Volume 160, Issue 7 
June 2012

Governance Property

Gregory S. Alexander

Is property a black box? Is it best understood in terms of the relationship between owners and nonowners, without regard to the internal dynamics of property stakeholders? Exclusion theorists of property think that the concept of property properly concerns only the relations between owners and nonowners—that is, the external relationships of owners, or what we might call the “external life” of property. From this perspective, the internal relationships among property stakeholders—the “internal life” of property—are irrelevant from a conceptual point of view, even though these relationships are often very significant to property as a doctrinal matter. To exclusion theorists, all that matters conceptually is the owner’s right to exclude nonowners from using, possessing, or interfering with the owner’s asset. Therefore, what happens within the box—between or among the persons having a property interest in the asset—is of no concern to property law. The law of property, built around the right to exclude, concerns itself primarily with the owner’s relationship with the rest of the world.

This is a distorted and misleading view of property, however. To reveal this misconception, I will distinguish between two types of property, which I call exclusion property (EP) and governance property(GP).

. . .

This Article has two main theses: one is positive, the other normative. The positive thesis is that governance property, not exclusion property, is the dominant mode of ownership today. The rise of governance property reverses what Charles Donahue calls “the agglomerative tendency,” defined as the “tendency to agglomerate in a single legal person, preferably the one currently possessed of the thing that is the object of inquiry, the exclusive right to possess, privilege to use, and power to convey the thing.” I argue that the emergence of GP as the predominant form of property means that the right to exclude can no longer be considered the core of private ownership. The right to exclude, although important, is not central to GP; rather, internal governance mechanisms are essential. The exclusion theory of property cannot account for GP; at best, it can only account for EP. EP is Blackstonian property, man-in-his-castle property, owner-versus-the-world property. Therefore, EP involves only external relationships with third parties and raises no internal governance issues because all rights and privileges are consolidated in one person. By contrast, GP involves both types of issues—internal governance and external relations. The internal governance issues may be quite complex as com-pared to issues involving the multiple owners’ relations with third parties. Because dealing with third parties is less complicated, the right to exclude is less central to GP than it is to EP.

Quasi-Property: Like, But Not Quite Property

Shyamkrishna Balganesh

Quasi-property interests refer to situations in which the law seeks to simulate the idea of exclusion, normally associated with property rights, through a relational liability regime, by focusing on the nature and circumstances of the interaction in question, which is thought to merit a highly circumscribed form of exclusion. In this Article, I unpack the analytical and normative bases of quasi-property interests, examine the primary triggering events that cause courts to invoke the category, and respond to potential objections to the recognition of quasi-property as an independent category of interests in the law.

The Case for Imperfect Enforcement of Property Rights

Abraham Bell & Gideon Parchomovsky

There is nothing so uncontestable as the incentive of an owner to safeguard her belongings. Yet property law contains various rules and doctrines that force owners to adopt measures to protect their assets. For instance, a number of regulations and administrative procedures require owners of gas stations to use “prepay pumps” to eliminate the threat of customers pumping gas and then fleeing before paying. Pre-1976 copyright law provides another example: historically, authors of copyrightable works lost ownership rights if they published the works without affixing proper notice to all copies of the work, and thereby notifying potential users of the copyright claim. The law of trade secrets supplies a third example: the Economic Espionage Act explicitly requires “reasonable measures to keep . . . information secret” as a condition of enjoying legal protection for the information as a trade secret.

These and similar state-imposed demands on property owners seem puzzling and counterintuitive. After all, property owners have their own incentives to voluntarily adopt measures to secure their entitlements in their belongings. So why do lawmakers deem it necessary to enact rules to induce behavior that would happen in any event?

In this Article, we argue that one solution to the puzzle lies in an important and underappreciated countereffect emanating from state enforcement of property rights. The accepted lore among property theorists is that state enforcement of private property rights is both desirable and efficient due to economies of scale and scope that can be realized via this centralized enforcement. Going against the conventional wisdom, we argue in this Article that state enforcement also has a downside: it may give rise to a moral hazard problem that distorts owners’ investment incentives, causing them to take suboptimal pre-cautions to protect their property and externalize those costs onto the state instead. After all, it is easy to think of some cases where owners can protect their property rights more cost-effectively than can the state, and of other cases where a combination of private and state provision of enforcement is optimal. For instance, in many cases, mandatory registration requirements provide a far cheaper and more effective means of protecting many kinds of property rights than any action the state may take alone.

Lumpy Property

Lee Anne Fennell

A bridge stretching only three-quarters of the distance across a chasm is useless, while a bridge that is longer than necessary does no more good than one that just spans the gap. This standard, intuitive example of a lumpy, indivisible, or “step” good makes regular appearances in the literature on collective action. But it also illustrates a point about discontinuities and complementarities that has broad, and mostly unexplored, significance for property law. From land assemblies to takings doctrines to cotenant partitions to public housing to the numerus clausus principle, we see property delivering value—and being delivered to us—in certain identifiable, discontinuous chunks. This Article examines the implications of lumpiness for property theory and doctrine. While strains of this conceptual element run through some of the existing theoretical work on property, the ways in which lumpiness may explain, justify, and challenge features of property law have not been systematically analyzed.

Viewing property through the lens of lumpiness matters for at least three reasons. The first is descriptive accuracy. Property law is lumpy as a positive matter, filled with doctrines and approaches that deal with the world in discrete, hard-to-divide chunks. Understanding how property operates thus requires an appreciation of its lumpiness. Second, optimal property design requires evaluating the chunkiness that is built into property doctrines and asking whether and how it corresponds to underlying discontinuities in the production or consumption of property. Third, many of property law’s most important conflicts can be usefully framed as “lump versus lump.” For example, an exercise of eminent domain may achieve a valuable spatial aggregation by splitting up some other aggregation, such as lengthy temporal attachments to the land or a cohesive community that shares social capital. Recognizing the significance of nonlinearities in such stories can offer new traction on contemporary property debates.

Managing the Urban Commons

Nicole Stelle Garnett

Over the past several decades, discussions about the appropriate tools of commons management have played out in a particularly illuminating way in policy debates about the management of urban public spaces. Urban public spaces are not a pure commons per se, as they have owners (i.e., local governments). However, political and constitutional limitations placed on those owners dramatically curtail the extent to which they control those spaces, resulting in streets, parks, and sidewalks very strongly resembling commons. These public-space management discussions tend to map themselves neatly onto theoretical debates about commons resource management. Some commentators urge, à la Hardin, that government coercion is needed to restore order to the urban commons: Broken Windows is of this ilk, as are portions of Robert Ellickson’s work on public-space zoning. Others urge the privatization of urban public spaces to transform them into some-thing akin to Dagan and Heller’s “liberal commons.”

On the ground in American cities, these theoretical arguments have been translated into concrete policies, including policing strategies (for example, order-maintenance and community policing) and urban development strategies (for example, business improvement districts (BIDs)). The former clearly instantiates the view that successful commons management depends on government coercion, and the latter represents a conviction that the quasi privatization of the commons is advisable. While, legally, the management of urban common spaces remains the purview of the police, quasi-privatization mechanisms such as BIDs also perform public-space management functions, especially the funding of infrastructure improvements and supple-mental public services. The much celebrated (and debated) urban re-bound of the past two decades suggests that this compromise has been partially successful, insofar as success is measured by a resurgent urban population base and the renewal of central-city neighborhoods.

This is an opportune time to reexamine the commons-management questions raised by these policies. As this Article’s opening anecdote suggests, the current economic crisis is forcing cities to scale back law enforcement efforts, and it is limiting the financing available to fund sublocal investments in urban public spaces. It is possible that these pressures will lead the current urban-commons compromise to unravel, resulting in less public regulation of urban public spaces, more pressure for private regulation, or both. Using these tensions as a starting point, this Article will draw upon the literature on commons-space management from multiple disciplines—especially law, economics, and sociology—to reflect critically upon the optimal regulation of urban public spaces and the possibility of cooperative commons management arising in the absence of government regulation.

Governing Through Owners: How and Why Formal Private Property Rights Enhance State Power

Larissa Katz

In recent years, many Western governments and organizations have pressed developing nations to build robust private property institutions and have made large sums available for such property-related projects. One of the central justifications that policymakers and theorists provide for this strategy is that it will increase the economic power and freedom of individuals, thereby making them less vulnerable to the state.

In this Article, I argue that in many cases, precisely the opposite is true: the formalization of private property rights actually makes owners more vulnerable to the state and enhances the state’s governance powers over them. When property rights are formalized, the state gains the power to define the scope of those rights. This, in turn, provides the state with opportunities to impose significant burdens on owners. A system of formal private property rights serves as a mechanism through which the state can allocate responsibility to individuals on a mass scale for a wide variety of tasks, including some of the state’s core governance functions. Because many of the state’s core governance functions are territorially defined (such as maintaining peace and order within the territory, defending the territory from external threats, and providing infrastructure), this phenomenon appears most clearly in the case of private property rights in land. A network of landowners is a useful (and sometimes crucial) tool that lets a state govern locally in the farthest reaches of its territory, even when it lacks the capacity or will to use other more formal tools for governance, such as governing by bureaucracy or license. Thus, it is useful to think of the state’s power to define property rights in a manner that includes obligations to carry out core state governance functions as itself a mode of governance. I call this governing through owners.

