VOLUME 161, ISSUE 5 April 2013


The U.S. conflict with al Qaeda raises a number of complicated and contested questions regarding the geographic scope of the battlefield and the related limits on the state’s authority to use lethal force and to detain without charge. To date, the legal and policy discussions on this issue have resulted in a heated and intractable debate. On the one hand, the United States and its supporters argue that the conflict—and broad detention and targeting authorities—extend to wherever the alleged enemy is found, subject to a series of malleable policy constraints. On the other hand, European allies, human rights groups, and other scholars, fearing the creep of war, counter that the conflict and related authorities are geographically limited to Afghanistan and possibly northwest Pakistan. Based on this view, state action outside these areas is governed exclusively by civilian law enforcement, tempered by international human rights norms.

This Article breaks through the impasse. It offers a new and comprehensive law- of-war framework that mediates the multifaceted security, liberty, and foreign policy interests at stake. Specifically, the Article recognizes the state’s need to respond to the enemy threat wherever it is located, but argues that the rules for doing so ought to distinguish between the so-called “hot battlefield” and elsewhere. It proposes a set of binding standards that would limit and legitimize the use of targeted killings and law-of-war detention outside zones of active hostilities—subjecting their use to an individualized threat assessment, a least-harmful-means test, and significant procedural safeguards. The Article concludes by describing how and why this approach should be incorporated into U.S. and international law and applied to what are likely to be increasingly common threats posed by transnational non–state actors in the future.

Conventional wisdom holds that federal laws conferring banking powers on national banks presumptively preempt state laws seeking to control the exercise of those powers. This conventional wisdom originates with McCulloch v. Maryland, which established that nationally chartered banks are federal instrumentalities entitled to regulate themselves free from state law—even when national law fails to address the risks that state law seeks to regulate. Incorporated into the National Bank Act of 1864 by nineteenth-century precedents but then abandoned by the New Deal Court, McCulloch’s theory of preemption is being revived today by the Office of the Comptroller of the Currency (OCC) to preempt broad swaths of state law.

This Article maintains that it is time to exorcise McCulloch’s theory from our preemption jurisprudence. Far from historically sanctioned, McCulloch’s theory that national banks are federal instrumentalities offends a deeply rooted tradition in American political culture and law that I call the “anti-banker nondelegation doctrine.” This principle has been manifest in campaigns against national banks’ immunities from political oversight, ranging from Andrew Jackson’s 1832 veto of the charter of the Second Bank of the United States to Louis Brandeis’s 1912 campaign against the “House of Morgan” as a “financial oligarchy.” In contrast to McCulloch’s view of banks as impartial instruments of the federal government, the American political system and the post–New Deal federal courts have adopted the view that federal law should not delegate unsupervised power to private banks to regulate their own operations. Accordingly, if federal regulators displace state laws regulating banking practices, then those federal regulators must explain how federal law addresses the risks that those state laws were attempting to control.

The most recent effort to eliminate McCulloch’s theory of preemption is section 1044(a) of the Dodd-Frank Act. Section 1044(a) provides detailed standards governing the OCC’s power to preempt state law. This Article argues that the OCC’s 2011 rules mistakenly revive McCulloch’s theory of preemption. This revival contradicts not only section 1044(a); it also contravenes the general tradition of distrusting grants to national banks of immunity from state law. Like McCulloch, the OCC’s rules draw irrational distinctions between states’ general common law doctrines and states’ rules specifically directed toward banking practices, and subject the latter to a sort of field preemption. This Article contends that such preemption is unprincipled and mistaken. Instead, it urges courts to follow the ordinary principles of conflict preemption—that is, to find state law preempted only where the OCC has specifically approved the banking practice forbidden by state law.

