Recent berkeleylaw_wp items

Law, Loyalty and Citizenship

Thu, 5 Apr 2012 00:00:00 +0000

The question whether to obey the law is not fundamentally different from the question whether to follow morality, or for that matter, the dictates of prudence. Morality, law, and prudence face the same normative challenge: they must confront and prevail over people’s occurrent psychological impulses. These three branches of ethics differ only in the level of abstraction at which they address or rather constitute us: respectively, as human beings, members of the human race; as citizens, members of a particular political community; and as unique individuals. Our autonomy consists in subjecting impulse to norm in these various capacities. What does distinguish law in this regard is therefore not its normative appeal, but the fact that this appeal comes armed with coercion, thus distancing us from our role as citizens and fracturing the autonomy that following the law could otherwise display.

Sanctioning Corporations

Wed, 23 Feb 2011 00:00:00 +0000

The question of corporate criminal liability should be split into (at least) two questions: (1) Should corporations be subject to criminal sanctions? (2) Should these sanctions be subject to the same substantive, procedural, and evidentiary constraints as those that apply in the case of individual defendants? I argue for a positive answer to the first question, and a negative answer to the second.

Freedom to Trade and the Competitive Process

Fri, 11 Feb 2011 00:00:00 +0000

Although antitrust courts sometimes stress the competitive process, they have not deeply explored what that process is. Inspired by the theory of the core, we explore the idea that the competitive process is the process of sellers and buyers forming improving coalitions. Much of antitrust can be seen as prohibiting firms’ attempts to restrain improving trade between their rivals and customers. In this way, antitrust protects firms’ and customers’ freedom to trade to their mutual betterment.

Executions, Deterrence and Homicide: A Tale of Two Cities

Tue, 1 Sep 2009 00:00:00 +0000

We compare homicide rates in two quite similar cities with vastly different execution risks. Singapore had an execution rate close to 1 per million per year until an explosive twentyfold increase in 1994-95 and 96 to a level that we show was probably the highest in the world. Then over the next 11 years, Singapore executions dropped by about 95%. Hong Kong, by contrast, has no executions all during the last generation and abolished capital punishment in 1993. Homicide levels and trends are remarkably similar in these two cities over the 35 years after 1973, with neither the surge in Singapore executions nor the more recent steep drop producing any differential impact. By comparing two closely matched places with huge contrasts in actual execution but no differences in homicide trends, we have generated a unique test of the exuberant claims of deterrence that have been produced over the past decade in the U.S.

Constructing Selves

Wed, 19 Aug 2009 00:00:00 +0000

This essay provides a short overview, written for an interdisciplinary volume, of a theme I’ve pursued in previous work. A number of influential schools of thought converge on the view that human beings are self-creating. This constructive view of the self presents our normative systems, primarily those of morality and law, with an additional task: not only to guide us in what to do but also to shape who we are. Consequently, when devising behavior-guiding norms we must ask: what subjects will emerge from the practices and activities generated by a particular set of norms? And what considerations bear on the construction of selves through our normative engagements? I sketch some preliminary steps toward exploring this largely uncharted terrain.

A Concept of Dignity

Wed, 19 Aug 2009 00:00:00 +0000

In this lecture, presented at a German-Israeli conference on Dignity and the Criminal Law held in Jerusalem in January 2009, I track the idea of human dignity to its two main sources, the Old Testament notion of Imago Dei and Kant’s doctrine of the noumenal self. I then draw some implications that the provenance of dignity, so understood, has on the use of this concept in a number of contemporary debates.

Luck and Identity

Wed, 19 Aug 2009 00:00:00 +0000

This paper explores the relationship between moral luck and personal identity. Focusing on the notion of constitutive luck, I argue that although fortuitous circumstances often define our identity, our identity is nonetheless immune to luck. The argument revolves around the notion of regret. Bad luck is regrettable. But one cannot coherently regret the occurrence of constitutive circumstances and wish them to be otherwise, because this would amount to wishing to be someone else: conditions of personal identity set the limits on the counter-factuals about ourselves that we can intelligibly entertain.