The Property Strategy

Thomas W. Merrill

My objective in this Article is to offer a description of property as an institution for organizing the use of resources in society. There are several strategies for deciding how valued things will be used, and by whom. “Might makes right” is one approach: we can let a strongman decide these questions. Bureaucratic governance is another: we can create a hierarchical organization and adopt rules and procedures for allocating resources. Group consensus is a third: questions about resource use can be resolved through meetings and discussion among those most closely involved. The claim advanced here is that property is a distinctive strategy for determining how resources will be used and by whom. It is worth trying to figure out what differentiates it from other strategies for performing this function.

All organized human societies use the property strategy to one degree or another. Preliterate societies, with the possible exception of the most primitive hunter-gatherers, follow the property strategy with respect to certain resources, like tools, baskets, and crops. The most resolute communist states, such as Stalinist Russia or North Korea, give individuals unique rights to control certain resources, such as clothing and toothbrushes. Even within small and informally organized social groups like households, a version of the property strategy typically prevails with respect to certain objects such as toys, books, articles of clothing, and even bedrooms. My effort here is to unearth the common denominator that characterizes formal and informal uses of property in a wide range of social settings as a means of organizing the use of resources.

Once we have uncovered the common denominator of the property strategy in its different manifestations over time and place, certain implications follow for the law of property. Property law is highly complex, and all of its details cannot be reduced to the elemental features of the property strategy. Nevertheless, the law of property builds upon and grows out of the property strategy. The features of the property strategy can be seen as the base of a pyramid, the upper reaches of which are occupied by highly refined and often arcane doctrines, such as the law of future interests, common-interest communities, patent and copyright law, and asset securitization. Rather than seeking to understand the institution of property by generalizing from one or more of these refined legal doctrines, I submit that a better approach is to consider what makes property work in its most elemental applications. We can then better understand the reasons for, and limits on, the property strategy that we find in the law of property.

On the Economy of Concepts In Property

Henry E. Smith

Concepts help economize on information. Conventional wisdom correctly associates conceptualism with formalism but misunderstands the role concepts play in law. Commentators from the Legal Realists onward have paid insufficient attention to the distinction between concepts and the categories they pick out (or, to borrow from philosophical semantics, the intension and extension of legal relations). Even though two concepts may identify the same category, they can differ greatly in terms of information costs. This Article applies tools of cognitive science to explore the economics of legal concepts. Both the mind and the law are information-processing devices that manage complexity and economize on information by employing concepts and rules, the specific-over-general principle, modularity, and recursion. These devices work in tandem to produce the economizing architecture of property. As in cognitive science, we expect simplicity of description and generality of explanation to coincide. This Article then applies the cognitive theory of property to longstanding puzzles like the role of baselines—such as nemo dat (“one cannot give that which one does not have”) and ad coelum (“one who owns the soil owns to the heavens above and the depths below”)—the notion of title, and the function of equity as a safety valve for the law. The theory developed here provides a more elegant description of the law, better generalizes to new situations, and therefore helps to explain and justify the robustness of traditional baselines in property law. The cognitive theory also allows one to reconcile reductionism and holism in property theory, as well as static and process descriptions of the contours of property.

Strict Liability and Negligence in Property Theory

Stewart E. Sterk

Property theorists typically conceptualize property as a strict liability regime. Blackstone characterized property as “that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.” In more modern terms, property represents what Henry Smith has called an “exclusion strategy”: property law delegates decisions about resource use to an owner, who “is responsible for deciding on and monitoring specific activities with respect to the resource.” Any interference with the owner’s property right in itself gives rise to a legal claim by the owner. The usurper’s excuses for the interference are irrelevant and do not serve as defenses.

The prevailing conception of property is one of clear boundaries, easily and inexpensively ascertainable by owners and potential users. Within that conception, a strict liability regime makes considerable sense: it delegates control over resource use to owners, reducing the need for courts and potential resource users to educate themselves about the value of competing resources. At the same time, strict liability imposes no hardship on encroachers or infringers. An encroacher or infringer only uses a neighbor’s rights because he (unlike the paradigmatic tortfeasor) derives economic benefit from those rights. The gains from use of the owner’s rights provide a fund from which the encroacher can compensate the owner for his losses. If property boundaries were always clear, however, both strict liability and negligence regimes would generate identical outcomes. If a potential resource user could costlessly determine which rights he needed and who owned those rights, the user would act negligently—if not intentionally—whenever he encroached on an owner’s rights.

This Article argues that, in cases where ascertaining the scope of boundaries is costly, property law should, and sometimes does, make use of negligence principles. Current doctrine does not directly incorporate the law of negligence into property law. Instead, property law has developed surrogates for negligence-based liability rules. These surrogate rules protect the interests of a usurper who took reasonable care before investing in a property interest he did not own—the same interests a negligence rule would protect. Thus, although explicit discussions of negligence rarely find their way into property law opinions, issues of fault do play a significant role in property cases and perhaps should play a bigger, more explicit role in the future.

Absolute Preferences and Relative Preferences in Property Law

Lior Jacob Strahilevitz

The dominant form of legal discourse in contemporary America is welfarist. Though there are important alternatives, welfarism also largely prevails in property theory: most property scholars presume that maximizing social welfare is the primary goal of a property system and then analyze particular legal rules or institutions based on how well they achieve that objective.

Given that so many property theorists consider ourselves to be welfarists, it is perhaps surprising that property scholars have largely ignored developments in behavioral economics suggesting that people derive utility in divergent ways. I am not referring to the fact that peoples’ preferences differ with respect to, say, the best flavor of ice cream. A growing experimental literature suggests that, among the population of those who prefer chocolate ice cream to vanilla ice cream, there are two distinct camps: absolutists and relativists. Those in the first camp will prefer four scoops of chocolate to three, three to two, two to one, and one to none. This set of preferences is easy for classically trained economists to understand. Those in the second camp are more puzzling because they prefer a situation in which they receive one scoop of ice cream, but those around them receive none, to a situation in which they receive two scoops of ice cream, but those around them receive three.

In the pages that follow, I will try to show how this finding—that some people tend to care more about absolute wealth, while others tend to care more about relative wealth—might help us better understand several mysterious developments in property doctrine and may explain why certain seemingly low-stakes property disputes prove stubbornly unamenable to informal dispute resolution. Along the way, I will suggest that because of this heterogeneity, difficult questions lurk just under the surface in aspects of property doctrine that have long been thought uncontroversial, at least among welfarists.

Beyond Coase: Emerging Technologies and Property Theory

Christopher S. Yoo

In 1959, Ronald Coase published his landmark paper on the Federal Communications Commission (FCC) that would forever change the study of property rights. The primary focus of Coase’s article was to critique the FCC’s then-current approach to allocating spectrum, in which the FCC designated frequencies exclusively for particular uses (e.g., AM radio, television broadcasting, radio astronomy), divided those bands into individual licenses, and then conducted hearings to determine to whom the Commission should assign operating licenses created within those bands. These restrictions were thought necessary to prevent the chaos that occurs when multiple people attempt to use the same frequency simultaneously as well as to limit the interference that particular uses impose on adjacent frequencies.

Coase’s article on the FCC soon took on “iconic significance for law and economics scholars.” When pressed to expand on his vision of how market transactions could address externalities without direct regulation, Coase responded with The Problem of Social Cost, which laid out what would become known as the Coase Theorem. This work is often described as the most-cited article of all time in both law and economics, served as one of the justifications for awarding Coase the Nobel Prize, and has become “the starting point of most modern discussions of the economics of property rights.”

Coase’s impact on spectrum policy was equally dramatic. Coase’s impact on spectrum policy was equally dramatic. The FCC conducted its first spectrum auction in 1994,11 and, with only a few designated exceptions, current law now requires that the FCC allocate all future licenses via auction. But the FCC has yet to fully embrace the second half of Coase’s vision, which calls for replacing use restrictions with property rights.

I believe that the incomplete reception of Coase’s ideas provides some fundamental insights into new forms of property arising in an increasingly high-tech world. In particular, this incomplete reception suggests that the complex interdependencies that Coase downplayed may play a more important role than he initially thought. This Article explores these key differences and their implications for property theory.

Volume 160, Issue 6 
May 2012

Sentencing Guidelines at the Crossroads of Politics and Expertise

Rachel E. Barkow

When Minnesota created the first sentencing commission in 1978 and the first sentencing guidelines in 1980, it was hard to predict where the guidelines movement would go. More than three decades and twenty sentencing guideline regimes later, it is still not easy to foresee what will become of sentencing commissions and guidelines. The past decade alone has witnessed tremendous changes in sentencing law and policy that were hard to imagine even just a few years before they occurred. The Supreme Court’s landmark sentencing decisions in Apprendi v. New Jersey, Blakely v. Washington, and United States v. Booker, the reform of federal crack cocaine laws, and a financial crisis that has sparked significant sentencing reforms have all been monumental and, to some extent, unexpected developments. These seismic shifts will undoubtedly alter the landscape going forward in similarly unpredictable ways.

