Digital Commons Network^™

A Nonoriginalism For Originalists, Jamal Greene

Faculty Scholarship

Originalism is an ideology, not a practice. It is a brand, an affiliation, a set of background principles, an often unstated set of restorative commitments. As James Fleming says in his book, Fidelity to Our Imperfect Constitution, originalism is an "ism." As an "ism," Fleming writes, originalism did not exist before the 1970s: "Constitutional interpretation in light of original understanding did exist, but original understanding was seen as merely one source of constitutional decision-making among several-not as a general theory of constitutional interpretation, much less the exclusive legitimate theory."

This brief Comment on Fleming's book takes the practice Fleming identifies---"constitutional …

The Meming Of Substantive Due Process, Jamal Greene

Faculty Scholarship

Substantive due process is notoriously regarded as a textual contradiction, but it is in fact redundant. The word "due" cannot be honored except by inquiring into the relationship between the nature and scope of the deprived interest and the process-whether judicial, administrative, or legislative-that attended the deprivation. The treatment of substantive due process as an oxymoron is what this Essay calls a constitutional meme, an idea that replicates through imitation within the constitutional culture rather than (necessarily) through logical persuasion. We might even call the idea a "precedent," in the nature of other legal propositions within a common law system. …

Working Themselves Impure: A Life Cycle Theory Of Legal Theories, Jeremy K. Kessler, David E. Pozen

Faculty Scholarship

Prescriptive legal theories have a tendency to cannibalize themselves. As they develop into schools of thought, they become not only increasingly complicated but also increasingly compromised, by their own normative lights. Maturation breeds adulteration. The theories work themselves impure.

This Article identifies and diagnoses this evolutionary phenomenon. We develop a stylized model to explain the life cycle of certain particularly influential legal theories. We illustrate this life cycle through case studies of originalism, textualism, popular constitutionalism, and cost-benefit analysis, as well as a comparison with leading accounts of organizational and theoretical change in politics and science. And we argue that …

Law And Moral Dilemmas, Bert I. Huang

Faculty Scholarship

A runaway trolley rushes toward five people standing on the tracks, and it will surely kill them all. Fortunately, you can reach a switch that will turn the trolley onto a side track – but then you notice that one other person is standing there. Is it morally permissible for you to turn the trolley to that side track, where it will kill one person instead of five? Is it not only morally permissible, but even morally required? This classic thought experiment is a mainstay in the repertoire of law school hypotheticals, often raised alongside cases about cannibalism at sea, …

Berne-Forbidden Formalities And Mass Digitization, Jane C. Ginsburg

Faculty Scholarship

This Essay addresses the Berne Convention's prohibition on the imposition of "formalities" on the "enjoyment and the exercise" of copyright, and the compatibility with that cornerstone norm of international endeavors to facilitate mass digitization, notably by means of extended collective licensing and "opt-out" authorizations. In the Berne context, "enjoyment" means the existence and scope of rights; "exercise" means their enforcement. Voluntary provision of copyright notice and of title-searching information on a public register of works and transfers of rights is fully consistent with Berne and should be encouraged. But the Berne Convention significantly constrains member states' ability to impose mandatory …

The (Ir)Rationality Of (Un)Informed Consent, Barbara A. Noah

Faculty Scholarship

This essay considers the problem of over-utilization of medical care at the end of life and the lack of truly informed consent and briefly considers the multiple causes of these phenomena. It then explores the inherent challenges to making informed medical decisions using concepts of Knightian uncertainty, bounded rationality, optimism bias, and other heuristics. The essay concludes that uncertainty inherent in these decisions means that challenges to making truly informed decisions about medical care are even more substantial than physicians acknowledge or patients ever realize. Acknowledging these challenges is the first step to better medical decision making. informed consent has …

The Question Concerning Technology In Compliance, Sean J. Griffith

Faculty Scholarship

In this symposium Essay, I apply insights from philosophy and psychology to argue that modes of achieving compliance that focus on technology undermine, and are undermined by, modes of achieving compliance that focus on culture. Insisting on both may mean succeeding at neither. How an organization resolves this apparent contradiction in program design, like the broader question of optimal corporate governance arrangements, is highly idiosyncratic. Firms should therefore be accorded maximum freedom in designing their compliance programs, rather than being forced by enforcement authorities into a set of de facto mandatory compliance structures.

