Volume 166, Issue 4 
April 2018
Articles

The Decline of Supreme Court Deference to the President

Lee Epstein & Eric A. Posner

According to entrenched conventional wisdom, the president enjoys considerable advantages over other litigants in the Supreme Court. Because of the central role of the presidency in the U.S. government, and the expertise and experience of the solicitor general’s office, the president usually wins. However, a new analysis of the data reveals that the conventional wisdom is out of date. The historical dominance of the president in the Supreme Court reached its apex in the Reagan administration, and has declined steadily since then. In the Obama administration, the presidency suffered its worst win rate—barely 50%. After documenting this trend, we discuss possible explanations. We find evidence that the trend may be due to the growing self-assertion of the Court and the development of a specialized, private Supreme Court bar. We find no evidence for two other possible explanations—that the trend is due to greater executive overreaching than in the past, or to ideological disagreements between the Court and recent presidents.


Sovereigns, Shopkeepers, and the Separation of Powers

Jon D. Michaels

For decades, we have examined privatization with zeal and rigor. Relegated to the margins, however, have been inquiries into privatization’s close cousin: direct government market participation. Given the ubiquity of government commercial transactions, the political, legal, and economic challenges such transactions engender, and the rise of CEO‐style elected officials—the Trumps, Bloombergs, and Romneys of the world—almost evangelical in their commitment to running government like a business, closer study is warranted.

This Article characterizes direct government market participation as a complicated, confusing, and potentially dangerous fusion of sovereign and commercial power. It describes how this fusion may undermine markets, aggrandize State power, or do both at the same time. It compares the straddling of the sovereign and commercial realms with any number of other constitutionally problematic bridging efforts, including those to combine executive and legislative; executive and judicial; federal and state; civilian and military; church and State; and, of course, private and public powers. Lastly, it situates government market participation within its own separation‐of‐powers paradigm—and does so to help rationalize and domesticate the vexing but often necessary practice.


The Proficiency of Experts

Brandon L. Garrett & Gregory Mitchell

Expert evidence plays a crucial role in civil and criminal litigation. Changes in the rules concerning expert admissibility, following the Supreme Court’s Daubert ruling, strengthened judicial review of the reliability and the validity of an expert’s methods. Judges and scholars, however, have neglected the threshold question for expert evidence: whether a person should be qualified as an expert in the first place. Judges traditionally focus on credentials or experience when qualifying experts without regard to whether those criteria are good proxies for true expertise. We argue that credentials and experience are often poor proxies for proficiency. Qualification of an expert presumes that the witness can perform in a particular domain with a proficiency that non‐experts cannot achieve, yet many experts cannot provide empirical evidence that they do in fact perform at high levels of proficiency. To demonstrate the importance of proficiency data, we collect and analyze two decades of proficiency testing of latent fingerprint examiners. In this important domain, we found surprisingly high rates of false positive identifications for the period 1995 to 2016. These data would qualify the claims of many fingerprint examiners regarding their near infallibility, but unfortunately, judges do not seek out such information. We survey the federal and state case law and show how judges typically accept expert credentials as a proxy for proficiency in lieu of direct proof of proficiency. Indeed, judges often reject parties’ attempts to obtain and introduce at trial empirical data on an expert’s actual proficiency. We argue that any expert who purports to give falsifiable opinions can be subjected to proficiency testing and that proficiency testing is the only objective means of assessing the accuracy and reliability of experts who rely on subjective judgments to formulate their opinions (so‐called “black‐box experts”). Judges should use proficiency data to make expert qualification decisions when the data is available, should demand proof of proficiency before qualifying black‐box experts, and should admit at trial proficiency data for any qualified expert. We seek to revitalize the standard for qualifying experts: expertise should equal proficiency.


Comments

A Municipal Speech Claim Against Body Camera Video Restrictions

Matthew A. De Stasio

This Comment describes one approach to securing public access to the data collected by police‐worn body cameras (PWBC). Ever since the rapid expansion of body camera programs following highly publicized police shootings (particularly the shooting of Michael Brown in Ferguson, Missouri, in the summer of 2014), state legislatures across the country have rushed to decide who should have access to the collected video and how to limit its public release. Over half of the major police departments across the country are using body cameras supplied by a single manufacturer alone, and the storage and release of the video is an urgent issue. The patchwork of laws governing the disclosure of PWBC data has left the public without simple or consistent means of accessing that information.

