Harvard Law Review

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Print ISSN: 0017-811X


The Supreme Court 1972 term. Foreward: toward a model of roles in the due process of life and law
  • Article

December 1973


34 Reads

Laurence H Tribe

The Selective Funding Problem: Abortions and Religious Schools

April 1991


12 Reads

Selective governmental funding impinging upon controversial but constitutionally protected activities raises difficult doctrinal issues. In this Article, Professor McConnell challenges readers across the political spectrum by comparing and contrasting the constitutional implications of governmental funding policies regarding abortions and religious schools. Perceiving that ideology rather than consistent methodology now governs the constitutionality of selective governmental funding, he applies parallel argumentation to analyze governmenl decision to grant or withhold direct and indirect aid for these protected choices. Recognizing that religion and abortion stir strong emotions in the hearts of many, Professor McConnell concludes by offering a theory of selective governmental funding that could promote dispassionate decisionmaking and more predictable results.

Punishing Drug Addicts Who Have Babies: Women of Color, Equality, and the Right of Privacy

June 1991


305 Reads

Women increasingly face criminal charges for giving birth to infants who test positive for drugs. Most of the women prosecuted are poor, Black, and addicted to crack cocaine. In this Article, Professor Roberts seeks to add the perspective of poor Black women to the current debate over protecting fetal rights at the expense of women's rights. Based on the presumption that Black women experience several forms of oppression simultaneously, the author argues that the punishment of drug addicts who choose to carry their pregnancies to term violates their constitutional rights to equal protection and privacy regarding their reproductive choices. She begins by placing these prosecutions in the context of the historical devaluation of Black women as mothers. After presenting her view of the prosecutions as punishing drug-addicted women for having babies, the author argues that this punishment violates the equal protection clause because it stems from and perpetuates Black subordination. Finally, Professor Roberts argues that the prosecutions violate women's constitutional rights to autonomy and freedom from invidious government standards for childbearing. In presenting her view that the prosecutions violate women's privacy rights, the author critiques the liberal, "negative" conception of privacy rooted in freedom from government constraints. She concludes by advocating a progressive concept of privacy that places an affirmative obligation on the government to guarantee individual rights and recognizes the connection between the right of privacy and racial equality.

Analyzing Regulatory Failure: Mismatches, Less Restrictive Alternatives, and Reform

February 1979


72 Reads

Professor Breyer presents here a framework for analysis and reform of economic regulation. The framework consists of three basic elements: justifications for regulation, modes of classical regulation and the problems they entail, and "less restrictive alternatives" to regulation, including taxation and disclosure. Using contemporary regulatory programs as examples, Professor Breyer argues that many such programs are ill designed to meet their objectives, and that the problems inherent in such regulatory regimes are severe. Finally, he briefly sketches how one might, as a practical matter, go about achieving reform, citing as an example the recent change in airline regulation.

Law Making for Baby Making: An Interpretive Approach to the Determination of Legal Parentage

March 2000


115 Reads

This article proposes a new model for analyzing legal issues arising from technological conception and uses it to develop rules to govern the legal parentage of technologically conceived children. Professor Garrison shows that most commentators on technological conception have employed a "top-down" methodology, deriving rules for specific cases from an abstract global principle such as reproductive autonomy, freedom of contract, or anticommodification. Professor Garrison critiques these and several other approaches, showing that they offer little concrete guidance in many cases, risk the introduction of discordant values into the law of parentage, and fail to capture all of the values that have traditionally guided parentage determination. In their place, she proposes an "interpretive methodology" which, by relying heavily on current rules governing parentage determination in other contexts, would assimilate technological conception within the broader law of parental obligation. Professor Garrison argues that cases of sexual and technological conception should be governed by similar rules because, despite mechanical differences between these two reproductive methods, there are no significant differences in the parent-child relationships that they produce. She demonstrates that the interpretive approach can cabin rule-making disagreements, and that it can generate comprehensive parentage rules that are based on uniform policy goals and that ensure consistent treatment of parent-child relationships.

Taking Behavioralism Seriously: Some Evidence of Market Manipulation

June 1999


61 Reads

Over the last ten to fifteen years, economists and legal scholars have become increasingly interested in and sensitive to behavioralist insights. In a companion article, Jon Hanson and Douglas Kysar argued that those scholars have nevertheless given short shrift to what is, at least for policymaking purposes, perhaps the most important lesson of the behavioralist research: individuals' perceptions and preferences are highly manipulable. According to Hanson and Kysar, one theoretical implication of that insight for products liability law is that manufacturers and marketers will manipulate the risk perceptions of consumers. Indeed, to survive in a competitive market, manufacturers and marketers must do so. In this Article, Hanson and Kysar present empirical evidence of market manipulation--a previously unrecognized source of market failure. The Article begins by surveying the extensive qualitative and quantitative marketing research and consumer behavioral studies that discern and influence consumer perceptions. It then provides evidence of market manipulation by reviewing common practices in everyday market settings, such as gas stations and supermarkets, and by examining familiar marketing approaches, such as environmentally oriented and fear-based advertising. Although consumers may be well-aware of those practices and approaches, they appear to be generally unaware of the extent to which those tactics are manipulative. The Article then focuses on the industry that has most depended upon market manipulation: the cigarette industry. Through decades of sophisticated marketing and public relations efforts, cigarette manufacturers have heightened consumer demand and lowered consumer risk perceptions. Because consumers are aware that smoking may pose significant health risks, the tobacco industry's success in manipulating risk perceptions constitutes especially strong evidence of the power of market manipulation. The Article concludes by arguing that the evidence of market manipulation may justify moving to a regime of enterprise liability. Indeed, according to Hanson and Kysar, the evidence of market manipulation confirms the intuitions of the first generation of product liability scholars, who worried about manufacturers' power to manipulate and called for just such a regime.