Why Plea Bargains Are Not Confessions, Brandon L. Garrett

Faculty Scholarship

Is a plea bargain a type of confession? Plea bargaining is often justified as, at its core, a process involving in-court confession. The U.S. Supreme Court's early decisions approved plea bargains as something "more than a confession which admits that the accused did various acts. " I argue in this Article that plea bargains are not confessions-they do not even typically involve detailed admissions of guilt. The defendant generally admits to acts satisfying elements of the crime--a legally sufficient admission to be sure, but often not under oath, and often not supported by any extensive factual record. Because plea bargains …

Neuroscience And Behavioral Genetics In Us Criminal Law: An Empirical Analysis, Nita A. Farahany

Faculty Scholarship

The goal of this study was to examine the growing use of neurological and behavioral genetic evidence by criminal defendants in US criminal law. Judicial opinions issued between 2005–12 that discussed the use of neuroscience or behavioral genetics by criminal defendants were identified, coded and analysed. Yet, criminal defendants are increasingly introducing such evidence to challenge defendants’ competency, the effectiveness of defense counsel at trial, and to mitigate punishment.

Joint And Several Jurisdiction, Scott Dodson, Phil Pucillo

Faculty Scholarship

No abstract provided.

Do Religious Exemptions Save?, Maimon Schwarzschild

Faculty Scholarship

No abstract provided.

Consent Does Not Require Communication: A Reply To Dougherty., Larry Alexander

Faculty Scholarship

No abstract provided.

Discrimination By Customers, Katharine T. Bartlett, Mitu Gulati

Faculty Scholarship

Customers discriminate by race and gender, with considerable negative consequences for female and minority workers and business owners. Yet anti-discrimination laws apply only to discrimination by firms, not by customers. We examine efficacy and privacy reasons for why this may be so, as well as changing features of the market that, by blurring the line between firms and customers, make current law increasingly irrelevant. We conclude that, while there are reasons to be cautious about regulating customer behavior, those reasons do not justify acceding to customer discrimination altogether. To open a discussion of the regulatory options that take account of …

Race, Class, And Access To Civil Justice, Sara Sternberg Greene

Faculty Scholarship

After many years of inattention, policymakers are now focused on troubling statistics indicating that members of poor and minority groups are less likely than their higher-income counterparts to seek help when they experience a civil justice problem. Indeed, roughly three-quarters of the poor do not seek legal help when they experience a civil justice problem, and inaction is even more pronounced among poor blacks. Past work on access to civil justice largely relies on unconfirmed assumptions about the behavior patterns and needs of those experiencing civil justice problems. At a time when increased attention and resources are being devoted to …

Quieting The Sharholders' Voice: Empirical Evidence Of Pervasive Bundling In Proxy Solicitations, James D. Cox, Fabrizio Ferri, Colleen Honigsberg, Randall S. Thomas

Faculty Scholarship

The integrity of shareholder voting is critical to the legitimacy of corporate law. One threat to this process is proxy “bundling,” or the joinder of more than one separate item into a single proxy proposal. Bundling deprives shareholders of the right to convey their views on each separate matter being put to a vote and forces them to either reject the entire proposal or approve items they might not otherwise want implemented.

