Volume 161

In their article, Triaging Appointed‐Counsel Funding and Pro Se Access to Justice, Professors Benjamin Barton and Stephanos Bibas argue not only that the issues at stake in criminal litigation are “more important” than those at stake in civil proceedings, but also, that pursuit of a civil right to counsel will deepen the scarcity of legal resources available to indigent criminal defendants while replicating “Gideon's shortcomings in the criminal context.” They believe Turner dealt a “death blow” to a constitutional right to civil counsel, and that such a result should be “cheer[ed].” We first examine whether the case‐by‐case approach would work any better in civil cases than it did in pre‐Gideon criminal cases. We then examine Barton and Bibas' belief that providing fewer procedural protections in civil cases is justified by the “lesser” interests involved. Finally, we articulate the actual scope of the civil right to counsel advanced by advocates (which is considerably narrower than what Barton and Bibas claim), and we set forth reasons why neither the current economic crisis nor the problems with indigent criminal defense justify inadequate protection of fundamental legal rights in civil cases.

In tort litigation, the plaintiff compares her current situation to the reality she would have enjoyed if an injury had not befallen her. She then asks a court to provide the remedy necessary to get as close as possible to that “benchmark reality.” Property disputes often lack such clarity. Unlike a tort conflict, where the plaintiff was whole prior to the defendant's act, or a contract conflict, where she would have been whole had the defendant honored their agreement, in a property claim, the benchmark reality itself can be a subject of strenuous dispute. Parties offer competing visions of the “original,” “benchmark reality.” In his article, Professor Lior Jacob Strahilevitz challenges legal scholars to apply findings from economics that show that while some people want to have more, others merely want to have more than others. The behavioral findings Professor Strahilevitz showcases should not have been ignored for so long. Nonetheless, I do not believe that reliance on these behavioral economics findings can ease the tension inherent in making property's tough value calls. Property cases usually involve two parties that define their arguments in relation to competing benchmark realities. Thus, the court must decide whose benchmark reality is legally cognizable. That decision—the crafting of property's perspective—cannot be rooted in formalist abstractions or solely in certain phenomena observed by social sciences. Property debates can only be solved through careful considerations of public policy.

To date, fracking discourse has focused on whether environmental protections under existing laws ought to be strengthened and whether the exemptions to the Safe Drinking Water Act (SDWA), the Resource Conservation and Recovery Act (RCRA), and the Emergency Planning & Community Right‐to‐Know Act (EPCRA) ought to be revoked. In Professor Spence's view, Congress should not create a new federal–state permitting system based on the principles of cooperative federalism, nor should the EPA organize and implement its existing authority to set up a one‐stop shop for fracking permits. At the same time, Professor Spence concludes that there may be a role for federal regulation of specific aspects of fracking operations that are known to cause interstate environmental harm, and that further risk assessments and scientific studies may reveal a need for a stronger federal role in other areas, as well. In this Response, I offer a set of constructive challenges to Professor Spence's Article. In Part I, I argue that fracking's federalism‐choice question has already been answered, and that but for the outdated and under‐justified exemptions mentioned above, fracking is already under the jurisdiction of federal regulators. In Part II, I conduct an alternative federalism‐choice analysis that adds to Professor Spence's analysis in three ways. First, I balance his analysis by examining rationales commonly used to justify decentralization, rather than federalization, of environmental law. Second, I argue that given the fast‐paced growth in drilling activity across the country, fracking's environmental impacts should be analyzed with regard to their cumulative effects. When so viewed, it is clear that fracking gives rise to interstate, and even national, problems that must be addressed accordingly. Third, I argue that widespread impacts on rural America weigh in favor of federal regulation.