Litigating Life and Death

January 1989


24 Reads

In cases involving the "right to die," courts are faced with the agonizing task of developing legal standards governing termination of an incompetent patient's medical treatment. In this Article, Professor Rhoden criticizes the two dominant approaches courts have developed--the "subjective" and "objective" tests--and proposes that these standards be abandoned for a legal presumption in favor of family decisionmaking. She maintains that the "subjective" test, which requires the family to provide clear proof that termination of treatment is what the incompetent would have chosen, is often unworkable because a patient's character traits, and even her prior statements about medical treatment, seldom rise to the evidentiary level that courts purport to require. Similarly, she argues that the "objective" test, which requires the family to prove that the burdens of the patient's life, measured in terms of pain and suffering, clearly and markedly outweight its benefits, dehumanizes patients by suggesting that only their present, physical sensations count. Professor Rhoden suggests that the subjective and objective tests are not nearly as distinct as courts have made them. She argues that the rigidity of these legal standards reflects courts' acceptance of the medical profession's presumption in favor of continued treatment, a presumption that places a heavy burden on families seeking to terminate treatment. Drawing on the special qualifications of families as decisionmakers in such cases, Professor Rhoden proposes that courts recognize a presumptive right of families to exercise discretion over treatment decisions. Such a standard would recognize that, although doctors and others can readily prove that terminating the treatment of a patient who can still enjoy life is wrong, it is very hard for families to meet the current standards, which essentially require them to prove that termination is right.

The Tarasoff Decisions: Suing Psychotherapists To Safeguard Society

January 1977


56 Reads

In this comment on the decisions of the California Supreme Court in Tarasoff v. Regents of the University of California, Dr. Stone argues that if society wishes to introduce greater safeguards into involuntary civil commitment procedures, it must be willing to accept an increased risk from those of the mentally disturbed who are potentially violent. Although there are circumstances in which it will be appropriate for the psychotherapist to warn the police of danger posed by his patient, it is counterproductive to impose upon psychotherapists a duty to provide additional or alternative protection by warning potential victims. Such a duty, he explains, is incompatible with an effective therapeutic relationship and would deter both patients and therapists from undertaking treatment, thereby further increasing the risk of violence to which society is exposed.

Medical Self-Defense, Prohibited Experimental Therapies, and Payment for Organs

June 2007


87 Reads

Alice is seven months pregnant, and the pregnancy threatens her life. She has a constitutional right to save her life by hiring a doctor to abort the viable fetus. A person breaks into Katherine's home and seems about to try to kill her (or perhaps seriously injure, rape, or kidnap her). Katherine may protect her life by killing the attacker, even if the attacker isn't morally culpable, for instance if he is insane, and even though recognizing this right may let some people use false claims of self-defense to get away with killing the innocent. Ellen is terminally ill. Under Abigail Alliance for Better Access to Developmental Drugs v. Eschenbach, decided in 2006 by the D.C. Circuit, Ellen has a constitutional right to try to save her life by hiring a doctor to administer some kinds of experimental drugs, even though federal law generally bars the use of such drugs. Olivia is dying of kidney failure. A kidney transplant would likely save her life, just as an abortion would save Alice's, lethal self-defense may save Katherine's, and an experimental treatment may save Ellen's. But the federal ban on payment for organs sharply limits the availability of kidneys, so Olivia will likely die if she must wait for a donated kidney (just as Alice, Ellen, and Katherine would be in jeopardy if abortions, experimental treatments, and weapons could only be provided for free). My claim is that all four cases involve the exercise of a person's presumptive right to self-defense - lethal self-defense in Katherine's case, and what I call medical self-defense in the others. This is a constitutional right: Roe and Casey secure not just a pre-viability right to abortion as reproductive choice, but also a separate post-viability right to abortion as medical self-defense when pregnancy threatens a woman's life. And given that Alice has such a right to defend herself by getting an abortion, Ellen and Olivia should have the same right to defend themselves through other medical procedures. It can't be that a woman has a constitutional right to protect her life using medical procedures, but only when doing so kills a viable fetus. And the right is also supported by the long-recognized right to lethal self-defense: the right to protect your life against attack even if it means killing the attacker. The right has constitutional foundations, in substantive due process, state constitutional rights to defend life and to bear arms, and maybe the Second Amendment. But even if it's treated as just a common-law and statutory right, our accepting it should lead us to accept a similar common-law or statutory right to defend one's life against medical threats as well as against human or animal threats. The right of medical self-defense thus offers an extra foundation for the Abigail Alliance holding that there is a constitutional right to use experimental therapies to protect one's life. And it makes the organ sales ban presumptively improper and unconstitutional when the organs are needed to protect people's lives; some concerns about organ markets may justify regulations of such markets, but not prohibition.

Tax policy and equipment leasing after TEFRA

June 1983


12 Reads

The Tax Equity and Fiscal Responsibility Act of 1982 substantially modified the "safe harbor" leasing provisions enacted by the Economic Recovery Tax Act of 1981. In this Comment, Professors Warren and Auerbach argue that the modifications did not remedy the defects they identified in an earlier Article and that a new category of "finance leases" may prove to be nearly as valuable for some taxpayers as were safe harbor leases before the 1982 changes.

The Ordinary and the Extraordinary in Institutional Litigation

February 1980


20 Reads

Institutional litigation, in which courts are requested to oversee the operation of large public institutions, has been frequently attacked as a departure from the traditional model of litigation. In this Article, Professors Eisenberg and Yeazell argue that the procedures and remedies employed in institutional litigation are not unprecedented but have analogues in older judicial traditions. Nor, they assert, do the doctrines of separation of powers and federalism present any obstacles to institutional litigation. They conclude that the novelty lies in the newly created substantive rights which courts are asked to enforce.