Revising the Past: On the Metaphysics of Repentance, Forgiveness, and Pardon

Wed, 19 Aug 2009 00:00:00 +0000

How do the practices listed in the subtitle manage to forestall negative reactive attitudes, such as resentment and guilt, and render them no longer appropriate? I argue that these “revisionary practices” redraw the self’s temporal boundary to exclude the wrongful act, thus releasing the wrongdoer from continuing to bear responsibility for that act.

The Choose-your-Charity Tax: A Way to Incentivize Greater Giving

Thu, 10 Nov 2005 00:00:00 +0000

Why don't people give more to charity? One reason is that the problems will be there whether individuals give or not. Here is a policy - inspired by the matching grants that charities use so effectively - that could actually make a real difference.

Total Liability for Excessive Harm

Wed, 1 Dec 2004 00:00:00 +0000

In many circumstances, the total harm caused by everyone is verifiable, and the harm caused by each individual is unverifiable. For example, the environmental agency can measure the total harm caused by pollution much easier than it can measure the harm caused by each individual polluter. In these circumstances, implementing the usual liability rules or externality taxes is impossible. We propose a novel solution: Hold each participant in the activity responsible for all of the excessive harm that everyone causes. By "excessive harm" we mean the difference between the total harm caused by all injurers and the optimal total harm. We call this rule "total liability for excessive harm." We show that total liability for excessive harm creates incentives for efficient precaution and activity level. Consequently, actual harm is not excessive and actual liability is nil. For example, the environmental agency can set a target for clean air and announce that each factory is liable for...

Is There a Text in this Class? The Conflict Between Textualism and Antitrust

Wed, 1 Dec 2004 00:00:00 +0000

Antitrust opinions rely heavily on economic analysis but little on statutory text. Surprisingly, this text-free mode of interpretation is warmly endorsed by leading textualists such as Justice Scalia and Judge Easterbrook. We argue that their approach to antitrust is irreconcilable with their general theories of statutory interpretation. Their theory is that the antitrust texts are essentially lacking in content, operating as a delegation of policymaking authority to courts. We undertake a close textualist analysis of the Sherman Act and later antitrust statutes. For the conscientious textualist, the statutory texts are far from being blank checks. For instance, textualists have analyzed common law terms in other statutes far more cautiously than they interpreted section 1 of the Sherman Act, either applying the majority view of the state courts at the time of enactment or choosing among current variants of state common law. Nor do the texts of the antitrust statutes evidence...

Food Fears: Health and Safety at the WTO

Wed, 1 Dec 2004 00:00:00 +0000

Within the next twelve to twenty-four months, the World Trade Organization (WTO) may have to rule on a dispute between the United States and the European Communities (EC) regarding genetically modified organisms (GMO). This Article explains why the organization’s current jurisprudence risks making this case and others like it an unnecessarily explosive and damaging one for the trading system.

Existing WTO cases interpreting health and safety rules instruct panels and the Appellate Body to determine if there is a "rational relationship" between a challenged measure and the "risk assessment" that must be conducted before a measure is adopted. In making a ruling, therefore, panelists must evaluate scientific evidence, attempt to gage the defendant's willingness to tolerate risk, and assess the relationship between risk and the challenged measure.

This Article argues that substantive review of this kind is unwise and unnecessarily threatens the stability of the international...

Do the Merits Matter Less After the Private Securities Litigation Reform Act?

