls for abolition of many current practices and an overhaul of the entire system. What is more, the critics issue their condemnations essentially as givens, often claiming that all reasonable people could not help but agree that fair treatment of the accused has been fatally compromised. For these critics, "We live in a time of sharply decreasing faith in the criminal justice system."1As a judge with faith in that system, I am dismayed by the relentless insistence that we have it all wrong. Of course the system, like all human institutions, has its share of flaws. But the attacks have overshadowed what is good about the system and crowded out more measured calls for reform. The critics claim that major aspects of American criminal justice work to the detriment of defendants, when actually the reverse is often true. It is time for a more balanced view of our criminal process, which in fact gets a lot of things right.A brief word as to the scope of this Essay. I have focused mainly on the adjudicatory process and on the criminal trial. I have not sought to explore police investigatory procedure on the one hand, or issues of detention and incarceration on the other, except insofar as they bear on the adjudicatory process in some way. They are vast topics in themselves, and the terrain I have covered is large enough.My own reaction to the critics is one of gratitude for their contributions but dismay that they have allowed the pursuit of perfection in criminal justice to become the enemy of the good. Much about American criminal justice is indeed good. The system provides considerable protections for the accused and sets proper limits on the brutality and deceit that human beings can inflict upon each other.Simply put, in calling for an overhaul of our criminal law and procedure, the critics have failed to appreciate the careful balance our criminal justice system strikes between competing rights and values. They have failed to respect the benefits of the system's front-end features-namely, early process and early resolution. Moreover, they have sold short the democratic virtues of our system. The sensible tradeoffs reflected in American criminal justice are worthy of respect, and the system's democratic tilt is deserving of praise. The critics have extended neither. Ultimately, the often harsh tone of their indictment has done an injustice to the system of criminal justice itself.II. THE INDICTMENTIt is an article of faith among the legal intelligentsia that criminal justice is almost a contradiction in terms. The indictment of our criminal justice system contains a staggering number of charges, and attempting to catalogue them all would be impractical and tiresome. Instead, I offer a brief sketch of the prevailing portrayal of our system. It is a dark picture indeed.At the heart of the indictment is the charge that our procedures fail to achieve the most basic task of a just system-the protection of the innocent from a fate that should be reserved only for the guilty. The accusers have used specific examples of wrongful conviction to advance the belief that our entire system is fatally flawed. Organizations like the Innocence Project claim that well over 20,000 Americans could be in jail for crimes they did not commit.2 In response, the Innocence Project aims to "leverage the power of these remarkable stories to bring about fundamental improvement in our deeply flawed criminal justice system."3 It claims to have "steadily convinced the nation that innocent lives are being destroyed by a system that must be fixed."4 Not content with particularized prescriptions for improvement, the organization argues that the system "must be completely overhauled. …

Regulation by Hypothetical

Abstract: A new paradigm is afoot in banking regulation-and it involves a turn toward the more speculative. Previous regulatory instruments have included geographic restrictions, activity restrictions, disclosure mandates, capital requirements, and risk management oversight to ensure the safety of the banking system. This Article describes and contextualizes these regulatory tools and shows how and why they were formed to deal with industry change. The financial crisis of 2008 exposed the shortcomings in each of these regimes. In important ways, the Wall Street Reform and Consumer Protection Act of 2010 ("Dodd-Frank") departs from these past regimes and proposes something new: Call it "Regulation by Hypothetical."Regulation by hypothetical refers to rules duly promulgated under appropriate statutory and regulatory mechanisms that require banks and their regulators today to make predictions about sources of crisis and weakness tomorrow. Those predictions-which, by their very definition, are conjectural and speculative, even hypothetical-then become the basis of the use of the state's regulatory power. This Article discusses two prominent instances of regulation by hypothetical: stress tests and living wills. It then discusses the strengths and weaknesses of such a regime and describes how the reliance on regulation by hypothetical can exacerbate the practice of government sponsorship of private financial risk taking. The Article then provides a solution that would strengthen this regime: using financial war games to increase the predictive value of the hypothetical scenarios.I. INTRODUCTIONThe history of banking regulation in the United States resembles a cat-and-mouse game of industry change followed by regulatory response. Often, a crisis or industry innovation leads to a new regulatory regime. Regulatory initiatives have included geographic restrictions, activity restrictions, disclosure mandates, capital requirements, and risk management rules.1 The recently enacted Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 ("Dodd-Frank"), which was a response to the recent financial crisis, introduces yet another strain of banking industry supervision: regulation by hypothetical. Regulation by hypothetical refers to rules that require banks today to make predictions about crises and weaknesses tomorrow. Those predictions-which, by definition, are speculative-then become the basis for regulatory intervention.This Article discusses two prominent instances of regulation by hypothetical: stress tests and living wills. Both of these forms of regulation were codified in Dodd-Frank, and they are two of the pillars supporting Dodd-Frank's attempt to manage risk in systemically important financial institutions ("SIFIs").2 This Article will examine both the origins and the evolution of these reforms. It will also discuss the strengths and weaknesses of regulation by hypothetical and describe how reliance on this regulatory tool can exacerbate governmental sponsorship of private financial risk taking. Ultimately, this Article concludes that the regulation by hypothetical regime must be either abandoned or strengthened because its current form has significant flaws.Regulation by hypothetical adopts and extends the risk management framework used by firms for decades. That framework uses mathematical models to capture risk exposure in an increasingly complex financial landscape. What distinguishes regulation by hypothetical from prior risk management practices is that banks now must adhere to a governmentally imposed system of regulation that is both derived from and centered on hypothetical risk modeling.3The motivations of regulation by hypothetical are contagion containment, prophylaxis, and building partnerships between public regulators and private institutions to stay ahead of crises before they develop.4 Part of the reason the risk management regime failed is that individual firm models could not account for scenarios that might cripple the entire financial market and cause systemic risk, such as a nationwide decline in housing prices. …

