Volume 163, Issue 7 
June 2015

The Constraint of Legal Doctrine

Shyamkrishna Balganesh

As the dominant approach to legal analysis in the United States today, Legal Realism is firmly ensconced in the way scholars discuss and debate legal issues and problems. The phrase “we are all realists now” is treated as cliché precisely because it is in some ways taken to state an obvious reality about the mindset of American legal scholars. While Legal Realism came to represent a variety of different views, all of these views embodied a common theme, namely, the belief that legal doctrine is “more malleable, less determinate, and less causal of judicial outcomes” than is traditionally presumed. Judges in this view are taken to decide cases based on what they consider “fair” under the circumstances, “rather than on the basis of the applicable rules of law.” Judicial reasoning, the Realists argued, was rarely ever the “constrained product of legal doctrine and legal materials alone.” A hallmark of Legal Realism was therefore pervasive “skepticism” about the constraining effect of legal doctrine on judicial opinions and scholarly critiques of judge‐made law. The constraint of legal doctrine was thus believed to be mythical.

In a variety of substantive areas, judicial opinions continue to speak the language of legal doctrine, and legal doctrine remains the “currency” of legal analysis. Judges—at least on the face of things—appear as constrained or unconstrained by legal doctrine today as they appeared to be prior to the influence of Legal Realism. Consider a pair of copyright cases as an example. In 1908, the Supreme Court decided White‐Smith Music Publishing Co. v. Apollo Co., and held that a manufacturer of perforated piano rolls did not commit copyright infringement, since the rolls were not “copies” for the purposes of copyright law. In arriving at its conclusion, the Court looked to prior nonbinding case law, legislative intent, its own construction of the statute, and the common understanding of the term “copy.” The only express suggestion of constraint in the Court's opinion is its observation—in dicta—that if the prior case law had been of a “binding character” it would have “preclud[ed] further consideration of the question.” Now, contrast this with a case decided by the Court in 2014, American Broadcasting Co. v. Aereo, Inc. The question before the Court was whether a service that re‐transmitted free broadcasting content to subscribers over the Internet had committed copyright infringement by engaging in a “public performance” for the purposes of copyright law. In answering the question in the affirmative, the Court justified its conclusion entirely by reference to the legislative history of the statute's definitions of “public” and “perform” and its own reconstruction of Congress's regulatory intent underlying the statute.

The similarity in style and reasoning in the two opinions is stark and real. Both speak the language of formal legal doctrine, both make reference to precedent (when available), both defer to Congressional “intent” and purpose, and both rely as best as possible on the text of the statute. One was crafted in a pre‐Realist era and the other well after the dominance of Legal Realism. Their puzzling parallelism highlights the central questions that this Symposium set out to answer: Does legal doctrine in fact continue to “constrain” judicial reasoning, even after almost every participant in the legal system today has come into contact with the central premise of Legal Realism (i.e., the supposed myth of doctrinal constraint)? Are there ways of reconciling courts' post‐Realist use of legal doctrine with the core insights of Legal Realism? How uniform—across the law—is this apparent continuity in the use of legal doctrine?

Instead of seeking to answer these questions in the abstract as philosophical inquiries, the Symposium instead chose to have leading legal scholars, each from a different substantive area of law, reflect on the role of legal doctrine in their respective areas of expertise. Our hope was that having scholars reflect on this issue by reference to their own fields of expertise would address the question of “doctrinal constraint” in the American legal system organically and trans‐substantively. The areas chosen were drawn from both federal and state law, statutory and common law, and represented areas traditionally characterized as public law and private law. Some scholars chose to reflect on the question by looking at their field as a whole, while others reflected on the issue through specific cases, rules, or problems unique to their particular field.

Equity's Unstated Domain: The Role of Equity in Shaping Copyright Law

Shyamkrishna Balganesh & Gideon Parchomovsky

As used today, the term “equity” connotes a variety of related, but nonetheless distinct, ideas. In most contexts, equity refers to the body of rules and doctrines that emerged in parallel with the common law, and which merged with the common law by the late nineteenth century. At a purely conceptual level, some trace the term back to Aristotle's notion of epieikeia, or the process of infusing the law with sufficient flexibility to avoid injustice. Lastly, at a largely practical level, a few treat equity as synonymous with a set of remedies that courts can authorize, all of which are characterized by being “extraordinary” and “discretionary” in form and substance.

While equity is often understood as either a repository of substantive rules and doctrines, or, more generally, as a parallel court system that developed in seventeenth and eighteenth century England with its own set of procedural rules and uniquely discretionary remedies, this understanding is incomplete in one important respect. Equity also represents a distinctive approach to legal reasoning within a primarily statute‐centric area of law, involving an increased role for courts in the lawmaking process and a ready recourse to a set of ethical principles that are presumed to be normatively superior to the strict letter of the law. In the traditional common law this use of equity came to be known as the process of “equitable interpretation” or as determining the “equity of the statute.” Used in this conception, it authorized courts to extend or restrict the otherwise clear words of a statute to give effect to the statute's “ratio or purpose.”

In this Article, we argue that equity, understood in this sense, is deeply influential in the construction and operationalization of copyright doctrine. While copyright law is obviously statutory in origin, the influence of equity on its working is best seen in relation to the role that the federal courts—primarily the U.S. Supreme Court—have had on its shape and direction. In a variety of doctrinal areas, the Supreme Court's copyright jurisprudence reveals a distinct pattern of curbing behavior that, while in strict compliance with the letter of the law, is inconsistent with the values and purposes of the copyright system. The Supreme Court's efforts to align the text of the statute's directives with its perceived goals thus partakes of what the common law characterized as the process of giving effect to the equity of the statute. While premised on the notion of gap filling, the process was routinely directed at curtailing opportunistic behavior on the part of litigants who sought to take advantage of the statute's literal terms, while violating the unstated normative goals of the legislation. A careful examination of Supreme Court decisions on core copyright issues over the last few decades reveals the profound role that the equity of the statute has had on the content of copyright doctrine. In addition, it sheds light on the real and all too often overlooked role that courts play in the creation and construction of both copyright doctrine and the copyright system's underlying goals and values.

Doctrinal Categories, Legal Realism, and the Rule of Law

Hanoch Dagan

The claim in vogue is that Legal Realism stands for “the insignificance of doctrine” and its conceptualization as a “mere appearance[].” In particular, commentators associate Realism with a “nominalist impulse” that minimizes the significance of doctrinal categories. Against this conventional wisdom stands the resilience of doctrinal analysis in general and, in particular, the continued role of doctrinal categories in legal practice and discourse, which is puzzling given the substantial impact of Realism on legal education. This puzzle is the focus of our Symposium.

Realists argue that the availability of multiple potentially applicable doctrinal sources renders pure Doctrinalism impossible. Unlike many of its caricatures, true Legal Realism does not challenge the perceived stability of the doctrine or its categories at a given time and place. This stability, which rests on the convergence of lawyers' background understandings at a given time and place, is valuable for realists; it is crucial for complying with the rule of law by providing effective guidance to its addressees and constraining officials' ability to exercise unconstrained power.

This is why Realists find the law's use of categories, concepts, and rules not only unavoidable but also desirable, and, thus, why they reject nominalism. For Realists, doctrine is and should be part of the law. But because doctrine qua doctrine is indeterminate, Legal Realists insist that some legal actors—notably, legislators and appellate court judges—should occasionally use social developments and new cases as triggers for rethinking the doctrine's conventional understanding. That is, they should be used as opportunities to revisit a doctrine's normative viability and reexamine its categories' adequacy. This task of critical reflection is even more important for legal scholarship, a point I will address briefly in my concluding remarks.

Given this understanding of the law, it should not be surprising that Realists are not puzzled by the continued significance of doctrinal categories in legal discourse. Legal Realism definitively rejects the orthodox idea that doctrinal categories refine some eternal descriptive truths that transcend context and that doctrinal taxonomy aspires to produce a map of mutually exclusive categories. Rather, Realists insist that the main roles of doctrinal categories are to consolidate people's expectations and to express law's ideals with respect to distinct types of human interaction. Therefore, Realists reconstruct doctrinal taxonomy so as to incorporate their insights on the inherent dynamism of law and the important function of contextual normative analysis in the evolution of doctrinal categories. Recasting doctrinal categorization in these terms recognizes the dynamic dimension of the taxonomic enterprise. It also implies that doctrinal taxonomy should be sensitive to context and emphasizes the importance of relatively narrow doctrinal categories. Finally, a realist doctrinal taxonomy recognizes and accommodates substantial, although never overwhelming, overlaps among the various categories.

Realism and Revolution in Conflict of Laws: In With a Bang and Out With a Whimper

Celia Wasserstein Fassberg

Conflict of laws scholarship in the United States in the middle half of the twentieth century produced what is commonly referred to as a “revolution.” Quite apart from its revolutionary content, this scholarship is extraordinary in three principal ways. First, it is extraordinary for its volume, its prominence and the eminence of many of those producing it. Following Joseph Story's pioneering work in the nineteenth century and well into the middle of the twentieth century, some of the best and brightest legal minds in some of the leading American law schools were devoting their not inconsiderable energies to this field, publishing in the best of the American law journals and spawning a vast literature—Joseph Beale and Erwin Griswold, Wesley Hohfeld, Ernest Lorenzen and Walter Wheeler Cook, Hessel Yntema, David Cavers, Albert Ehrenzweig and Brainerd Currie. Second, this scholarship is extraordinary for its fiercely intellectual and visceral nature. The literature reveals not only unusual analytical and comparative thoroughness but also unusual competitive relentlessness and interpersonal rhetorical argumentativeness. The third extraordinary feature—with which this Symposium is concerned—is the striking impact this scholarship had on judicial practice in the United States and the equally striking absence of almost any impact on scholarship or judicial practice outside the United States.