Does The Nonprofit Form Fit the Hospital Industry

June 1980


32 Reads

Nonprofit hospitals currently enjoy favored legal status. In this Article, Professor Clark critically examines the basis for such preferential treatment. He begins by identifying endemic problems in the health care industry and then explores the relationship between nonprofit hospitals and these problems. He finds that the evidence does not persuasively establish that nonprofit hospitals serve as fiduciaries rather than exploiters, and that nonprofits engage in much involuntary cross-subsidization of medical services. He concludes that the legal favoritism for the nonprofit form is based not on sound reasoning and hard data but on intuition. Professor Clari proposes that the legal rules affecting nonprofit hospitals reflect this reality by treating both nonprofits and for-profits neutrally, by controlling cross-subsidization, and by strengthening consumers' information about and control over health care decisionmaking.

The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience

January 2003


141 Reads

Although the language of the First Amendment refers to freedom of speech, it turns out that most of the vast universe of speech remains untouched (and thus unprotected) by the First Amendment. Antitrust law, the law of securities regulation, the law of criminal solicitation and conspiracy, much of labor law, most of the law of evidence, most of the law of sexual harassment, along with scores of other examples, involve legal control of speech that is well understood to lie beyond the boundaries of the First Amendment’s concerns. It is not that some of these regulations satisfy a higher burden of justification imposed by the First Amendment. Rather, it is that the First Amendment does not even show up in the analysis. But if we look for an explanation of why the speech that lies beyond the boundaries of the First Amendment remains outside the First Amendment’s ken, we find that explanation not in the theory of freedom of speech or the legal doctrine of the First Amendment, but instead in an often serendipitous array of political, cultural, social, and economic factors that determine what makes the First Amendment salient in some instances of speech regulation but not in others. If we examine First Amendment salience more closely, we see that the First Amendment’s special political and cultural place in American society gives it a kind of magnetism that leads a wide variety of legal and political claims to migrate to the First Amendment. But we see as well that numerous other non-legal factors determine, far more than legal factors, which of those opportunistic claims to First Amendment attention will succeed and which will not.

Do Guaranteed-Low-Price Policies Guarantee High Prices, and Can Antitrust Rise to the Challenge?

August 1995


70 Reads

Price-matching policies can be highly anticompetitive. They allow firms to raise their prices above competitive levels by discriminating in price between informed and uninformed customers. The resulting high prices can persist even when new firms enter the industry, which gives price-matching the potential to be much more socially costly than "ordinary" monopoly. At the same time, widespread entry implies that the horizontal agreement typical of a Sherman Act price-fixing case may be absent. This article suggests using the price-discrimination laws to combat the practice, and examines whether price matchers should be able to protect themselves from such an attack with a "meeting competition" defense; the article concludes that the defense should be rejected in cases where price-matching significantly injures competition. The article also explores whether the vertical agreements between buyer and seller can violate the Sherman Act, and concludes that they can. Please contact the Program in Law and Economics at Boalt Hall School of Law, UC Berkeley, Berkeley, CA 94720 for a copy of this paper.

Punishing Dangerousness: Cloaking Preventative Detention as Criminal Justice
  • Article
  • Full-text available

March 2001


119 Reads

Laypersons have traditionally thought of the criminal justice system as being in the business of doing justice: punishing offenders for the crimes they commit. [FN1] Yet during the past several decades, the justice system's focus has shifted from punishing past crimes to preventing future violations through the incarceration and control of dangerous offenders. Habitual-offender statutes, such as "three strikes" laws, authorize life sentences for repeat offenders. [FN2] Jurisdictional reforms *1430 have decreased the age at which juveniles may be tried as adults. [FN3] Gang membership and recruitment are now punished. [FN4] "Megan's *1431 Law" statutes require community notification of convicted sex offenders. [FN5] "Sexual predator" statutes provide for the civil detention of sexual offenders who remain dangerous at the conclusion of their criminal commitment. [FN6] New sentencing guidelines increase the sentence of offenders with criminal histories because these offenders are seen as the most likely to commit future crimes. [FN7] These reforms boast as their common denominator greater official control over dangerous persons, a rationale readily apparent from each reform's legislative history. [FN8] *1432 Although the individual legislative histories make clear that a preventive rationale has motivated each of these reforms, the system's general shift from punishment toward prevention has not been accompanied by a corresponding shift in how the system presents itself. While increasingly designed to prevent dangerous persons from committing future crimes, the system still alleges that it is doing criminal "justice" and imposing "punishment." Yet it is impossible to "punish dangerousness." To "punish" is "to cause (a person) to undergo pain, loss, or suffering for a crime or wrongdoing" [FN9]--therefore, punishment can only exist in relation to a past wrong. "Dangerous" means &q

The Uneasy Case of Product Liability

April 2010


239 Reads

In this Article we compare the benefits of product liability to its costs and conclude that the case for product liability is weak for a wide range of products. One benefit of product liability is that it can induce firms to improve product safety. Even in the absence of product liability, however, firms would often be motivated by market forces to enhance product safety because their sales may fall if their products harm consumers. Moreover, products must frequently conform to safety regulations. Consequently, product liability might not exert a significant additional influence on product safety for many products — and empirical studies of several widely sold products lend support to this hypothesis. A second benefit of product liability is that it can improve consumer purchase decisions by causing product prices to increase to reflect product risks. But because of litigation costs and other factors, product liability may raise prices excessively and undesirably chill purchases. A third benefit of product liability is that it compensates victims of product-related accidents for their losses. Yet this benefit is only partial, for accident victims are frequently compensated by insurers for some or all of their losses. Furthermore, the award of damages for pain and suffering tends to reduce the welfare of individuals because it effectively forces them to purchase insurance for a type of loss for which they ordinarily do not wish to be covered. Opposing the benefits of product liability are its costs, which are great. Notably, the transfer of a dollar to a victim of a product accident through the liability system requires more than a dollar on average in legal expenses. Given the limited nature of the benefits and the high costs of product liability, we come to the judgment that its use is often unwarranted. This is especially likely for products for which market forces and regulation are relatively strong, which includes many widely sold products. Our generally skep

Property Rules, Liability Rules, and Inalienability: One View of the Cathedral

December 2007


1,430 Reads

Professor Calabresi and Mr. Melamed develop a framework for legal analysis which they believe serves to integrate various legal relationships which are traditionally analyzed in separate subject areas such as Property and Torts. By using their model to suggest solutions to the pollution problem that have been overlooked by writers in the field, and by applying the model to the question of criminal sanctions, they demonstrate the utility of such an integrated approach.