The anti‐commandeering rule just hit its high point. Fifteen years after the Supreme Court last held a law unconstitutional under the rule, the Court held in National Federation of Independent Business v. Sebelius that the Affordable Care Act's Medicaid expansion, which conditions the continuation of Medicaid funding on a broad extension of program benefits, unconstitutionally commandeers state governments for federal purposes. Most importantly, perhaps, the Court's opinion assigned the question of whether to accept the Medicaid expansion to the states, where the federalism principles contested in Sebelius are now entering (or, given the state origins of the litigation, reentering) debates in statehouses across the country. And public health insurance is just one topic in a broader debate over the relationship between state and federal policies on guns, immigration, marijuana, marriage, physician‐assisted suicide, and other political issues yet to emerge. In this Response, I will amplify and extend one of Professor Mikos's points, which identifies the commandeering problem, and I will suggest some limits to his proposal of a judicially managed solution. Commandeering information should be recognized, like other forms of federal coercion of state officials, as imposing significant costs on states. Yet the costs to state autonomy from commandeering information, and the prospects that federal judges might mitigate them, are (as they are for commandeering generally) relatively limited. Further, the costs to political accountability from commandeering information are difficult to assess, but these may be more effectively mitigated through political means. Even if Professor Mikos's conception of commandeering information is not enforced by the Judiciary, it at least helps the states (and their citizens) recognize that they have been commandeered.

Like Professor Struve, I would welcome courts' adoption of a rigorous analytical approach to regulating the conditions under which pretrial detainees and convicted prisoners are confined. The purpose of this Response is to highlight some narrow concerns I have about the feasibility of her proposals, as well as to note my broader analytical objections to how Struve frames her intervention. Most critically, I fear that Struve's solution does not directly address the conditions of confinement experienced by detainees, but instead bears indirectly on these conditions by focusing on the circumstances under which individual defendants are held liable in damages for specific abuses of detainees.

In a provocative new article, Professors Carlos Vázquez and Stephen Vladeck suggest that courts dismiss Bivens claims because judges believe that “extending” Bivens into any “new context” instantiates disfavored judicial lawmaking. Focusing on Bivens's peculiar place in federalism and federal law, Vázquez and Vladeck demonstrate that the logic of courts' own legal interpretations suggests expanding Bivens remedies, yet courts paradoxically choose to narrow them instead. Why, and how, does that happen? Courts claim to reject Bivens actions out of passive virtue and institutional competence concerns. Vázquez and Vladeck focus on the former. But neither justification fully explains the situation. Examining how courts justify their Bivens dismissals—through a results‐oriented conflation of doctrines—reveals that the outcome drives the reasoning. That outcome is to insulate the Executive from those individuals it harms. Evaluating the relevant prudential concerns behind the goal of executive insulation—and their relation to institutional realities—may tell us more about Bivens than the Westfall Act can.

While we agree with Vázquez and Vladeck on many points and have great admiration for their work, we disagree with them about the post–Westfall Act viability of state common law claims brought in state court against federal officials to vindicate constitutional rights. Vázquez and Vladeck regard such claims as having been saved by the language in the Westfall Act that preserves the right of individuals to bring suits against federal officials “for a violation of the Constitution of the United States.” In contrast, we think the text, structure, and history of the Westfall Act all point in a single direction: the foreclosure of all state common law claims against federal officials for actions within the scope of their official duties. We think the only claims against federal officials saved by the Westfall Act were those based on federal rights of action, including constitutional tort claims under Bivens and federal statutory claims otherwise authorized. Such a reading not only comports with text and history, but also gives effect to the evident purpose of the Westfall Act. The point of the Act, after all, was to secure federal employees' absolute immunity from suits based on state common law (an immunity the Westfall Court had previously rejected). The exceptions in 28 U.S.C. § 2679(b)(2) were fashioned to preserve existing federal law remedies.

In his Response to Professor Hurwitz, Professor Kang contests Hurwitz's claim that active intermediaries are the dominant source of increasing harm on the Internet. Additionally, Kang questions Hurwitz's prediction that Internet users will defend themselves from harm by opting out of the Internet generally, or active intermediation specifically. Kang concludes that although Hurwitz should be credited for focusing our attention on the importance of trust on the Internet, and on what might happen as trust erodes, his construct of “active intermediaries”—which entangles hard questions about net neutrality and privacy—fails to diagnose precisely or solve concretely the problem. According to Kang, we should care and fight about net neutrality and privacy, but not necessarily under the rubric of “active intermediaries.”

In this Response to Professor Burk, I consider the ways in which IP law can address the IP questions raised by changing technology and emerging industries. IP laws cannot shift with every new invention or business. If Congress relies on industry‐specific legislation, trying to intervene in each emerging or anticipated problem wrought by new technology, then our IP system will fail us. Instead, the common law and broader principles of IP law are tools better designed to address these novel IP questions.