Nine Takes on Indeterminacy, With Special Emphasis on the Criminal Law

Leo Katz

The claim that legal disputes have no determinate answer is an old one. The worry is one that assails every first‐year law student at some point. Having learned to argue both sides of every case, the feeling seems inevitable.

But to assess the “skeptical thesis,” which is what I will hereafter call this claim, in its strongest version, we will do well to look at a particularly vigorous presentation of it, which, in the case of criminal law, is to be found in Mark Kelman's justly famous Interpretive Constructs in the Criminal Law. What caught people's imagination about Kelman's article were, I think, two features: on the one hand, there was the sheer virtuosity with which Kelman presented each side of a series of cases making up the standard criminal law curriculum; but, secondly, and probably more importantly, there were the patterns he was able to discern in the arguments being made—the recurrent themes, tropes, moves, and perspectives being employed by each side. These two aspects of the article imbued Kelman's presentation of the skeptical thesis with particular zest. The skillful presentation of each side of the argument in cases that he did not especially select for the purpose, along with the suggestion that such arguments could be cooked up, almost as by recipe, using the themes, tropes, moves, and perspectives he identified, made the conclusion that legal doctrine really does not settle any dispute, or at least any dispute of consequence, almost irresistible. Something else, most likely the whims of the judges, must be the real determinants of the outcome.

Is Kelman arguing that only hard cases are indeterminate? No, he suggests that even easy cases, looked at closely, turn out to be indeterminate. What does he make of the solutions courts purport to offer in these cases? They are make‐believe. The cases could easily have come out differently, but the courts deceive themselves about that by semiconsciously or even unconsciously deleting the possible conceptual moves that would have allowed them to reach an alternative outcome. “One real conclusion,” from his article, he suggests, “one possible bottom line, is that I've constructed a very elaborate, schematized, and conceptual piece of winking dismissal: ‘Here's what they say, this is how far they have gotten. You know what? There's not much to it.’”

In what follows, I am going to consider the skeptical thesis from a variety of perspectives, some of which undercut it, others of which do the reverse.

Legal Realism and Legal Doctrine

Brian Leiter

The American Legal Realists did not reject doctrine, because they did not reject the idea that judges decide cases in accordance with normative standards of some kind: “doctrine,” after all, is just a normative standard about what should be done, and not necessarily one formulated and made explicit by a statute, a court, or a treatise. A judge who decides cases based on the norm “this breach of contract is efficient” still decides based on a normative standard, even if it is not one that the law necessarily endorses. But the non‐legal normative standards of yesterday can become the legally binding norms of tomorrow. What the Legal Realists taught us is that too often the doctrine that courts invoke is not really the normative standard upon which they really rely, and it was central to Legal Realism to reform the law to make the actual doctrine cited by courts and treatise writers correspond to the actual normative standards upon which judges rely. Doctrine remains so important today, as many of the contributions to this Symposium show, precisely because the realist law reform movement was successful in so many arenas.

All of these points were driven home to me almost twenty years ago when I was teaching at the University of Texas and had the opportunity to talk at some length with my colleague, the late great Professor Charles Alan Wright, then the President of the American Law Institute (ALI) and the senior author of perhaps the most important and influential treatise in American law of the past half‐century, Federal Practice and Procedure. Wright seemed a quintessential “doctrinalist,” perhaps the greatest and most influential of his generation, and yet he was also an unabashed Legal Realist. Understanding that apparently puzzling combination of attributes is essential to understanding the real essence of American Legal Realism.

Family Law's Doctrines

Melissa Murray

The father of the American law school, Christopher Columbus Langdell, famously conceptualized the law as akin to science. On this account, legal doctrine was a series of scientific truths that judges systematically revealed over time. Decades later, the Legal Realists took issue with Langdell's rigid conception of legal development. In their view, law was not simply a set of formal doctrines that was applied neutrally. Instead, the Legal Realists argued that real world concerns—including politics—informed the application and evolution of legal doctrine. Judges thus were not scientists, faithfully applying doctrine in an evenhanded way, but rather keen political actors who could—and did—manipulate doctrine to achieve desired outcomes.

Today, almost 150 years after Langdell elevated legal doctrine to the status of scientific truth, this Symposium questions whether doctrine survives in the present day, or if it has been completely subordinated to the exigencies of contemporary situations, as the Legal Realists claimed. I approach these questions from the domain of family law, where the circumstances that animate case law are often deeply idiosyncratic and particularized. As Leo Tolstoy observed (in a nonlegal context), “Happy families are all alike; every unhappy family is unhappy in its own way.”

Despite the idiosyncratic nature of families and family life, most family law scholars and practitioners would agree that there is a robust body of family law doctrine, as evidenced by the work of federal and state courts and the many efforts to codify various family law principles into statutes. While this growing body of state and federal law plays an important role in the adjudication and resolution of familial disputes, it is not the only source of family law doctrine.

In this Article, I offer a more nuanced view of the field and the role of doctrine in it. Although there is a robust body of family law doctrine, including judge‐made case law, various state family law codes, federal statutory law, and federal constitutional law, as well as the model codes that often inspire law reform, the legal rules that these forms enshrine often assume and privilege a particular family model—marriage and the biological family produced in marriage. When families depart from the marital and biological model on which these doctrines rest, the assurances and predictability of legal doctrine evaporate. In these circumstances, the question of doctrine—of legal truths—becomes deeply contested as courts confront scenarios that require them to grapple with the fraught question of how to apply doctrine in light of real world concerns and the particular circumstances of litigants' lives.

Corporate Law Doctrine and the Legacy of American Legal Realism

Edward B. Rock

In this contribution to a symposium on “Legal Realism and Legal Doctrine,” I examine the role that jurisprudence plays in corporate law doctrine. Through an examination of paired cases from the United States and United Kingdom, I offer a case study of the contrasting influence on corporate law judging of American Legal Realism versus traditional U.K. Doctrinalism.

Specialist judges in both systems, aided by specialist lawyers, clearly identify and understand the core policy issues involved in a dispute and arrive at sensible results. Adjusting for differences in background law and institutions, it seems likely that the disputes would ultimately be resolved in more or less the same way in each system. This is unsurprising in a field such as corporate law, where market and institutional pressures demand practical solutions to practical problems.

On the other hand, the differences in style are inescapable. While Delaware corporate law judges openly identify gaps and resolve them by reference to policy, U.K. judges employ a traditional historical/doctrinal approach, working through precedent and, in doing so, developing principles to resolve the case at bar. These differences in style, it seems to me, are a legacy of the impact of American Legal Realism on legal education in the United States, in contrast to the more traditional approach dominant in the United Kingdom. Explicit policy analysis is far more acceptable and natural in the Delaware approach than in the United Kingdom, and this difference in legal culture has effects on how lawyers present cases.

The Persistence of System in Property Law

Henry E. Smith

According to conventional wisdom, property has disintegrated. Property law has undergone many changes since the heyday of Legal Realism, and many of these changes were both inspired by Realism and went under the banner of the Realists' “bundle‐of‐rights” conception of property. However, many of the features of property law most denigrated by the Legal Realists and their successors have proved surprisingly resilient. These “doctrinal” features include the notion of property as a thing, the importance of possessory rights, and the greater degree of formalism in property than in contract law. In this Article, I argue that there is a common cause to the Realists' criticism of these features and their endurance in the face of that criticism: all of these features of property are manifestations of property law's basic architecture as a system. Because of the inherent complexity of relations—especially those that are less personalized—in private law, a system for providing a first cut at managing these relations presents problems of information costs that are unique to property. These costs, usually left out of realist analysis, are hard to ignore entirely and push property law to treat private interactions in a more modular fashion than the realist bundle‐of‐rights picture would lead one to expect. Moreover, the underappreciated flexibility and robustness of a modular architecture allows property law to absorb—at some cost—a great deal of change without alteration of its basic nature. I apply this analysis to Realist and post‐Realist approaches to asset definition, trespass and nuisance, and the standardization of property forms. The greatest engine for change from Legal Realism in certain areas of property may be simple ignorance of the complexities of earlier law.

The New Doctrinalism: Implications for Evidence Theory

Alex Stein

This Article revisits and refines the organizing principles of evidence law: case specificity, cost minimization, and equal best. These three principles explain and justify all admissibility and sufficiency requirements of the law of evidence. The case‐specificity principle requires that factfinders base their decisions on the relative plausibility of the stories describing the parties' entitlement–accountability relationship. The cost‐minimization principle demands that factfinders minimize the cost of errors and the cost of avoiding errors as a total sum. The equal‐best principle mandates that factfinders afford every person the maximal feasible protection against risk of error while equalizing that protection across the board.

This Article connects these principles to the irreducibly second‐personal structure of legal doctrine (that tracks Stephen Darwall's celebrated account of morally justified claims). Under this structure, the plaintiff's (or the prosecutor's) authority to extract compensation from (or impose punishment on) the defendant critically depends on the trustworthiness of the individual infringement allegations that make the defendant accountable to the plaintiff (or the prosecutor). Evidentiary rules fit into this second‐personal framework only when they promote case specificity, cost minimization, or equal best. Reform proposals that favor different rules are fatally disconnected from that framework and are therefore ill‐conceived.

Based on this observation, I criticize three powerful accounts of evidence law that rely, respectively, on economics, probability theory, and morality. These accounts include Louis Kaplow's theory of the burden of proof, Daniel Kahneman and Amos Tversky's claim that factfinders' deviations from mathematical probability are irrational, and Ronald Dworkin's distinction between accidentally and deliberately imposed risks of error. These accounts break away from our second‐personal system of entitlements and liabilities; by doing so, they create a methodologically impermissible disconnect between rules of evidence and substantive laws.