Despite Preemption: Making Labor Law in Cities and States

March 2011


21 Reads

The preemption regime grounded in the National Labor Relations Act (NLRA) is understood to preclude state and local innovation in the field of labor law. Yet preemption doctrine has not put an end to state and local labor lawmaking. While preemption has eliminated traditional forms of labor law in cities and states, it has not prevented state and local reconstruction of the NLRA’s rules through what this Article terms “tripartite lawmaking.” The dynamic of tripartite lawmaking occurs when government actions in areas of law unrelated to labor — but of significant interest to employers — are exchanged for private agreements through which unions and employers reorder the rules of union organizing and bargaining. These tripartite political exchanges produce organizing and bargaining rules that are markedly different from the ones the federal statute provides but that are nonetheless fully enforceable as a matter of federal law.By describing the phenomenon of tripartite lawmaking, this Article allows for a more complete understanding of the local role in contemporary labor law. But the existence of tripartite lawmaking also reveals important characteristics of federal preemption more generally. In particular, the potential for tripartite lawmaking within the confines of formally preemptive regulatory regimes points to the limits of preemption’s ability to allocate regulatory authority among different levels of government and deliver a uniform, national system of law. State and local lawmaking that occurs through the tripartite dynamic also has a number of distinctive features that become visible once we recognize the existence of this form of lawmaking. As this Article suggests, moreover, tripartite lawmaking is likely not limited to the labor context but may occur wherever federal preemption coexists with the possibility for private ordering.

A New Approach to Corporate Reorganization

June 2003


101 Reads

This article proposes a new method of dividing the reorganization pie among the participants in corporate reorganizations. This method, I argue, can address the substantial efficiency and fairness problems that afflict the existing process of division. Under the proposed method, participants will receive certain rights with respect to the reorganized company's securities; these rights will be designed so that, whatever the reorganization value is, no participant will have a basis for complaining that he is receiving less than the value to which he is entitled. Although I propose the method as a basis for law reform, I show that it also can be used under the existing reorganization rules.

Physique and Delinquency

February 1957


100 Reads

Continued analysis of data collected in the authors' "Unraveling juvenile delinquency" (1950) has led to the investigation of body types in relation to the 500 delinquents matched with 500 non-delinquents. This volume presents the rationale, the goal, the design, the method, and the results from this specific analysis of the data. There are 16 chapters and 6 appendices, the first of which in the latter instance is entitled "Explanation of statistical method" and is authored by Jane Worcester. The final appendix deals with the Rorschach test as it related to psychiatric findings. (PsycINFO Database Record (c) 2012 APA, all rights reserved)

The Proper Role of a Target's Management in Responding to a Tender Offer

December 2007


176 Reads

Under existing federal and state law, a corporation's managers can resist and often defeat a premium tender offer without liability to either the corporation's shareholders or the unsuccessful tender offeror. Professors Easterbrook and Fischel argue that resistance by a corporation's managers to premium tender offers, even if it triggers a bidding contest, ultimately decreases shareholder welfare. Shareholders would be better off, the authors claim, were such resistance all but proscribed. The authors consider, but find wanting, a number of potential criticisms of their analysis; they conclude by proposing a rule of mangerial passivity capable of controlling resistance in actual cases.


July 2008


29 Reads

In law and politics, some people are trimmers. They attempt to steer between the poles. Trimming might be defended as a heuristic for what is right, as a means of reducing political conflict over especially controversial questions, or as a method of ensuring that people who hold competing positions are not humiliated, excluded, or hurt. There are two kinds of trimmers: compromisers, who follow a kind of "trimming heuristic" and thus conclude that the middle course is best; and preservers, who attempt to preserve what is deepest in and most essential to competing reasonable positions, which they are willing to scrutinize and evaluate. It is true that in some cases, trimming leads to bad results in both politics and law, including bad interpretations of the Constitution. It is also true that trimmers face difficult questions about how to ascertain the relevant extremes and that trimmers can be manipulated by those who are in a position to characterize or to shift those extremes. Nonetheless, trimming is an honorable approach to some difficult questions in both law and politics, and in many domains, it is more attractive than the alternatives. In constitutional law, there are illuminating conflicts among those who believe in trimming, minimalism, rights fundamentalism, and democratic primacy.



Race, Region, and Vote Choice in the 2008 Election: Implications for the Future of the Voting Rights Act

August 2009


127 Reads

The election of an African American as President of the United States has raised questions as to the continued relevance and even constitutionality of various provisions of the Voting Rights Act (VRA). Barack Obama’s apparent success among whites in 2008 has caused some to question the background conditions of racially polarized voting that are key to litigation under Section 2 of the VRA. His success in certain states, such as Virginia, has also raised doubts about the formula for coverage of jurisdictions under Section 5 of the VRA. This Article examines the data from the 2008 primary and general election to assess, in particular, the geographic patterns of racial differences in voting behavior. The data suggest that significant differences remain between whites and racial minorities and between jurisdictions that are covered and not covered by Section 5 of the VRA. These differences remain even when controlling for partisanship, ideology and a host of other politically relevant variables. The Article discusses the implications of President Obama’s election for legal conceptions of racially polarized voting and for decisions concerning which jurisdictions Section 5 ought to cover.