Multiple-Agency Delegations & One-Agency Chevron

Abstract: I. INTRODUCTIONCongress frequently delegates to agencies, and a host of Supreme Court decisions have articulated tests for determining what level of deference courts should give to agency interpretations of their statutory directives. Courts have historically undertaken these analyses in the context of a single agency. Congressional authorization of joint rulemaking authority is more complicated, however, and the traditional frameworks for review are inadequate.When Congress delegates authority to multiple agencies, courts should review the agencies' rules with heightened deference. The traditional framework for judicial review of agency rules is ill equipped when rules are promulgated by multiple coordinated agencies. The prevalence of this type of delegation in recent legislation underscores the need to reconsider the framework under which courts review multiagency rules. For instance, the Dodd-Frank Wall Street Reform and Consumer Protection Act of 20101 ("Dodd-Frank Act") delegates broad authority to multiple agencies to promulgate rules jointly and in consultation with one another.2 One particularly contentious provision of the Dodd-Frank Act delegates authority to the Treasury Department, the Federal Reserve Board, the Comptroller of the Currency, the Federal Deposit Insurance Company, and the Securities and Exchange Commission to implement the "Volcker Rule"3 by issuing joint rules.4 Given the lengthy delays and contentious issues discussed during the notice-and-comment period,5 the Volcker Rule itself is sure to generate a substantial volume of litigation. The recent issuance of the final rule will likely bring to light unresolved issues in judicial review of multiagency rules.6Particularly, the question of which agency has interpretive authority over a statute when multiple coordinated agencies are charged to promulgate rules will likely prove vexing to the courts. In a recent article, John Cooney framed the dilemma as follows: "The issues presented may well include the question, long identified but not decided by the Supreme Court, concerning which agency's interpretation of a statute, if any, is entitled to deference under Chevron, when Congress has delegated equal and overlapping authority to multiple agencies."7 While this question is an important one, it assumes that the Court will only afford Chevron deference to one agency in the realm of coordinated, multiagency rulemaking. This Note focuses on a slightly different question: Should courts employ a new paradigm for interpretive deference when multiple agencies jointly promulgate a single rule and Congress clearly intended for more than one agency to administer the statute?The traditional Chevron framework is a one-agency model and is thus inappropriate for judicial review of the complex, multiagency form of congressional delegation. Instead, courts should employ an ultradeferential form of review, both to advance the likely benefits of coordinated, multiagency rulemaking and to ensure that courts do not venture into the policymaking realm when Congress makes it abundantly clear that it wants a group of agencies, not courts, to be the primary interpreters of the statute.8This Note argues for a shiftin the traditional Chevron framework when (1) Congress delegates coordinated rulemaking authority to multiple agencies and (2) those agencies promulgate rules pursuant to that statutory mandate.9 Part II discusses why and how Congress delegates to agencies and surveys the Supreme Court's framework for reviewing such agency action. Part III demonstrates that Chevron is a one-agency model and argues that the rise in coordinated, multiagency rulemaking complicates the Court's traditional approach to judicial review. Finally, Part IV proposes that the Court break from the traditional model and accord the fused agencies heightened deference when reviewing the joint rules.10II. THE INTERPLAY BETWEEN CONGRESS, AGENCIES, AND COURTSThe modern administrative state could not function without broad delegations from Congress to agencies. …