In this Paper, we provide the first comprehensive evaluation of the anti-bundling rules adopted by the Securities and Exchange Commission (“SEC”) in 1992. While we find that the …

Sovereign Debt Restructuring: A Model-Law Approach, Steven L. Schwarcz

Faculty Scholarship

The existing contractual framework for sovereign debt restructuring is sorely inadequate. Whether or not their fault, nations sometimes take on debt burdens that become unsustainable. Until resolved, the resulting sovereign debt problem hurts not only those nations (such as Greece) but also their citizens, their creditors, and—by posing serious systemic risks to the international financial system—the wider economic community. The existing contractual framework functions poorly to resolve the problem because it often leaves little alternative between a sovereign debt bailout, which is costly and creates moral hazard, and a default, which raises the specter of systemic financial contagion.

Most observers …

Rare As Hens' Teeth: The New Geography Of The American Death Penalty, Brandon L. Garrett

Faculty Scholarship

Today, only a few dozen scattered counties actually impose death sentences, supporting the death penalty’s arbitrariness.

(Mis)Recognizing Polygamy, Kerry Abrams

Faculty Scholarship

No abstract provided.

Drawing Lines Among The Persecuted, Kate Evans

Faculty Scholarship

Should a victim of persecution be denied protection in the United States if his persecutors forced him to participate in their campaign of terror? In its 2009 decision, Negusie v. Holder, the Supreme Court recognized the “difficult line drawing problems” presented by this question, but failed to offer concrete guidance to the lower courts or the executive agencies charged with drawing those lines. Circuit courts employ a variety of standards, leaving the law in disarray.

This Article offers original historical research to argue that asylum seekers charged with participating in persecution should be afforded a duress defense. It traces the …

Obama's Aumf Legacy, Curtis A. Bradley, Jack Landman Goldsmith

Faculty Scholarship

No abstract provided.

Misalignment: Corporate Risk-Taking And Public Duty, Steven L. Schwarcz

Faculty Scholarship

This article argues for a “public governance duty” to help manage excessive risk-taking by systemically important firms. Although governments worldwide, including the United States, have issued an array of regulations to attempt to curb that risk-taking by aligning managerial and investor interests, those regulations implicitly assume that investors would oppose excessively risky business ventures. That leaves a critical misalignment: because much of the harm from a systemically important firm’s failure would be externalized onto the public, including ordinary citizens impacted by an economic collapse, such a firm can engage in risk-taking ventures with positive expected value to its investors but …

Privatizing Public Litigation, Margaret H. Lemos

Faculty Scholarship

Government litigators increasingly use private resources—human and financial—to support their efforts in court. In some cases, government entities hire private lawyers to perform legal work on behalf of the government; in others, they draw on private donations to fund litigation; and in some cases they do both, relying on privately funded private lawyers to litigate cases in the government’s name. These mergers of public and private can be understood as part of broader trends toward the privatization of government services. This Article uses lessons from the privatization debates to illuminate the likely costs and benefits of bringing private actors into …

Pricing Sovereign Debt: Discretion V. Expropriation, Michael Bradley, Irving De Lira Salvatierra, Mitu Gulati

Faculty Scholarship

The Greek restructuring of March 2012 illustrates how non-price contract terms can have a significant effect on the pricing of sovereign debt. In the Greek restructuring, bonds governed by local law suffered NPV haircuts in the range of 60-75%, whereas those bonds governed by foreign law were paid in full and on time. Other contract parameters such as the currency in which the debt is denominated and the exchange on which it is listed can also affect the leeway a sovereign debtor has in dealing with its creditors. In general, we find that sovereigns with strong institutions and investor protections …

The Dod Law Of War Manual And Its Critics: Some Observations, Charles J. Dunlap Jr.

Faculty Scholarship

The U.S. Department of Defense’s (DoD) new Law of War Manual has generated serious debate about its treatment of a variety of issues including human shields, the status of journalists, cyber operations, the precautions to be taken prior to attacks and even the role of honor in war. Although this article does not purport to be a comprehensive response to every critique of the Manual and, indeed, cites opportunities for its improvement, it nevertheless concludes that on balance the Manual provides an excellent, comprehensive and much-needed statement of DoD’s view of the lex lata of the law of war.