As this Symposium looks to the future and what it holds for sentencing guidelines, it is important to proceed with caution and a healthy dose of modesty. None of us really knows what will happen. But one helpful way to approach the future is to reflect on some of the key lessons we have learned in the more than thirty years with sentencing commissions and guidelines. There have been consistent themes and struggles, and there is no reason to believe these core issues will dissipate going forward. In this Article, I highlight these struggles and analyze how they can productively guide the future of sentencing guidelines.

Booker Rules

Amy Baron-Evans & Kate Stith

In United States v. Booker, the Supreme Court excised two provisions of the Sentencing Reform Act of 1984 (SRA) that had made the Sentencing Guidelines binding on sentencing judges: 18 U.S.C. § 3553(b), the provision that had confined departures to specified, limited circumstances, and 18 U.S.C. § 3742(e), the standard of review under which courts of appeals had enforced those limitations. The Court made the law of sentencing the purposes and factors set forth in 18 U.S.C. § 3553(a), and the standard of review for all sentences, inside or outside the guideline range, the “reasonableness” of the sentencing judge’s application of that law.

The mandatory guidelines system Booker replaced was badly out of balance in ways never contemplated by the framers of the SRA or the Supreme Court when it upheld the U.S. Sentencing Commission against separation-of-powers challenges. Yet Booker was initially met with resistance by the Commission and the Department of Justice, and many lower courts continued to treat the guidelines as “virtually mandatory.” In subsequent decisions, the Supreme Court firmly insisted that the guidelines are—and must be—advisory only. The result has been a gradual but marked improvement in the quality, transparency, and rationality of federal sentencing, in both the sentencing of individual defendants and the Commission’s rulemaking. The advisory guidelines system has broad support: the vast majority of federal judges believe that advisory guidelines achieve the purposes of sentencing better than any kind of mandatory guidelines system or no guidelines at all, the Criminal Law Committee of the Judicial Conference of the United States supports the advisory guidelines system, prosecutors prefer advisory guidelines to other available options, and the organized public and private defense bars support the advisory guidelines system.

Nevertheless, a former Chair of the Sentencing Commission and the current Commission itself have each proposed that Congress enact a Booker “fix.” Former Commission Chair Judge William K. Sessions III proposes “the resurrection of presumptive (formerly called ‘mandatory’) guidelines,” with enhancing facts to be charged in an indictment and proved to a jury beyond a reasonable doubt or admitted by the defendant. The Commission proposes codification of a variety of devices designed to give its guidelines, as well as its restrictions on non-guideline sentences, increased weight at sentencing, and to more strictly enforce the guidelines on appeal. These proposals—seeking to fix a system that, far from being broken, is actually working properly for the first time—are unwise, unworkable, and likely unconstitutional.

Proportionality and Parole

Richard A. Bierschbach
Commentators analyzing the Supreme Court’s watershed decision in Graham v. Florida, which prohibited sentences of life without parole for juveniles convicted of nonhomicide crimes, have generally done so in substantive proportionality terms, ignoring or downplaying parole in the process. This Article challenges that approach, focusing on the intersection of proportionality and parole as a jumping-off point. Taking parole seriously makes clear that Graham is difficult to understand solely in terms of substantive proportionality concepts like individual culpability and punishment severity. Instead, the decision can be seen as establishing a rule of constitutional criminal procedure, one that links the validity of punishment to the institutional structure of sentencing. By requiring the State to revisit its first-order sentencing judgments at a later point in time, Graham mandates a procedural space for granular, individualized, and ultimately more reliable sentencing determinations. I expose this procedural and institutional side of parole’s constitutional significance, situate it within the constitutional landscape of sentencing, and sketch some of its implications for the future of sentencing regulation.

The New Civil Death: Rethinking Punishment in the Era of Mass Conviction

Gabriel J. Chin

Borrowing from its English forebears, the United States once had a form of punishment called civil death. Civil death extinguished most civil rights of a person convicted of a crime and largely put that person outside the law’s protection. Civil death as an institution faded away in the middle of the twentieth century. Policymakers recognized that almost all convicted persons eventually rejoin society, and therefore, it was wise and fair to allow them to participate in society with some measure of equality.

This Article proposes that civil death has surreptitiously reemerged. It no longer exists under that name, but effectually a new civil death is meted out to persons convicted of crimes in the form of a substantial and permanent change in legal status, operationalized by a network of collateral consequences. A person convicted of a crime, whether misdemeanor or felony, may be subject to disenfranchisement (or deportation if a noncitizen ), criminal registration and community notification requirements, and the ineligibility to live, work, or be present in a particular location. Some are not allowed to live outside of civil confinement at all. In addition, the person may be subject to occupational debarment or ineligibility to establish or maintain family relations. While the entire array of collateral consequences may not apply to any given person, the State is always able to add new disabilities or to extend existing limitations. As a practical matter, every criminal sentence contains the following unwritten term:

The law regards you as having a “shattered character.” Therefore, in addition to any incarceration or fine, you are subject to legal restrictions and limitations on your civil rights, conduct, employment, residence, and relationships. For the rest of your life, the United States and any State or locality where you travel or reside may impose, at any time, additional restrictions and limitations they deem warranted. Their power to do so is limited only by their reasonable discretion. They may also require you to pay the expense of these restrictions and limitations.

For many people convicted of crimes, the most severe and long- lasting effect of conviction is not imprisonment or fine. Rather, it is being subjected to collateral consequences involving the actual or potential loss of civil rights, parental rights, public benefits, and employment opportunities.

The magnitude of the problem is greater than ever. The commonly used term “mass incarceration” implies that the most typical tool of the criminal justice system is imprisonment. Indeed, there are two million people in American prisons and jails, a huge number, but one which is dwarfed by the six-and-a-half million or so on probation or parole and the tens of millions in free society with criminal records. The vast majority of people who have been convicted of crimes are not currently in prison. However, because of their criminal records, they remain subject to governmental regulation of various aspects of their lives and concomitant imposition of benefits and burdens. People convicted of crimes are not subject to just one collateral consequence, or even a handful. Instead, hundreds and sometimes thousands of such consequences apply under federal and state constitutional provisions, statutes, administrative regulations, and ordinances. As one Ohio court recognized in 1848, “[D]isabilities . . . imposed upon the convict” are “part of the punishment, and in many cases the most important part.”

Why Proportionality Matters

Youngjae Lee

The Supreme Court decided recently in Graham v. Florida that the Eighth Amendment prohibits a sentence of life in prison without parole for a nonhomicide crime committed by a minor. In its decision, the Court stated that “[t]he concept of proportionality is central to the Eighth Amendment” and that it is the “precept of justice that punishment for crime should be graduated and proportioned to [the] of- fense.” What about proportionality makes it a matter of justice? And how does proportionality cohere with our constitutional values? This Article addresses these questions.


Sentencing: A Role for Empathy

Denny Chin

Is empathy an important trait for a judge? Is there a role for empathy in the law? What about the related concept of emotion? Is it correct that “[a] good judge should feel no emotions” and that “the ideal judge is divested ‘of all fear[], anger, hatred, love, and compassion?’”

. . .

In this Essay, I will consider the role of empathy and emotion in sentencing. I do so from the perspective of someone who has sentenced hundreds of individuals. I was a trial judge for almost sixteen years, during which time I was assigned 699 criminal cases with 1256 defendants. The vast majority were convicted—after a guilty plea or trial—and I was required to sentence them. In doing so, I came to understand and appreciate the importance of empathy and emotion in sentencing.

Sentencing involves both process and substance. First, a sentencing court must comply with all procedural requirements. Second, the sentencing court must also impose a sentence that is substantively reasonable and falls “within the range of permissible decisions.” The sentencing judge must take certain substantive factors into account. A failure to do so will constitute procedural error and may also lead to a sentence that is substantively unreasonable. Consideration of both the procedural and the substantive aspects of sentencing is important to determine the proper role, if any, of empathy and emotion in sentencing. Accordingly, first, I discuss the sentencing process; second, I discuss the substantive considerations that bear on the sentencing decision; and, third, I discuss the role of empathy and emotion in sentencing.

On Competence, Legitimacy, and Proportionality

Nancy Gertner

I asked Justice Aharon Barak, then president of the Israeli Supreme Court, why he considered himself competent to decide where the wall between Israel and the Palestinian territories should be located and further, why it was legitimate for him, a judge, to do so. The Israelis claimed that the wall was critical for the country’s security. The Palestinians insisted that the barrier violated international law by severely restricting the ability of Palestinians to travel freely and to access work in Israel. Justice Barak answered, “As a judge, I don’t pretend to know anything about security. But I know about proportionality. I know how to balance the security interests of the state against the rights of the Palestinians.” His response was not unusual for justices of

constitutional high courts in common law countries—except in the United States. No other common law judge is likely to doubt his competence to use proportionality analysis in any number of areas or the legitimacy of the approach. Indeed, proportionality analysis has become a critical part of international human rights adjudication. While the use of proportionality analysis is widespread in constitutional courts throughout the world, sentencing is an area in which it is perhaps the most critical and has the oldest pedigree. Retributive theories of punishment use the proportionality principle to assign criminal blame; no offender should be punished more harshly than the crime deserves. Prior to mandatory sentencing guidelines and mandatory minimum sentencing, proportionality analysis was part of the sentencing judge’s toolkit in an individual case. In most common law countries with appellate review of sentencing, it was also the means by which appellate courts reviewed lower court sentences. To be sure, it was not a perfect approach and was hardly capable of mathematical precision, but it was accepted.