Abolishing Diversity Jurisdiction: Positive Side Effects and Potential for Further Reforms

March 1979


38 Reads

The possibility of abolishing the general diversity jurisdiction of the federal courts has received increasing attention with the passage of an abolition bill by the House of Representatives in 1978. Discussion of abolition has tended to focus on such issues as the importance of reducing federal court caseloads, the appropriateness of transferring state law cases to state courts, and the extent to which prejudice against out-of-staters survives in state courts. Professor Rowe suggests that there would be several little-noticed but significant effects of abolishing diversity jurisdiction. He argues that abolition would elminate or greatly reduce some of the major difficulties in federal practice and procedure, make possible judicial rationalization of some areas of ancillary and pendent jurisdiction, and facilitate further statutory or rule reforms in the federal courts. The article concludes that these effects provide important additional support for abolition.

A Dangerous Direction: Legal Intervention in Sexual Abuse Survivor Therapy

February 1996


18 Reads

In this Article, Professors Bowman and Mertz question recent popular and academic commentary that disputes the validity of all delayed-recall memories of childhood sexual abuse. They examine one court's decision to allow a father, accused by his daughter of childhood sexual abuse, to recover malpractice damages from his daughter's therapist in connection with therapy during which the daughter recovered memories of the abuse. The authors argue that such third-party liability is unsound in terms of established principles of tort doctrine and in terms of public policy. After a review of the scientific evidence, the authors further conclude that, although some memories may be inaccurate, delayed-recall memory can also accurately reflect that past abuse occurred. Permitting third-party liability against therapists when accurate memories of abuse surface in therapy gives abusers a weapon to use against their victims. Because such suits exclude the party in privity (the client), they effectively erase the victim's voice. Professors Bowman and Mertz argue that such a novel extension of third-party liability is at best a misuse of the courts' resources and ultimately harms abuse survivors, therapists, and the community far more than it helps any wrongfully accused parents.

Hamdan v. Rumsfeld: The Legal Academy Goes to Practice

November 2006


36 Reads

This essay, for the annual Supreme Court issue of the Harvard Law Review, uses Hamdan to illustrate why the disparagement of theory in law schools is partially wrong. By examining a few of the litigation choices made in the case, it demonstrates some of the benefits of theory to practice. At least three different theoretical tools were involved in Hamdan: (1) cognitive psychological research on framing effects and bias toward compromise; (2) theoretical inquiry into the timing of Supreme Court litigation and the passive virtues; and (3) economic analysis of penalty default rules and political science research on the veto. The study of such tools in law schools is widely - and incorrectly - believed irrelevant to practice. At the same time, it is easy to overstate the case for theory, as contemporary legal scholars frequently do. The truth is that very few top law schools today prepare all of their students to be lawyers. Some lessons along this dimension from the Hamdan case are explored as well, including the teaching of lawyering skills. The essay also analyzes the implications of the Hamdan decision, concentrating on two central holdings: (a) the President cannot set aside or creatively interpret laws of Congress under claims of inherent authority, and (b) treaties ratified by the Senate constrain the exercise of executive power, and the President does not have unfettered ability to interpret such treaties as he chooses. As to (A), the most important doctrinal lesson of Hamdan is its repudiation of the claim that the President is entitled to act alone. Indeed, Hamdan stands as a defining moment in constitutional law because it integrates the modern communication and transportation revolution into constitutional analysis. As to (B), the Court's decision might best be explained on the ground that the President lacked support not only from Congress, but also from the executive branch's own experts. Hamdan second-guessed the President's interpretations on this view because those interpretations had not earned the approval of the bureaucracy, including the Judge Advocates General and the State Department. Through bypassing the interagency process, and squelching expertise under the aegis of political accountability, the Administration weakened the rationale for deference all on its own.

The Problem of Resource Access

September 2012


23 Reads

The Coasean insight that transaction costs stand between the world as we know it and an ideal of perfect efficiency has provided generations of law and economics scholars with an analytic north star. But for legal scholars interested in the efficiency implications of property arrangements, transaction costs turn out to constitute an unhelpful category. Transaction costs are related to property rights in unstable and contested ways, and they comprise a heterogeneous set of impediments, not all of which are amenable to cost-effective reduction through law. Treating them as focal confuses the cause of our difficulties in structuring access to resources (positive transaction costs) with the solution to the problem presented by a world featuring scarce resources and positive transaction costs. A broader notion of resource access costs, appropriately subdivided, can correct problems of overinclusion, underinclusion, and insufficient specification in the transaction cost concept. The resulting analytic clarity will allow property theorists to contribute more usefully to solving resource problems.Note: This paper previously circulated under the title "Resource Access Costs"