Perspectives On Regulating Systemic Risk, Steven L. Schwarcz

Faculty Scholarship

This book chapter, which synthesizes several of the author’s articles, attempts to provide useful perspectives on regulating systemic risk. First, it argues that systemic shocks are inevitable. Accordingly, regulation should be designed not only to try to reduce those shocks but also to protect the financial system against their unavoidable impact. This could be done, the chapter explains, by applying chaos theory to help stabilize the financial system. The chapter then focuses on trying to prevent excessive corporate risk-taking, which is one of the leading triggers of systemic shocks and widely regarded to have been a principal cause of the …

Judicial Retirements And The Staying Power Of U.S. Supreme Court Decisions, Stuart M. Benjamin, Georg Vanberg

Faculty Scholarship

The influence of U.S. Supreme Court majority opinions depends critically on how these opinions are received and treated by lower courts, which decide the vast majority of legal disputes. We argue that the retirement of Justices on the Supreme Court serves as a simple heuristic device for lower court judges in deciding how much deference to show to Supreme Court precedent. Using a unique dataset of the treatment of all Supreme Court majority opinions in the courts of appeals from 1953 to 2012, we find that negative treatments of Supreme Court opinions increase, and positive treatments decrease, as the Justices …

Lethality, Public Carry, And Adequate Alternatives, Joseph Blocher, Darrell A. H. Miller

Faculty Scholarship

This Article explores the relationship between lethality and the right to bear arms, and considers how that relationship might be shaped by the availability of non-lethal alternative weapons. Prior scholarship has asked whether the Second Amendment includes a right to carry non-lethal “Arms.” An important set of related questions remains: does the Second Amendment necessarily include a right to arm oneself publicly with lethal force, if non-lethal alternatives are available? And how should one evaluate the adequacy of those alternatives?

Patent Institutions: Shifting Interactions Between Legal Actors, Arti K. Rai

Faculty Scholarship

This contribution to the Research Handbook on Economics of Intellectual Property Rights (Vol. 1 Theory) addresses interactions between the principal legal institutions of the U.S. patent system. It considers legal, strategic, and normative perspectives on these interactions as they have evolved over the last 35 years. Early centralization of power by the U.S. Court of Appeals for the Federal Circuit, newly created in 1982, established a regime dominated by the appellate court's bright-line rules. More recently, aggressive Supreme Court and Congressional intervention have respectively reinvigorated patent law standards and led to significant devolution of power to inferior tribunals, including newly …

Cultural Paradigms In Property Institutions, Taisu Zhang

Faculty Scholarship

Do “cultural factors” substantively influence the creation and evolution of property institutions? For the past several decades, few legal scholars have answered affirmatively. Those inclined towards a law and economics methodology tend to see property institutions as the outcome of self-interested and utilitarian bargaining, and therefore often question the analytical usefulness of “culture.” The major emerging alternative, a progressive literature that emphasizes the social embeddedness of property institutions and individuals, is theoretically more accommodating of cultural analysis but has done very little of it.

This Article develops a “cultural” theory of how property institutions are created and demonstrates that such …

Towards A New International Law Of The Atmosphere?, Peter H. Sand, Jonathan B. Wiener

Faculty Scholarship

Inclusion of the topic ‘protection of the atmosphere’ in the current work programme of the UN International Law Commission (ILC) reflects the long overdue recognition of the fact that the scope of contemporary international law for the Earth’s atmosphere extends far beyond the traditional discipline of ‘air law’ as a synonym for airspace and air navigation law. Instead, the atmospheric commons are regulated by a ‘regime complex’ comprising a multitude of economic uses including global communications, pollutant emissions and diffusion, in different geographical sectors and vertical zones, in the face of different categories of risks, and addressed by a wide …