Except in the United States. Let me make a preliminary observation: a common theme links the Supreme Court’s Eighth Amendment jurisprudence in which some Justices debate whether there is a constitutional proportionality principle in noncapital sentencing at all; the federal appeals courts’ inability to give meaning to substantive reasonableness sentencing review even after United States v. Booker freed them to do so; and the United States Sentencing Commission’s inability to rank offenses based on any coherent proportionality principle. The theme (which I find quite troubling) is that proportionality analysis is simply not within the competence of the American judiciary. Worse yet, it is not even within their legitimate role; it is somehow too policy-centered, too “activist.” It is a task best left to the legislature, or in the case of the federal sentencing guidelines, to an “independent” agency in the judicial branch the United States Sentencing Commission—but at all costs, not to the courts.

Volume 160, Issue 5 
April 2012

Searching Secrets

Nita A. Farahany

A Fourth Amendment violation has traditionally involved a physical intrusion such as the search of a house or the seizure of a person or her papers. Today, investigators rarely need to break down doors, rummage through drawers, or invade one’s peace and repose to obtain incriminating evidence in an investigation. Instead, the government may unobtrusively intercept information from electronic files, GPS transmissions, and intangible communications. In the near future, it may even be possible to intercept information directly from suspects’ brains. Courts and scholars have analogized modern searches for information to searches of tangible property like containers and have treated protected information like the “content” inside. That metaphor is flawed because it focuses exclusively on whether information is secluded and assigns no value to the substantive information itself.

This Article explores the descriptive potential of intellectual property law as a metaphor to describe current Fourth Amendment search and seizure law. It applies this new metaphor to identifying, automatic, memorialized, and uttered evidence to solve current riddles and predict how the Fourth Amendment will apply to emerging technology. Unlike real property law, intellectual property law recognizes that who authored information—and not just how or where it was stored—informs the individual interests at stake in that information. The exclusive rights of authors, including nondisclosure, are interests recognized by copyright law. Recognizing the secrecy interests of individuals has broad implications for the Fourth Amendment in the information age. Together with real property law, an intellectual property law metaphor better describes emerging doctrine, which has required greater government justification to search certain categories of information. But it also reveals the normative shortcomings of current doctrine when the secrets the government seeks are automatically generated information that arises from computer activities, via GPS tracking, or are emitted by our brains.

Adaptable Due Process

Jason Parkin

The requirements of procedural due process must adapt to our constantly changing world. Over thirty years have passed since the Supreme Court in Goldberg v. Kelly and Mathews v. Eldridge adopted what appears to be a dynamic, fact-intensive approach to determining the procedures required by the Due Process Clause. Federal, state, and local government agencies responded by establishing new procedural safeguards, many of which are virtually identical to those in use today. Yet, for public benefits programs such as welfare, the intervening decades have brought striking changes. The 1996 federal welfare law created new and powerful incentives to trim the rolls. Work requirements increased the proportion of recipients holding jobs, forcing many to choose between forgoing their due process rights and jeopardizing their employment by missing work to attend a hearing. Technological advances enabled welfare agencies to cut off benefits based on automated eligibility determinations that are difficult for recipients to challenge. Cuts in funding for legal services made the prospect of legal representation at fair hearings remote.

These new facts and circumstances undermine the effectiveness of existing procedures and may require reweighing the Mathews factors to determine what process is due to welfare recipients. Such changes are not unique to welfare; the facts and circumstances relevant to many of the procedural safeguards established since the due process revolution will evolve in the years to come, if they have not already. Although the Supreme Court has not addressed whether or how existing procedures should be adapted to such changes, adapting the demands of due process to new facts and circumstances is faithful to constitutional doctrine and necessary to ensure that existing procedures continue to provide due process of law. It also provides an opportunity to reinvigorate a conversation about procedural justice that went silent many years ago.

Redistricting and the Territorial Community

Nicholas O. Stephanopoulos

As the current redistricting cycle unfolds, the courts are stuck in limbo. The Supreme Court has held unanimously that political gerrymandering can be unconstitutional—but it has also rejected every standard suggested to date for distinguishing lawful from unlawful district plans. This Article offers a way out of the impasse. It proposes that courts resolve gerrymandering disputes by examining how well districts correspond to organic geographic communities. Districts ought to be upheld when they coincide with such communities, but struck down when they unnecessarily disrupt them.

This approach, which I call the “territorial community test,” has a robust theoretical pedigree. In fact, the proposition that communities develop geographically and require legislative representation has won wide acceptance for most of American history. The courts have also employed variants of the test (without scholars previously having noticed) in several related fields: reapportionment, racial gerrymandering, racial vote dilution, etc. The principle of district-community congruence thus animates much of the relevant case law already. The test is largely unscathed, furthermore, by the unmanageability critique that has doomed every other potential redistricting standard. The courts have shown for decades that they can compare district and community boundaries, and the social science literature confirms the feasibility of such comparisons. Finally, the political implications of the test’s adoption would likely be positive. My empirical analysis suggests that partisan bias would decrease, relative to the status quo, while electoral responsiveness and voter participation would rise.

It is true that the territorial community test does not directly address partisan motives or outcomes. But the Court has made clear that it views these issues as doctrinal dead ends. Ironically, the only way left to combat gerrymandering might be to strike at something other than its heart.


Toward a Constitutional Chevron: Lessons from Rapanos

Cory Ruth Brader

In 2006, the Supreme Court started a revolution in environmental law.  In Rapanos v. United States, while addressing jurisdiction over wetlands under the Clean Water Act, the Court purported to clarify an issue of statutory interpretation. In reality, the Court had reentered the fray in a four-way struggle for supremacy in constitutional meaning.  This struggle involves all three branches of government and, to a large extent, the federal agencies that implement the Constitution as part of their everyday function:  the U.S. Army Corps of Engineers (the Corps) and the U.S. Environmental Protection Agency (EPA).

The Rapanos decision was widely criticized when it was handed down, but there has been no real empirical analysis of how the decision has affected the agencies’ on-the-ground interpretations of their own jurisdiction.  In this Comment, I examine the fallout from Rapanos—beginning with its impact on the judicial, legislative, and executive branches—and then focus on its impact on the Corps’s process for determining its own jurisdiction.  Procedurally, the main effect of the decision has been to add density to the Corps’s already onerous permitting process.  Substantively, the decision has forced the Corps to add an unnecessary judicial gloss to its scientific determinations, imposing court-like reasoning onto professional engineers.  Perhaps worst of all, the increased enforcement costs of these changes have been shifted to the regulated community.  All players in the game—developers seeking quick disposition of permitting requests, environmentalists pursuing wetlands protection, and agency personnel tasked with making jurisdictional determinations—have come out as losers after Rapanos.


Based on these findings, I propose a radical shift in judicial review of agency constitutionalism and argue that the Court should apply the Chevron doctrine to certain agency constitutional interpretations.  In particular, where Congress has clearly delegated constitutional definition to an agency and such definition implicates agency expertise, courts should explicitly grant Chevron deference to the agency constitutional interpretation.  This paradigm would allow Congress the broadest possible latitude in exercising its power and would restore the institutional benefits lost when courts impose judicial constraints on administrative agencies that operate differently from the courts by design.  Thus, when Congress clearly delegates constitutional interpretation to agency expertise, the judiciary should defer to the agency’s interpretations so long as they are reasonable.

Construing Crane: Examining How State Courts Have Applied its Lack-of-Control Standard

Janine Pierson

The Supreme Court recently upheld the constitutionality of a federal statute that authorizes the Department of Justice to civilly commit federal prisoners after their release if they suffer from a mental illness or abnormality that causes “serious difficulty in refraining from sexually violent conduct.” Not only has the federal government authorized civil commitment for sexually violent predators, but as of 2009, twenty states have also enacted statutes authorizing the same. By 2006, more than 3646 people had been detained or committed under these laws. Such commitments generally occur in secure mental health facilities, some of which are connected to, or within, prisons. A person committed under a sexually violent predator law is committed until he no longer presents a danger to the community. This often results in commitment for life; the New York Times reported that, as of 2007, only 250 civilly committed sex offenders had been released from confinement. Often unsympathetic characters in the courtroom, sex offenders face an uphill battle in proving that they should be set free despite their past offenses.

Statutes providing for the civil commitment of sexually violent predators typically require that the State prove at least three elements before commitment can be effected: (1) the defendant must have been convicted of, or at least have been charged with, a sexually violent offense; (2) the defendant must have a mental disorder or abnormality, generally defined as “a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others”; and (3) there must be a prediction of future dangerousness—a likelihood that the defendant will continue to engage in sexually violent behavior. In the landmark decision Kansas v. Crane, the Supreme Court held that, in addition to these statutory elements, “there must be proof of serious difficulty in controlling behavior” before the state may, consistent with due process, subject the defendant to civil commitment.