Antidiscrimination and Accommodation

December 2001


80 Reads

The canonical idea of "antidiscrimination" in the United States condemns the differential treatment of otherwise similarly situated individuals on the basis of race, sex, national origin, or other protected characteristics. Starting from this perspective, legal requirements that actors take affirmative steps to "accommodate" the special, distinctive needs of particular groups, such as individuals with disabilities, by providing additional benefits or allowances to them strike many observers as fundamentally distinct from, broader than, and often less legitimate than legal requirements within the canonical "antidiscrimination" category. On this ground, observers sharply contrast Title VII of the Civil Rights Act of 1964 and other older civil rights enactments, said to be "antidiscrimination" laws, with the Americans with Disabilities Act of 1990 (ADA) and the Family and Medical Leave Act of 1993 (FMLA), said to be "accommodation" laws. On these observers' view, "antidiscrimination" focuses on "equal" treatment, while "accommodation" focuses on "special" treatment.The goal of this paper is to intervene in two respects in this longstanding discussion over the relation-ship between antidiscrimination and accommodation. The first point it makes is that, in a broader respect than has generally bee appreciated, some aspects of antidiscrimination law--in particular of its disparate impact branch--are in fact requirements of accommodation. In such instances it is hard to resist the conclusion that antidiscrimination and accommodation are overlapping rather than fundamentally distinct notions, despite the frequent claims of commentators to the contrary. The overlap between the two concepts, I suggest, also sheds light on the question of Congress's power under Section 5 of the Fourteenth Amendment to enact laws (such as the FMLA) that expressly mandate the provision of particular employment benefits directed toward specific groups of employees.The second point the paper makes is that even those aspects of antidiscrimination law that are not in fact accommodation requirements in the sense just described are similar to accommodation requirements in respects that have not previously been understood. The point is clearest--and has been recognized previously--in situations in which antidiscrimination law prohibits employer behavior based on customer or coworker dislike of a particular group; here antidiscrimination law fairly obviously operates to require employers to ignore undeniable financial costs associated with the disfavored group of employees, and thus in a real sense to "accommodate" these employees. But, as I describe, the parallel between antidiscrimination and accommodation is broader and embraces additional aspects of antidiscrimination law as well.This second point, in addition to suggesting that antidiscrimination shares such previously unrecognized parallels with accommodation, is of independent interest in showing how antidiscrimination law may be analyzed using a supply and demand framework drawn from economics. The analysis I offer here builds upon and extends John Donohue's well-known work in this area.

In Defense of Foxes Guarding Henhouses: The Case for Judicial Acquiescence to Incumbent-Protecting Gerrymanders

November 2002


87 Reads

Responding to Samuel Issacharoff's forthcoming article, "Gerrymandering and Political Cartels," this article argues against judicial intervention in the redistricting process to prevent incumbent-protecting gerrymanders. The first half of the article presents empirical research that demonstrates a high rate of turnover in state legislatures and in the U.S. House of Representatives, frequent changes in partisan control of state legislative chambers, a surprisingly high number of congressional districts that are competitive in presidential elections, and similar rates of incumbent reelection in the U.S. House and U.S. Senate. The data suggest that, whatever the harms of incumbent-protecting gerrymanders, legislative entrenchment is not one of them. The article then considers the benefits of incumbent protection for values of representation and governance. Finally, in analyzing the redistricting commissions currently in existence, the article suggests that nonpartisan redistricting would be nearly impossible to institutionalize even if it were desirable in theory.

Autonomy, Peace, and 'Put' Options in the Mass Tort Class Action

December 2001


48 Reads

This article focuses on the use of multibillion-dollar class settlements as vehicles for the wholesale resolution of mass tort litigation. Class actions in the mass tort context differ in kind from class actions in such familiar areas as consumer, antitrust, and securities law. In the mass tort context, there is a preexisting regime in which class members realistically can sue on an individual basis: namely, the tort system. The challenge at the heart of the mass tort class action lies in the design of the private administrative compensation systems characteristically created by class settlements - specifically, in the degree to which those private systems aspire to replace, or to compete over time with, the existing tort system. This article frames these issues of settlement design in terms of an underlying tension between autonomy for class members (their power to control the litigation of their individual tort claims) and peace for defendants. In institutional terms, class settlements stand in uncharted territory between public legislation (which may displace the tort system prospectively) and aggregate settlements (capable only of resolving groups of individual tort claims already pending). The article initially discusses the class settlement process in terms of the progress of mass tort litigation over time. The further that one proceeds in the mass tort litigation cycle, the more likely it is that defendants will seek solutions akin to public legislation but that lack its procedural legitimacy. The asbestos class settlements struck down by the Supreme Court in Amchem Products, Inc. v. Windsor and Ortiz v. Fibreboard Corp. sought to afford "global peace" to defendants but only by constricting dramatically the autonomy that class members otherwise would have had in tort. The Supreme Court cast its decisions in terms of the procedural requirements for class certification. But, this article argues, those decisions are best understood in terms of their implications for the permissible structure of mass tort settlements themselves - what they may legitimately seek to achieve as a matter of tort law. Drawing upon the recent class settlement in the fen-phen litigation, the article argues that courts and commentators should conceptualize mass tort class settlements in terms of options in corporate finance. The fen-phen settlement confers upon class members the rough equivalent of a put option - the power, if they choose, to compel the purchase of their existing right to sue in exchange for the compensation terms specified in the class settlement. Like put options in the stock market, the put options in the fen-phen settlement do not come free. The premium for the option consists of protection for defendants against the most normatively objectionable feature of punitive damage claims in the mass tort context - the prospect of excessive punishment through duplicative punitive damage awards. The article explains the strategic dynamics behind this settlement structure, discusses how the structure may be generalized to other mass torts, and advances a normative argument for the appropriateness of the trade of put options for the opportunity to seek punitive damages. The upshot is to identify a specific, recurring form of exchange that can afford a meaningful modicum of peace for defendants while, at the same time, respecting the individual autonomy of class members.

Rights, Rules and the Structure of Constitutional Adjudication: A Response to Professor Fallon

January 1999


16 Reads

Constitutional doctrine is typically rule-dependent. A constitutional challenge is typically viable only if there exists a discriminatory, overbroad, improperly motivated, or otherwise invalid rule, to which the claimant has some nexus. In a prior article, Rights against Rules: The Moral Structure of American Constitutional Law, 97 Michigan Law Review 1 (1998), I proposed one model of constitutional adjudication that is consistent with rule-dependence (the Adler Model). Under the Adler Model, the function of reviewing courts is not to vindicate the personal rights of claimants but is instead to repeal or amend constitutionally invalid statutes and other rules. Professor Fallon now puts forward a different model of constitutional adjudication, equally consistent with rule-dependence. See Richard H. Fallon, Jr., As-Applied and Facial Challenges and Third-Party Standing, 113 Harv. L. Rev. 1321 (2000). Fallon suggests that a reviewing court should overturn the application of a constitutionally invalid rule to a given claimant if and only if that rule contains no valid severable "subrule" that includes the claimant; and he criticizes the Adler Model on various counts, in particular for severing the connection between constitutional adjudication and personal rights. In this response to Professor Fallon's article, I reply to Fallon's criticisms and, more generally, attempt to demonstrate that the Fallon Model is not supported by various considerations that might seem to favor it. The Fallon Model is a better account of rule-dependence than the Adler Model only if the Fallon Model better implements constitutional norms, and Professor Fallon has not shown or even tried to show that it does.