Federalization of the Law of Charity

Abstract: To this day, the law of charity is often thought of as a matter for the states. In fact, the crucial law relating to charity is now almost always federal. For certain purposes, state law still determines whether a given entity is "charitable." It also determines the propriety of a charitable fiduciary's conduct when someone who has standing sues. But federal law determines whether an entity qualifies for various tax incentives, such as exemption from the federal income tax and eligibility to receive tax-deductible gifts, and qualification for these incentives generally determines whether the entity comes into existence and, if so, whether it survives. Federal law also wields a bewildering array of draconian penalties against both charities and their fiduciaries for failure to comply with federally specified rules of behavior. This Article examines both of these and other ways in which federal law has essentially taken over the law of charity. The point is not whether federalization of the law of charity is good or bad. The point is simply this: During the last century, Congress and the federal courts federalized the law of charity.I. INTRODUCTIONThe law of charity has long been thought of as a matter for the states. Indeed, until early in the last century, when the federal government enacted the income, gift, and estate taxes, the law of charity was an exclusively state concern. Federalization of the law of charity has now proceeded to such an extent, however, that it eclipses state law. Whether from a conceptual, organizational, or operational perspective, the crucial law relating to charity is now almost always federal.State law still determines whether a given entity is "charitable," but federal law determines whether an entity qualifies for various tax incentives, such as exemption from the federal income tax and eligibility to receive tax-deductible gifts, and qualification for these incentives generally determines whether the entity comes into existence and, if so, whether it survives. State law continues to determine the propriety of a charitable fiduciary's conduct; indeed, on those rather rare occasions when someone sufficiently interested in enforcing a charitable fiduciary's duties is found to have standing, state law remains ascendant. On the other hand, federal law not only specifies in great detail how a charity that wants to become and remain eligible for federal tax incentives must behave, it also wields a bewildering array of often draconian penalties against both charities and their fiduciaries for failure to toe the federally specified lines. Certainly, the federal rules do not always coincide with the parallel state-law rules; nor does Congress seem to have intended them to. State law continues to permit the creation of various and sundry devices for the benefit of charity, but because under federal law only a favored few qualify their donors for the charitable deduction, no competent counselor would ever recommend anything else. Notwithstanding the fact that federal tax law has dramatically shrunk the universe of rational choices by which to benefit charity, the use of trusts to benefit charity seems to have increased dramatically-and the increase seems in no small part attributable to federal tax incentives. Yet the uniqueness of the approved federal devices and the detailed federal requirements that accompany them indisputably strain the state-law system that usually ends up interpreting and enforcing the governing instruments. Nowhere is this clearer than in the case of charitable conservation easements. And these are only some of the many ways in which federal law is dramatically reshaping the law of charity. Thus, while the law of charity, as developed and maintained by the states, remains relevant in many and sometimes vital ways, most of the charity-related law that really matters these days is federal.Whether federalization of the law of charity is good or bad is not the point. …

Federalizing Education by Waiver

Abstract: In the fall of 2011, the U.S. Secretary of Education told states he would use his statutory power to waive violations of the No Child Left Behind Act ("NCLB"), but only on the condition that they adopt his new education policies- policies that had already failed to move forward in Congress. States had no choice but to agree because eighty percent of their schools were faced with serious statutory sanctions. As a result, the Secretary was able to unilaterally dictate core education policies for the nation's public schools. For the first time, the content of school curriculum and the means by which schools would evaluate teachers came under the direct influence of a federal official. This Article demonstrates that this exercise of power was beyond the scope of the Secretary's statutory or constitutional authority.To be clear, Congress can confer to agencies the power to impose policies through waiver conditions, but Congress must do so clearly and place limits on the scope of the conditions. NCLB contained no notice that states might face waiver conditions when they first agreed to participate in NCLB, much less notice of the substance of those conditions. Spending Clause doctrine requires both. Moreover, states' inability to say no to these conditions raises serious questions of unconstitutional coercion.The Secretary also exercised the equivalent of lawmaking power when he imposed wide-reaching conditions with no statutory guidance from Congress. To avoid the difficult separation of powers issues this raises, however, a reviewing court might narrowly construe the statutory authority conferred to the Secretary. The statutory analysis is easy. The Secretary lacks explicit authority to condition waivers. At best, NCLB implies authority to condition waivers, but implied conditions would be limited to the scope of NCLB itself. The waiver conditions the Secretary imposed go well beyond the scope of NCLB. For instance, the text of NCLB specifically prohibits the Secretary from requiring "specific instructional content, academic achievement standards and assessments, [or] curriculum." In short, NCLB waivers are void on multiple grounds.This unilateral imposition of policy through waiver conditions is remarkable not only for its transformation of key aspects of education but also for the entire federal administrative state. It opens the door to the spread of a more expansive administrative power than ever seen before. Current scholarship and precedent provide almost no direction for this spread. This Article does, calling into doubt the constitutionality and efficacy of the power to remake law through waiver.I. INTRODUCTIONTwo of the most significant events in the history of public education occurred over the course of the past five years. First, after two centuries of local control and variation, states adopted a national approach to "curriculum."1 Second, states changed the way they would evaluate and retain teachers, significantly altering teachers' most revered right, tenure.2 A significant number of states had previously taken some voluntary steps toward these ends, but in 2012, states lost the choice. Nearly all of the nation's schools were projected to be labeled as failing under the No Child Left Behind Act ("NCLB") that fall.3 The Secretary of Education, Arne Duncan, had the power to waive states' failure, but he indicated he would only do so if states accepted new requirements that would move education in an entirely new direction.4 Relying on what previously appeared to be a relatively narrow statutory waiver mechanism, the Secretary was able to impose his policy agenda for curriculum standards and teacher quality on almost all of the nation's schools.5 As a practical matter, he federalized core aspects of education in just a few short months.6This unilateral action is remarkable not only for education policy but also from a constitutional balance-of-power perspective. Some scholars and politicians have called for the expansion of conditional waivers in other areas of federal regulation. …