Wed, 1 Dec 2004 00:00:00 +0000

The paper provides evidence on the impact of the Private Securities Litigation Reform Act of 1995 (PSLRA) by examining a sample of initial public offerings from 1990 to 1999 facing a mix of Section 11 and Rule10b-5 antifraud claims. Others have provided evidence that the PSLRA increased the significance of merit-related factors in determining the incidence and outcomes of securities fraud class actions. The increase in the importance of merit-related factors, however, is consistent with two possible hypotheses. First, the PSLRA may have reduced solely the incidence of nuisance litigation. Second, the PSLRA may have reduced the incidence of both nuisance litigation as well as a subset of the pre-PSLRA meritorious claims where the additional costs imposed by the PSLRA made such claims unprofitable from the perspective of plaintiffs' attorneys. This paper tests between these hypotheses and provides evidence that meritorious claims lacking obvious "hard evidence" indicia of fraud...

Pay without Performance: The Unfulfilled Promise of Executive Compensation

Wed, 1 Dec 2004 00:00:00 +0000

This book provides a detailed account of how structural flaws in corporate governance have enabled managers to influence their own pay and produced widespread distortions in pay arrangements. The book also examines how these flaws and distortions can best be addressed.

Part I of the book (titled The Official View and its Limits) critically examines the arm's length contracting view, which underlies much of the academic research on executive compensation as well as the law's approach to it. We show that boards have not been operating at arm's length from the executives whose pay they set. While recent reforms can improve matters, they cannot be expected to eliminate significant deviations from arm's length contracting. We also show that the constraints imposed by market forces and shareholders' power to intervene are not tight enough to prevent such deviations.

Part II of the book (titled Power and Pay) shows how an understanding of the role of managerial power can...

Peeking Abroad?: The Supreme Court's Use of Foreign Precedents in Constitutional Cases

Wed, 1 Dec 2004 00:00:00 +0000

This essay criticizes the Supreme Court's use of foreign legal precedents in constitutional cases. If these citations are no more than ornamental, or are no more than good ideas from another jurisdiction, then there is little about which to be concerned. If reliance on foreign precedents represents a more significant trend, however, several difficulties arise. First, if foreign courts are receiving deference, then they may well be exercising federal authority outside the bounds of our Constitution. Second, reliance on such decisions breaks the relationship between the people and their government as expressed in the Constitution, because foreign courts are interpreting a different document within a different constitutional and political context. Third, to the extent use of these precedents has focused on European decisions, it is unclear whether the United States should seek to coordinate its constitutional solutions to problems with those of Europe. Europe has suffered from...

Incentives to Challenge and Defend Patents: Why Litigation Won't Reliably Fix Patent Office Errors and Why Administrative Patent Review Might Help

Wed, 1 Dec 2004 00:00:00 +0000

Given the limits on Patent Office scrutiny of patent applications, one might hope that ex post litigation can fix at least the important errors. Unfortunately, the often grossly skewed incentives to challenge and to defend issued patents make this view too optimistic. Since litigation cannot fix all errors, we urge better USPTO funding and higher standards of initial review, better incentives (not limited to formal duties) for applicants to find and disclose prior art information, and the creation of a cheap and workable administrative post-issue review. We explain why existing administrative reviews are not a workable system, and recommend some features that a new system should have.

An Economic Assessment of Market-Based Approaches to Regulating the Municipal Solid Waste Stream

Tue, 30 Nov 2004 00:00:00 +0000

In the late 1980s and early 1990s, it was widely reported that the United States faced a solid waste crisis. Existing landfills were reaching capacity or being shut down because of more stringent regulations while waste volumes were continuing to rise. At the time, several market-oriented policy analysts advocated the adoption of variable rate charges for mixed refuse in conjunction with curbside pick-up of recyclables (without charge) as a means of reducing waste volumes and diverting recyclable material to more valuable uses. During the course of the past decade, such policies have been adopted widely throughout the United States - approximately 20 percent of the U.S. population now face variable rate charges for mixed refuse collection. Even more have curbside collection of recyclable materials. This article collects and reviews empirical studies evaluating the effects of variable rate pricing. It finds that these policies have been quite effective as a means of boosting...