Intuitive Formalism in Contract

Tess Wilkinson-Ryan

This Article starts with the proposition that most American contracting is consumer contracting, posits that consumer contracting has particular and even peculiar doctrinal features, and concludes that these features dominate the lay understanding of contract law. Contracts of adhesion constitute the bulk of consumer experience with contract law. It is not hard to see that someone discerning the nature of contract law from a sample composed almost entirely of boilerplate terms and conditions would come quickly to the conclusion that contract law is highly formal.

Within the realm of potentially enforceable deals (i.e., those that are supported by consideration and not illegal or unconscionable), modern contract doctrine upholds agreements when the parties have objectively manifested assent. This is the contract law of the first‐year Contracts course, and it is, more or less, why contracts existed in the cases Hadley v. Baxendale, Hawkins v. McGee, and Embry v. Hargadine, McKittrick Dry Goods Co. These three canonical cases each involve oral manifestations of assent: respectively, the contracts are based on the carrier's promise that the crankshaft would be delivered by noon the next day; the doctor's promise of a one‐hundred percent good hand; and the employer's response to his anxious employee, “You're alright. Go get your men out.” For everyone who knows the doctrine of assent, these are relatively easy cases for finding contracts, because the evidence suggests that the parties, in fact, communicated to each other their agreement. However, these cases might startle a large percentage of the nonattorney population, for the simple reason that they are oral and not written contracts.

What accounts for this misperception of contract law? Americans are not contract naïfs. On the contrary, most people enter into numerous legally binding agreements every year, if not every month or week. These are the agreements we make with Amazon, PayPal, Comcast, Apple, AT&T, and Visa, to name a few—in other words, these are the contracts we enter into regularly as consumers. Consumer contracts share key features: they are formal, assent is memorialized (either by signature or by clicking “I agree”), parties neither negotiate nor read their terms, and they are almost universally enforceable and, when litigated, enforced. This is the contract law that individuals encounter every day.

As such, perhaps we should not be surprised that this is what most people think that contract law is. Emerging evidence indicates that most people think contracting means signing the paperwork and that contract law is about the form of consent rather than the content to which parties are consenting. This “intuitive formalism” deserves our empirical and normative attention because it has real implications for how consumers behave in their deals and how they interact with their legal system.

Reasonableness In and Out of Negligence Law

Benjamin C. Zipursky

The law's use of the terms “reasonable” and “unreasonable” are legion and notorious. Indeed, the law's seemingly carefree attitude in throwing around these terms has often served Legal Realists and their descendants well in their effort to depict legal language as simply a shell through which actors exercise the widest sort of discretion to select their favored outcomes or policies. Conversely, ambitious agendas from philosophers and economists have often found that “reasonableness” provides a readily available anchor in the positive law for their normative theories. Work by moral and political philosophers devoted to analyzing “the reasonable” and work by economists, decision theorists, and game theorists on rationality understandably turn the law's use of “reasonableness” into a magnet for legal theory. In these respects, “reasonableness” might be seen as the third “r” of legal theory. Like “rights” and “responsibility,” “reasonableness” is beloved by legal theorists and equally beloved by the skeptics who spend their time skewering those theorists.

However tempting it is to join one side or the other in these jurisprudential wars, it is useful to step back and do some legwork on the place of the reasonable within the law, and more specifically, on the variety of places that “reasonable” and its cognates are found in the law. Hohfeld and many since him have found what I might call “varietal analysis” useful in exploring the concept of rights, as did Hart within the concept of responsibility. If exploration of the varieties of reasonableness in the law were to provide even a fraction of the illumination generated by their work on the other two “r”s, the enterprise will have been worthwhile.

There is, of course, an irony in my suggested sequence of research. The word “reasonable” is a paradigmatic example of a standard in the law, and its meaning is, if nothing else, vague. And—as intimated above—that is why it is so tempting to reach to legal, philosophical, and economic theories to flesh out some content for “the reasonable” when content is needed. It thus seems odd—backwards, even—to turn to legal doctrine to try to illuminate reasonableness.

My reasons for looking at doctrine relate to a suspicion that legal scholars with a theoretical proclivity have too quickly conflated three quite different attributes of the language of reasonableness in the law: the attribute of vagueness, the attribute of meaninglessness, and the attribute of ambiguity. For a term or a phrase to fall short of clarity because of vagueness is quite different from having no meaning at all, and both are different from having multiple meanings—being ambiguous. A failure to distinguish among these features of meaning can distort our view of the relevant domain of law. Indeed, the failure to recognize the multiple ambiguity of “reasonableness” can lead to a distorted view of its vagueness and unclarity in the law.

Volume 163, Issue 6 
May 2015

Regulating Against Bubbles: How Mortgage Regulation Can Keep Main Street and Wall Street Safe—from Themselves

Ryan Bubb & Prasad Krishnamurthy

As the Great Recession has painfully demonstrated, housing bubbles pose an enormous threat to economic stability. However, the principal mortgage market reforms in response to the latest boom and bust—the Dodd-Frank Act's provisions on mortgage lending and securitization—are not designed to protect the economy from a housing bubble. Instead, these reforms tinker with the incentives of securitizers and lenders to prevent their exploitation of naive investors and borrowers. In particular, these changes require securitizers to retain credit risk and lenders to assess borrowers' ability to repay.

This approach misses the mark. The sine qua non of a bubble is marketwide overoptimism about future house prices. Irrational exuberance in a bubble leads parties across the entire system of housing finance to make risky bets based on rosy beliefs. It is not just investors who underprice credit risk and borrowers who overextend. Securitizers and lenders are also eager to take on dangerous levels of risk and leverage. The Dodd-Frank Act's incentive-based reforms, by relying on rational behavior by supposedly sophisticated parties, will do little to protect the economy from a bubble. They might even increase systemic risk by concentrating mortgage risk in large financial institutions.

Because indirect incentive-based regulation is ineffective in a bubble, more direct mandates should be employed. We suggest a number of direct regulations to limit mortgage leverage, debt-to-income levels, and other contractual features that enable or induce borrowers to take out larger loans. We show how such limits can curb bubbles, lower defaults, and reduce household exposure to housing risk. While such limits would undoubtedly entail costs, such as restricting access to mortgage credit and homeownership, we suggest straightforward ways to mitigate many of these concerns. Our critique of incentive-based regulation also provides an important new perspective on current legislative efforts to reform the broader architecture of housing finance.

The Dodd-Frank Act's mistargeted approach reflects in part the growing literature in behavioral law and economics that shows how sophisticated firms take advantage of biased consumers. Indeed, much of the debate over the appropriate response to the Great Recession has been about how to keep Main Street safe from Wall Street. We advance this literature by showing that the mistakes of firms have important implications for the design of regulation. Our analysis calls for a fundamental paradigm shift. The central policy challenge is to keep Main Street and Wall Street safe from themselves.

A Dose of Reality for Specialized Courts: Lessons from the VICP

Nora Freeman Engstrom

The latest in a long line of reform proposals, health courts have been called “the best option for fixing our broken system of medical justice.” And, if health courts’ supporters are to be believed, these specialized courts are poised to revolutionize medical malpractice litigation: They would offer faster compensation to far more people, while restoring faith in the reliability of legal decisionmaking. But these benefits are, as some leading supporters have acknowledged, “hoped for, but untested.” The question remains: Will health courts actually operate as effectively as proponents now predict?

The best evidence to answer that question comes, I suggest, from the Vaccine Injury Compensation Program (VICP)—a Program that employs very similar procedures to handle very similar claims and that had, at its birth, a very similar ambition. Mining nearly three decades of previously untapped material concerning the VICP’s operation, this Article analyzes how an American compensation program that wrests jurisdiction from traditional courts has, in practice, fared. Findings are discouraging. Though the VICP and health courts share many of the same procedural innovations, those innovations, in the VICP context, have largely failed to expedite adjudications and rationalize compensation decisions. This fact carries significant implications for health courts, suggesting that they won’t operate nearly as effectively as their proponents now predict. More broadly, this study of an American no-fault regime, in action and over time, enriches—and at times complicates—current understanding of the prospects, promise, and “perceived virtues” of other specialized courts and alternative compensation mechanisms.

Judicial Priorities

Bert I. Huang & Tejas N. Narechania

In an unprecedented move, the Illinois Supreme Court in the mid-1990s imposed hard caps on the state’s appeals courts, drastically reducing the number of opinions they could publish, while also narrowing the formal criteria for opinions to qualify for publication. The high court explained that the amendment’s purpose was to reduce the “avalanche of opinions emanating from [the] Appellate Court,” which was causing legal research to become “unnecessarily burdensome, difficult and costly.”

This unusual and sudden policy shift offers the chance to observe the priorities of a common law court in its production of published opinions. The method we introduce here can be seen as a sort of revealed-preferences approach: when forced to choose, which types of opinions were these courts more likely to continue publishing, and which types were they more likely to abandon?

Our method, which seems straightforward, has turned out to reveal more than we expected: it has uncovered more than the simple priorities raised in the thought experiment above. One especially surprising pattern forces us to develop new theories about how higher-level judicial priorities—such as a concern for outward appearances—compete for influence over judicial choices.


Dangerous Liaisons: Criminalization of “Relationship Hires” under the Foreign Corrupt Practices Act

Shinjini Chatterjee

On August 17, 2013, the New York Times published a front page story on JPMorgan Chase & Co. that cast the firm at the center of an international bribery scandal and sparked a media firestorm. The article reported that the U.S. Securities and Exchange Commission (SEC) had opened a bribery investigation into the firm's hiring practices in China pursuant to the Foreign Corrupt Practices Act (FCPA), a statute that regulates bribery and public corruption in foreign countries. The story continued to garner national attention in the weeks following the article's release, especially after the Department of Justice (DOJ) joined the SEC's investigation. At the center of the controversy was the unusual nature of the investigation itself: unlike most FCPA bribery investigations, which target financial payments to foreign officials in exchange for business advantages, the central issue underpinning the JPMorgan investigation was the firm's apparent practice of hiring well-connected children of Chinese business and political leaders. More specifically, the government's investigation targeted the firm's “Sons and Daughters” program in China, a hiring program that allegedly favored children of Chinese owners of state-controlled enterprises in China. JPMorgan purportedly relied on this hiring process to gain a competitive advantage in China, where state-owned enterprises dominate the economy.