While the application of Crane’s holding—that there must be proof that the offender lacks control—is problematic on account of its ambiguity, this Comment argues that there are ways in which courts can better apply the standard to ensure that due process is provided to defendants. Specifically, Crane mandates that states require a separate finding on the issue of whether the defendant has serious difficulty controlling his behavior. In light of this mandate, states should attempt to operationalize the evidentiary requirement by developing a standard definition—grounded in the norms and judgment of the community—on the issue of what constitutes serious difficulty in controlling oneself to assure a more consistent and fair application of the concept across cases. In addition, state courts should restrict expert testimony to a qualitative description of the defendant’s ability to control himself rather than permitting experts to render ultimate conclusions. Lastly, juries should be instructed that there is no generally accepted method for measuring volitional impairment in the mental health community. These procedures will help ensure that the trier of fact understands that “proof of serious difficulty in controlling behavior” is a legal standard and can then properly weigh expert testimony.

Volume 160, Issue 4 
April 2012

Triaging Appointed-Counsel Funding and Pro Se Access to Justice

Benjamin H. Barton & Stephanos Bibas

If appointing some lawyers is good, then appointing more lawyers must be better. At least that seems to be the logic of the civil Gideon movement, which favors appointing counsel in civil cases just as Gideon v. Wainwright required appointing counsel in criminal cases. The impulse is understandable: both indigent and pro se litigants face many hurdles in civil courts, and the stakes can be quite high. But even though criminal defendants do enjoy the Gideon right to counsel, the quality and availability of indigent criminal defense remain hobbled by inadequate funding. Gideon’s shortcomings in the criminal context should caution us against assuming that a new judicially created right will alleviate chronic shortages.

Over the last century, Powell v. Alabama, Gideon, and related cases have steadily expanded the Sixth Amendment right to counsel in criminal prosecutions, from a right to retain one’s own counsel to a right to appointed counsel in any case resulting in actual imprisonment. Counsel must also meet minimum standards of effectiveness. The services that must be provided have also grown to include expert assistance such as psychiatric examinations in criminal cases raising mental health issues. Civil litigants have had much less success, as the Supreme Court has repeatedly rejected a constitutional right to counsel in a variety of civil proceedings. Rather than giving up hope, however, scholars and activists have continued to advocate for broad civil Gideon rights. Most notably, the American Bar Association (ABA) endorses appointing counsel for all poor people in adversarial proceedings implicating basic human needs, such as food, shelter, safety, health, or child custody. Historically, bar associations’ support for expanding Gideon has proven quite influential.

Last year, the Supreme Court reopened the civil right-to-counsel debate by agreeing to hear Turner v. Rogers, in which a pro se mother sued a pro se father for failing to pay child support. The issue was whether the father had an automatic right to appointed counsel before he could be conditionally confined for civil contempt. Many activists hoped that the Court would overturn or narrow its earlier precedents and recognize a categorical right to counsel, at least in civil cases that result in a deprivation of liberty. Instead, all nine Justices rejected the claimed right to counsel, though a five- Justice majority required courts to help pro se litigants navigate the process themselves. In child support proceedings, the majority noted, courts may provide this assistance by (1) giving notice that ability to pay is a key issue; (2) asking defendants to fill out financial disclosure forms; (3) allowing defendants to respond to questions about their finances; and (4) making express findings regarding defendants’ ability to pay.

Turner dealt the death blow to hopes for a federally imposed civil Gideon. Thirty years ago, the Lassiter court rejected a civil Gideon right in termination-of-parental-rights cases by a 5-4 vote over a vehement dissent.14 By 2011, the civil Gideon argument could not garner a single vote. That was true even though the defendant in Turner faced one year in jail and Lassiter in dictum had presumed a right to appointed counsel when physical liberty is at stake.15 Given the importance of the liberty interest in Turner, the Court’s decision leaves little room for advocates to insist that a lesser liberty interest qualifies for Gideon’s protections.

Codifying Custom

Timothy Meyer

Codifying decentralized forms of law, such as the common law and customary international law, has been a cornerstone of the positivist turn in legal theory since at least the nineteenth century. Commentators laud codification’s purported virtues, including systematizing, centralizing, and clarifying the law. These attributes are thought to increase the general welfare of those subject to legal rules and therefore to justify and explain codification. The literature, however, overlooks codification’s distributive consequences. In so doing, it misses a common motive for codification: to define legal rules in a way that advantages individual codifying institutions, regardless of how it affects the general welfare.

This Article fills the gap in the literature by examining three rationales for why states codify customary international law: (1) a desire to clarify the substantive content of customary law in order to promote cooperation (the Clarification Thesis); (2) a desire to enhance compliance through mechanisms such as monitoring, enforcement, and dispute-resolution provisions (the Compliance Thesis); and (3) a desire to define the content of customary rules for a state’s individual benefit (the Capture Thesis). While codification’s proponents conceive of the enterprise in terms of the Clarification and Compliance Theses, I argue that states frequently use codification to capture customary international legal rules to benefit themselves at the expense of the general welfare. As states with divergent views on how to interpret a customary rule pursue conflicting codification efforts, they entrench schisms in the law along regional or ideological lines, thereby delegitimizing customary rules and increasing fragmentation. Thus, far from being an unqualified boon to benevolent legal ordering, codification can replicate, magnify, or alter the power dynamics present in forming bare customary law. Indeed, the fragmentation of customary law that can result from codification actually prevents a unified understanding of customary law from emerging—the exact opposite of codification’s ostensible purpose. This Article uses the Capture Thesis to explain important developments in customary international law, including the outlawing of the slave trade in the nineteenth century, the rise of bilateral investment treaties, and the inability to reach an agreement on a multilateral investment treaty.

Getting More By Asking Less: Justifying and Reforming Tax Law’s Offer-In- Compromise Procedure

Shu-Yi Oei

The Offer in Compromise (OIC) is a procedure by which the IRS may agree to forgive a portion of the tax liabilities of certain taxpayers. This Article suggests a framework for evaluating the effectiveness of any proposed reforms to this pro- cedure. It presents three arguments that support forgiving tax debts through devices such as the OIC. These arguments are rooted in revenue-raising, fair- ness, rehabilitative, and socioeconomic considerations. Unfortunately, an analysis of the OIC’s recent history shows that its current structure tends to undermine its effectiveness. The power to effectuate the procedure is dispersed among four stakeholders with divergent interests: Congress, the IRS, the taxpayer, and finan- cial and other supporters of the taxpayer. Each of these players has conflicting and contradictory interests in OIC-procedure outcomes. Over time, the actions and decisions of each of these players can lead to conflicting and counterproduc- tive behaviors and responses by other players, and this undermines the program’s overall effectiveness. Given this dynamic among stakeholders, reforms that would minimize or eliminate such downward-spiraling interactions of divergent interests should be adopted. Conversely, reforms likely to provoke or exacerbate such interactions should be avoided. This Article provides examples of each type of reform.


To Copy or Not to Copy, That Is the Question: The Game Theory Approach to Protecting Fashion Designs

Tedmond Wong

Fashion designers in the United States, unlike those in many for- eign jurisdictions, enjoy only limited intellectual property protection for their creative endeavors. The American patent, copyright, and trademark systems each present obstacles to obtaining protection for fashion designs. Copyright and trademark law protect certain elements of fashion designs, such as unique fabrics and logos, but the protections do not extend to the general shape and appearance of a fashion design. Moreover, copyright and trademark law do not grant protection to products and features that serve a utilitarian purpose. On the other hand, patent law presents difficult statutory barriers; a design must be novel and nonobvious, and can only gain protection after a lengthy litigation process. The result is a gap in intellectual property protection that leaves fashion designers vulnerable to a stitch-by-stitch, seam-by-seam replication of the designs they labor to create.

While the duplication of fashion designs is not a new phenomenon, the practice has recently received increased attention due to high-profile lawsuits by famous designers including Anna Sui and Diane von Furstenberg against low-end, mass retailers such as Forever 21. The defendants in these cases are known as “fast-fashion” firms for their ability to replicate original designs at alarming speed, on a large scale, and at low cost. Many fashion designers disapprove, claiming that fast-fashion firms’ capabilities of quickly copying original designs and bringing those copies to market deprive original designers of profits and stifle design firm creativity. The fashion industry, represented by the industry group Council of Fashion Designers of America (CFDA), has sought Congress’s assistance to rectify the longstanding dearth of intellectual property protection for fashion designs. The Senate introduced a proposal to amend the copyright statute known as the Innovative Design Protection and Piracy Prevention Act (IDPPPA) last session, and the House of Representatives recently introduced the same proposal.

In this Comment, I address the normative question of the optimal scope of intellectual property protection for fashion designs through game theory’s unique perspective of law and economics. I do so by developing a game theoretic model that evaluates the impact of greater legal protection on the incentives of fashion designers to bring lawsuits to protect their designs and of fast-fashion firms to make replicas of these designs. Analyzing the incentives at play will allow me to predict whether the IDPPPA in its current form will deter fast-fashion firms from replicating designs, encourage innovation, and maximize welfare in the fashion industry.

Scaling the Wall and Running the Mile: The Role of Physical-Selection Procedures in the Disparate Impact Narrative

Yiyang Wu

Since the Supreme Court’s landmark decision in Dothard v. Rawlinson in 1977, gender-based disparate impact litigation has been limited in scope, but there remains room for growth. This Comment focuses on one particularly successful subset of gender-based disparate impact cases, physical-selection procedures. An examination of these decisions shows that plaintiffs have faced an uphill battle in combating unfounded assumptions, both in establishing a prima facie case as well as in rebutting the affirmative defense. Indeed, some lower courts have relied on arguments that are inconsistent with the Supreme Court case law as it has progressed since Griggs v. Duke Power Co.