Stealth Compensation via Retirement Benefits

Tue, 30 Nov 2004 00:00:00 +0000

This paper analyzes an important form of "stealth compensation" provided to managers of public companies. We show how boards have been able to camouflage large amounts of executive compensation through the use of retirement benefits and payments. Our study illustrates the significant role that camouflage and stealth compensation play in the design of compensation arrangements. It also highlights the importance of having information about compensation arrangements not only publicly available but also communicated in a way that is transparent and accessible to outsiders.

To improve the transparency of executives' retirement payments and benefits, we propose several changes in current disclosure requirements. Among other things, firms should be required to report to investors each year the dollar value of all the retirement benefits to which their executives become entitled. For example, firms should disclose to investors the annual buildup in the actuarial value of executives'...

Competing for Capital: The Diffusion of Bilateral Investment Treaties, 1960-2000

Tue, 30 Nov 2004 00:00:00 +0000

Abstract: Over the past forty-five years, bilateral investment treaties (BITs) have become the most important international legal mechanism for the encouragement and governance of foreign direct investment. Their proliferation over the past two decades in particular has been phenomenal. These intergovernmental treaties typically grant extensive rights to foreign investors, including protection of contractual rights and the right to international arbitration in the event of an investment dispute. We argue that the spread of BITs is driven by international competition among potential host countries - typically developing countries - for foreign direct investment. We design and test three different measures of competition. The evidence suggests that potential hosts are more likely to sign BITs when their competitors have done so. We also control for diffusion via coercion, social learning, and cultural networks. We find some evidence that coercion plays a role, but less support...

Textual Harassment: A New Historicist Reappraisal of the Parol Evidence With Gender in Mind

Tue, 30 Nov 2004 00:00:00 +0000

This year marks the four hundredth anniversary of the Parol Evidence Rule, the rule that dictates that the interpretation of a written contract should be determined solely according to its text and not influenced by prior contradictory external information. This article uses the occasion to offer a fresh interdisciplinary view of the Rule. The analysis presents a unique contribution to the heated debate regarding the desired levels of formalism and textualism in present-day contract law, by using New-Historicist tools.

Unexplored aspects of the roots of the Rule are illuminated through an in-depth investigation of the first case of the contractual Parol Evidence Rule, the Countess of Rutland's Case (1604). To examine this Case, the article suggests the use of Legal New Historicism - researching both human and non-human actors who played a role in this Case, and re-narrating the story of Isabel, the Countess of Rutland. This method reveals, for example, rare maps and romantic...

The Difference Uniforms Make: Understanding the Regulation of Collective Violence in Criminal Law and the Law of War

Tue, 30 Nov 2004 00:00:00 +0000

This paper treats the question in political theory and international law of whether non-uniformed fighters ought to enjoy combatant privileges. It does so by exploring our treatment of collective violence, and of citizen responsibility for state action. Consider two forms of involvement in collective violence. On the criminal law model, an individual can be punished for violent acts committed only by confederates, so long as he was part of a joint criminal enterprise. On the law of war model, by contrast, an individual cannot be punished for killings and violence committed on the battlefield (subject to certain humanitarian restrictions), so long as the killings are committed as part of international hostilities, and independent of the legitimacy of the case for war. Reconciling these two models means probing the logic of participation in both violence and politics.

I argue for extending combatant privileges to some non-uniformed combatants who are pursuing what can be...

Share Repurchases and Managerial Opportunism

Fri, 30 Jul 2004 00:00:00 +0000

Public companies in the United States and elsewhere are increasingly using open market repurchases, rather than dividends, to distribute cash. This paper explains why managers' ability to use inside information to repurchase stock at a bargain price is likely to systematically transfer value from public investors. In addition, tying cash distributions to the gap between the stock price and its actual value is likely to distort managers' payout, disclosure, and investment decisions, further reducing shareholder returns. The paper also proposes requiring firms to publicly disclose in advance the repurchase orders transmitted to their brokers. Such a disclossure rule, the paper shows, would reduce the economic distortions associated with repurchases without undermining their protential benefits.