Every state except New Hampshire exempts police records from public records requests. Many laws which explicitly address the release of PWBC data either grant disclosure discretion to a custodian or a judge, or they prohibit release entirely, absent special circumstances. The myriad restrictions on public access has stymied the avowed purpose of implementing body camera programs: to increase the transparency and public accountability of police practices.

The goal of fostering transparency to improve community relations would be more easily achieved if local governments and police departments, in the exercise of their discretion over local affairs, could publicly release video of contested police encounters without prior restraint. Some police departments seek to do just that, either in situations of suspected unwarranted police violence or matters of national importance. For example, in October of 2017 the Las Vegas Police Department publicly released a compilation of PWBC footage only two days after the worst mass shooting in U.S. history took place. Localities may seek to do so when it would improve community relations, inform public debate of police practices, and educate residents so they can effectively participate in the process of self‐government. However, state statutes may prevent localities from securing these benefits for their citizens.

In this Comment, I argue that state laws which restrict disclosure of PWBC data by municipal governments run afoul of the First Amendment’s Free Speech Clause and are subject to constitutional challenge by the municipalities themselves.


Halo Is Not the Saving Grace for the Patent System

Jennifer Hartjes

Patent law is facing growing pains as it tries to operate within a framework originally created with different technology in mind. As technological advancements have proliferated in recent decades, cracks in the patent system’s foundation have become apparent. As Justice Breyer pointed out, “[t]oday’s patent world is not a steam‐engine world. We have decided to patent tens of thousands of software products and similar things where hardly anyone knows what the patent’s really about.” There is a mounting concern among scholars and members of Congress that the patent system is infested with invalid patents. While a precise number of invalid patents currently in force is not measurable, studies suggest that the over‐granting of patents is a real threat. Invalid patents increase transaction costs for subsequent innovators: innovators must navigate unnecessary red tape and non‐practicing entities (commonly referred to as “patent trolls”) can abuse the patent system by threatening to assert these invalid patents against others.

The patent system can combat the problem of invalid patents at three stages. First, more resources can be dedicated to the United States Patent and Trademark Office (PTO). The initial review of patent applications can be expanded to allow for a more thorough vetting upon initial receipt. Possible measures of reform could include hiring more examiners, increasing the time spent on each patent application, or requiring greater disclosure of prior art by the potential patentee. But reform at this stage would provide an incomplete solution because it would fail to dispose of bad patents that are already in circulation.

A second point at which invalid patents can be confronted is the post‐issuance, pre‐litigation stage. This approach was followed in the 2011 America Invents Act (AIA). With a concern for invalid patents at the forefront of policy discussions, the AIA bolstered administrative proceedings at this intermediate stage, introducing inter partes review and post‐grant review. Congress sought to create an “administrative route more efficient and less expensive than district court litigation.” Still, invalid patents have continued to plague the patent system in the years following the implementation of the AIA. Setting aside the questionable effectiveness of these administrative routes, there is a more immediate question of whether these proceedings by the PTO are even constitutional. The Supreme Court will address this issue in its coming term.

The final stage at which invalid patents can be eliminated is litigation. When optimally structured, litigation is a promising method of correcting errors carried over from the patent issuance stage. An adversarial system provides an opportunity for a judge to have a (potentially) fair view of both parties’ positions. The finality of the decision provides clarity for patent owners and the public. But the current litigation system suffers from procedural defects, making it costly, time consuming, and ill‐equipped to handle an abundance of patents. Patent litigation costs in the United States are extremely high, especially as compared to foreign patent systems. In addition to the high costs, parties are tied up for an average of two and a half years before their cases reach trial. With these substantial burdens, patent litigation is not a realistic option for small companies, nor is the system well‐equipped to sort through a large volume of patent disputes. Thus, patent litigation is a good candidate for reform. A more streamlined system will allow increased access to litigation, thereby increasing the number of patents that courts can either dispose of or validate.