The Supercharged IPO

Abstract: A new innovation on the IPO landscape has emerged in the last two decades, allowing owner-­founders to extract billions of dollars from newly public companies. These IPOs labeled supercharged IPOs have been the subject of widespread debate and controversy: lawyers, financial experts, journalists, and members of Congress have all weighed in on the topic. Some have argued th others have labeled them

Keep Your Friends Close: A Framework for Addressing Rights to Social Media Contacts

Abstract: I. INTRODUCTIO NA group of entrepreneurial recent college graduates start s a tutoring and test prep company focused on helping promising high school students get an edge on their college applications. Since the cost of print advertising exceeds the group's budget, they each actively promote the business on their personal social media accounts, garnering their first clients. They also create company accounts on Facebook, LinkedIn, and Twitter, which clients join for easy, direct communication and quick access to information . Though all the founders contribute occasional posts and encourage their personal social media contacts to join the company accounts, one eventually becomes, in practice if not in name, the primary manager of the company's social media activity.But soon the founders begin to differ over the direction in which their burgeoning business should grow. Eventually the social media manager leaves to start a competing tutoring and test prep company. She immediately changes both the name on the social media accounts to the name of her new company and the passwords of each account to ensure that her former associates cannot access them.Who has the superior rights to the contacts that these social media sites facilitate? All of the original founders cultivated the company's social media contact list by promoting it on their personal accounts. Yet one of them in particular actually maintained the company accounts, engaged with their followers, and actively sought out new contacts. In hindsight, the company should have articulated a clear social media policy, but the founders were preoccupied with more salient concerns about their fledgling business. Though only hypothetical, this scen ario is hardly inconceivable, especially given social media's increasing importance to businesses both large and small.Social media now pervade not only individuals' personal lives but also professional and business spheres. Companies of all sizes have discovered that a social media presence is practically a necessity to compete in nearly any industry. Some companies now hire employees specifically to manage their social media accounts , tasking them with such duties as updating information, holding online promotions, or communicating directly with clients or customers. Even so, the line demarcating individuals' identities and personal relationships from their employment identities and professional relationships is not always clear.1Because of the unique nature of social media, this question does not fit neatly into existing legal boxes. Categorical intellectual property regimes designed to protect original works or unique inventions do not directly address access to a group of existing or potential customers. Even the law of trade secrets, though seemingly more adaptable than other intellectual property regimes, only partially addresses businesses' varied uses of social media. The amorphous boundary between an individual's professional and personal personas on social media conflates public and private spheres, thereby placing the interests of employees, employers, and the public at issue. However, where this boundary falls may vary widely in each social media case and therefore warrant s a fact-specific inquiry that accounts for the unique context of social media.This Note will suggest a framework for addressing the challenges posed by the question of rights to employment-related social media accounts and, more particularly, their contacts. Part II will introduce social media sites. In particular, it will discuss three major examples of social media sites, their value in the employment context for the various parties involved, and how they blur a company's persona with that of the individual maintaining the account. Part III will examine and evaluate potential legal frameworks for conceptualizing and resolving this issue. In particular, it will examine areas of intellectual property law that previously resolved similar questions of rights to intangible property as between an employer and employee. …