This Article conducts an empirical analysis of the relative ages of patents litigated by practicing and nonpracticing entities (NPEs). By studying all infringement claims for a sample of recently expired patents, I find considerable differences in litigation practices between these groups. Product-producing companies usually enforce their patents soon after issuance and complete their enforcement activities well before their patent rights expire. NPEs, by contrast, begin asserting their patents relatively late in the patent term and frequently continue to litigate until expiration. This variance in litigation timing is so dramatic that all claims assert- ing the average product-company patent are resolved before the average NPE patent is asserted for the first time. Further, I find that NPEs are the dominant source of patent enforcement in the final few years of the patent term. NPEs, enforcers of just twenty percent of all studied patents, are responsible for more than two-thirds of all suits and over eighty percent of all infringement claims litigated in the final three years of the patent term. These findings cast serious doubt on the utility of the last few years of the patent term and suggest that Congress should, at a minimum, consider increasing the frequency and magnitude of maintenance fee payments in the latter half of the term.


When analyzing cases arising from disputes over Title VII settlements, courts often begin with the proposition that Congress intended to encourage voluntary settlement of employment discrimination claims. As a result, courts resolve many issues attendant to the settlement process with the aim of furthering this policy but without proper consideration of the policy’s effect on the underlying goals of the statute. Although Title VII suits are not settled significantly more than are other claims, approximately seventy percent of all employment discrimination claims end in settlement, creating a potential for the settlement scheme to undermine or, if properly executed, enhance Title VII’s substantive aims. In addition, even before employees bring their claims to court, a significant number of Title VII complaints lodged with the Equal Employment Opportunity Commission (EEOC) are resolved through the EEOC’s mandatory “conciliation” process. In this respect, the pro-settlement policy has yielded its intended result. However, simply counting the number of settlements masks the more complicated (and meaningful) question of whether the pro-settlement policy is truly facilitating compliance with the substantive goals of Title VII.

The frequency of employment discrimination settlements has spawned a growing and scattered body of case law on the enforcement of settlement agreements. Courts have long split on whether to apply federal or state law when considering the validity of a settlement, but their analyses tend to address the issue of a settlement’s validity somewhat narrowly. Courts rarely acknowledge the systemic impact of the push to settle. Similarly, their analyses frequently fail to take account of the considerable substantive and procedural obstacles facing employees who seek to enforce or, in some cases, avoid allegedly invalid settlements.

This Comment attempts to connect these two distinct but related problems—the frequency of settlements on the one hand, and the failure of the law governing settlements to account for Title VII’s policy aims on the other—and argues that the adoption of federal common law would provide a mechanism for mitigating the current flaws in the administration of Title VII and connected settlements.

The social sciences have developed dramatically over the last century in both breadth and sophistication. These disciplines offer systematic data collection and an analytic methodology to test our empirical intuitions about individual behavior and social institutions. Prior to the development of the social sciences and their application to the legal system, judges could rely only on their personal experiences and untested empirical intuitions when faced with complex questions of social fact. A court’s exclusive reliance on personal experience, however, “could continue only so long as its ‘best guesses’ about [empirical] facts were as good as . . . everyone else’s.” Today, social science research exists on a wide range of legal issues, and courts are faced with the challenge of resolving controversial questions of empirical fact on the basis of complex and sometimes conflicting scientific literatures. Courts have, for example, reviewed social science evidence on racial segregation, maximum work hours, First Amendment rights, jury size, the exclusionary rule, eyewitness identification, and child custody. Yet, despite efforts to encourage the integration of social science into the judicial process, and despite a modest increase in judicial reliance on social science evidence in recent decades, courts remain reluctant to incorporate social science into their decisionmaking.

In this Comment, I explore the role of social science in the development of common law precedent. I begin with the assumption that most judges and legal scholars today would support the use of social science in particular judicial decisions where the research findings are valid, replicated, consistent across studies, and directly applicable to the legal question at hand. I focus instead on the problem of suboptimal social science. In the vast majority of cases only suboptimal evidence is available—that is, evidence that is valuable but not completely valid, consistent, or directly appli¬cable. Judges and legal scholars have long debated the benefits and disadvantages of using this kind of limited empirical research in judicial decisionmaking. And litigants frequently argue that courts should not rely upon specific social science evidence because of limitations in the literature. Yet courts are given relatively little guidance on how to address suboptimal social science in the development of precedent.

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