Foreign Affairs Federalism and the Separation of Powers

Thu, 29 Jul 2004 00:00:00 +0000

This essay argues that Crosby v. National Foreign Trade Council may not portend a more aggressive intervention by the federal courts in enforcing a federal common law of foreign relations. A significant concern that underlies foreign affairs preemption is concern that 50 states might undermine the sole voice of the federal government in representing the nation. This concern, however, applies equally to the federal courts, which are not structurally suited due to their slowness and decentralization for involvement in foreign affairs. Enhancing the effectiveness of foreign policy calls for a reduced role for the judiciary in favor of the concentration of authority in the political branches.

Choosing Justices: Once More Into the Breach

Thu, 29 Jul 2004 00:00:00 +0000

After six years in mothballs, the Supreme Court appointments process likely will be returning to active duty in relatively short order. This will not be an entirely welcome event, as scholars have failed to agree on how to improve the Supreme Court appointments process. This essay reviews two recent books that provide some order to our thinking about the appointments process, Terri Jennings Peretti's In Defense of A Political Court, and David Alistair Yalof's In Pursuit of Justices. While much of the legal literature, for example, has focused on the standards that the Senate ought to apply in confirming Justices, Yalof examines the more decisive process of presidential selection of Supreme Court nominees. Peretti, whose work aims at a wider-ranging discussion of the purposes of judicial review and the roots of the Court's legitimacy, approaches the question by first asking what ought to be the proper role of the Supreme Court in the American political system.

This Essay...

The Scope of the Commerce Clause after Morrison

Thu, 29 Jul 2004 00:00:00 +0000

This essay, a contribution to a fall symposium at the Oklahoma City University law school, examines the Supreme Court's Commerce Clause jurisprudence in light of the Supreme Court's decision last Term in United States v. Morrison. Morrison found unconstitutional the Violence Against Women Act because its reach exceeded that permitted to the federal government under Article I, Section 8 of the Constitution. We argue that the Court's restrictions on the commerce power, while certainly a departure from previous directions in the federalism area, alone present no drastic or revolutionary limitations on the federal government's ability to achieve its policies. Some might fear that Morrison will prevent Congress from using the Commerce Clause to reach noncommercial, intrastate activity. Other powers, however, such as the Spending and Taxing Clauses, provide Congress with alternative opportunities to reach beyond the new restrictions on the Commerce Clause. Even the Court's current...

The Puzzling Persistence of Process-Based Federalism Theories

Thu, 29 Jul 2004 00:00:00 +0000

The theory of the political safeguards of federalism has made a recent comeback, appearing in Supreme Court dissents by Justices Breyer and Souter and in prominent articles by Professor Larry Kramer and Professor Brad Clark. We argue that the idea that the political process can wholly replace judicial review in policing the boundaries between federal and state power is inconsistent with the text, structure, and original understanding of the Constitution. None of these sources allows the federal courts to exercise judicial review while simultaneously excluding entire subject matters from its protections - especially one as central to the constitutional structure as federalism. The political-safeguards theory treats judicial review as purely functional and almost discretionary, while we believe that the constitutional text, structure, and history impose judicial review as a mandatory duty on the courts. We show that political safeguards theory creates severe distortions in the...

The Origins of Judicial Review

Thu, 29 Jul 2004 00:00:00 +0000

This year marks the 200th anniversary of Marbury v. Madison, the case which is often taught in law schools as establishing judicial review. Despite the absence of any broader political controversy over the role of the Supreme Court, akin to that which existed during the Civil War or the New Deal periods, academics from both ends of the political spectrum have attacked the legitimacy of judicial review. Recent critics have even argued that the Constitution, as originally understood, did not authorize courts to refuse to enforce unconstitutional legislation.