At the same time, the success of physical-selection procedure cases offers hope for expansion going forward. By contextualizing an industry’s practices, referring to narratives of female applicants, and providing examples of reasonable alternatives, advocates have succeeded in positively framing their arguments in a manner that factfinders are likely to welcome. In doing so, advocates can help reclaim the ideals of Title VII and the disparate impact movement.


When 10 Trials Are Better than 1000: An Evidentiary Perspective on Trial Sampling

Edward K. Cheng

In many mass tort cases, individual trials are simply impractical. Take, for example, Wal-Mart Stores, Inc. v. Dukes, a class action employment discrimination suit that the Supreme Court reviewed last Term. With over 1.5 million women potentially involved in the litigation, the notion of holding individual trials is fanciful. Other recent examples of the phenomenon include the In re World Trade Center Disaster Site Litigation and the fraud litigation against light cigarette manufacturers, in which Judge Weinstein colorfully noted that any “individualized process . . . would have to continue beyond all lives in being.”

Faced with an unserviceable number of plaintiffs, courts have proposed sampling trials: rather than litigating every case, courts would litigate a small subset and award the remaining plaintiffs statistically determined amounts based on the results. But while sampling is standard statistical practice and often accepted as evidence in other legal contexts, appellate courts have balked— based on due process concerns—at the notion of court-mandated, binding trial sampling.

Despite this appellate reluctance, the controversy continues unabated. Trial courts have soldiered on by using nonbinding sampled trials (dubbed “bellwether trials”) to induce settlement, and a few brave appellate courts, including the Ninth Circuit in Dukes, have even hinted at an increased receptivity to sampling. Given that trial courts have few practical alternatives, one wonders if it is just a matter of time before their appellate brethren recognize the necessity of sampling.

Volume 160, Issue 3 
February 2012

Pills and Partisans: Understanding Takeover Defenses

Jordan M. Barry & John William Hatfield

Corporate takeover defenses have long been a focal point of academic and popular attention. However, no consensus exists on such fundamental questions as why different corporations adopt varying levels of defenses and whether defenses benefit or harm target corporations’ shareholders or society generally. Much of the disagreement surrounding takeover defenses stems from the lack of a fully developed formal analytical framework for considering their effects. Our Article presents several formal models built upon a common core of assumptions that together create such a theoretical framework. These models incorporate the reality that target corporate insiders have superior information about the target but are imperfect agents of its shareholders. They suggest that modern defenses enable target shareholders to extract value from acquirers by empowering corporate insiders, but that takeover defenses do not benefit society as a whole. They also help explain why corporations with different characteristics may choose to adopt varying levels of takeover defenses. Our findings have implications for the longstanding debate about who is best served by state-level control of corporate law and the desirability of increased federal involvement in corporate law.

Congress’s Constitution

Josh Chafetz

Congress has significantly more constitutional power than we are accustomed to seeing it exercise. By failing to make effective use of its power, Congress has invited the other branches to fill the vacuum, resulting in a constitutional imbalance. This Article considers a number of constitutional tools that individual houses—and even individual members—of Congress, acting alone, can deploy in interbranch conflicts.

Although the congressional powers discussed in this Article are clearly contemplated in constitutional text, history, and structure, many of them have received only scant treatment in isolation. More importantly, they have never before been considered in concert as a set of tools in an ongoing interbranch power struggle. This holistic perspective is necessary because these powers in combination are much greater than the sum of their parts. Borrowing terminology from international relations scholarship, this Article groups the congressional powers under discussion into "hard" and "soft" varieties. Congressional hard powers are tangible and coercive; the hard powers discussed in this Article are the power of the purse and the contempt power. Congressional soft powers are intangible and persuasive; soft powers considered by this Article include Congress’s freedom of speech and debate, the houses’ disciplinary power over their own members, and their power to determine the rules of their proceedings. Each of these powers presents opportunities for Congress to enhance its standing with the public, and thereby enhance its power. This Article aims to demonstrate both the ways in which these powers are mutually supporting and reinforcing and the ways in which Congress underutilizes them. In doing so, the Article examines a number of examples of congressional use of, and failure to use, these powers, including the release of the Pentagon Papers, the 1995–1996 government shutdowns and 2011 near-shutdown, the 2007–2009 contempt-of-Congress proceedings against White House officials, and the use of the filibuster, among others.

The Article concludes by arguing that Congress should make a more vigorous use of these powers and by considering their implications for the separation of powers more generally.

Prison Vouchers

Alexander Volokh

School vouchers have been proposed as a way to bypass the political pathologies of school reform and improve school quality by transforming students and parents into consumers. What if we did the same for prisons—what if convicted criminals could choose their prison rather than being assigned bureaucratically?

Under a voucher system, prisons would compete for prisoners, meaning that the prisons will adopt policies prisoners value. Prisons would become more constitutionally flexible—faith-based prisons, now of dubious legality, would be fully constitutional, and prisons would also have increased freedom to offer valued benefits in exchange for the waiver of constitutional rights. As far as prison quality goes, the advantages of vouchers would plausibly include greater security, higher-quality health care, and better educational opportunities—features that prison reformers favor for their rehabilitative value.

The counterarguments are threefold. "Social meaning" and other philosophical arguments hold that choice in prison conditions is either impossible or morally undesirable. On the more economic plane, "market failure" arguments hold that because of informational or other problems prisoner choice would not succeed in improving overall prison quality. "Market success" arguments, on the other hand, hold that prison choice would improve prison quality too much, satisfying inmate preferences that are socially undesirable or diluting the deterrent value of prison. These counterarguments have substantial force but do not foreclose the possibility that prison choice results in socially desirable improvements that could outweigh these disadvantages.


Chevron Corp. v. Berlinger and the Future of the Journalists' Privilege for Documentary Filmmakers

Tom Isler

The documentary film Crude, directed by award-winning filmmaker Joseph Berlinger, tells the story of a class action lawsuit brought by thousands of Ecuadorians against the oil company Chevron, alleging that the company’s systematic contamination of a portion of the Amazon jungle increased the rates of cancer, leukemia, birth defects, and other health problems for the indigenous people of the region. Berlinger and his crew spent three years filming but captured only a small portion of the ongoing fight between the Ecuadorians and Chevron. By the time Berlinger’s cameras arrived, the legal battle was already a dozen years old, and a title screen at the end of Crude predicts that the litigation could last another decade. The film premiered at the 2009 Sundance Film Festival and went on to earn dozens of nominations and awards from film festival juries and critics’ organizations around the world.

In 2010, Chevron and, separately, two of Chevron’s lawyers who were facing criminal charges in Ecuador for falsifying documents, moved to subpoena nearly six-hundred hours of raw footage, or “outtakes,” that Berlinger did not include in the completed film. Chevron sought to prove that the plaintiffs’ lawyers exerted improper influence over judges and experts involved in the proceedings in Ecuador through ex parte communications, and it argued that Berlinger’s footage contained evidence of this misconduct. Berlinger attempted to quash the subpoenas on the ground that he was protected by the journalists’ privilege.

The district court ordered Berlinger to turn over all of his outtakes—the largest mandate to turn over outtakes ever ordered by a U.S. court. In doing so, the court revealed its misunderstanding of outtakes and how they should be treated under the existing journalists’ privilege doctrine. The Second Circuit’s standard for obtaining nonconfidential material from journalists, set forth in Gonzales v. NBC, requires petitioners to prove that the material sought is “of likely relevance to a significant issue in the case” and “not reasonably obtainable from other available sources.” The district court in the Berlinger litigation, after assuming that this qualified privilege applies to independent documentary filmmakers, narrowed the protection of journalistic work product by collapsing the two-pronged Gonzales test into a general standard of “likely relevance” for outtakes, and lowered the bar for what constitutes relevance. The Second Circuit narrowed but nonetheless affirmed the order. The Second Circuit further ruled that because Berlinger appeared to be subject to the influence of his filmmaking subjects, he lacked the editorial independence necessary to qualify for the journalists’ privilege.

Allocating the Costs of Harm to Whom They Are Due: Modifying the Collateral Source Rule after Health Care Reform

Rebecca Levenson

For decades, the collateral source rule has been a target of tort reform on both state and national levels.1 The rule, which at common law prohibits the introduction of evidence regarding collateral payments received by the claimant in a suit for damages, has sparked a long-standing debate. Its proponents cite its potential to align the costs of injury with tortfeasors and to deter tortious conduct, while its opponents claim that the rule results in double recovery for claimants and inflated insurance costs. The result of this debate has been varied treatment of the rule, with some states following the common law rule, some limiting its application, and some abrogating it in full. Calls for tort reform have been widely influential throughout the states. Most states have already limited or abrogated the rule, and it is possible that other states as well as the federal government may follow suit.