The Constitutional Commitment To Legislative Adjudication in the Early American Tradition

April 1998


3 Reads

Americans in early New York, and likely in many of its sister provinces, created a distinctive constitutional tradition - they gave their political representatives the authority to interpret public law by making the legislature the forum that resolved claims against the government for money. That constitutional commitment to legislative adjudication profoundly affected the experience of government. The assembly became the center of everyday provincial administration in practice, and claimed a corresponding stature in theory, as the institution that protected the people's property in a newly literal sense. Legislative adjudication connected constituents directly to their representatives over matters of right; the interaction produced a novel kind of legality. Participants regarded the process of determining claims as one that involved law and legal obligation. At the same time, representatives treated the act of defining public debts as an important political matter. The tension created by a regime in which rights were both binding on the government and yet dependent on balancing public and private ends was mediated by the "public faith." The constitutional order of the community depended on whether, and how far, legislators could keep that faith.

Adjudication and Its Discontents: Coherence and Conciliation in Federal Indian Law

August 1997


7 Reads

Federal Indian law is rooted in conflicting principles that leave the field in a morass of doctrinal and normative incoherence. In this Commentary, Professor Frickey begins by criticizing two recent efforts to bring coherence to this field. One approach, which narrows the scope of inquiry and attempts to apply non-normative doctrinal analysis, ignores the fictional nature of much federal Indian law doctrine and fails to appreciate the significance of normative and historical principles lurking behind the doctrine. The other approach, which seeks to construct a single descriptive paradigm from the case law, fails because federal Indian law precedents do not lend themselves to a unified theory. Professor Frickey suggests that greater coherence and respect for basic normative principles are likely to result from conceiving of the field as involving the process of negotiation among sovereigns rather than of adjudication in federal court.

Adjusting Alienability

March 2009


42 Reads

In recent years, the right to exclude has dominated property theory, relegating alienability - another of the standard incidents of ownership - to the scholarly shadows. Law and economics has also long neglected alienability; despite the inclusion of inalienability rules in Guido Calabresi and Douglas Melamed's celebrated 1972 Harvard Law Review article, alienability restrictions have entered economic discussions mostly as anomalies, and usually in the company of an entitlement whose suitability for market transfer is hotly contested. In this paper, I explore inalienability rules as tools for achieving efficiency (or other ends) when applied to resources that society generally views as appropriate objects of market transactions. Specifically, I focus on inalienability's capacity to alter upstream decisions by would-be resellers about whether to acquire an entitlement in the first place. By influencing these acquisition decisions, inalienability rules can buttress or substitute for other adjustments to the property bundle in addressing resource dilemmas. Of particular interest is the possibility that limits on alienability could sidestep the holdout problems that have often spurred resort to liability rules, and could do so without interfering as profoundly with the owner's autonomy interests. While alienability limits carry well-known disadvantages, they might be structured in ways that would reduce those drawbacks. Recognizing the full potential of alienability limits in addressing resource dilemmas requires applying the same level of creativity to devising inalienability rules as has previously been applied to the design of liability rules.

An Equilibrium-Adjustment Theory of the Fourth Amendment

October 2011


103 Reads

Fourth Amendment law is often considered a theoretical embarrassment. The law consists of dozens of rules for very specific situations that seem to lack a coherent explanation. Constitutional protection varies dramatically based on seemingly arcane distinctions.This Article introduces a new theory that explains and justifies both the structure and content of Fourth Amendment rules: The theory of equilibrium-adjustment. The theory of equilibrium-adjustment posits that the Supreme Court adjusts the scope of protection in response to new facts in order to restore the status quo level of protection. When changing technology or social practice expands government power, the Supreme Court tightens Fourth Amendment protection; when it threatens government power, the Supreme Court loosens constitutional protection. Existing Fourth Amendment law therefore reflects many decades of equilibrium-adjustment as facts change. This simple argument explains a wide range of puzzling Fourth Amendment doctrines including the automobile exception; rules on using sense-enhancing devices; the decline of the “mere evidence” rule; how the Fourth Amendment applies to the telephone network; undercover investigations; the law of aerial surveillance; rules for subpoenas; and the special Fourth Amendment protection for the home. The Article then offers a normative defense of equilibrium-adjustment. Equilibrium-adjustment maintains interpretive fidelity while permitting Fourth Amendment law to respond to changing facts. Its wide appeal and focus on deviations from the status quo facilitates coherent decisionmaking amidst empirical uncertainty and yet also gives Fourth Amendment law significant stability. The Article concludes by arguing that judicial delay is an important precondition to successful equilibrium-adjustment.

The Ascent of the Administrative State and the Demise of Mercy

March 2008


43 Reads

It is not news to anyone familiar with criminal law and sentencing that we live in punitive, unforgiving times. Although scholars have sought to explain the rise in punishment and the incarceration boom of the past few decades, very little work has focused on the reasons why forms of mercy have been on the decline. Specifically, scholars have not done much to explore why the unreviewable power to be merciful through pardons and nullification is currently looked upon with such disfavor. While the same political climate that produces greater punishment also depresses mercy, that account is an incomplete one. As this Essay explains, skepticism about the jury's nullification power and executive clemency has its roots in another development: the rise of the administrative state and the key concepts of law that have emerged alongside it. This Essay argues that administrative law weakens these exercises of mercy in two key respects. First, with the rise of administrative law, our legal culture has come to view unreviewable discretion to decide individual cases as the very definition of lawlessness, and a variety of doctrines ensure that almost all exercises of agency discretion are reviewable. Second, the development of the administrative state is a significant part of the reason that our legal culture focuses on the courts ¿ and courts alone ¿ to prevent unfair applications of the law. Jury nullification and an unqualified executive power to grant clemency sit uneasily beside this administrative state because both forms of mercy give untrained individuals unreviewable power to make important decisions. Despite this tension with administrative law, this Essay concludes by highlighting key differences between administrative power and the exercise of mercy in criminal cases and offering some preliminary thoughts on why unreviewable decisions to grant leniency should still have a place in the criminal justice system.