Volume 166, Issue 3 
February 2018
Articles

Contested Visions: The Value of Systems Theory for Corporate Law

Tamara Belinfanti & Lynn Stout

Despite the dominant role corporations play in our economy, culture, and politics, the nature and purpose of corporations remain hotly contested. This conflict was brought to the fore in the recent Supreme Court opinions in Citizens United and Hobby Lobby. The prevailing narrative for the past quarter century has been that corporations “belong” to shareholders and should pursue “shareholder value,” but support for that approach, which has long been justified as essential for managerial accountability, is eroding. Its proponents have retreated to the position that corporations should seek “long‐term” shareholder value. Yet, as this Article shows, when shareholder value is interpreted to mean “long‐term” shareholder value, it no longer offers the sought‐after managerial accountability.

What can? This Article argues that systems theory offers an answer. Systems theory is a well‐developed design and performance measuring methodology routinely applied in fields such as engineering, biology, computer science, and environmental science. It provides an approach to understanding the nature and purpose of corporate entities that is not only consistent with elements of the many otherwise‐conflicting visions of the corporation that have been developed, but also with important and otherwise difficult‐to‐explain features of corporate law and practice. It recognizes, and explains, the possibility and desirability of corporations pursuing multiple goals. It also offers proven methods for measuring and improving corporate performance—methods that highlight the critical role of corporate sustainability, and specific strategies to promote it. Finally, it cautions that, by ignoring the lessons of systems theory, shareholder value thinking may have encouraged regulatory and policy interventions into corporate governance that are not only ineffective, but destructive.


Delegating for Trust

Edward H. Stiglitz

Courts and legal observers have long been concerned by the scope of authority delegated to administrative agencies. The dominant explanation of delegated authority is that it is necessary to take advantage of administrative agencies’ expertise and expansive rulemaking capacity. Though this explanation makes sense in many settings, it falters in many areas and has given rise to a number of longstanding puzzles, such as why Congress does not invest in its own institutional capacity.

Unrecognized in this debate over the puzzles of delegation is that Congress may delegate to take advantage of another distinctive attribute of administrative decisionmaking: the credible rationality and transparency afforded by administrative procedures. Drawing on positive political theory, this Article shows that Congress may delegate, not for expertise, but for public trust, which the legislature itself (appropriately) lacks due to concerns over the influence of special interest lucre, among other reasons. The procedural constraints that bind administrative agencies, as made credible by judicial review, encourage fairness and rationality and discourage the most egregious abuses of lawmaking authority. In delegating, Congress takes advantage of these credible constraints, which the institution cannot easily develop internally; and in relieving Members of Congress from public suspicion, it also advances their parochial electoral objectives.

This vision of the administrative state accounts for a number of features of our legal and political system. It explains, for instance, why Congress has generally not invested in greater internal capacity—because trust, not capacity is the binding constraint; why, as a positive matter, fairness and transparency are essential to administrative procedures; and why, if those administrative procedures undergo erosion, as some suggest has occurred, anxiety about administrative lawmaking might arise. The Article concludes with a discussion of normative and doctrinal implications of this trust‐based conception of administration, including a call for reorienting administrative procedures to more fully promote credible rationality.


The Empty Idea of "Equality of Creditors"

David A. Skeel, Jr.

Comments

Sufficiently Criminal Ties: Expanding VAWA Criminal Jurisdiction for Indian Tribes

Maura Douglas

American Indian and Alaska Native women face the highest rates of sexual assault of any group in the United States, and most often such attacks are by non‐Indian offenders. Since Oliphant v. Suquamish Indian Tribe, tribes cannot exercise criminal jurisdiction over non‐Indians, even for crimes committed against an Indian victim in federally recognized Indian country. A history of complex jurisdictional and intergovernmental issues between federal, state, and tribal authorities further impede the investigation and prosecution of these crimes. In the Violence Against Women Reauthorization Act of 2013 (VAWA 2013), Congress extended criminal jurisdiction to tribes in a limited context over non‐Indian defendants—so long as they possess ties to the tribe and to the victim as a domestic or dating partner. The requirement that a defendant must have a relationship with the victim, tribe, and land is novel. Indeed, during the VAWA 2013 legislative debates weighing the jurisdictional grant, even Senate opposition conceded that once jurisdiction was extended to crimes of domestic violence, “there would be no principled reason not to extend it to other offenses as well.” Federal Indian law affirms Congress’s plenary authority to recognize tribal sovereignty, but does the law require special domestic violence criminal jurisdiction for tribes to be so restricted? I argue it does not. This Comment first investigates the history of jurisdiction in Indian country and recognition of inherent tribal sovereignty by Congress. Second, it considers the problem of sexual violence in Indian country. Third, it assesses the main arguments in opposition to the current jurisdictional grant in VAWA 2013 to determine whether Congress can and should recognize tribal authority to prosecute all non‐Indian crimes of sexual violence, as well as concurrent crimes of domestic and dating violence, committed against Indian victims in Indian country. In light of these oppositional arguments, this Comment argues that Congress can and should recognize such jurisdictional authority of tribal governments, and proposes specific language to affirm the inherent powers of tribes to further protect their land and their people.