Although most media reports on the JPMorgan investigation characterize it as an unusual approach for the government, probes into corporate hiring practices are part of an increasingly apparent trend in FCPA enforcement. About eight months after the JPMorgan investigation began, DOJ and the SEC sent letters to at least five other financial institutions, requesting information on their hiring practices in Asia. Federal agencies have justified these types of “relationship hire” investigations as well within the scope of the FCPA. The FCPA prohibits the exchange of “anything of value” with foreign officials for any “improper advantage”—language that appears to encompass offers of employment to relatives of foreign officials. Critics of the FCPA's application to relationship hires have questioned the government's reading of the Act's language, characterizing it as an “aggressive” interpretation.

Despite the publicity surrounding the JPMorgan scandal, very little scholarship has examined relationship hires as an issue that defines and tests the limits of future FCPA enforcement. This Comment begins this discussion by analyzing both the rationale for the government's application of the FCPA to relationship hires and the implications of this type of FCPA enforcement.

Getting Their Due (Process): Parents and Lawyers in Special Education Due Process Hearings in Pennsylvania

Kevin Hoagland-Hanson

The Individuals with Disabilities Education Act (IDEA) requires school districts to provide a free appropriate public education to all students, regardless of physical or mental disability. To that end, thousands of parents and students enter the special education due process system created by state governments under IDEA each year to compel districts to provide the services required by statute. All parents and students have the right to hire a lawyer to help them navigate the complicated administrative regime, though not all have the ability to do so. But many critics of IDEA due process argue that the presence of lawyers slows the process unnecessarily and damages the relationship between families and school districts.

Through a combination of empirical analysis of five years of Pennsylvania special education hearing officer decisions and interviews with private special education lawyers, this Comment examines the role of counsel in IDEA due process. Parents and students with counsel were significantly more likely to obtain substantive relief through due process than those proceeding pro se. Yet, at least some pro se parents still had viable claims and a few were able to successfully obtain favorable decisions from hearing officers, without the assistance of counsel.

This Comment evaluates proposed alternatives to the due process system as constructed, including alternative non-adversarial dispute resolution mechanisms, in light of the empirical data from Pennsylvania. The data suggests that special education due process, in Pennsylvania at least, is more stable and effective than many critics have argued and that greater access to counsel, not less adversarial alternatives, may be a better way to ensure compliance with the substantive requirements of IDEA.

Volume 163, Issue 5 
April 2015

Structure and Value in the Common Law

Shyamkrishna Balganesh & Gideon Parchomovsky

Common law concepts have fallen into disrepute among legal theorists. The rise of Legal Realism in the early twentieth century marked a turning point in legal thought and analysis. One of the defining characteristics of the movement was complete disregard, not to say contempt, towards legal conceptualism. The founding fathers of the movement viewed the core concepts of the common law as devoid of any independent meaning or functional significance. They considered the common law’s conceptual edifice indeterminate and manipulable so as to render it altogether contingent on the working of the system. Walking along the same path, efficiency-minded scholars see the common law system as a collection of rules that are in reality motivated solely by the ideal of wealth maximization. In this view, legal concepts exist in the common law to further its economic goals, or are otherwise completely redundant. Legal philosophers, for their part, have chimed in as well, characterizing the common law’s concepts as embodying their own autonomous commitment to reason, which they see as altogether independent from the instrumental goals of the law. With the general move towards instrumentalism in American legal analysis and thinking, the net result has been that common law concepts are seen today as largely vestigial artifacts.

In this Article, we mount a defense of the common law’s architecture. We argue that the criticisms leveled by legal theorists at the common law’s extensive use of legal concepts are misguided. In treating the common law’s conceptual architecture as a contingent feature of the system, these criticisms fail to account for how the common law has endured over time and context, and in the face of changing social values and preferences. The persistence of the common law and its continuing vitality is in large measure attributable to the subtle balance that it achieves between stability and change, a balance for which it relies almost entirely on its conceptual structure. Our core thesis is that the common law’s commitment to its conceptual structure is in many ways the key to understanding not just how the common law works but, in addition, what the common law itself is.

Helping Buyers Beware: The Need for Supervision of Big Retail

Rory Van Loo

Since the 2008 financial crisis, consumer regulators have closely supervised sellers of credit cards and home mortgages to stamp out anticompetitive practices. Supervision programs give financial regulators ongoing access to sophisticated firms’ internal data outside the litigation process. This often enables examiners to identify and correct harmful conduct more rapidly and effectively than would be possible using publicly available information and cumbersome legal tools.

Consumers spend four times more on retail goods than on financial products. The retail sector’s dominant firms—such as Amazon, Walmart, Unilever, and Kraft—employ large teams of quantitative experts armed with advanced information technologies, huge volumes of data, and in‐store experimentation to develop behavioral economics–related practices analogous to those seen in consumer finance. The empirical data suggest those practices in the aggregate may significantly harm all households, costing even a family at the poverty line hundreds of dollars annually. Yet unlike in consumer finance, regulators have declined to supervise sellers of retail goods.

This Article argues for wider adoption of the financial sector’s emerging—though largely unarticulated—paradigm that views regulatory supervision of firms as central to consumer protection. That paradigm suggests the consumer goods sector needs the inverse of what consumer finance needed in the wake of the 2008 crisis. Then, Congress created the Consumer Financial Protection Bureau to provide more consumer protection because regulators had previously focused excessively on supervising financial institutions to ensure firms’ safety and soundness. In contrast, the consumer goods sector has a regulatory body—the Federal Trade Commission’s (FTC) Bureau of Consumer Protection—that focuses solely on consumer protection but does not supervise firms. Fortunately, congressional action would not be required for the FTC to develop a supervision program. The agency’s leadership would simply need to exercise the authority that Congress long ago granted.

Presidential Settlements

Adam S. Zimmerman

Large groups regularly turn to the White House to resolve complex disputes collectively, much like a class action. These presidential settlements go back as far as the early Republic and were particularly popular in the Progressive Era, when President Teddy Roosevelt famously brokered settlements among private groups following a rash of accidental injuries and deaths in mining, rail, and even football. More modern variants include mass compensation schemes like the Holocaust victim settlement, the Pan Am 103 settlement, and the BP oil spill settlement brokered by Presidents Bill Clinton, George W. Bush, and Barack Obama, respectively. In each case, the President helped resolve a sprawling class action–like dispute among warring parties while advancing a broader executive agenda. Just as the President has extended power over the administrative state, presidential settlements demonstrate the growth of executive authority in mass dispute resolution to provide restitution for widespread harm.

But this use of executive power creates problems for victims purportedly served by presidential settlements. When the President settles massive private disputes, the President resolves them like other forms of complex litigation but without the oversight, transparency, and participation thought necessary to resolve potential conflicts of interest among the victims. The President’s other duties aggravate conflicts with groups who may rely entirely on the settlements for relief.

This Article recommends that the President adopt complex litigation principles to reduce conflicts of interest, increase transparency, and improve public participation in White House–driven settlements. Envisioning the President as the “settler-in-chief,” this Article also raises new questions about how the coordinate branches of government, as well as actors inside the White House, may regulate executive settlements consistent with the separation of powers.


Modernizing Class Action Cy Pres Through Democratic Inputs: A Return to Cy Pres Comme Possible

Chris J. Chasin

Forty-five years ago, the ancient doctrine of “cy pres” was lifted from the pages of trust law and applied, for the first time, to the class action context. Cy pres stood for the proposition that, when the explicit purpose of a charitable trust became impossible, the court should look to the testator’s intent and apply the trust to its next best use. In the class action context, cy pres was an equitable “patch” necessitated by the expanding scope of the class action mechanism at the state and federal levels. Generally, the concept has come to mean that when distributing damages to an individual class member is impossible or impractical, the court should use those damages for the benefit of the class at large.

However, the current class action litigation system does not consistently follow this standard. Cy pres awards lack the procedural and adversarial protections needed to ensure their fairness and accuracy. Courts, even when trying to apply cy pres for the benefit of the member class, are poorly suited to decide how best to benefit the class. And, unfortunately, cy pres awards are all too often diverted to general charity or directed to charitable projects of interest to the judge or lawyers involved in the case. These outcomes deprive class members of the benefits of their suit and cast a pallor of impropriety on the class action mechanism.

Fortunately, a remedy exists and can be deployed discretionarily without legislation or amendment to the Federal Rules. Because cy pres aims to approximate the benefit that individual damages would provide to class members, courts should ask the class how best to utilize cy pres awards. Through a crowdsourced, democratic voting process, courts could seek the input of identified class members at low marginal cost. This mechanism would add a democratic element to the cy pres process and largely obviate potential or perceived ethical violations. Moreover, it would improve judicial accuracy in awarding cy pres funds, enabling more of their compensatory value to flow to the injured class. This proposal modernizes class action cy pres while honoring its ancient origins by returning to cy pres’s core goal: adhering as closely as possible to the intended outcome.

Prohibiting Sexual Orientation Discrimination in Public Accommodations: A Common Law Approach

Paul Vincent Courtney

Although forty-five states have enacted statutes prohibiting discrimination in so-called “public accommodations”—broadly defined as those businesses offering “lodging, food, entertainment, or other services to the public"—the statutes of only twenty-one states and the District of Columbia explicitly prohibit sexual orientation discrimination by these businesses; the gay populations of twenty-nine states thus live without any affirmative statutory protection from discrimination in commerce. This Comment addresses the failure of these states to include gay people among those classes of persons protected by their public accommodations statutes. The presumption today is that businesses in twenty-nine states can discriminate against gay people with impunity—“that businesses, as property owners, have the right to exclude non-owners unless that right is limited by statute” and “to refuse to contract with anyone with whom they do not wish to deal unless required to do so by express statutory command.”