The Case for a Market in Debt Governance

Abstract: Scholars have long lamented that the growth of modern finance has given way to a decline in debt governance According to current theory, the expansive use of derivatives that enable lenders to trade away the default risk of their loans has made these lenders uninterested, even reckless, when it comes to exercising creditor discipline In contrast to current theory, this Article argues that such derivatives can prove a positive and powerful influence in debt governance Theory has overlooked those who sell credit protection to lenders and assume default risk on the borrower These protection sellers are left holding the economic risk of a loan without any legal control rights to safeguard their exposure This Article demonstrates that the interests of lenders and protection sellers are not necessarily adversarial, as theory conventionally assumes Rather, each side has considerable incentive to cooperate as a way to reduce its own costs of participating in the debt market and to preserve reputational capitalRecognizing this potential for cooperation, this Article proposes a market for creditor control as a cure to the crisis in debt governance Such a market would allow lenders and protection sellers to trade control rights in debt to ensure that they are held by those with real economic skin in the game This market aims to offer a fix to an otherwise difficult and costly problem: the misalignment seen in modern markets between those who bear the economic risk in debt and those best able to control itI INTRODUCTIONAccording to conventional wisdom, lenders have left corporate America in crisis1 Scholars are increasingly recognizing the powerful 1 role lenders2 can play in corporate life3 But despite its importance, lender influence is growing weaker4 The consequences are costly for all concerned: reckless lenders exercise poor oversight, borrowers are forced towards liquidation in great numbers, and economic value is destroyed through an inefficient allocation of credit5 The blame, current theory suggests, must be laid firmly at the door of credit derivatives6 like credit default swaps ("CDSs")7 These instruments allow lenders to trade away the economic risk of a loan or a bond without affecting the legal contract between the borrower and lender8 CDSs can leave lenders with weak incentives to exercise sound judgment and diligent discipline over the loans they extend On this view, financial innovation is killing good governanceThis Article argues that, rather than dooming governance to failure, credit derivatives can motivate good behavior in the borrower-lender relationship In critiquing current theory, this Article proposes a new perspective contesting the notion that debt governance9 necessarily suffers in the face of credit derivatives It shows that lender incentives, when properly harnessed, can work to optimize debt governance, helping improve the allocation of credit to the real economyInterestingly, the stated demise of debt governance comes at a time when its importance is gaining recognition in law and policy Recent scholarship has shifted away from shareholder-centric accounts of corporate governance Scholars increasingly highlight the powerful role that creditors now play as the "missing lever" in corporate governance10 Professors Baird and Rasmussen, for instance, point out that lenders can influence all aspects of corporate life, including decisions as to personnel, a company's investments, and business strategies Crucially, this engagement can come at all stages of a borrower's life, not just when a borrower finds itself in distress11Beyond simply ensuring repayment on their debt, these interventions can prove lucrative for lenders Lenders gain access to the inner workings of management, cementing client relationships and assuring future business12 For example, small breaches in the loan contract13 can prompt renegotiations in the lender's favor14 The market has also witnessed a series of so-called loan-to-own deals, allowing lenders to transform their debt into an equity stake and to profit when a company makes a return to form …

Against Settlement of (Some) Patent Cases

Abstract: For decades now, there has been a pronounced trend away from adjudication and toward settlement in civil litigation. This settlement phenomenon has spawned a vast critical literature beginning with Owen Fiss’s seminal work, Against Settlement. Fiss opposes settlement because it achieves peace rather than justice, and because settlements often are coerced due to power and resource imbalances between the parties. Other critics have questioned the role that courts play (or ought to play) in settlement proceedings, and have argued that the secondary effects of settlement – especially the lack of decisional law – are damaging to our judicial system. Still, despite these criticisms, settlement remains the norm in civil litigation today. This Article considers the settlement phenomenon in the context of patent litigation. In recent years, courts have seen an explosion of patent litigation. Consistent with the general trend in civil litigation, most of those patent suits have been resolved through settlement. While scholars have studied and debated “reverse payment” or “pay for delay” patent settlements in depth, what is missing from the literature is a comprehensive treatment of the normative questions raised by the widespread settlement of conventional patent cases. Do conventional patent settlements necessarily promote the public good? Should courts be encouraging these patent disputes to settle? Are there certain types of patent cases that should be adjudicated rather than settled? This Article sets out to answer these questions. It begins by contextualizing the anti-settlement arguments of Fiss and other scholars within a patent litigation framework. The Article then identifies some of the unique problems created by patent settlements, namely that settlement allows potentially invalid patents to remain in force in contravention of the public good. Next the Article canvasses the caselaw and literature and concludes that the judiciary systematically encourages patent litigants to settle. The final part of the Article argues that settlement is not the best way to resolve all patent disputes from a social welfare perspective, and proposes that trial judges serve as protectors of the public interest. It then recommends various factors to inform the decision whether a particular patent case should settle or be adjudicated, and offers suggestions for how trial courts might influence patent litigation outcomes.

States, Agencies, and Legitimacy

Abstract: Scholarship on the administrative process has scarcely attended to the role that states play in federal regulation. This Article argues that it is time for that to change. An emerging, important new strand of federalism scholarship, known as “administrative federalism,” now seeks to safeguard state interests in the administrative process and argues that federal agencies should consider state input when developing regulations. These ideas appear to be gaining traction in practice. States now possess privileged access to agency decisionmaking processes through a variety of formal and informal channels. And some courts have signaled support for the idea of a special state role in federal agency decisionmaking.These developments have important implications for administrative law and theory. In particular, they bear on the paramount question of administrative legitimacy — the decades-long effort to justify the exercise of lawmaking power by unelected administrators in our constitutional democracy. A robust state role in the administrative process, this Article shows, is in tension with the models of legitimacy that have come to serve as administrative law’s North Star. Whereas the two reigning legitimacy models alternatively prize (1) centralized presidential control to ensure responsiveness to majority preferences, and (2) apolitical application of expertise, state input raises the specter of regional factionalism and home-state politics. Two types of solutions could alleviate this tension: reforming state involvement in the regulatory process, or updating legitimacy models. The Article concludes by charting both courses — identifying potential reforms and sketching possibilities for a new understanding of administrative legitimacy that would better accommodate the state role.