A New Hurdle to International Cooperation in Criminal Investigations: Whether Foreign Government‐Compelled Testimony Implicates the Privilege Against Self‐Incrimination

Jennifer Reich

Volume 166, Issue 2 
January 2018
Articles

Pandora’s Digital Box: The Promise and Perils of Digital Wallets

Adam J. Levitin

Digital wallets, such as ApplePay and Google Pay, are smart payment devices that can integrate payments with two‐way, realtime communications of any type of data. Integration of payments with realtime communications holds out tremendous promise for consumers and merchants alike: the combination, in a single, convenient platform, of search functions, advertising, payment, shipping, customer service, and loyalty programs. Such an integrated retail platform offers consumers a faster and easier way to transact, and offers brick‐and‐mortar retailers an eCommerce‐type ability to identify, attract, and retain customers. At the same time, however, digital wallets present materially different risks for both consumers and merchants than traditional plastic card payments precisely because of their smart nature.

For consumers, digital wallets can trigger an unfavorable shift in the applicable legal regime governing the transactions, increase fraud risk, create confusion regarding error resolution, expose consumers to non–FDIC‐insured accounts, and substantially erode transactional privacy. These risks are often not salient to consumers, who thus cannot distinguish between different digital wallets on the basis of risk. Consumers’ inability to protect against these risks points to a need for regulatory intervention by the Consumer Financial Protection Bureau to ensure minimum standards for digital wallets.

For merchants, digital wallets can divest valuable customer information used for antifraud, advertising, loyalty, and customer service purposes. Digital wallets can also facilitate poaching of customers by competitors, impair merchants’ customer relationship management, deprive merchants of influence over consumers’ payment choice and routing, increase fraud risk, subject merchants to patent infringement liability, and ultimately increase the costs of accepting payments. Merchants are constrained in their ability to refuse or condition payments from digital wallets based on the risks presented because of merchant rules promulgated by credit card networks. These rules raise antitrust concerns because they foreclose entry to those digital wallets that offer merchants the most attractive valuation proposition: wallets that do not use the credit card networks for payments.


Our Regionalism

Jessica Bulman-Pozen

This Article provides an account of Our Regionalism to supplement the many accounts of Our Federalism. After describing the legal forms regions assume in the United States—through interstate cooperation, organization of federal administrative agencies, and hybrid state–federal efforts—it explores how regions have shaped American governance across the twentieth and early twenty‐first centuries.

In the years leading up to the New Deal, commentators invoked regions to resist centralization, arguing that state coordination could forestall expansion of the federal government. But regions were soon deployed to a different end, as the federal government relied on regional administration to develop its bureaucracy. Incorporating regional accommodations and regional organization into new programs allowed the federal government to expand its role in domestic policymaking. As interstate regionalism yielded to federal regionalism, the administrative state was propelled forward by a strategy that had arisen to resist it. Even as regions facilitated the expansion of the New Deal administrative state, however, the regional organization and argument that underpinned this development left room for state influence within federal programs and for new projects of multistate and joint state–federal governance. The century’s next regional moment brought this potential to the fore, with regions brokering the resurgence of the states in Great Society programs.

In the early twenty‐first century, new regional undertakings have been celebrated as fluid, nonhierarchical networks. Although the network metaphor has been exhausted, this characterization anticipates the emergence of “regionalism without regions”: collaborations among multiple state and federal actors that need not involve contiguous areas. Just as regional improvisation has responded to governance challenges of past decades, this nascent development responds to today’s polarized partisanship. It betokens both the revival and the transformation of the political sectionalism that has always informed American regionalism, even as it slipped behind an administrative veneer for much of the twentieth century.