But the right to exclude is subject to certain limitations. For public accommodations, the right to exclude historically has been counterbalanced by a common law duty to serve. Over the course of the twentieth century, however, the common law duty to serve fell into disuse and was replaced by state and federal public accommodations statutes that prohibit businesses from denying service to statutorily defined protected classes. Because public accommodations statutes have come to supplant the common law duty in our modern legal consciousness, many now believe—mistakenly, I argue—that these statutes are the sole source of law proscribing discrimination in commerce, and that if these statutes do not specifically enumerate a class or characteristic as among those protected, then businesses may discriminate against that class or characteristic with impunity.

Recent scholarship has largely focused on proposals to expand state antidiscrimination statutes to encompass sexual orientation discrimination; political advocacy groups’ goals are similarly defined. But this Comment rejects the notion that gay people’s only hope for legal protection lies in statutory law. That certain states have not yet decided to extend statutory protection to gay people does not mean that those individuals are necessarily without legal recourse if a business should deny them service, or that enacting statutes is the only way to provide protection. As discussed above, a business’s right to exclude historically has been counterbalanced by a common law duty to serve. Claims based upon the foundational principles of this common law duty may offer gay people immediate protection against discrimination in states whose legislatures have failed to provide such protection expressly. This Comment argues that even in states that have not proscribed sexual orientation discrimination affirmatively by statute, such discrimination is nonetheless illegal as a violation of businesses’ common law duty to serve—and to not exclude arbitrarily—all customers.

Volume 163, Issue 4 
March 2015

Judicial Comparativism and Judicial Diplomacy

David S. Law

By global standards, the U.S. Supreme Court is unusual in a number of respects, but one of its most distinctive characteristics is its reluctance to engage in comparative constitutional analysis. Much has been said on the normative question of whether and in what ways the Court ought to make use of foreign constitutional jurisprudence. Rarely, however, do scholars broach the underlying empirical question of why some courts make greater use of foreign law than others.

To identify the causes of comparativism, a behind-the-scenes investigation was conducted of four leading courts in East Asia: the Japanese Supreme Court, the Korean Constitutional Court, the Taiwanese Constitutional Court, and the Hong Kong Court of Final Appeal. The results of this investigation highlight the crucial role of institutional and resource constraints in shaping judicial behavior but also pose an unexpected challenge to traditional conceptions of the role and function of constitutional courts.

Evidence from interviews conducted with numerous justices, clerks, and senior administrators suggests that a combination of mutually reinforcing factors creates the conditions necessary for comparativism to thrive. The first factor is institutional capacity. A court that lacks institutional mechanisms for learning about foreign law, such as the recruitment of law clerks with foreign legal expertise or the use of researchers who specialize in foreign law, is unlikely to make more than sporadic use of foreign law. The second factor is legal education. Even the most elaborate of institutional mechanisms for facilitating comparativism is unlikely to be effective unless it is backed by a system of legal education that produces an adequate supply of lawyers with both an aptitude and appetite for comparativism.

Investigation of the reasons for which courts engage in comparativism also reveals a hidden underlying phenomenon of judicial diplomacy. Unlike other judicial practices such as textualism or originalism, comparativism is not merely a means by which judges perform legal and adjudicative functions; it can also be a form of diplomatic activity. When constitutional courts demonstrate mastery of foreign law or host foreign judges, their goals may not consist exclusively, or even primarily, of writing stronger opinions or winning over domestic audiences. They may also be competing with one another for international influence or pursuing foreign policy objectives, such as promotion of the rule of law and judicial independence in other countries. The concept of judicial diplomacy helps to explain why constitutional courts engage in a number of practices that are only tenuously related to the act of adjudication. Although the U.S. Supreme Court rarely practices constitutional comparativism, it is an active practitioner of judicial diplomacy in other forms.

Do You Have to Keep the Government's Secrets? Retroactively Classified Documents, the First Amendment, and the Power to Make Secrets Out of the Public Record

Jonathan Abel

Now you see it. Now you don’t.

This is not a magician’s incantation. It is a description of retroactive classification, a little-known provision of U.S. national security law that allows the government to declassify a document, release it to the public, and then declare it classified later on. Retroactive classification means the government could hand you a document today and prosecute you tomorrow for not giving it back. Retroactive classification can even reach documents that are available in public libraries, on the Internet, or elsewhere in the public domain.

The executive branch has used retroactive classification to startling effect. The Department of Justice, for example, declassified and released a report on National Security Agency (NSA) wiretapping only to declare, years later, that the report was once again classified. The journalist who had received the report was threatened with prosecution if he did not return it. Retroactive classification has also targeted government documents revealing corruption in Iraq, violence in Afghanistan, and mismanagement of the national missile defense program. In each of these cases, the government released a document in an unclassified form through official channels—not through a leak—and then turned around to classify it.

This practice would be troubling enough if it actually removed the document from the public domain. But in the Internet Age, once a document is released to the public, it is often impossible for the government to retrieve it. While retroactive classification does not remove the document from the public domain, where our enemies can access it, retroactive classification does remove the document from the public discourse, prohibiting members of Congress, government auditors, and law-abiding members of the public from openly discussing it.

In the ongoing debate about the balance between secrecy and transparency in government affairs, retroactive classification tests the limits of the government’s ability to control information in the public domain. The questions raised by retroactive classification go far beyond those raised by the WikiLeaks and Edward Snowden disclosures. In those cases, the information remained classified even though it was widely available in the public domain. A similar situation occurs with retroactive classification when information in the public domain becomes classified. The difference is that in retroactive classification, the government initially released this information in a non-classified form and only later decided to classify it. This difference makes retroactive classification much more complicated from a legal standpoint because it involves the government’s going back on its initial classification decision. Retroactive classification thus forces us to ask what limits, if any, exist on the government’s authority to control information. Can the government reach into the public domain to make a secret out of something it has already disclosed? Are we obligated to go along with retroactive classification decisions? What are the implications beyond national security law? This Article takes up these pressing questions.

Behavioral International Law

Tomer Broude

Economic analysis and rational choice have made significant inroads into the study of international law and institutions in the last decade, relying upon standard assumptions of perfect rationality of states and decisionmakers. This approach is inadequate, both empirically and in its tendency toward outdated formulations of political theory. This Article presents an alternative behavioral approach that provides new hypotheses addressing problems in international law while introducing empirically grounded concepts of real, observed rationality. First, I address methodological objections to behavioral analysis of international law: the focus of behavioral research on the individual, the empirical foundations of behavioral economics, and behavioral analysis’s relative lack of parsimony. I then offer indicative behavioral research frameworks for three contemporary puzzles in international law: (a) the relative inefficiency of the development of international law, (b) dissent in international tribunals, and (c) target selection in armed conflict. Behavioral research in international law can serve as a viable, enriching alternative and complement to conventional economic analysis, so long as it is pursued with academic and empirical rigor as well as intellectual humility.


Toward a Standard of Meaningful Review: Examining the Actual Protections Afforded to Prisoners in Long-Term Solitary Confinement

Elli Marcus

The unprecedented trend of lengthy incarceration in the United States has produced a disturbing byproduct: the use of long-term solitary confinement. The precise number of people held in solitary confinement is notoriously difficult to determine due to a lack of reliable recordkeeping within institutions and varied terminology among states, but experts believe that tens of thousands of people are held in “restricted housing.” Of those people, many reside long-term in so-called segregation—a practice that removes an inmate from the general prison population to a segregated housing unit and is justified as an administrative measure to maintain safety for inmates and prison officers alike. Segregation placement severely restricts an inmate’s contact with other people and with the outside world.

In light of these extreme conditions and the great impact they can have on a prisoner’s confinement experience, the procedures regarding placement that are afforded to prisoners placed in segregated housing are of the utmost importance. Unfortunately, the Supreme Court’s longstanding tradition of deferring to prison officials has limited the procedural protections prisoners can demand under the Due Process Clause of the Fourteenth Amendment. By emphasizing that the procedural guarantee of due process is flexible, the Court has sanctioned segregation decisions as long as the placement involves some form of “meaningful review.” The Court has refrained from defining the requisite process or investigating how a prison’s stated procedures actually function on an individual inmate level, however, rendering meaningful review meaningless.

This Comment considers the actual procedural due process protections afforded to prisoners placed in segregated housing for nondisciplinary reasons. Part I examines the procedural protections afforded to inmates generally and prisoners placed in administrative segregation in particular. In addition, Part I explores the doctrinal limitations on due process challenges relating to administrative segregation. Part II chronicles recent developments in inmate litigation, in which litigants have alleged due process violations despite these limitations. Part II also evaluates the state of the doctrine through an analysis of recent litigation strategies, highlighting Ashker v. Brown as a model. Finally, Part III recommends changes to the Court’s approach to administrative segregation due process challenges.

Recovering for the Loss of a Beloved Pet: Rethinking the Legal Classification of Companion Animals and the Requirements for Loss of Companion-ship Tort Damages

Lauren M. Sirois

Under U.S. law, animals are considered the property of their human companions. With this classification, individuals are granted the right to own, use, and control their animal property as they see fit. To many, though, the relationship between man and his companion animal fits uncomfortably within the idea of property ownership. To these individuals, companion animals, such as dogs and cats, are more than property: they are best friends, confidants, and integral parts of the family. However, unlike certain familial relationships—such as that of a husband and wife or a parent and child—the bond between a human companion and his or her companion animal is devalued under tort law. When a companion animal is negligently or intentionally injured or killed, no matter how beloved the animal is to his or her human companion, the animal is still only viewed as property under the law. Because of the companion animal’s classification as property, emotional damages related to the bond between the animal and the plaintiff are unavailable, preventing those who have been harmed from fully recovering for their loss.