Confrontation and the Law of Evidence: Can the Language Conduit Theory Survive in the Wake of Crawford?

Abstract: I. INTRODUCTIO NA foreign traveler flies into John F. Kennedy International Airport, supposedly on a business trip.1 At the airport, a customs inspector detains him after discovering what appear to be bags of cocaine concealed in his luggage.2 The traveler speaks limited English, so the inspector requests the aid of a certified government interpreter to question him.3 An English-speaking Drug Enforcement Administration ( "DEA") agent thereafter interrogates the traveler by having the interpreter translate his questions to Spanish, the traveler's native tongue.4 The interpreter then translates the traveler's responses from Spanish to English, and the inspector records the translated responses.5 At trial, the court denies the traveler's motion to suppress his statements to the customs inspector and DEA agent.6 The jury subsequently convicts him.7This fact pattern comes from an influential Second Circuit case illustrating an evidentiary tool long used by courts to assess the reliability of out-of-court, translated statements offered against criminal defendants. Popularly referred to as the "language conduit theory," this tool allows courts to infer an agency relationship between a defendant and an interpreter for hearsay purposes if certain factors are met.8 These factors vary among the federal circuits but generally aim to ensure that translations are reliable . For instance, courts often ask if the interpreter had a motive to mislead or if there is reason to believe that the translation is inaccurate.9 If the facts suggest that the statements are reliable, then they are admissible as nonhearsay under Federal Rules of Evidence 801(d)(2)(C) or (D).10Although federal courts initially designed the language conduit theory as an evidentiary tool, they gradually extended its reasoning to the Sixth Amendment context.11 The Sixth Amendment's Confrontation Clause grants every defendant the right to confront the witnesses against him.12 Thus, a strict textualist reading indicates that defendants have the right to confront the ir interpreters when prosecutors seek to introduce the translated statements against them . However, courts and prosecutors have often invoked the language conduit theory to circumvent this constitutional requirement.13 If the theory's factors support a finding that the interpreter's statements are reliable, then the statements can be attributed to the defendant himself and properly admitted as nonhearsay.14 Under this logic, the defendant cannot complain that he was denied the opportunity to confront himself.15Until recently, the language conduit, as applied in the Sixth Amendment context, met little opposition across federal circuits. But in 2004, the Supreme Court held in Crawford v. Washington that "testimonial statements" of an unavailable witness could not be admitted unless the defendant had a prior opportunity to cross - examine the witness.16 Admitting such statements would violate the Confrontation Clause.17 Since this landmark decision, fe deral circuits have disagreed on whether the language conduit theory remains a viable tool to deny defendants the right to confront their interpreters.18This Note analyzes the continued validity of the language conduit theory in the wake of Crawford and its progeny. Part II traces the evolution of the Supreme Court's Confrontation Clause jurisprudence from Ohio v. Roberts through the Crawford line of cases and provides a brief history of the language conduit theory before Crawford. Part III analyzes three different approaches that federal circuits have taken in dealing with the language conduit theory in light of Crawford. Lastly, Part IV proposes a solution that closely embodies the spirit of Crawford: requiring confrontation for all translated statements that are testimonial hearsay.II. BACKGROUNDA. Ohio v. Roberts: The Confrontation Clause Does Not Bar the Admission of Reliable Hearsay Evidence Against DefendantsBefore 2004, the Supreme Court's Confrontation Clause jurisprudence gave judges broad discretion to assess the reliability and admissibility of hearsay evidence against criminal defendants. …

Is FINRA a State Actor? A Question that Exposes the Flaws of the State Action Doctrine and Suggests a Way to Redeem IT