The application of the collateral source rule has become more complicated since the passage of the Patient Protection and Affordable Care Act, which contains a provision establishing an individual mandate to obtain health insurance. While the insured plaintiff may have benefitted from the collateral source rule before the Affordable Care Act was passed, now an uninsured claimant may benefit under the rule. Under the common law collateral source rule, evidence that a plaintiff has chosen to shirk his obligation to purchase insurance must be excluded. The rule’s ban of insurance evidence may have the result of protecting—as opposed to penalizing—uninsured claimants. The decision to forgo insurance that may have covered the uninsured claimants’ medical expenses is hidden from the jury, whose members presumably have complied with the mandate. Under the new health care law, both insured and uninsured plaintiffs stand to gain from the use of the collateral source rule. This outcome may provide an additional incentive for states and the federal government to limit or change the common law rule.

Although commentators have put forth many arguments both supporting and opposing the use of the collateral source rule, they have proposed fewer models for its revision. This Comment will provide a model for updating and partially abrogating the collateral source rule in personal injury cases. It will examine the effect that the model will have on the outcome of these cases and the fulfillment of new policy goals in the wake of health care reform. Part I will explain the current state of the collateral source rule and will provide an overview of how it has been changed across the states. Part II will summarize the debate surrounding the elimination of the rule. Part III will address how the Affordable Care Act has changed this debate. Part IV will evaluate the consequences of modifying the collateral source rule in personal injury cases. Finally, Part V will provide a model for limiting the rule.

Volume 160, Issue 2 
January 2012

Facebook, Twitter, and the Uncertain Future of Present Sense Impressions

Jeffrey Bellin

The intricate legal framework governing the admission of out-of-court statements in American trials is premised on increasingly outdated communication norms. Nowhere is this more apparent than with the hearsay exception for “present sense impressions.” Changing communication practices typified by interactions on social media websites like Facebook and Twitter herald the arrival of a previously uncontemplated—and uniquely unreliable—breed of present sense impressions. This Article contends that the indiscriminate admission of these electronic present sense impressions (e-PSIs) is both normatively undesirable and inconsistent with the traditional rationale for the present sense impression exception. It proposes a reform to the exception that would exclude unreliable e-PSIs while simultaneously realigning the modern rule with its historical rationale. In so doing, this Article sounds an early warning to courts and legislators regarding similar challenges on the horizon, as modern communication norms continue to evolve beyond the contemplation of the drafters of the hearsay rules.

Making Sense of Section 2: Of Biased Votes, Unconstitutional Elections, and Common Law Statutes

Christopher S. Elmendorf

This Article develops a fresh account of the meaning and constitutional function of the Voting Rights Act’s core provision of nationwide application, Section 2, which has long been portrayed as conceptually opaque, counterproductive in effect, and quite possibly unconstitutional. I argue that Section 2 delegates authority to the courts to develop a common law of racially fair elections, anchored by certain substantive and evidentiary norms, as well as norms about legal change. The central substantive norm is that injuries within the meaning of Section 2 arise only when electoral inequalities owe to race-biased decisionmaking by majority-group actors, whether public or private. As an evidentiary matter, however, plaintiffs need only show a “significant likelihood” of race-biased decisionmaking, rather than proving it more likely than not. So cast (and with a few more details worked out), Section 2 emerges as a constitutionally permissible response to, inter alia, the largely unrecognized problem of election outcomes that are unconstitutional because of the racial basis for the electorate’s verdict—a problem that generally cannot be remedied through constitutional litigation. My account of Section 2 has numerous practical implications. Most importantly, it suggests that electoral arrangements that induce or sustain race-biased voting are vulnerable under Section 2, irrespective of their potentially dilutive effect on minority representation. My account also clears the ground for overruling the many Section 2 precedents that rest on the constitutional avoidance canon, and it helps to resolve a number of prominent circuit splits.

Freedom for the Press as an Industry, or For the Press as a Technology? From the Framing to Today

Eugene Volokh

“[T]he freedom . . . of the press” specially protects the press as an industry, which is to say newspapers, television stations, and the like—so have argued some judges and scholars, such as the Citizens United v. FEC dissenters and Justices Stewart, and Douglas. This argument is made in many contexts: election-related speech, libel law, the journalist’s privilege, access to government property, and more. Some lower courts have indeed concluded that some First Amendment constitutional protections apply only to the institutional press, and not to book authors, political advertisers, writers of letters to the editor, professors who post material on their websites, or people who are interviewed by newspaper reporters.

Sometimes, this argument is used to support weaker protection for non-institutional-press speakers than is already given to institutional-press speakers. At other times, it is used to support greater protection for institutional-press speakers than they already get. The argument in the latter set of cases is that the greater protection can be limited to institutional-press speakers, and so will undermine rival government interests less than if the greater protection were extended to all speakers.

But other judges and scholars—including the Citizens United majority and Justice Brennan—have argued that the “freedom . . . of the press” does not protect the press-as-industry, but rather protects everyone’s use of the printing press (and its modern equivalents) as a technology. People or organizations who occasionally rent the technology, for instance by buying newspaper space, broadcast time, or the services of a printing company, are just as protected as newspaper publishers or broadcasters.

Under this approach, the First Amendment rights of the institutional press and of other speakers rise and fall together. Sometimes, this approach is used to support protection for non-institutional-press speakers and to resist calls for lowering that protection below the level offered to institutional-press speakers. At other times, it is used to rebut demands for greater protection: Extending such protection to all speakers, the argument goes, would excessively undermine rival government interests—yet allowing such protection only for the institutional press would improperly give the institutional press special rights.


All Alone in Arbitration: AT&T Mobility v. Concepcion and the Substantive Impact of Class Action Waivers

Frank Blechschmidt
On April 27, 2011, the Supreme Court announced its decision in AT&T Mobility LLC v. Concepcion, one of the most closely watched cases of the 2010 Term. In Concepcion, the Court considered whether states may condition the enforceability of arbitration agreements on the availability of class-wide arbitration proceedings. While the subject of class arbitration is rarely viewed as a headline-grabbing legal topic, Concepcion attracted the attention of many consumer advocates, corporate counsel, and procedural scholars because of its far-reaching implications for consumer and employment contracts and class action policy. Ultimately, the Court held that the Federal Arbitration Act (FAA) preempts states from invalidating class action waivers in arbitration agreements because these invalidations stand as an obstacle to the purposes behind the FAA.

Was this result surprising? Not in the least. Indeed, given the increasingly predictable road the Court had taken in previous FAA cases, a contrary ruling exhibiting deference to a state’s views on arbitration would have represented an abrupt tug on the FAA steering wheel. But leaving the Court’s track record aside, was the Court’s decision to limit the role of states in shaping class action policy a legally sound and principled conclusion? In this Comment, I argue that it was not. Because class actions are so intimately linked to the vindication of substantive rights, the Court should not have unilaterally made a policy decision as to when the use of class proceedings is appropriate.

Though class action policy discussions typically focus on the efficacy of class action litigation or the inner workings of Rule 23 of the Federal Rules of Civil Procedure, Concepcion did not directly involve either of these topics. Instead, Concepcion centered on the class action’s close cousin, class arbitration—proceedings involving similarly situated litigants that occur before an arbitrator, rather than before a judge or jury in court. While the development of class arbitration was still in its embryonic stages, several judges and businesses adopted the view that this method of dispute resolution was antithetical to the whole point of arbitrating in the first place, which is to provide a speedy and efficient alternative to litigation. Eventually, with the addition of more claimants and in light of the uncertainty surrounding this new form of aggregate procedure, class arbitration became what was described as “a lose-lose proposition” to which “no rational business [would] agree.”

Navigating a Legal Dilemma: A Student’s Right To Legal Counsel In Disciplinary Hearings for Criminal Misbehavior

Ellen L. Mossman

In recent years, school violence has repeatedly shocked the immediately affected communities and the entire country. While the shootings at Columbine High School and Virginia Tech represent the tragic extreme of school violence, increasing numbers of other criminal acts—including sexual assault, weapons possession, and drug-related activity—are occurring on high school and college campuses. As violence and allegations of crime rise in schools, so too do the number of proceedings in which institutions attempt to discipline the perpetrators.

Such proceedings present a unique legal dilemma. A student faces a number of consequences and challenges when accused of conduct in violation of both criminal law and school policy. Say a student at a publicly funded university sells illegal drugs on campus: of course selling drugs violates criminal law. But many universities have also enacted student codes that impose disciplinary sanctions on students who sell drugs.

If a student wants to remain enrolled and continue attending school, he may participate in a school disciplinary proceeding, which may occur well before the criminal case has concluded. At the proceeding, a disciplinary panel will ask questions of the student and other witnesses to determine whether the alleged conduct actually occurred.

At this proceeding, one of two things could happen. The student could refuse to answer the questions, because he does not know what facts will incriminate him in his later criminal drug case. If he refuses, however, he may face suspension or expulsion on the basis of the testimony of the witnesses against him. Alternatively, the student, wishing to put the events behind him, could testify, admit to selling drugs, and receive a disciplinary sanction. Subsequently, he would stand trial in the criminal case, where his statements from the school disciplinary hearing can be introduced into evidence against him.