Volume 163, Issue 3 
February 2015

Court Competition for Patent Cases

J. Jonas Anderson

There are ninety-four federal district courts in the United States, but nearly half of the six thousand patent cases filed in 2013 were filed in just two of those courts: the District of Delaware and the Eastern District of Texas. In the Eastern District of Texas and the District of Delaware—neither of which is home to a major technology industry —patent litigation comprises an astounding proportion of each court’s docket: twenty-eight percent of 2013 filings in the Eastern District of Texas were patent cases while fifty-six percent of 2013 filings in the District of Delaware were patent cases. In fact, the two judges with the busiest patent dockets—Judge Rodney Gilstrap in the Eastern District of Texas and Judge Leonard Stark in the District of Delaware—have larger patent dockets than does the entire Central District of California, the district that receives the third most patent cases in the country.

While the popularity of the Eastern District of Texas and the District of Delaware with patent plaintiffs is a relatively recent phenomenon, the litigation tactic of selecting the court that offers the greatest odds of success—otherwise known as forum shopping—is not. Forum shopping has been a significant concern in the patent system for over forty years. Forum shopping is generally understood to be driven by the search for favorable substantive law, favorable procedural rules, or “home court advantage.” However, the persistence of forum shopping in patent law cannot be fully explained by substantive legal differences or home court advantage. Patent litigants cannot obtain substantive legal differences by forum shopping because all federal district courts are bound by the same legal rules that come from the U.S. Court of Appeals for the Federal Circuit. Furthermore, the fact that the majority of patent cases are filed in district courts that do not have sizeable technology industries indicates that most forum shopping is not the result of major technology companies seeking the advantages of litigating at the nearest courthouse.

That leaves procedural differences. This Article theorizes that forum shopping in patent law is driven, at least in part, by federal district courts competing for litigants. This competition occurs primarily through procedural and administrative differentiation among courts. All patent infringement cases are heard in federal court and are therefore governed by the Federal Rules of Civil Procedure. Despite the existence of the Federal Rules, district courts across the United States have adopted local rules specifically for patent cases. Intriguingly, some districts have adopted local patent rules despite almost never hearing patent cases in their courtrooms, suggesting that local patent rules serve a signaling function for courts looking to attract potential patent litigants.

Image Is Everything: Corporate Branding and Religious Accommodation in the Workplace

Dallan F. Flake

There is growing tension in the law between an employee’s right to religious expression in the workplace and an employer’s countervailing right to cultivate its corporate image. The existing case law provides little meaningful guidance to employers and employees faced with this conflict. Not only do outcomes vary from court to court, but the analysis and reasoning underlying these decisions are often inconsistent, and sometimes contradictory. I argue that because a company’s image is one of its most valuable assets, courts should more closely scrutinize religious accommodation claims that interfere with a company’s ability to control its image. Such enhanced scrutiny does not require a break from Supreme Court precedent; rather, it requires stricter adherence thereto. I offer three recommendations for how courts can recalibrate their analyses of religious accommodation cases involving corporate image concerns. These recommendations should help produce a more balanced case law that better harmonizes with Supreme Court precedent, while providing employers and employees greater clarity in navigating this sensitive and complex issue.

Tontine Pensions

Jonathan Barry Forman & Michael J. Sabin

Tontines are investment vehicles that can be used to provide retirement income. A tontine is a financial product that combines the features of an annuity and a lottery. In a simple tontine, a group of investors pool their money together to buy a portfolio of investments and, as investors die, their shares are forfeited, with the entire fund going to the last surviving investor. Over the years, this “last survivor takes all” approach has made for some great fiction. For example, in an episode of the popular television series M*A*S*H, Colonel Sherman T. Potter, as the last survivor of his World War I unit, got to open the bottle of French cognac that he and his buddies bought (and share it with his Korean War compatriots). On the other hand, sometimes the fictional plots involved nefarious characters trying to kill off the rest of the investors to “inherit” the fund.

Of course, tontines can be designed to avoid such mischief. For example, instead of distributing all of the contributions to the last survivor, a tontine could make periodic distributions. Historically, for example, governments issued tontines instead of regular bonds. In those tontines, the government would keep the tontine investors’ contributions but make high annual dividend payments to the tontine, dividing those payments among the surviving investors. When the last survivor died, the government had no further debt obligation. For example, in 1693, the English government issued a tontine to raise one million British pounds to help pay for its war against France. At a time when the regular bond interest rate was capped at 6%, King William’s 1693 tontine, as it is known, entitled the surviving investors to share in 10% dividend payments to the tontine for the first 7 years and to 7% dividend payments thereafter.

Over the years, tontines like King William’s became quite popular. At one point, Alexander Hamilton, the United States’s first Secretary of the Treasury, suggested that the United States could use a tontine to pay off its Revolutionary War debt. All in all, government tontines played an important role in government finances over a couple of centuries, but they have since disappeared.

After the Civil War, tontines emerged as a popular investment for individuals in the United States, but they fell out of favor at the beginning of the twentieth century. The problem was not with the tontine form but with embezzlement and fraud by the holders of tontine funds. Investigations of the insurance industry in New York led to the enactment of legislation in 1906 that all but banned tontines, and tontines have since been replaced by life insurance and similar financial products.

We believe that the time has come to revive tontines as a way of providing reliable, pension-like income for retirees. Specifically, we believe that variations on the tontine principle—that the share of each member of the tontine, at her death, is enjoyed by the survivors—can be used to develop a variety of attractive retirement-income financial products. For example, tontines could be used to create “tontine annuities” that could be sold to individual investors. These tontine annuities would make periodic distributions to surviving investors, but unlike traditional tontines, tontine annuities would solicit new investors to replace those that have died. Structured in this way, a tontine annuity could operate in perpetuity.


An Inconvenient Truth: How Forum Non Conveniens Doctrine Allows Defendants to Escape State Court Jurisdiction

Brian J. Springer

Imagine you are a foreign citizen. You have been injured in a foreign country due to the negligence of a U.S. company and have a legitimate tort claim for millions of dollars against the company. You file suit in the state court in Missoula, Montana—located at 200 W. Broadway, Missoula, Montana 59802. The defendant company removes the case, on the basis of diversity of citizenship, to the United States District Court of Montana—located at 201 E. Broadway, Missoula, Montana 59802 —and argues that the case should be dismissed under the doctrine of forum non conveniens. The state court probably would not have granted the motion, but rather would have allowed the case to proceed to the merits. But now that the case has been moved just two blocks away to a federal district court, that court can exercise its discretion under federal forum non conveniens doctrine and dismiss the case. This sequence of events does not occur infrequently.

Because almost every federal court applies federal forum non conveniens law in diversity cases, defendants can remove cases to federal court solely for the purpose of getting them dismissed on forum non conveniens grounds. In cases where a state would not dismiss under its own forum non conveniens doctrine, it is unfair for defendants to exploit removal to obtain dismissal. Allowing defendants to engage in this practice undercuts the rights of the parties and undermines the purpose of the forum non conveniens doctrine.

The appropriate remedy is for courts to find that defendants who remove from state court waive their right to argue forum non conveniens in federal court when the state would not have dismissed the case under its forum non conveniens law. This would prevent the injustice of defendants using removal as a mechanism for dismissal. However, courts may be unwilling to adopt waiver. Ultimately, I propose that Congress remedy this injustice by amending the removal statute to permit remand to the state court when the federal court dismisses on forum non conveniens grounds.

Proposing a Transactional Approach to Civil Forfeiture Reform

Michael van den Berg

Civil forfeiture is a truly extraordinary legal doctrine—so much so that those who find themselves subject to a forfeiture proceeding frequently express disbelief that such an action could exist in the United States. The Kafkaesque civil forfeiture system is ancient, labyrinthine, and impermeable to the uninitiated. Despite its esoteric nature, federal, state, and local authorities commonly utilize this legal doctrine. While the practice once had reputable roots, it has become a tool with enormous potential for abuse. This Comment explores the doctrine of civil forfeiture at a macro level before suggesting some specific recommendations for reform.

Volume 163, Issue 2 
January 2015

Big Data and Predictive Reasonable Suspicion

Andrew Guthrie Ferguson

The Fourth Amendment requires “reasonable suspicion” to stop a suspect. As a general matter, police officers develop this suspicion based on information they know or activities they observe. Suspicion is individualized to a particular person at a particular place. Most reasonable suspicion cases involve police confront-ing unknown suspects engaged in observable suspicious activities. Essentially, the reasonable suspicion doctrine is based on “small data”—discrete facts, limited information, and little knowledge about the suspect.

But what happens if this small data suspicion is replaced by “big data” suspicion? What if police can “know” personal information about the suspect by searching vast networked information sources? The rise of big data technologies offers a challenge to the traditional paradigm of Fourth Amendment law. With little effort, officers can now identify most unknown suspects, not through their observations, but by accessing a web of information containing extensive personal data about suspects. New data sources, including law enforcement databases, third-party records, and predictive analytics, combined with biometric or facial recognition software, allow officers access to information with just a few search queries. At some point, inferences from this personal data (independent of the observation) may become sufficiently individualized and predictive to justify the seizure of a suspect. The question this Article poses is whether a Fourth Amendment stop can be predicated on the aggregation of specific and individualized, but otherwise noncriminal, factors.