Abstract: I. INTRODUCTIONFor over seventy years, the National Association of Securities Dealers ("NASD") was the principal self-regulatory organization ("SRO") responsible for the regulation and oversight of the U.S. securities market.1 In 2000, working with the Securities and Exchange Commission ("SEC") and the New York Stock Exchange ("NYSE"), the NASD initiated a joint investigation into twelve investment firms that were allegedly "spinning"2 initial public offerings.3 This sort of regulatory interplay between the NASD and the NYSE governed the industry until 2008, when self-regulatory power was further consolidated by a merger between the NASD and the regulatory arm of the NYSE.4 The resulting organization, the Financial Industry Regulatory Authority ("FINRA"), is now the dominant SRO in the securities industry.5Among the twelve firms investigated for spinning, the NASD oversaw the inquiry into Credit Suisse First Boston ("CSFB").6 Frank P. Quattrone, managing director of CSFB's Global Technology Group, became aware of the investigation in September 2000.7 In December, Quattrone sent an email that directed his employees "to follow the firm's document retention policy," apparently a euphemistic authorization to destroy crucial files.8The NASD subsequently issued a written request for Quattrone to appear in an "on-the-record interview."9 It was clear that Quattrone would be questioned about his possible obstruction of the spinning investigation.10 The SEC sent a letter of its own, highlighting the "joint nature" of the investigation and that "any resolution of the matter will need to involve all three regulators."11 Quattrone declined the interview on Fifth Amendment grounds, citing a pending criminal investigation against him for the same misconduct.12 The NASD charged Quattrone with violating its rules.13 It rejected his Fifth Amendment claim, reminding him that "the Fifth Amendment 'restricts only government conduct,' " not private conduct by "a [self-] regulator."14 Subsequently, the NASD barred Quattrone from practicing in the securities market until he appeared for testimony.15The state action doctrine embodies the fundamental principle that the Constitution only regulates government conduct.16 Constitutional claims against a private entity are only valid if the entity is properly considered a state actor under the doctrine.17 Despite the NASD's terse declaration that it is not a state actor, that conclusion is far from clear, and NASD's confidence is by no means shared by courts and scholars.18 Certainly, a joint investigation by a federal agency and a private entity could be state action if a reviewing court relied on the Supreme Court's latest conception of the doctrine.19 The SEC's letter to Quattrone in February 2003-noting that a resolution of the investigation would need to involve all three regulators-is evidence of the type of "entwinement"20 or "joint participation"21 that a court could use to find state action. However, entwinement and joint participation comprise but a small subset of the relevant factors.22This Note will attempt to show that the ambiguity of FINRA's status as a state actor is an unfortunate consequence of the ambiguities in the state action doctrine itself. Given the highly fact- specific inquiry of the Supreme Court's state action analysis, the doctrine is not consistently applied unless a very similar case has already been reviewed by the Court.23 However, the Supreme Court has yet to apply the state action doctrine to an SRO like FINRA.24Part II of this Note tracks the evolution of the state action doctrine, mapping the theories that the Supreme Court has used to demarcate the public/private sphere. This Part emphasizes the overlapping and contradictory contours of the state action doctrine, highlighting the arbitrary nature of the various rationales proffered by the Court.Part III briefly lays out the history of the NASD and FINRA, identifying the factors that are most relevant to its state actor status. …

Toward a Definitive History of Griggs V. Duke Power Co

Abstract: Toward a Definitive History of Griggs v. Duke Power Co. THE CRUSADE FOR EQUALITY IN THE WORKPLACE: THE GRIGGS V. DUKE POWER STORY Robert Belton, edited by Stephen L. Wasby. Lawrence: University Press of Kansas, 2014.I. INTRODUCTIONWhen Griggs v. Duke Power Co.1 was unanimously2 handed down by the U.S. Supreme Court on March 8, 1971, the decision did not draw prominent headlines.3 The New York Times accorded the ruling only a two-sentence summary on page twenty-one,4 and the Wall Street Journal gave it modest attention on page four.5 The Washington Post did give the decision front-page coverage,6 but Gillette v. United States,7 a Selective Service Act case, was awarded a prominent, top-of-the-page, two-column headline8 while Griggs received secondary attention.Notwithstanding how modest the contemporaneous news coverage was, knowledgeable judges, scholars, and litigators quickly acknowledged how Griggs actually had an import far beyond Gillette and, at least in some eyes, also beyond a half dozen or more historically notable rulings that likewise were handed down during the first six months of 1971.9 Interviewed on July 1, 1971, just one day after the conclusion of the Supreme Court's 1970 Term, Chief Justice Warren E. Burger was asked to name "a case or two that to you stand as kind of landmarks" from his first two years on the Court. Rather than citing either the Pentagon Papers case, issued just the day before,10 or the famous school-busing case handed down on April 20,11 Burger instead responded thatI think there is one case that has been commented on a great deal by others as having been . . . a "sleeper" . . . . It was Griggs against Duke Power Company having to do with equal employment opportunities. I wouldn't want to say that was one of the terribly important cases but experts in that field of law considered it so, but it is not the kind of a case that received any public attention.12Just as Burger indicated, legal academics more than shared his view. Writing some years later, but still prior to Griggs's twentieth anniversary, the distinguished employment-law scholar Alfred W. Blumrosen declared that "[f]ew decisions in our time-perhaps only Brown v. Board of Education-have had such momentous social consequences" as Griggs.13 Subsequent scholarly commentators termed the ruling an "icon,"14 a "landmark,"15 a "milestone,"16 and "a watershed decision."17 Likewise, arguably the most knowledgeable and widely experienced civil rights litigator of the 1960s and 1970s, Jack Greenburg, who was the Director-Counsel of the NAACP's Legal Defense and Educational Fund ("LDF") from 1961 to 1984, echoed Blumrosen's characterization, stating that "[i]n terms of the impact of the change wrought, [Griggs] was almost on a par with the campaign that won Brown."18Yet the high regard in which some jurists, law professors, and lawyers held Griggs did not mean-just as on the day it first came down-that the case was significantly memorialized far and wide. Perhaps the best and most fully informed scholarly history of the Burger Court, written by the late Bernard Schwartz,19 never even once mentions Griggs, and the best-known biographies of the Justices who heard the case likewise without exception fail to ever mention it.20 Indeed, despite the best efforts of an energetic and enterprising journalist covering Griggs's twentieth anniversary to plumb historians' interest in the case, a complaint from this Essay's author summed up his findings: "Even though Griggs is a huge touchstone, there's little history about it."21II. THE ORIGINS OF GRIGGSGriggs v. Duke Power Co. emerged from the immediate aftermath of the enactment of Title VII of the Civil Rights Act of 1964. The legislative history of the Act's consideration, debate, and amending in both houses of Congress has been revisited many times,22 but it bears strong emphasis that Title VII, targeted at eliminating discrimination on the basis of race, color, religion, sex, or national origin in the employment arena, was "by far the longest and most complicated" title in the Act. …