In this paper, we discuss the textual, structural, and historical roots of judicial review. First, we show that the constitutional text permits judicial review and we describe the severe difficulties associated with the claim that the Constitution is not law to be applied in the courts. Second, we explain that the constitutional structure requires the judiciary refuse to enforce laws that violate the Constitution due...

Law as Treaties?: The Constitutionality of Congressional-Executive Agreements

Thu, 29 Jul 2004 00:00:00 +0000

This article seeks to resolve the debate over the use of a statutory method for approving international agreements in place of the supermajority process required by the Constitution's Treaty Clause. These "congressional-executive agreements," which require only simple majorities in Congress and presidential signature, have become the instrument of choice for entry into some of the nation's most significant international obligations, such as the WTO and NAFTA. Some, such as Bruce Ackerman and David Golove argue that statutes and treaties are interchangeable because a "constitutional moment" occurred at the end of World War II (in which "We the People" non-textually amended the Constitution to allow this alternate process). Their critics, such as Laurence Tribe, suggest that the text and structure of the Constitution forbids the use of a statutory method to enter into significant international agreements. Standard foreign relations law doctrine, by contrast, consistently has...

Can WealthTaxes Be Justified

Wed, 28 Jul 2004 00:00:00 +0000

A wealth tax is a tax levied periodically on the value of a taxpayer's possessions (excluding opportunities to work or loaf and personal attributes, such as marketable skills, mental capacities, a healthy constitution, or a comely appearance). Could a wealth tax figure in a just, ongoing tax scheme, regardless of whether it might be justified as an extraordinary corrective to an unjust distribution of resources or opportunities? I argue that it almost certainly could not, if one assumes the correctness of one of a wide range of non-utilitarian, liberal egalitarian accounts of justice. It would have no place in a just tax system, not because a wealth tax would be impracticable (though its administration would pose well-known difficulties), but because it would be morally offensive. This paper assesses and finds wanting numerous rationales that have been suggested for taxing wealth, such as protecting democratic politics, maintaining the efficiency of labor and product markets,...

A Century of Change in Personal Injury Law

Wed, 28 Jul 2004 00:00:00 +0000

The 20th century witnessed enormous change in American personal injury law. Over the past 100 years, torts has emerged out of a largely ineffective backwater of the law. Today, tort doctrine has coalesced around a robust law of negligence, anchored not only in contemporary concerns about fairness, but also in considerations of loss spreading and safety promotion. Over the course of the 20th century, cultural change, change in the legal and other professions, changes in civil procedure and evidence law, the development of liability insurance, and more have made it both much easier and far more natural for accident victims to sue in tort. Work, home, and leisure activities have also altered dramatically between 1900 and 2000, thereby sharply changing the nature of the accidents that Americans now suffer, as compared with the past. During this same era, some important categories of injuries were fully or partly removed from personal injury law, and tort failed to take hold in...

Continuity and Change in the American Gun Debate

Wed, 28 Jul 2004 00:00:00 +0000

My paper traces the debates about firearms control over the three decades since I became involved in gun research in the late 1960s. The circumstances of public discourse about guns in the late 1960s were rich in sentiment and almost completely lacking in empirical data. Questions of firearms control were only episodically important at the national level, and the administration of federal gun laws was of minuscule importance prior to 1968.

The Common Thread: Diversion in the Jurisprudence of a Century of Juvenile Justice

Wed, 28 Jul 2004 00:00:00 +0000

A central objective of those who created the juvenile court was to protect young delinquents from the destructive punishments of the criminal justice system. This promotion of juvenile court as a diversion from criminal justice is distinct from more ambitious programs of "child saving" intervention because avoiding harm can be achieved even if no effective crime prevention treatments are available. This essay shows diversion has been an important motive in juvenile justice from the beginning, and the dominant purpose of a separate juvenile court since In Re Gault in 1967. The past thirty years have been the juvenile court's finest hour as a diversion project; the rate of juvenile incarceration has been stable, while incarceration of young adults has soared.