For example, suppose police are investigating a series of robberies in a particular neighborhood. Arrest photos from a computerized database are uploaded in patrol cars. Facial recognition software scans people on the street. Suddenly there is a match—police recognize a known robber in the targeted neighborhood. The suspect’s personal information scrolls across the patrol car’s computer screen—prior robbery arrests, prior robbery convictions, and a list of criminal associates also involved in robberies. The officer then searches additional sources of third-party data, including the suspect’s GPS location information for the last six hours or license plate records which tie the suspect to pawn shop trades close in time to prior robberies. The police now have particularized, individualized suspicion about a man who is not doing anything overtly criminal. Or perhaps predictive software has already identified the man as a potential reoffender for this particular type of crime. Or perhaps software has flagged the suspect’s social media comments or other Internet postings that suggest planned criminal or gang activity. Can this aggregation of individualized information be sufficient to justify interfering with a person’s constitutional liberty?

This Article traces the consequences of a shift from “small data” reasonable suspicion, focused on specific, observable actions of unknown suspects, to a “big data” reality of an interconnected, information rich world of known suspects. With more specific information, police officers on the streets may have a stronger predictive sense about the likelihood that they are observing criminal activity. This evolution, however, only hints at the promise of big data policing. The next phase will use existing predictive analytics to target suspects without any firsthand observation of criminal activity, relying instead on the accumulation of various data points. Unknown suspects will become known to police because of the data left behind. Software will use pattern-matching techniques to identify individuals by sorting through information about millions of people contained in networked data-bases. This new reality simultaneously undermines the protection that reasonable suspicion provides against police stops and potentially transforms reasonable suspicion into a means of justifying those same stops.

This Article seeks to offer three contributions to the development of Fourth Amendment theory. First, it demonstrates that reasonable suspicion—as a small data doctrine—may become practically irrelevant in an era of big data policing. Second, it examines the distortions of big data on police observation, investigation, and prediction, concluding that big data information will impact all major aspects of traditional policing. Third, it seeks to offer a solution to potential problems using the insights and value of big data itself to strengthen the existing reasonable suspicion standard.

Foreign Sovereign Immunity and Comparative Institutional Competence

Adam S. Chilton & Christopher A. Whytock

Policymakers and legal scholars routinely make “comparative institutional competence” claims—claims that one branch of government is better at performing a specified function than another, and that the more competent branch should be in charge of that function. Such claims pervade American law and policy, but they are rarely evaluated with rigor.

We take advantage of an unusual legislative experiment to conduct what we believe to be the first systematic empirical analysis of the comparative institutional competence of the executive and judicial branches in a critical field of American law and policy: U.S. foreign relations. From 1952 to 1976, the U.S. State Department decided whether foreign nations would receive sovereign immunity from suits in U.S. courts. Based on the perception that the State Department’s sovereign immunity decisions were overly influenced by political considerations, Congress passed the Foreign Sovereign Immunities Act of 1976 (FSIA), which transferred immunity decisionmaking authority to the judiciary. This transfer was based on an explicit comparative institutional competence claim: that courts are better equipped than the State Department to make immunity decisions based on law rather than politics.

To rigorously evaluate this fundamental claim, we created and analyzed an extensive dataset of foreign sovereign immunity decisions made by the State Department and the U.S. district courts over the last fifty years. Our principal findings are threefold. First, we find little evidence that political factors systematically influenced the State Department’s immunity decisions. Second, there is strong evidence that political factors have systematically influenced the courts’ decisions. Third, the transfer of immunity decisionmaking authority to the courts did not significantly affect the likelihood of immunity.

All three findings challenge both the underlying comparative institutional competence claims that supported the FSIA’s pas-sage and more general conventional understandings about the proper allocation of authority between the executive and judicial branches. To be sure, there may be valid reasons for the judiciary to play a leading role in immunity decisionmaking, and possibly other areas of U.S. foreign relations as well. But our analysis casts doubt on the widely made comparative institutional competence claim that the judicial branch is necessarily better equipped than the executive branch to make foreign relations law decisions free from systematic political influence.

The Power to Privilege

Mila Sohoni

A new and startling development has recently occurred in the law of delegation: Congress has for the first time expressly delegated to an administrative agency the power to write rules of privilege. Privileges abound in federal law, but until now, they have been defined either by statute or judicial opinion. The type of law that Congress has now authorized agencies to create—the regulatory evidentiary privilege—is a true novelty in our legal system.

This Article is the first to grapple with the implications of migrating the power to write rules of privilege from Congress and the courts, on the one hand, to the executive branch, on the other. It begins by describing an underappreciated aspect of the administrative state: the law of privilege is becoming increasingly important to the functioning of administrative agencies. As a result, administrative agencies are actively pursuing control over the law of evidentiary privilege to further their substantive mandates.

Granting agencies that sought-after control through a privilege delegation will imperil key federal and state regulatory and governance interests. First, privilege delegations will reduce agency accountability. A delegated authority to write privileges that enables an agency to shield its own communications from disclosure will allow the agency to insulate itself from external review and oversight. Second, privilege delegations will erode state interests in allowing litigants and the public broad access to information. Agencies promulgating regulatory evidentiary privileges are likely to displace state laws that would permit disclosure to a greater extent than would be the case if Congress and the courts retained the privilege pen. Third, privilege delegations threaten to undercut state sovereignty. When Congress authorizes federal agencies to privilege the communications of state officials, it obstructs the capacity of the states to monitor state agents and thereby produces a type of harm akin to prohibited congressional commandeering of state governance.

After establishing the risks attendant to privilege delegations, this Article offers some design principles that should govern the institution chosen to draft any new set of privileges that may be invoked by executive branch agencies and explains that the existing judicial rulemaking system fits well with these principles. Finally, this Article explains why this innovation in delegation provides a unique opportunity to test prevailing scholarly models of why and to whom Congress chooses to delegate. When it delegates the power to privilege to an agency, Congress is substituting a new delegate—a politically accountable executive agency—for an old delegate—the politically unaccountable federal courts. Accounts of delegation grounded in party competition have greater explanatory power for this swapping of delegates than alternative accounts.


Blowing the Whistle on Consumer Financial Abuse

David Cooper

The whistleblower programs that the Dodd–Frank Wall Street Reform and Consumer Protection Act (Dodd–Frank) created within the Securities and Exchange Commission (SEC) and the Commodity Futures Trading Commission (CFTC) offer large monetary rewards for actionable information. These “bounties” have attracted commentary from the academy, the bar, and corporate America. Less often dis-cussed is section 1057 of Dodd–Frank, which creates a private cause of action for informants who experience retaliation for reporting violations of federal consumer financial law to the Con-sumer Financial Protection Bureau (CFPB). These informants could be a valuable tool for discharging the CFPB’s supervisory and enforcement responsibilities. Unfortunately, the history of whistleblower protection under the Sarbanes–Oxley Act of 2002 (Sarbanes–Oxley) demonstrates that section 1057 alone is not a viable long-term incentive for insiders to come forward. Therefore, this Comment argues that Congress or the CFPB should offer bounties for information that protects consumers’ financial welfare, much as existing Dodd–Frank programs remunerate individuals who contact law enforcement for the benefit of investors.

Choice of Law in Fraudulent Joinder Litigation

Walter Simons

The grant of subject matter jurisdiction to federal courts based on diversity of citizenship has, for centuries, required complete diversity between parties to the litigation. If a case is brought in state court and complete diversity exists between the parties, the defendant has the statutory right to remove the case to federal court. Absent another basis for federal jurisdiction, the lack of complete diversity strips the federal court of subject matter jurisdiction, and the court is required to remand the case to state court. Therefore, the presence of a single nondiverse defendant is sufficient to defeat diversity jurisdiction.

The doctrine of fraudulent joinder has arisen in response to plaintiffs’ efforts to take advantage of this complete diversity requirement and thereby control whether a state or federal court hears their case. Fraudulent joinder refers to a plaintiff’s attempt to defeat complete diversity and generally occurs in one of two ways: (1) a plaintiff commits actual fraud by inaccurately pleading the citizenship of the parties to the lawsuit or (2) a plaintiff sues a nondiverse defendant against whom the plaintiff cannot establish a cause of action. This Comment focuses only on the second method, which is litigated with much greater frequency than the first. In this context, the diverse defendant will generally remove the case to federal court and argue that the judge should ignore the citizenship of the nondiverse co-defendant because the plain-tiff has no chance of stating a claim against that defendant.

If the federal court determines that the plaintiff has no cause of action against the nondiverse defendant, the court is permitted to ignore that defendant’s citizenship and thereby establish complete diversity. However, if the court determines that the nondiverse defendant is properly joined, then complete diversity is absent and the case must be remanded to state court. The result of a fraudulent joinder dispute therefore determines whether a suit will be heard in state or federal court—an important consideration for litigants.

To resolve the fraudulent joinder question, the federal judge must look to a source of law to determine whether the plaintiff has established a cause of action against the nondiverse defendant. In many cases, all parties agree on which law applies to the case; in those circumstances, the judge will conduct the fraudulent joinder inquiry using the agreed-upon legal standards. In some cases, however, the events giving rise to the litigation have connections to multiple jurisdictions and therefore multiple laws could potentially apply. In these cases, the judge must decide which state’s law to use to determine whether the plaintiff has stated a claim against the nondiverse defendant.

In such a case, it is not clear how a judge should approach this choice of law determination or whether the judge is even permitted to make a choice of law determination at all. On the one hand, if the nondiverse defendant is properly joined, the federal court does not have subject matter jurisdiction and arguably cannot make a choice of law determination. On the other hand, there may be cases in which the plaintiff can state a claim against the non-diverse defendant under one state’s substantive standard, but not under another state’s standard. In these cases, the court cannot resolve the fraudulent joinder dispute without making a choice of law determination.