E‐sports presents a useful case study of alternative ways of thinking about technological changes and challenges to the IP system. My analysis focuses on two primary insights. First, by revealing the inadequacy of the initial analytical or doctrinal move made by courts, new industries and technologies can illuminate missteps taken in IP common law. I consider two examples in the context of e‐sports: the use of “persona” in right of publicity law, and the “initial interest confusion” doctrine in trademark law.

Second, a new context can highlight open and unanswered questions in IP law that need to be addressed, sometimes by legislation, but more often by applying existing law and focusing on the basic principles that underlie the relevant area of law. I consider the example of how copyright law addresses increasingly public uses of copyrighted content.

In his Response to Professor Schwartz, Professor Ohm contends that Big Data's touted benefits are often less significant than claimed and less necessary than assumed. Additionally, Ohm highlights the bad outcomes arising from some Big Data projects, like invasions of privacy and hard‐to‐detect invidious discrimination. Ohm argues for a more nuanced approach to analyzing the benefits of Big Data, urging readers to focus on true benefits rather than minimally interesting results. To help shift attention to Big Data's true benefits, Ohm proposes three rules of engagement, which distinguish between different classes of Big Data's benefits.

Judges are local officials too, Ethan Leib helpfully reminds us in his thought‐provoking Article, Localist Statutory Interpretation. Like state court judges in our federal system, local judges—a category defined by Leib to include only elected jurists—may play a special role in interpreting both state and local law. Ultimately, Leib concludes that this role is a highly constrained one. He is comfortable endorsing local judges' reliance on local values (though only “in a narrow band of hard cases”) in large part because state courts and legislatures remain available to overrule decisions that unduly infringe on state interests. As an endorsement of “localism,” Leib's is most tepid.

But a tepid endorsement of localist judging is probably sufficient for even the most avid proponents of localism. After all, it is the process of local government itself—e.g., attending city council meetings, running for office—that matters most to communitarians, and, except for the occasional decision about local government procedure, it is likely that judges can do little to affect this process positively or negatively. While some communitarians focus on local juries as a key institution for educating and involving citizens, Leib's definition of local courts excludes lower trial courts of general jurisdiction, and thereby largely excludes courts with juries from his prescriptions.

The issue of the geography of “the battlefield”—that is, where an armed conflict can and does take place—has provoked extensive debates over the past few years. Professor Jennifer Daskal's recent Article, The Geography of the Battlefield: A Framework for Detention and Targeting Outside the “Hot” Conflict Zone, which proposes a new law of war framework for targeting and detention operations that rests on a distinction between areas of ongoing hostilities and areas more attenuated from such “hot” battlefields, offers a useful and thoughtful addition to the discourse, highlighting some of the key interests and challenges at the heart of the matter.

Two central concerns, however, arise from the prospective application of Daskal's suggested legal framework: (1) how the lack of strategic clarity trickles down to affect operational and tactical clarity, and (2) the long‐term consequences for the development and implementation of the law of armed conflict (LOAC). This Response highlights these concerns as a counterpoint to the idea of a new set of rules based on shifting geographical combat zones, even in light of the potential procedural benefits such new rules and frameworks might engender.

Part I of this Response briefly highlights the core principles and purposes of LOAC as an essential backdrop to any discussion of LOAC's applicability (both the “where” question and the “how” question). Part II then explores the consequences of using a rules‐based framework to answer, or perhaps sidestep, the challenging question of where the bounds of conflict with transnational actors may lie, focusing on issues of clarity and predictability and the long‐term development of the law. The question of geographical application of LOAC is both highly relevant in the most pragmatic sense—the difference between being in an area of armed conflict or not literally can be life or death—and also not susceptible to specific and concrete definition. This combination of relevance and thorniness has led not only to extensive debates about how to conceptualize the geographic parameters of the battlespace in an armed conflict, but also to alternative paradigms for regulating the use of force through rules‐based frameworks, hybrid paradigms, or other mechanisms, such as those Daskal proposes. Although these alternative conceptions of the battlefield are highly useful, it is also important to address their feasibility in the operational realm and their potential second‐ and third‐order effects.