With parallel proceedings—one criminal and one administrative—arising from the same set of facts, the student has conflicting interests and faces procedural obstacles in both. The dilemma is further complicated without the assistance or advice of trained legal counsel to warn the student of adverse legal consequences and recommend how best to proceed. Admittedly, a school disciplinary proceeding does not threaten a student’s liberty in the same way a criminal proceeding does. But when a student faces this type of situation, he is forced to make decisions and meet challenges—including confusing legal questions concerning self-incrimination, admissibility of evidence, and confrontation of witnesses—that he is ill-equipped to handle without the advice of legal counsel.

Volume 160, Issue 1 
December 2011

Constraining Certiorari Using Administrative Law Principles

Kathryn A. Watts

The U.S. Supreme Court—thanks to various statutes passed by Congress beginning in 1891 and culminating in 1988—currently enjoys nearly unfettered discretion to set its docket using the writ of certiorari. Over the past few decades, concerns have mounted that the Court has been taking the wrong mix of cases, hearing too few cases, and relying too heavily on law clerks in the certiorari process. Scholars, in turn, have proposed fairly sweeping reforms, such as the creation of a certiorari division to handle certiorari petitions. This Article argues that before the Court’s discretion to set its own agenda is taken away, another area of the law—one that already has thought long and hard about how to constrain delegated discretion—should be consulted: administrative law. Although certiorari and administrative law certainly differ, both involve congressional delegations of discretion to a less accountable body and therefore both raise concerns of accountability, transparency, and reasoned decisionmaking. Accordingly, in considering certiorari reform, it makes sense to borrow from some of administrative law’s well-developed lessons about how delegated discretion can be controlled. Specifically, after consulting the nondelegation doctrine, reason-giving requirements, public participation mechanisms, and oversight principles found in administrative law, this Article concludes that vote-disclosure requirements and increased public participation stand as promising ways of checking the Court’s currently unconstrained discretion.

The Political Economy of Fraud on the Market

William W. Bratton & Michael L. Wachter

The fraud-on-the-market class action no longer enjoys much academic support. The justifications traditionally advanced by its defenders—compensation for out-of-pocket loss and deterrence of fraud—are thought to have failed due to the action’s real world dependence on enterprise liability and issuer-funded settlements. The compensation justification collapses when considered from the point of view of different types of shareholders. Well-diversified shareholders’ receipts and payments of damages balance over time and amount to a wash before payment of litigation costs. The shareholders arguably in need of compensation—fundamental value investors who rely on published reports—are undercompensated due to pro rata distribution of settlement proceeds to all class members. The deterrence justification fails when enterprise liability is compared to alternative modes of enforcement, such as actions against individual perpetrators, which deter fraud more effectively. If, as the consensus view now has it, fraud on the market makes no policy sense, then its abolition would seem to be the next logical step. Yet most observers continue to accept the action on the same ground cited by the Supreme Court when it first implied a private right of action under the Securities and Exchange Act of 1934 in 1964’s J.I. Case v. Borak: a private enforcement supplement is needed in view of inadequate Securities and Exchange Commission (SEC) resources. In other words, even a private-enforcement supplement that makes no sense is better than no private-enforcement supplement at all.

This Article questions this backstop policy conclusion by highlighting the sticking points retarding movement toward fraud on the market’s abolition and mapping a plausible route to a superior enforcement outcome. We recommend that private plaintiffs be required to meet an actual-reliance standard. We look to the SEC, rather than to Congress or to the courts, to initiate the change be- cause the SEC is the lawmaking institution most responsible for the unsatisfactory status quo and best equipped to propose corrective action. Because an actual reliance requirement would substantially diminish the flow of private litigation, we also suggest a compensating increase in public-enforcement capability. More specifically, the SEC Division of Enforcement needs enough funding to redirect its efforts away from the enterprise and toward culpable individuals.

The Jurisprudence of Dignity

Leslie Meltzer Henry

Few words play a more central role in modern constitutional law without appearing in the Constitution than “dignity.” The term appears in more than nine hundred Supreme Court opinions, but despite its popularity, dignity is a concept in disarray. Its meanings and functions are commonly presupposed but rarely articulated. The result is a cacophony of uses so confusing that some critics argue the word ought to be abandoned altogether.

This Article fills a void in the literature by offering the first empirical study of Supreme Court opinions that invoke dignity and then proposing a typology of dignity based on an analysis of how the term is used in those opinions. The study reveals three important findings. First, the Court’s reliance on dignity is increasing, and the Roberts Court is accelerating that trend. Second, in contrast to its past use, dignity is now as likely to be invoked by the more conservative Justices on the Court as by their more liberal counterparts. Finally, the study demonstrates that dignity is not one concept, as other scholars have theorized, but rather five related concepts.

The typology refers to these conceptions of dignity as institutional status as dignity, equality as dignity, liberty as dignity, personal integrity as dignity, and collective virtue as dignity. This Article traces each type of dignity to its epistemic origins and describes the substantive dignitary interests each protects. Importantly, the typology offers more than a clarification of the conceptual chaos surrounding dignity. It provides tools to track the Court’s use of different types of dignity over time. This permits us to detect doctrinally transformative moments, in such areas as state sovereign immunity and abortion jurisprudence, that arise from shifting conceptions of dignity.


Subsidizing Fat: How the 2012 Farm Bill Can Address America’s Obesity Epidemic

Julie Foster

On a bus in West Philadelphia, a woman feeds her baby an artificial orange beverage from his bottle. The drink costs much less than baby formula, partly because it is mostly comprised of corn—the largest beneficiary of U.S. agricultural subsidies. Currently the least expensive food available is also the most caloric and the least nutritious: a dollar’s worth of cookies or potato chips yields 1200 calories, while a dollar’s worth of carrots yields only 250 calories. A savvy shopper seeking to satiate her family will naturally seek out these more caloric but less nutritious items. The sticker price is a small fraction of the true cost of highly processed foods, which contain excessive amounts of sodium, fat, and calories that contribute to an estimated $147 billion in annual healthcare costs. Moreover, these products are artificially cheap because their production is subsidized with tens of billions in taxpayer funds each year. Federal agricultural subsidies have provided Americans with high-calorie, low-nutrient processed foods that are less expensive and more readily available than whole grains and produce. Until very recently, poverty was associated with emaciated faces and rail-thin limbs, but today malnutrition persists despite an abundance of cheap calories. Our nation is in the midst of an obesity epidemic that is not only a question of weight, but also implicates serious health conditions caused by poor nutrition such as heart disease, diabetes, and some types of cancers. The next generation of Americans may be the first in history to have a shorter lifespan than its parents.

The national obesity epidemic is a multifaceted crisis with many factors that go beyond the scope of this Comment. Similarly, the 2008 Farm Bill is omnibus legislation spread across more than a dozen titles in the United States Code, spanning everything from food stamps and school lunches to environmental conservation and agricultural research. This Comment evaluates how programs intended to support farm prices and income influence producers and consumers. Commodity production is at the core of the obesity epidemic because highly processed foods and meats are mostly comprised of subsidized corn, soy, and cereal grains.14 While domestic production and food price are not the only factors contributing to the problem, this Comment questions the value of using the third-largest federal benefits program to reduce the cost of commodities that contribute to $147 billion in annual obesity-related health costs. The issue of obesity has been well addressed by social scientists and natural scientists, by writers and food advocates. Yet legal scholarship on agriculture has focused entirely on environmental or international trade issues without addressing how federal legislation impacts what farmers decide to plant and what people choose to eat. This Comment recommends legislative action for the 2012 Farm Bill to make fruits, vegetables, and whole grains comparatively less expensive than unhealthy processed foods and meats.

Exempt Executives? Dollar General Store Managers’ Embattled Quest for Overtime Pay Under the Fair Labor Standards Act

Drew Frederick

Beginning in the early 1980s, and continuing for nearly three decades, federal circuit courts unanimously found retail store managers exempt from overtime pay under the Fair Labor Standards Act of 1938 (FLSA). The overwhelming consensus even within the Department of Labor (DOL) itself—the body responsible for promulgating and enforcing the overtime regulations—was that supervisors in charge of a free-standing store were highly likely to fall within the exempt category of the statute. However, in 2008 the Eleventh Circuit broke the unanimity by upholding a thirty-six million dollar jury verdict against Family Dollar for misclassifying its store managers as exempt executives. While the extent to which the Eleventh Circuit’s decision will affect retail store managers’ status under the FLSA remains unclear, it has undoubtedly resuscitated managers’ hopes that they can prevail on overtime claims by providing them with circuit precedent on which to stand.

As the Eleventh Circuit’s decision in Morgan v. Family Dollar Stores, Inc., pointedly illustrates, the financial repercussions for large retailers of misclassifying employees can be immense. Tens of millions of dollars hinge on complex judicial determinations of whether retail supervisors are exempt executives and therefore not owed overtime pay. Getting this determination right has serious implications not only for businesses but also for workers who stand to lose substantial wages to which they are statutorily entitled.

To a large extent, the DOL has already performed the interest balancing between employers and employees through notice-and-comment rulemaking, with judges determining only the remainder through case-by-case applications of the white collar exemptions. The regulations that have emerged from the administrative decisionmaking process purportedly strike a compromise between the competing interests of employers and employees. This Comment argues that the current regulations governing the executive exemption, as well as the circuit case law that has developed around them, unduly favor the employer and pose a nearly insurmountable obstacle to overtime claims, at least in the context of low-salaried retail supervisors.

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