This Comment takes the position that a court must perform a choice of law analysis as part of its fraudulent joinder inquiry. This determination is necessary to decide whether a law could apply to the case that would sustain the action against the nondiverse defendant. Further, the court should give the same deference to the plaintiff’s choice of law as it gives to the plaintiff’s choice of forum under the jurisdiction’s fraudulent joinder standard. This conclusion draws upon the idea that choice of law is fundamentally a merits-based inquiry and that a decision on the merits re-quires reference to an applicable law. Therefore, a court cannot properly make a determination about whether the suit against the nondiverse defendant has merit, or is merely “fraudulent,” without selecting and applying an appropriate law.

Volume 163, Issue 1 
December 2014

Old Statutes, New Problems

Jody Freeman & David B. Spence

Congress is more ideologically polarized now than at any time in the modern regulatory era, which makes legislation ever harder to pass. One of the consequences of this congressional dysfunction is a reduced probability that Congress will update regulatory legislation in response to significant new economic, scientific, or technological developments. This predicament, we argue here, has important implications for the federal agencies charged with implementing statutes over time and for courts adjudicating challenges to agency statutory implementation.

We explain how federal agencies coping with new regulatory challenges often encounter problems of “fit” with older statutes, which require them to make delicate legal and political judgments in the face of congressional silence. And we show how, following the Goldilocks principle, agencies seek to get this process just right by balancing the perceived need for regulatory innovation with a concern about potential overreach.

Agencies, we claim, do not simply “go for broke” when wrestling with problems of fit. Instead they proceed strategically, cognizant of the preferences of their political overseers and the risk of being overturned in the courts. Sometimes agencies interpret their enabling legislation so as to expand their jurisdiction; other times, agencies manage problems of fit by intentionally shrinking their jurisdiction, proceeding incrementally, and engaging in deliberate restraint. Our examples show that agencies can be persistent, flexible, bold, cautious, expert, political, and, above all, strategic. The examples also suggest that even—and perhaps especially—when adapting old statutes to new problems, agencies are surprisingly accountable, not just to the President, but also to Congress, the courts, and the public.

The Constitutional Standing of Corporations

Brandon L. Garrett

Are corporations “persons” with constitutional rights? The Supreme Court has famously avoided analysis of the question, while recognizing that corporations may litigate rights under the Due Process Clause, Equal Protection Clause, First Amendment, Fourth Amendment, Sixth Amendment, and Seventh Amendment, but not, for example, the Self-Incrimination Clause of the Fifth Amendment. What theory explains why corporations may litigate some constitutional rights and not others? In this Article, I argue that the doctrine of Article III standing supplies an underlying general theory by requiring a judge to ask: does the organization suffer a concrete constitutional injury to its legal interests? Such analysis has implications for the interpretation of a range of contested constitutional questions. For example, Article III analysis helps us to understand why corporate standing is not appropriate if corporate rights threaten to conflict with claims brought by individuals, while in contrast, associations and nonprofits may more readily derivatively assert the third-party rights of members. By ignoring Article III constraints, and finding that a for-profit corporation could itself assert a statutory injury to the religious beliefs of its owners, the Supreme Court’s recent Hobby Lobby opinion threatens to erase the longstanding differences between owners and corporations, parties and third-parties, and for-profit corporations versus other types of entities. Only if Article III doctrine is faithfully applied can organizational standing to litigate constitutional rights effectively develop protections for individuals and organizations alike.

Dodd-Frank Orderly Liquidation Authority: Too Big for the Constitution?

Thomas W. Merrill & Margaret L. Merrill

The Dodd–Frank Act, enacted in the wake of the U.S. financial crisis of 2007 to 2009, is the federal government’s attempt to address a number of systemic issues perceived to be at the root of the financial meltdown. Title II of the Act goes to the heart of this effort by creating a new specialized insolvency regime for the orderly liquidation of systemically significant nonbank financial companies. This regime, largely modeled after the FDIC’s process for shutting down insolvent federally insured banks, theoretically provides a substitute for bankruptcy and bailouts by giving the executive branch authority to take control of and liquidate nonbank financial companies that are deemed to be too big to fail.

Unfortunately, in the government’s haste to create a viable resolution process, it overlooked a number of fundamental constitutional benchmarks–including due process, Article III, and First Amendment requirements–rendering Title II susceptible to future judicial invalidation. Of particular concern is the statute’s procedure for appointing the government as receiver of the financial firm, which requires a secret, ex ante judicial proceeding in which an Article III judge is permitted to review only two of the seven orderly liquidation prerequisites–and given just twenty-four hours to do so. The very broad discretion bestowed on the executive branch to decide whether to subject a financial firm to orderly liquidation also creates a potential conflict with the uniformity requirement of the Constitution’s Bankruptcy Clause. And finally, there are cognizable Fifth Amendment takings concerns implicated by the expansive powers that Title II affords to the government as receiver.

Given that issues of standing make the success of any anticipatory challenge questionable at best, Title II’s constitutional vulnerabilities will likely remain dormant until the government actually avails itself of its orderly liquidation authority. This is quite troublesome given that such a constitutional challenge would likely further exacerbate the financial havoc that Title II is intended to mitigate. The good news is that this disastrous eventuality can be avoided with a few simple amendments–foremost by providing for plenary judicial review after rather than before the orderly liquidation receiver is appointed.


The Duryodhana Dilemma: United States v. A 10th Century Cambodian Sandstone Sculpture and a Proposed Code of Ethics-Based Response to Repatriation Requests for Auction Houses

Lauren Henderson

On March 24, 2011, Sotheby’s New York unexpectedly removed its showcase lot, the Duryodhana, from its Indian & Southeast Asian auction scheduled to occur that same day. This last-minute adjustment occurred in response to a letter received hours earlier from the Secretary General of Cambodia’s National Commission for the United Nations Educational, Scientific and Cultural Organization (UNESCO), who alleged that the sculpture had been illegally removed from Cambodia and asked that Sotheby’s delete the lot from the auction. One year after Sotheby’s voluntarily pulled the lot, the United States government filed a civil forfeiture action in the United States District Court for the Southern District of New York, United States v. A 10th Century Cambodian Sandstone Sculpture. By filing this action, the U.S. government aimed to take title to the Khmer sculpture and return it to Cambodia.

United States v. A 10th Century Cambodian Sandstone Sculpture is just one example of the repatriation requests from foreign countries that auction houses in the United States face each year. Some scholars report that countries such as Cambodia have been mounting more repatriation requests in recent years. Auction houses confronted with these repatriation requests must struggle through the ambiguities and deficiencies in the current law when deciding how to respond. As an alternative to the available legal response to repatriation requests, I propose that auction houses should develop a uniform code of ethics to guide their efforts in replying to these requests. Auction houses should look to the International Council of Museums’ (ICOM) Code of Ethics for Museums as a model for fashioning their own code of ethics. If all major auction houses voluntarily agree to adopt a uniform code of ethics, there would be fewer repatriation requests and less uncertainty surrounding compliance with the current complex web of laws and regulations that differ from country to country.

In Part I, I describe the background of the Duryodhana, including how the sculpture fits within the Cambodian cultural framework and Cambodian perceptions of property and ownership. I also summarize the litigation and recent settlement surrounding the sculpture, noting the parties’ principal contested points that remain unresolved. In Part II, I outline the current legal response for addressing repatriation claims, including its deficiencies. In Part III, I propose that auction houses look to museums for guidance in order to remedy the unsettled and unsatisfactory state of this legal struc- ture. By adopting a uniform code of ethics modeled after the ICOM Code of Ethics for Museums, auction houses will be better situated to avoid repatriation claims. Finally, I conclude by suggesting specific provisions that auction houses might adopt as a starting point for developing a uniform code of ethics.

Pro Se Paternalism: The Contractual, Practical, and Behavioral Cases for Automatic Reversal

Justin Rand

Johnnie Cochran, Robert Shapiro, and F. Lee Bailey all became famous as criminal defense attorneys. Television dramas depicting the high-stakes world of criminal trials, focusing on charismatic lawyers winning difficult cases, continue to captivate audiences around the country. Outside of the bright lights of Hollywood, however, the protagonists of these courtroom dramas often play little role at trial. Instead, when faced with the complexities and uncertainty of criminal trials, an increasingly large number of defendants choose to forgo the assistance of a lawyer. While defendants’ reasons for representing themselves are as varied as the charges levied against them, doing so consistently creates headaches for all parties involved. And where a pro se defendant’s behavior at trial raises questions about his competence, these headaches can quickly become more serious.

This Comment examines the situation in which a pro se defendant’s behavior raises questions about his own competence during trial. Is this defendant, otherwise proceeding pro se, required to have the assistance of counsel at his own competency hearing? Every federal court of appeals to consider this question has answered in the affirmative and has held that failing to provide such assistance is constitutional error. However, the courts of appeals are split in deciding the proper remedy for this error. This Comment argues that by examining the different remedies courts have used from contractual, practical, and behavioral perspectives, granting an automatic reversal emerges as the best option available. When the lights go out and the television cameras are gone, a bit of pro se paternalism may preserve the liberty and save the lives of defendants facing trial on their own.

In Part I, this Comment explains the origin of the right to counsel under the Sixth Amendment. After tracing the right’s history and rationale, the concept of a “critical stage”—a stage of a criminal proceeding in which the guarantees of the Sixth Amendment are implicated—is examined more closely. In Part II, this Comment discusses whether a defendant’s competency hearing should be characterized as a “critical stage.” After explaining that every court of appeals to consider the question has answered it in the affirmative, the Comment turns to the issue of the appropriate remedy for the deprivation of counsel at a competency hearing. Part III examines the current circuit split over the proper remedy for a competency-stage deprivation and uses two courts of appeals cases to demonstrate the different remedy decisions courts have made. Part IV provides affirmative justifications for choosing automatic reversal to remedy competency-stage deprivations. Finally, Part V acknowledges and responds to potential criticisms of automatic reversals in the competency hearing context.

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