Copyright as Market Prospect

Shyamkrishna Balganesh

For many decades now, copyright jurisprudence and scholarship have looked to the common law of torts—principally trespass and negligence—in order to understand copyright’s structure of entitlement and liability. This focus on property—and harm‐based torts—has altogether ignored an area of tort law with significant import for our understanding of copyright law: tortious interference with a prospective economic advantage. This Article develops an understanding of copyright law using tortious interference with a prospect as a homology. Tortious interference with a prospect allows a plaintiff to recover when a defendant’s volitional actions interfere with a potential economic benefit that was likely to accrue to the plaintiff prior to the defendant’s intervention. Premised on the idea of a probabilistic harm and driven by instrumental considerations, the tort works by treating a possible market benefit as the basis of an interest that is worthy of protection against specific behavior. As a supposed incentive for creativity, copyright law operates in ways that are strikingly similar to tortious interference with a prospect. Much like tortious interference with a prospect, it functions by first identifying a zone of probabilistic market benefits, and then protecting that zone against specific volitional interferences through a framework of liability. This Article unpacks the strong analytical and normative parallels between the two, and argues that their similarity sheds new and important light on several persistent puzzles within current copyright jurisprudence.


Comments

FDA Regulation of 3D‐Printed Organs and Associated Ethical Challenges

Elizabeth Kelly

The implications of pervasive implementation of 3D printing with biological material, also known as “bioprinting,” are vast. They present never‐before‐seen hurdles, which are particularly complicated due to the vulnerability of the patients, who often need new organs to survive, involved. In this Comment, I limit the scope of this inquiry to the most immediate challenges of embracing 3D‐printed organs in our health care market: potential statutory roadblocks, regulatory concerns over manufactured organs, and ethical challenges of which we must remain aware. I submit one path by which 3D‐printed organs can fit in our current legal and regulatory framework. I also define who should be charged with regulating them and propose how future regulators should do so. Finally, I raise additional concerns of 3D‐printed organs that will require deeper analysis as more information becomes available, including the myriad ethical challenges presented by this new technology.

The U.S. Food and Drug Administration (FDA) is the appropriate body to regulate 3D‐printed organs because a manufactured organ must be treated differently than a human organ, which can be transplanted as “simply” part of the practice of medicine. It remains to be seen how the FDA will gather sufficient data to satisfy premarket approval requirements, determine who gets access and when, and how to govern the marketing of 3D‐printed organs because the output is individualized. But the process by which the organs are created can be scaled dramatically. In so doing, those in charge must also confront unique, multifaceted ethical challenges.


Anti‐SLAPP Statutes and the Federal Rules: Why Preemption Analysis Shows they Should Apply in Federal Diversity Suits

William James Seidleck

In an effort to protect the exercise of free speech, many states have enacted “anti‐SLAPP” statutes—which provide special motions making the dismissal of meritless defamation claims quick and easy. In doing so, these state statutes help protect speakers against abusive litigation meant to deter speech. However, because these statutes use procedure to protect what states view as important rights, their operation in federal diversity cases raises vexing Rules Enabling Act questions. Some federal circuit courts have taken the view that the substantive ends of anti‐SLAPP statutes mean that their protections should apply in federal court. But other federal circuit opinions argue that the Federal Rules of Civil Procedure provide a closed universe of dispositive motions, precluding the availability of anti‐SLAPP motions to federal defendants.

To address the anti‐SLAPP problem, this Comment advocates adopting a proposal of looking at Rules Enabling Act questions as akin to preemption analysis. In other words, deciding whether the Federal Rules prevent the operation of a state provision in federal court means asking if the state provision conflicts with federal policy. Here, state anti‐SLAPP statutes are not designed to promote the efficiency of federal litigation—the purpose served by Rules 12(b)(6) and 56 motions. Instead, anti‐SLAPP motions provide specific protections against strike suits in certain, state‐created causes of action. Likewise, anti‐SLAPP statutes do not transgress broader federal policies. And failure to apply anti‐SLAPP statutes in federal court would raise troubling federalism concerns. Thus, anti‐SLAPP statutes should apply in federal diversity proceedings.