Why Law, Economics and Organization?

Wed, 28 Jul 2004 00:00:00 +0000

It being the case that law and economics is a success story, what are the reasons to call upon organization? Three related reasons are advanced here. First, the orthodox theory of the firm-as-production function is self-limiting and needs, for some purposes, to be joined with the theory of the firm-as-governance structure. Organization theory makes essential contributions to that project. Second, such a move has lessons for public policy analysis. Earlier and ongoing errors in antitrust and regulation are flagged and can be avoided as a consequence. And third, the traditional approach to teaching contract in the law school is reshaped if attention is shifted away from adjudication to focus predominantly on governance - as it should be.

Judges as Tort Law Un-makers: Recent California Experience with "New" Torts

Wed, 28 Jul 2004 00:00:00 +0000

Part of the DePaul Law School's 1999 Clifford Symposium, this article explores the role of "judges as lawmakers" by examining the tort law decisions of the California Supreme Court for the past 15 years -- the final three years that Chief Justice Rose Bird sat on the court and the twelve years after she was removed from office. The article presents the sea change in tort law thinking, doctrine and results that have taken place over this period of time -- essentially through the abandonment of notions of enterprise liability (Calabresi thinking about cheaper cost avoiders and cheaper loss spreaders). One theme of the article is that whereas the Bird court made new law (in some cases creating what might be termed "new" torts), the new court has "unmade" that law by its change of direction and outright overruling of existing doctrine. A counter-theme is that it was the Bird court that "unmade" tort law (by moving the law from clearer doctrine that was to be decided by judges to...

Federalism in the Taft Court Era: Can It Be Revived"?

Mon, 26 Jul 2004 00:00:00 +0000

This article analyzes the Supreme Court's view of federalism during the decade of the 1920s. It offers a detailed discussion of four jurisprudential areas: congressional power, dormant Commerce Clause doctrine, intergovernmental tax immunity, and judicial centralization through the enforcement of federal common law and constitutional rights. The resurgent federalism of the contemporary Court is typically characterized as "reviving" pre-New Deal principles. The article concludes, however, that any such revival is highly implausible. It offers four reasons for this conclusion.

First, the pre-New Deal Court conceived federalism in terms of the ideal of dual sovereignty, which imagined that the federal government and the states regulated distinct and exclusive spheres of social and economic life. But because the national market had by the 20th Century become thoroughly integrated, this ideal produced doctrinal incoherence in the areas of both intergovernmental tax immunity...

Reconciling Theory and Doctrine in First Amendment Jurisprudence

Mon, 26 Jul 2004 00:00:00 +0000

The twentieth century has seen the birth and the development of the doctrine of the First Amendment's free speech clause. In its current state, free speech jurisprudence is hampered by coexisting but conflicting First Amendment theories and doctrines. In this Essay, Professor Post examines these conflicts. He traces the development of two primary First Amendment theories: the theory of the marketplace of ideas, exemplified by Justices Holmes' dissenting opinion in Abrams v. United States; and the theory of democratic speech, articulated most notably by Alexander Meiklejohn. After discussing the doctrinal implications of these theories and noting that courts have not followed either theory consistently, Professor Post suggests that First amendment jurisprudence could be rendered more coherent if First Amendment theories were to be ordered according to a "lexical priority" that will illuminate what is at stake in the conflict between theories and how such conflicts may be settled.

Democratic Constitutionalism and Cultural Heterogeneity

Mon, 26 Jul 2004 00:00:00 +0000

This article explores the tensions between the value of democratic constitutionalism and the desire to protect cultural diversity. Democratic constitutionalism presupposes the ongoing construction of a collective agent, --"We the People"-- in whose name the state purports to govern. Using the work of Hanna Pitkin, the article explores the preconditions for this construction, with particular attention to Pitkin's observation that "how we are able to constitute ourselves is profoundly tied to how we are already constituted by our distinctive history," by our "fundamental ethos or temperament." The protection of cultural heterogeneity precisely challenges the premise of a "fundamental ethos or temperament." The article examines in detail three structural devices by which democratic states have sought to mediate this tension: individual rights, group rights, and the devolution of sovereignty (federalism). The article assesses the potential strengths and limitations of each of these...