When Do Policy Innovations Spread? Lessons for Advocates of Lesson-Drawing

April 2006


17 Reads

In recent years, the European Union (EU) has begun a gradual shift from traditional regulatory policymaking toward more flexible methods of coordination. For instance, while directives setting minimum regulations once dominated EU employment policy, since 1997, the Open Method of Coordination (OMC) has come to the forefront, emphasizing benchmarking, monitoring, and exchange of best practices. Similar "soft coordination" strategies have begun in many other areas of EU policymaking, including economic policy, tax competition policy, social inclusion and pensions policy, and environmental policy. High expectations combined with thin evidence regarding the consequences of a shift toward cooperative governance have led to a polarized debate. To specify the circumstances in which OMC-type efforts succeed and fail, this Note reviews empirical evidence from the literatures on diffusion and policy transfer to answer four questions: Who copies? What is imitated? Which relationships facilitate imitation? How does learning shape the policy process? This research suggests that the OMC holds substantial promise to advance EU integration in a positive direction, as it brings disadvantaged actors to the focus of national debates and seems to have the greatest effects on the least developed member states.

The Aesthetics of American Law

April 2007


79 Reads

Before the ethical dreams and political ambitions of law can even be articulated, let alone realized, the aesthetics of law have already shaped the medium within which those projects will have to do their work. This work attempts to retrieve and expose those recurrent forms that shape the creation, apprehension, and identity of law. What is at stake is an attempt to reveal the aesthetics within which American law is cast. The point is not simply to appreciate these aesthetics, but to understand how "substantive" conflicts in law are often motivated, sustained and circumscribed by the aesthetics through which they are manifested.

The Office of Information and Regulatory Affairs: Myths and Realities

December 2012


662 Reads

Since its creation in 1980, the Office of Information and Regulatory Affairs (OIRA), a part of the Office of Management and Budget (OMB), has become a well-established institution within the Executive Office of the President. This essay, based on public documents and the author’s experience as OIRA Administrator from 2009-2012, attempts to correct some pervasive misunderstandings and to describe OIRA’s actual role. Perhaps above all, OIRA operates as an information-aggregator. One of OIRA’s chief functions is to collect widely dispersed information – information that is held by those within the Executive Office of the President, relevant agencies and departments, state and local governments, and the public as a whole. Costs and benefits are important, and OIRA does focus on them (as do others within the Executive Branch, particularly the National Economic Council and the Council of Economic Advisers), above all in the case of economically significant rules. But for most rules, the analysis of costs and benefits is not the dominant issue in the OIRA process. Much of OIRA’s day-to-day work is devoted to helping agencies to work through interagency concerns, promoting the receipt of public comments on a wide range of issues and options (for proposed rules), ensuring discussion and consideration of relevant alternatives, promoting consideration of public comments (for final rules), and helping to ensure resolution of questions of law, including questions of administrative procedure, by engaging relevant lawyers in the executive branch. OIRA seeks to operate as a guardian of a well-functioning administrative process, and much of what it does is closely connected to that role.

The Communitarian State: Lawlessness or Law Reform for African-Americans?

April 1994


31 Reads

Two premises guide my exploration of a communitarian image of the state. First, the state has frequently acted in a lawless fashion toward African-Americans. The state has done so by failing, through both the abusive exercise of its power and the withholding of its laws, to protect people of African descent, beginning with slavery and continuing with the contemporary second-class citizenship experienced by many African- Americans. Second, only fundamental legal and political reforms designed to dismantle the structural causes of this lawlessness will ensure that racial subordination does not further divide America into a society of irreconcilableracial enclaves.This Article explores the potential of communitarianism as a reform theory to eliminate state lawlessness toward African-Americans. Communitarianism describes a set of ideas centered around the issues of community, moral education, and shared values. Communitarianism also rests largely on the idea that, through the exercise of our mutual responsibility to each other as citizens, we will build a stable political community. Proponents of communitarianism believe that American society's preoccupation with individual rights has diminished the capacity of both the state and private institutions to solve effectively the problems that plague our communities and threaten the social order.Proponents further contend that American society has lost sight of the importance of civic duty and of the role of the family, the school, the church, and the community in identifying and inculcating shared moral values. Ultimately, I argue that communitarianism cannot change the relationship between African-Americans and the state without the sharing of power and the eradication, rather than the mere control, of racism. Therefore, communitarianism is deficient unless modified from a race-conscious perspective.In evaluating communitarianism as an alternative to liberalism, I first substantiate in Part I the claim that African-Americans experience state lawlessness. In Part II, I describe the central tenets of communitarianism and use the claim of lawlessness to justify my critique of those tenets: communitarian theory perpetuates the practice of racial subordination in that it does not explicitly include African-Americans in the deliberative processes of defining community and values, which in turn may exclude African-Americans from participation in the state and ensure continued vulnerability of African-Americans to state lawlessness. In Part III, I offer revisions to communitarian theory to address the problems of subordination that continue to distort the relationship between African-Americans and the state. I conclude by asserting the need for fundamental personal and social change in order to avert potentially apocalyptic resolution of differences between dominant and subordinatecommunities.

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