Volume 166, Issue 1 
November 2017
Articles

Incredible Women: Sexual Violence and the Credibility Discount

Deborah Tuerkheimer

Credibility is central to the legal treatment of sexual violence, as epitomized by the iconic “he said/she said” contest. Over time, the resolution of competing factual accounts has evidenced a deeply skeptical orientation toward rape accusers. This incredulous stance remains firmly lodged, having migrated from formal legal rules to informal practices, with much the same result—an enduring system of disbelief. Introducing the concept of “credibility discounting” helps to explain the dominant feature of our legal response to rape. Although false reports of rape are uncommon, law enforcement officers tend to default to doubt when women allege sexual assault, resulting in curtailed investigations as well as infrequent arrests and prosecutions. Credibility discounts, which are meted out at every stage of the criminal process, involve downgrades both to trustworthiness (corresponding to testimonial injustice) and to plausibility (corresponding to hermeneutical injustice).

By conceptualizing prejudiced disbelief as a distinct failure of justice, one deserving of separate consideration, we may begin to grasp the full implications of credibility discounting, beyond faulty criminal justice outcomes. Attending to this failure of epistemic justice on its own terms advances a conversation about how best to reform institutions so that credibility judgments do not perpetuate inequality. To this end, credibility discounting should count as actionable discrimination. Under certain conditions, moreover, this recognition raises constitutional concerns. When rape victims confront a law enforcement regime predisposed to dismiss their complaints, they are effectively denied the protective resources of the state.


Tiers for the Establishment Clause

Richard H. Fallon, Jr.

When compared with other constitutional doctrines, Establishment Clause doctrine is confused and anomalous, both substantively and with regard to standing. The Supreme Court ought to craft reforms in light of a wide‐angle appraisal of pertinent comparisons, analogies, and interconnections. Substantively, the Justices should adopt the tiers‐of‐scrutiny approach that the Court employs under the Free Exercise, Free Speech, and Equal Protection Clauses. Within a tiered‐scrutiny regime, the Court should strictly scrutinize any statute that classifies or requires classifications based on religion. It should prescribe intermediate scrutiny for statutes that expend tax revenues to provide material benefits to churches or religiously affiliated organizations on a nondiscriminatory, nonpreferential basis. And it should clarify its approach to determining which symbolic supports for religion rise to the level of Establishment Clause violations. Correspondingly, the Court should realign standing doctrine to equate the injuries needed for standing more closely with those against which the Establishment Clause furnishes substantive protection.


Annoy No Cop

Josh Bowers

The objective of the legality principle is to promote autonomy by providing individuals with opportunities to plan courses of conduct free from state intrusion. If precise rules are not prescribed in advance, individuals may lack notice of what is prohibited and may be subjected to arbitrary treatment. Thus, the Constitution commands that legal officials honor formal terms of engagement and limit enforcement efforts to narrowly defined crimes. But, under pressing conditions, the prevailing rules may prove too rigid, compelling courts to carve out post hoc exceptions. As a matter of practice, these exceptions tend to operate asymmetrically—benefiting the state only. This Article uses Fourth Amendment doctrine to examine that asymmetry.

I coin the term “meaningful understanding” to describe the functional Fourth Amendment methodology by which courts sometimes accommodate law‐enforcement needs, fears, and even mistakes. The enterprise is admirable, but there is a dark side: a judge cannot understand meaningfully a reasonable officer in his particular situation without concurrently tolerating an otherwise impermissible intrusion upon autonomy. The officer enjoys a piecemeal exception that the individual experiences as a piecemeal (and often unanticipated) burden. In this way, meaningful understanding works to excuse unexpected coercion. The individual is left unfairly surprised—unable to plan a law‐abiding life consistent with the promise of the legality principle.

This troubling state of affairs arises most often in the context of order‐maintenance policing. Street encounters are fast‐moving and understandably unpredictable. In such circumstances, officers may end up deviating unforeseeably from the usual rules, confounding the capacity of pedestrians and motorists to comprehend the scope of state power and the quality of individual rights. We need not look far to find tragic real world examples. I discuss several, including the traffic stop and arrest of Sandra Bland, a motorist whose subsequent death in a jail cell became a focus of the legal and social justice movement known as “Black Lives Matter.”