The Supreme Court Opinion as Institutional Practice: Dissent, Legal Scholarship, and Decisionmaking in the Taft Court

Mon, 26 Jul 2004 00:00:00 +0000

The Supreme Court Opinion as Institutional Practice explores historical transformations in practices of Supreme Court decision-making and opinion-writing. It compares the Court's modern practices to those that existed during the era of the Taft Court, from 1921 through 1929. Many of these differences should be understood in the context of the Judiciary Act of 1925, which transformed the Court from a tribunal of last resort into a supervisor of the development of federal law. The article discusses in detail two major changes in the Court's decision-making practices. The first concerns dissent. During the 1921 through 1928 Terms, 84% of the Court's published opinions were unanimous, whereas during the 1993 through 1998 Terms, only 27% of the Court's published opinions were unanimous. Examination of docket books, however, reveals that in the Taft Court era only about 50% of the Court's cases were unanimous at conference. Intra-Court memoranda indicate that there was a strong "norm...

The Constitutional Status of Commercial Speech

Thu, 22 Jul 2004 00:00:00 +0000

Commercial speech doctrine is presently controversial and confused. The article seeks to clarify why the Court has protected commercial speech, and then to use these insights to elucidate the disputes that presently engulf the doctrine. The article argues that "commercial speech" is protected because of its "informational function." This contrasts sharply with "public discourse," which is protected to ensure forms of participation necessary to sustain democratic legitimacy. The boundaries that separate commercial speech from public discourse reflect sociological judgments about whether particular forms of communication are valued merely for their information, or instead as forms of communicative action that embody democratic participation. The article explores how the Court makes these judgments. It uses this difference in the constitutional value of commercial speech and public discourse to explain why the state can compel disclosures, impose overbroad regulations, and establish...

The Concept of National Law and the Rule of Recognition

Thu, 22 Jul 2004 00:00:00 +0000

It is a commonly held position that a rule cannot be a legal rule unless it is binding; or to put it differently, that one element that distinguishes legal rules from other kinds of rules is that legal rules are regarded as binding by duly constituted officials - typically, courts - who are called upon to apply them. Similarly, it is an often-held position that the law consists of the rules of a jurisdiction that are duly enacted or adopted by officials who have the power to make rules that are binding in the jurisdiction. The thesis of this article is that both positions are incorrect.

I begin by developing a concept that I call national law. The concept of national law is that there is a body of law in the United States that is made by officials across jurisdictions, legal scholars, and scholarly institutions, which constitutes law despite the fact that it is not binding in, and is not necessarily made by, officials of a deciding jurisdiction. Examples of national law...

Expectation Damages and the Theory of Overreliance

Thu, 22 Jul 2004 00:00:00 +0000

The basic remedy for breach of a bargain contract is expectation damages, which puts the injured party where she would have been had the contract been performed. It is generally accepted that the expectation measure provides efficient incentives to a bargain-promisor. Beginning about twenty years ago, however, law-and-economics scholars developed a model of damages which showed that the expectation measure can provide inefficient incentives to a bargain-promisee. The theory is that the expectation measure insures the promisee's reliance, and may thereby cause the promisee to overrely - that is, to invest more heavily in reliance than efficiency requires. The theory of overreliance is not limited in its application to the expectation measure, but it is most salient to that measure, just because the expectation measure is the gold standard in a bargain context. The model upon which the theory of overreliance is based provides an extremely important insight into damages. As time...

Who's Patenting What? An Empirical Exploration of Patent Prosecution