Probate Law Meets the Digital Age

Abstract: This Article explores the impact of federal law on a state fiduciary's management of digital assets. It focuses on the lessons from the Stored Communications Act ("SCA"), initially enacted in 1986 as one part of the Electronic Communications Privacy Act. Although Congress designed the SCA to respond to concerns that Internet privacy posed new dilemmas with respect to application of the Fourth Amendment's privacy protections, the drafters did not explicitly consider how the SCA might affect property management and distribution. The resulting uncertainty affects anyone with an email account.While existing trusts and estates laws could legitimately be interpreted to encompass the new technologies, and while the laws applicable to these new technologies could be interpreted to account for wealth transfer, we are currently in a transition period. To fulfill their obligations, however, fiduciaries need certainty and uniformity. The article suggests reform to existing state and federal laws to ensure that nonprobate-focused federal laws ultimately effectuate the decedent's intent. The lessons learned from examining the intersection of federal law focused on digital assets and of state fiduciary law extend more broadly to show the unintended consequences of other nonprobate-focused federal laws.I. INTRODUCTIONAt the most basic level, state wealth-transfer law is designed to effectuate the donor's intent.1 Default rules, including intestacy and elective share statutes, foster these fundamental policies. Probate administration regimes facilitate collection of the decedent's assets and protect the rights of the beneficiaries designated by the testator or those whom the state assumes would have been chosen. Developments in state trust law, respect for nonprobate transfers, and fiduciary obligations similarly effectuate the donor's intent. These intent- effectuating policies are at the core of the trusts and estates canon.2 To be sure, there are countervailing state policies, including anti- discrimination laws, taxation, and override rules such as the elective share protecting the state fisc,3 but these are recognized as exceptions to the basic principle of promoting the donor's intent. States have adopted and adapted laws, ranging from revocation-on-divorce statutes to intestacy systems, to reflect local variations in presumptions concerning what the decedent actually prefers.Federal law, by contrast, is typically a blunter instrument. The potential intersection between the two systems of law occurs both when Congress initially enacts the legislation and then when courts interpret its applicability to trusts and estates issues. In the trusts and estates field, federal law might play one of a variety of roles along a continuum: at one end, federal law might explicitly preempt state law, while at the other end, federal law might be irrelevant to state trusts and estates law (as is most often true). Between these two points, federal law can either work in tandem with or hamper state law.Indeed, the federal government sometimes does recognize the potential impact of federalism principles on state inheritance law and may explicitly defer to state wealth-transfer law both substantively and jurisdictionally. The probate exception embodies such deference;4 in addition, various federal statutes explicitly incorporate a state's postdeath wealth distribution system.5 In other situations, Congress may explicitly seek to control the wealth-transfer system, for example, through estate and gift taxes.6But many federal statutes are not so finely tuned.7 They are generally designed to further goals that, at least initially, have little or nothing to do with wealth transfer; they often do not even refer to the possibility of compatible-or incompatible-state laws. Even when Congress regulates nonprobate transfers8 and explicitly addresses federalism issues, state trusts and estates law is not an explicit focus.9This Article explores the impact of federal law that is not specifically enacted to deal with wealth transfer on the executor's marshaling and subsequent distribution of digital assets. …