The jurisprudential path forward, however, is not to command greater fidelity to formal Fourth Amendment rules, but instead to try within limits to understand much more. In this vein, Jeremy Waldron has described a “procedural” conception of legality, characterized by “modes of argumentation” capacious enough to bring all reasonable sides of the story to bear. The goal is ambitious. But the Article concludes with a modest and viable set of doctrinal reforms to better pursue meaningful understanding—articulated and evaluated bilaterally.


Comments

Blacklisting Foreign Terrorist Organizations

Justin S. Daniel

Designations of Foreign Terrorist Organizations (FTO) by the Secretary of State under Section 1189 of the Antiterrorism and Effective Death Penalty Act of 1996 provide a key means of thwarting global terror networks by isolating and stigmatizing such groups, and by depriving them of financial and human support. This Comment examines the role of classified information in the FTO designation process and analyzes whether the Secretary’s reliance on classified information—to which designated FTOs do not have access—comports with the Due Process Clause of the Fifth Amendment, particularly when the classified record is essential to the Secretary’s determination.

To answer that question, this Comment first traces a series of cases in the U.S. Court of Appeals for the District of Columbia Circuit, the tribunal charged with hearing challenges to FTO designations, and argues that—notwithstanding statements by the court evincing a reluctance to resolve the issue—D.C. Circuit precedent has likely foreclosed access to the classified record by designated groups, even when the information withheld is essential to the Secretary’s designation decision.

This Comment then presents a constitutional due process analysis and argues that—because Section 1189 targets foreign (as opposed to domestic) organizations, which must establish substantial connections with the U.S. to receive due process protection—courts should be reluctant to grant FTOs constitutional protection for interests divorced from the contacts used to establish U.S. presence. Finally, this Comment ventures a comparative analysis by looking to a Cold War–era scheme similar to Section 1189 and to the contemporary cases dealing with habeas corpus in the terrorist detainment context.


Smart Contracts and the Cost of Inflexibility

Jeremy M. Sklaroff

“Smart contracts” are decentralized agreements built in computer code and stored on a blockchain. Proponents imagine a future where commerce takes place exclusively using smart contracts, avoiding the high costs of contract drafting, judicial intervention, opportunistic behavior, and the inherent ambiguities of written language.

These decentralized code‐only contracts are part of a decades‐long quest to eliminate supposed inefficiencies in traditional written agreements. Electronic data interchange (EDI), a contracting technology from the 1970s, was designed with the same goal and garnered similar fanfare. Commentators at the time imagined a revolution in the way firms transacted and a full shift away from anything resembling a paper contract. Ultimately EDI failed to achieve these goals—it empowered, rather than circumvented, human decisionmakers along with their “inefficient” way of forming agreements. In doing so, EDI successfully reduced some transaction costs while preserving efficient forms of contractual flexibility.

Smart contracts are indeed more technologically sophisticated than EDI. Smart contract scripting languages offer a broader range of operations and greater scalability. Smart contracts are capable of seamlessly integrating with the operational and financial systems at the core of modern firms, whereas EDI transactions occurred in very early digital environments that required human intermediaries. Proponents of the smart contract revolution, therefore, do not describe the technology as a way to merely enhance human activity; they argue it can replace every stage of agreement formation and performance. From a purely technical standpoint, they might be right.

However, shifting away from human‐language contracts creates new inefficiencies. These stem from three features of smart contracts: automation, which requires that every agreement be formed from fully‐defined terms; decentralization, which conditions performance on verification by third parties; and anonymity, which eliminates the use of commercial context to give meaning to agreement terms. As a result, it is extremely costly to form smart contracts in a volatile environment or whenever there’s a level of uncertainty surrounding the agreement.

On the other hand, semantic contracts are flexible. They enable parties to use performance standards, generally‐defined contract terms, to create an enforceable agreement without requiring complete knowledge of what might happen in the future. Standards also allow parties to responsively incorporate commercial customs into their agreement, circumventing the need for explicit but redundant negotiation. And once their agreement is formed and executed, the parties are nonetheless free to dynamically shape their relationship through informal modifications or by selectively enforcing breaches. These two forms of flexibility—linguistic ambiguity, and enforcement discretion—create important efficiencies in the contracting process. By eliminating this flexibility, smart contracting will impose costs that are more severe and intractable than the ones it seeks to solve.


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